Jalie vs. Cardinal and another. Cal., 557; Norcross v. Norcross, 53 Me., 163. It was a question of fact to be found by the jury upon all the evidence, and not one of law to be determined by the court, whether the plaintiff was a boarder and not a guest. Had a proper request been prepared, directing the attention of the jury to the evidence in that particular, and informing them that it was for them to decide whether under the circumstances the plaintiff was received by the defendants as a guest and the relation of landlord and guest existed between them, no doubt such request would have been granted. Had the court refused a request of that kind, it would doubtless have been error. The other request which was denied, was in these words: "That if the jury shall find, from the evidence, that the money and property in question was upon the person and under the exclusive control of the plaintiff at the time of the loss, the defendants are not liable." It will be observed from the statement of general principles above made, that this request was incorrect. Possession of money upon the person of the guest does not constitute such exclusive control and custody on his part as will exonerate the innkeeper, unless under certain peculiar circumstances. It has been held at common law, that if, after notice from the innkeeper that a safe was provided for money, and that he would not be responsible for its loss unless deposited therein, the traveler retains his money in his own possession or in his room, and it is stolen or lost, the innkeeper will not be liable. The decision was put upon the ground of negligence in the guest. The retention of his money by the plaintiff upon his own person did not excuse the defendants, unless the negligence or misconduct of the plaintiff induced the loss. It is likewise contended that the evidence disclosed such gross negligence on the part of the plaintiff that he ought not to have recovered, and that the verdict was against evidence. It was formerly supposed that only gross negligence on the part VOL. XXXV.—9 Jalie vs. Cardinal and another. of the guest would prevent a recovery, but it is now settled that a want of ordinary care contributing to the loss will have that effect. Some strong facts and circumstances tending to prove negligence on the part of the plaintiff were shown; but the question was fairly submitted to the jury, and they have found in his favor. The effort was to show that he was intoxicated when he retired to his room, about eleven o'clock in the day, and that he was negligent in not finding the key in his door, and in not locking the door. In Calye's Case, 8 Coke, 32, 1 Smith's Leading Cases [*194], it was resolved, as a proposition of law, to be "no excuse for the innkeeper that he delivered the guest the key of the chamber in which he lodged, and that he left the chamber door open." This would hardly be accepted or held as matter of law now-a-days, and indeed is not, but is a question of fact for the jury. It is for the jury to say whether such conduct on the part of the guest constitutes negligence or not, under the circumstances. Negligence in cases of this na ture, as in all others, is one of fact for the jury, unless the evidence is too plain and positive to admit of doubt or controversy, when the court will be justified in taking the case into its own. hands and directing a verdict. We cannot say, in view of the very stringent liability of innkeepers, and of the authorities, that the court would have been justified in doing so in this case, and hence can not disturb the verdict as being against the evidence. If drunk, the plaintiff might still have claimed the protection of his host, as did Falstaff, when he fell asleep "behind the arras," and might say with him: "Shall I not take mine ease in mine inn, but I shall have my pocket picked?" which seems to be a further proof, not noticed by the advocates of that theory, that Shakespeare was a lawyer, and therefore that Bacon wrote Shakespeare. A third request refused related to the liability of the defendants as partners, which, if admitted to have been correct in law, has now become immaterial, since the jury have found that the Johannesson vs. Borschenius. partnership existed at the time the money was lost, and was not entered into afterwards, as assumed in the request. By the Court Judgment affirmed. JOHANNESSON VS. BORSCHENIUS. TROVER: DAMAGES. (1) Rule as to damages in trover; the action not maintainable against one having legal title. (2) When damages recoverable in assumpsit, but not in trover. (3) Damages for breach of contract not recoverable in action of tort. REVERSAL OF JUDGMENT. (4) Admission of improper evidence generally fatal to the judgment. (5) The rule applied. 1. Defendant bid off forfeited school lands, at a public sale thereof, paid the amount required, and took from the proper officers the usual re ceipt, which stated that such payment by him entitled him to certifi cates for such land upon return of the receipt to the office of the sec retary of state. This receipt he delivered to plaintiff with an indorsement thereon, signed by himself, to the effect that for value received ($75.00) he assigned, transferred and set over to plaintiff the lands called for in said receipt. Afterwards he obtained from the land office the certificates of sale of said lands, and also got possession of said indorsed receipt, and refused for some time to assign and deliver the former or return the latter to plaintiff. Held, in an action as for the conversion of said papers, etc., (1.) That plaintiff could recover in such action damages for the trouble, loss and expense to which he had been subjected in consequence of defendant so retaining the receipt, including the expense to which he was put in recovering the same, and such punitive damages as the jury should think defendant ought to pay in case they found his conduct on the occasion of such conversion to have been fraudu lent and oppressive, malicious or insulting. (2.) That defendant was the legal owner of the certificates (although plaintiff might have had a remedy in equity to compel an assignment and delivery of them to himself); and plaintiff could not maintain the action for a conversion of such certificates. 2. It seems that whatever expense, trouble or loss of time plaintiff incurred in procuring the assignment and delivery to him of the certificates, Johannesson vs. Borschenius. and in setting aside a patent issued thereon to a third person to whom defendant had previously assigned them, might be recovered for inan action in the nature of assumpsit, for a breach of plaintiff's implied promise not to take the certificates or the patent, or the title of the land, to himself or any third person. 3. The essential difference between actions ex delicto and actions ex contractu, in the form and effect of the judgments therein, forbids the recovery in an action of tort of damages for a breach of contract, if any proper objection be taken. Supervisors v. Decker, 30 Wis., 631; Anderson v. Case, 28 id., 505. 4. In general the admission of improper evidence, against appellant's objection, is fatal to the verdict and judgment, unless the jury were positively directed to disregard it; and even then the error will not be cured if it appears that the verdict was in any way affected by it to appellant's injury. 5. Plaintiff was permitted, against objection, to give evidence of the expense and trouble to which he was put about the certificates and for the purpose of setting aside the patent. The jury were instructed, however, that no damages could be allowed plaintiff "in any manner arising from the withholding of said certificates," nor for his attorney's fees paid or charged for their recovery, and none for his own time spent in the effort to obtain them from defendant. No specific instructions were given as to plaintiff's troubic and expense in and about setting aside the patent. Held, on defendant's appeal, that the effect of this evidence upon the verdict for plaintiff cannot be known; and the judgment must be reversed. APPEAL from the Circuit Court for Dane County. Action for the alleged conversion by defendant of a receipt given by the state treasurer and secretary of state, at a sale of forfeited school lands, entitling defendant to certificates for the land upon return of the receipt to the office of the secretary of state, and also for the alleged conversion of the school land certificates. The complaint contained two counts, one for the conversion of the receipt, the other for the conversion of the certificates. It appeared in evidence that Borschenius attended the sale of forfeited school lands, and bid in a particular tract of land, for which he received the receipt in question. He afterwards agreed with Johannesson to sell him the land for $75 cash and the money due the state. Plaintiff paid the $75, and defend Johannesson vs. Borschenius. ant delivered to him the receipt, having indorsed on it the fol lowing: "For value received ($75.00), I hereby assign, transfer and set over [to] Andreas Johannesson the lands called for in the within receipt. Dated Dec. 11th, 1871. H. BORSCHENIUS." Borschenius afterwards obtained the certificates, and sold them to one Washburn, to whom the land was patented, and also obtained possession of the receipt, which he retained. for a short time and then re-delivered to Johannesson. He afterwards caused the patent to be canceled, and re-assigned and delivered the certificates to Johannesson. Plaintiff was allowed to give evidence of trouble and expenses incurred by him, including attorney's fees, not only for the purpose of getting the receipt returned, but also for the purpose of obtaining possession of the certificates, and of having the patents issued to Washburn set aside; and he testified that he lost one month's time, worth $3 per day, in getting the matter all set right, and that his attorney's charges were $150. The instructions of the court are sufficiently stated in the opinion. Verdict for plaintiff, for $200 damages; and judgment thereon; from which defendant appealed. Vilas & Bryant, for appellant, argued that the school land certificates were the defendant's by legal title, and had never been assigned to the plaintiff, or in his possession. If he had any interest whatever, derived from the assignment on the back of the receipt, it was equitable, and to the land rather than the certificates. Jarvis v. Dutcher, 16 Wis., 307, 316. Yet the court permitted evidence to go to the jury as to time spent and attorney's fees incurred in getting back the certificates, when such damage was not even charged in the complaint. See Barney v. Douglas, 22 Wis., 464; Birchard v. Booth, 4 id., 67. That this evidence improperly influenced the verdict of the jury, cannot reasonably be denied. There was nothing in the evidence to distinguish what, if any, of the expenses claimed flowed from the alleged conversion of the receipt, and what from the certifi cates, but it was all charged in gross. Even if the jury had |