and if not so on the part of defendants, it was something worse. It is proper to say, however, in this connection, that the evidence casts no imputation of actual fraud upon the defendants. It contains no suggestion that they knew, when they made the conveyance and received the consideration, that the wrong lands had been shown Derfus; and they are not to be censured because they refuse to refund the consideration until their liability to do so shall be determined judicially.

Our conclusion on this branch of the case is, that all of the material findings are supported by the testimony.

3. The only remaining question to be determined is, Do the facts found by the jury, and the undisputed facts not so found, support the judgment?

We understand the law of this case to be, that if the wrong land was pointed out to Derfus, whether intentionally or not, by an agent of the defendants, and the plaintiffs purchased believing that the right land had been shown Derfus, they may recover back the consideration paid therefor, although the defendants did not know, when the consideration was paid, that Derfus had been shown the wrong land, and although they made no representation to the purchasers of the amount of pine on the land; but if the person so showing the land was not the agent of the defendants, all other circumstances being as above supposed, the defendants are not liable in this action. This is the doctrine of Law v. Grant, 37 Wis. 548. Hence it becomes important to ascertain whether the person who showed Derfus the wrong land was or was not the agent of the defendants in that behalf.

The jury did not find that Seibert was the agent of defendants to sell their land, but the undisputed evidence establishes the fact that he was. The jury found that Seibert employed. Greeves to show Derfus the land. Was Greeves the agent of the defendants? The answer depends upon the question of Seibert's authority to employ a subagent for that purpose.

The rule is, that an agent in whom is reposed some trust or confidence in the performance of his agency, or who is required to exercise therein discretion or judgment, has no authority to intrust the performance of those duties to another, and thus bind the principal for the acts of the latter, without the consent of his principal. Numerous cases illustrating this rule will be found cited in 1 Am. & Eng. Ency. of Law, 368, note 4. On the other hand, an agent may appoint a subagent

to do acts in the course of the agency which do not call for the exercise of judgment or discretion, but which are purely executive or ministerial, and the principal is bound by the acts of such subagent: Renwick v. Bancroft, 56 Iowa, 527; Lyon v. Jerome, 26 Wend. 485; 37 Am. Dec. 271; Ewell's Evans on Agency, *43, and cases there cited.

In this case, the showing of the land to Derfus was a mere executive or ministerial act, requiring no exercise of judgment or discretion, and it was therefore entirely competent for Seibert to employ Greeves to perform it. It may be observed here that the defendants knew that Greeves had been selected by Seibert to show Derfus the land, and made no objection thereto. Indeed, it seemed to be a very proper appointment, for Greeves had been upon the land, and estimated the timber thereon, and of course knew the location thereof, while it does not appear that Seibert ever saw the land. For the above reasons, it must be held that Greeves was the agent of the defendants for the purpose of showing the lands to Derfus, and the defendants are responsible for the manner in which he performed the duties of such agency.

Greeves did not in person point out the land to Derfus, but he did so just as effectually as though he had gone upon the land in person and told Derfus that it was the defendants' land, for the purchase of which he was negotiating. He told Kirwin what particular tract of land he was to show Derfus, and Kirwin showed him such tract as he was directed to do. Thus Kirwin was the mere instrument of Greeves, and his act in thus pointing out the land was, in substance and legal effect, the act of Greeves, the agent of the defendants. Hence there is no question in the case as to whether Kirwin was or was not the agent of the defendants in what he did. Literally obeying the orders of Greeves, as he did, his acts were the acts of Greeves. An agent who, because of the trust and confidence reposed in him by his principal, cannot bind his principal by the acts of a subagent may still employ another to do some specific act in the business of his agency, and if such other do that act as directed, the principal is liable, not because the person performing the act is his agent, but because the act is the act of his agent who directed it to be done.

It follows, from the foregoing views, that the defendants are liable for the act of their agent in thus showing Derfus the wrong land, although he did so through the instrumentality of Kirwin.

4. But the judgment may be upheld on another ground. The jury found that the defendants made a statement to Derfus before the sale as to how much pine timber there was on the land, that the plaintiffs relied upon such statement in making the purchase, and that the same was false. The only statement on that subject mentioned in the testimony is, that there were at least two million feet of pine timber on the land; hence it must be inferred that this is the statement which the jury found was made by the defendants to Derfus. Under the circumstances of the case, the plaintiffs are excusable for not verifying the accuracy of such statement by actual inspection of the land; and under the above finding, without regard to the question of agency, the plaintiffs are entitled to recover. And it is quite immaterial that the defendants did not know at the time that such statement was false: Miner v. Medbury, 6 Wis. 295.

The judgment of the circuit court is affirmed.

AGENCY-RIGHT TO APPOINt Subagent. An agent may delegate his powers to a subagent, when they do not require the exercise of discretion or judgment: Sayre v. Nichols, 7 Cal. 535; 68 Am. Dec. 280; Lyon v. Jerome, 26 Wend. 485; 37 Am. Dec. 271.

False representations

CONTRACTS-FALSE REPRESENTATIONS - FRAUD. as to material matters constitute a defense to an action upon a contract, even though their falsity was unknown to the party making them: Note to Chatham F. Co. v. Moffatt, 9 Am. St. Rep. 730; Davis v. Nuzum, 72 Wis. 439; Labbe v. Corbett, 69 Tex. 503; Ingalls v. Miller, 121 Ind. 188; Chase's Appeal, 57 Conn. 237; Holcomb v. Noble, 69 Mich. 396.

RESCISSION.

VENDOR AND Vendee ·CONTRACTS FOR SALE OF REALTYWhere a vendes is entitled to rescind a contract for the sale of land by reason of the vendor's fault, he may sue in assumpsit, and recover the money already paid to the vendor: Wright v. Dickinson, 67 Mich. 580; 11 Am. St. Rep. 602, and note; and to the same effect, substantially, is Ingalls v. Miller, 121 Ind. 188.

CRONKHITE v. TRAVELERS INSURANCE COMPANY OF HARTFORD, CONNECTICUT.

175 WISCONSIN, 116.]

INSURANCE AGAINST ACCIDENT - PRESUMPTION OF CAUSE OF INJURIES. Upon proof being made to the effect that the decedent, who was insured against death by accident, appeared at his home with marks of extreme violence visible upon his back, which seemed to have been in. flicted recently, and from which he subsequently died, the presumption should be indulged that such injuries were not self-inflicted, nor caused by the negligence of the insured, but were the result of accident. INSURANCE AGAINST ACCIDENT - BURDEN OF PROOF. If it appears that the assured died from injuries received by him, the insurer must assume the burden of proving that such injuries resulted from some cause against which he did not insure, or that there had been some breach of some con. dition or agreement in the policy on account of which he is relieved from liability.

ACTION upon a policy of accident insurance issued to the plaintiff's deceased husband insuring him against loss of time or death "resulting from bodily injuries inflicted during the term of his insurance through external violence and accidental means." Among the conditions and agreements indorsed upon the policy were the following: "3. This insurance does not cover disappearances; nor suicide, sane or insane; nor injuries of which there are no visible marks upon the body; nor accident, nor death, nor of loss of limb or of sight, nor disability, resulting, wholly or partly, directly or indirectly, from any of the following causes, or while so engaged or af flicted: Disease or bodily infirmity, hernia, fits, vertigo, or sleep-walking, medical or surgical treatment (amputation necessitated solely by injuries, and made within ninety days of the occurrence of accident, excepted), intoxication or narcotics, taking poison, or contact with poisonous substances, inhaling gas, sunstroke or freezing, dueling or fighting, war or riot, intentional injuries (inflicted by the insured or by any other person), voluntary over-exertion, wrestling, lifting, racing, gymnastics, violating law, voluntary exposure to unnecessary danger." It appearing, at the trial, that the only evidence. which the plaintiff would be able to offer was to the effect that decedent was a conductor on a railroad; that he left his home to make a regular trip on the 17th of September, 1887, and returned on the 19th of the same month; that at the time of his return there were marks of extreme violence upon his back, apparently recently inflicted, and that these injuries were, in the opinion of physicians, sufficient to produce death. The

court thereupon ruled that from such evidence no presumption could arise that the plaintiff was entitled to recover, but that she must proceed further to show that the injuries were the result of accident by proving the manner in which they were inflicted, or the cause of them. A judgment of nonsuit having been granted, the plaintiff appealed.

Synon and Frost, for the appellant.

Cate, Jones, and Sanborn, for the respondent.

LYON, J. We think the court took an erroneous view of the law. Unless the injuries which are alleged to have caused the death of the insured were intentionally self-inflicted, or intentionally inflicted by some other person, or were received in dueling or fighting (in which case they would be intentional), the legal presumption is that they were accidental. No presumption can be indulged that the law has been violated, as it would have been were the injuries intentionally inflicted by another. On the contrary, the presumption is that they were not. Hence, had the plaintiff proved only that the insured, at a certain time, had upon his person bruises and wounds evidencing that he had been recently injured by external violence, and, further, that such injuries caused his death, she would have made out a prima facie case of death resulting from bodily injuries, "through external, violent, and accidental means." Were it claimed that the injuries were self-inflicted or were caused by the negligence of the insured, until such self-infliction or negligence should be affirmatively proved the same presumption of accident would prevail: Mallory v. Travelers Ins. Co., 47 N. Y. 52; 7 Am. Rep. 410; Travelers Ins. Co. v. McConkey, 127 U. S. 661; Freeman v. Travelers Ins. Co., 144 Mass. 572; Peck v. Equitable etc. Ass'n, 59 Hun, 255. In the opinions in the above cases will be found citations of numerous other cases holding the same doctrine.

Neither is there any presumption that the injuries which it is claimed caused the death of the insured resulted from any of the causes not covered by the policy, as specified in paragraph 3 of "agreements and conditions" indorsed upon it. The stipulations therein are not conditions precedent, and are not inserted in the body of the policy. They are separate provisos, qualifying the general words in the policy. It was held in Redman v. Etna Ins. Co., 49 Wis. 431, that in such case, if anything contained in the provisos will defeat the action, it is matter of defense. See also May v. Buckeye Mut.