of speed over a defective track, and deceased was thrown off and killed. The answer sets up that deceased was a trespasser, and was injured while trying to jump from a moving train, and denies generally the material allegations of the complaint. At the close of the evidence the court directed a verdict for the defendant, and ordered judgment for defendant dismissing the complaint. Judgment was entered accordingly, and plaintiff appeal ed.

The plaintiff offered some evidence that the switchman Crow invited deceased and three other boys with him to ride. This was positively denied by Crow. Moreover, under the rules of the defendant in force at the time of the injury, the switchman, Crow, had no authority to permit the boys to ride upon the train. It is also insisted by respondent's counsel that Crow had no apparent authority to invite or permit the boys to ride, and that the boys were bound to know this, and sev

Mark Catlin, of Appleton (Francis S. Brad-eral authorities are cited upon this point, ford, of Appleton, of counsel), for appellant. Edward M. Smart, of Milwaukee, for respondent.

KERWIN, J. (after stating the facts as above). The deceased was 16 years of age, worked for the Standard Manufacturing Company in the eastern part of the city of Appleton, Wis., and lived in the western part. Defendant's road ran to the place where deceased worked, and from there in a westerly direction to a point within a few blocks of where deceased lived. The train in question consisted of an engine and two box cars, and was being operated upon a side or switch track. The switchman, Mike Crow, was in charge of the switch engine and two cars in question. Plaintiff offered evidence tending to show that Crow invited the deceased and three other boys to ride, and that they got on the cars in accordance with the invitation, deceased taking a most dangerous position between the two cars with his feet on the brake beam under the car, and holding on the handhold at the rear end with his hands; that the track was rough and out of repair, and the train ran more than 12 miles an hour within the corporate limits of the city where deceased was injured.

While some of the witnesses testified in a general way that the train ran at a much greater speed than 12 miles an hour, it was established by their cross-examination and other credible, undisputed evidence and physical facts that the train at the time of injury was not running at a greater speed than 12 miles per hour.

Another ground of negligence charged was that a rail in the track was defective or broken. It is claimed that this broken rail was at the point of injury, and caused the deceased to be thrown from the car and killed. On this point also there was not sufficient evidence to carry the case to the jury. The evidence shows without substantial dispute that the defective rail was some 50 feet beyond the point where deceased was killed, and, moreover, deceased was riding on the opposite side of the track from the defective rail, and would not be affected by the jar of the car in running over the defective rail. It is also without dispute that the switchman Crow in charge of the train did not know of the dangerous position of deceased on the car.

among others, Driscoll v. Scanlon, 165 Mass. 348, 43 N. E. 100, 52 Am. St. Rep. 523; Railway Co. v. Bolling, 59 Ark. 395, 27 S. W. 492; Bowler v. O'Connell, 162 Mass. 319, 38 N. E. 498, 27 L. R. A. 173, 44 Am. St. Rep. 359; Clark v. Colorado & N. W. Ry. Co., 165 Fed. 408, 91 C. C. A. 358, 19 L. R. A. (N. S.) 988; Snyder v. Han. & St. Jos. R. R. Co., 60 Mo. 413; Schulwitz v. Delta L. Co., 126 Mich. 559, 85 N. W. 1075; Sweeden v. Atkinson I. Co., 93 Ark. 397, 125 S. W. 439, 27 L. R. A. (N. S.) 124.

It is argued that, upon the undisputed facts and authorities cited, the deceased was not a licensee, but a discovered trespasser, even if Crow's acts caused him to fall off; hence no duty rested upon the defendant or its servants, except not to wantonly injure him. We do not find it necessary to determine this question.

The track in question was a switch track and not a part of the main line. The train was not a passenger train, but merely a switch engine used to switch freight cars into position. The evidence is clear and undisputed that deceased was guilty of contributory negligence. It is also clear that the evidence was not sufficient to warrant the jury in finding that there was any negligence in operating the train, or defect in the track, which caused the injury. Moreover, there is no evidence that deceased was jarred or thrown from the train because of speed or defect in the track. On the contrary, there is evidence that he was injured in jumping off. After the injury deceased stated that he fell while jumping from the train. There are also other circumstances which corroborate this evidence. So it appears that there is a lack of proof that deceased was thrown off; hence no liability on any theory of the case is established. Shevlin v. American M. A. Ass'n, 94 Wis. 180, 68 N. W. 866, 36 L. R. A. 52; Breen v. Iowa C. Ry. Co., 143 N. W. 846; Stock v. Kern, 142 Wis. 219, 125 N. W. 447; Kaszubowski v. Johnson S. Co., 151 Wis. 149, 138 N. W. 54. Whether the defendant owed any duty to a mere licensee or discovered trespasser to keep its track in repair or observe statutory limitations as to speed within city limits we need not and do not decide. It follows that the judgment below is right, and must be affirmed.

The judgment is affirmed.

A foreign corporation may enforce in this state, as a contract pertaining to interstate commerce, a contract guaranteeing payment of tuition for a course of instruction in a corre[1, 2] 1. He asserts that the contract is not spondence school, though it has not complied supported by any legal consideration. This

ed this:

position is untenable for the reason that the by either the plaintiff or Johnston to induce written guaranty subscribed by the defend- the defendant to sign the guaranty. At the ant expresses on its face that it is based on a foot of the guaranty contract and immediatevaluable consideration. It also clearly ap-ly below the signature of defendant is printpears that the giving of the guaranty was clearly for the benefit of Johnston, the principal contractor. The consideration is clearly shown. Dahlman v. Hammel, 45 Wis. 466; Young v. Brown, 53 Wis. 333, 10 N. W. 394; Jansen v. Kuenzie, 145 Wis. 473, 130 N. W. 450, Ann. Cas. 1912A, 1241.

[3, 4] 2. It is claimed that defendant is not liable because it was shown that Johnston was a minor when the contract was made, and that he refused to be bound by the contract after payment of the first monthly installment of $3, and that he disaffirmed the contract soon thereafter. What steps were in fact taken by Johnston in disaffirmance of the contract are immaterial under the contract here involved and need not be further considered. It appears that the contract of guaranty was required by the plaintiff to secure payment of the price of scholarship in accordance with the terms of Johnston's subscription, because Johnston was a minor. The contract of guaranty in its terms is an absolute promise by the defendant for a valuable consideration to pay the price of the scholarship in case of Johnston's default. While it is the general rule in such cases that the liability of the principal debtor measures and limits the liability of the guarantor, this rule does not obtain universally. One of the exceptions to the rule is where the principal contractor is an infant. This and other instances, where the principal contractor is incapacitated to contract, are excepted from the general rule for the reason that want of capacity of the principal to contract is the very reason for requiring that some party capable of assuming the obligation be come a party thereto to secure its due performance, if the party legally incapacitated to assume it omits to perform. The rule is aptly stated in Winn v. Sanford, 145 Mass. 302, 14 N. E. 119, 1 Am. St. Rep. 461:

"Any student not of age who enrolls on the installment plan must have the above guaranty responsible party of legal age." signed by parent, guardian, employer or other

This shows a plain intent that the guarantor was to assume the obligation absolutely for the minor. The claim that the defendant, under the circumstances of haste, was excused from reading the contract or making inquiry of plaintiff's agent and Johnston as to the nature of the contract and his obligations as guarantor, is not supported by the evidence. It was his duty to know the contents thereof. Mere ignorance of its contents under the circumstances of the case does not permit defendant to avoid the obligation he assumed by signing it. banks, 48 Wis. 415, 1 N. W. 167, 32 Am. Rep. 716; Bostwick v. Mutual Life Ins. Co., 116 Wis. 392, 89 N. W. 538, 92 N. W. 246, 67 L. R. A. 705; Van Beck v. Milbrath, 118 Wis. 42, 94 N. W. 657.

Mamlock v. Fair

[5, 6] 3. It is contended that the defendant never became bound by the guaranty because notice of acceptance thereof was not given him. It is sufficient to call attention to the stipulation in his contract, that he waived notice of the acceptance of the guaranty. This stipulation is binding on the defendant. Crittenden v. Fiske, 46 Mich. 70, 8 N. W. 714, 41 Am. Rep. 146; Swisher v. Deering, 104 Ill. App. 572; Hughes v. Shoe Co., 72 S. W. 799, 24 Ky. Law Rep. 2003. It is also to be observed that the contract is an absolute and direct assumption by defendant to pay the price of the scholarship. There was nothing left to be done by the parties to complete the agreement aside from the acceptance by the plaintiff, and when so accepted the agreements were complete. Contracts of guaranty, like other agreements, become binding upon the parties when they have mutually assented "Where one becomes a surety for the perform- thereto. There is nothing in the agreements ance of a promise made by a person incompe- of these parties indicating any condition uptent to contract, his contract is not purely acon which the guaranty should become bindcessorial, nor is his liability necessarily ascer tained by determining whether the principal can ing; on the other hand, every fact and cirbe made liable. Fraud, deceit in inducing the cumstance of the transaction and the terms principal to make his promise, or illegality of the guaranty show an intent to make it thereof, all of which would release the principal, would release the surety, as these affect the an absolute agreement when signed and decharacter of the debt; but incapacity of the livered. A guarantor under such a contract principal party promising to make a legal con- is not entitled to notice of acceptance. Nadtract, if understood by the parties, is the very ing v. McGregor, 121 Ind. 465, 23 N. E. 283, defense on the part of the principal against

which the surety assures the promisee." Gates 6 L. R. A. 686; Klosterman v. Olcott, 25 v. Tebbetts, 20 L. R. A. (N. S.) page 1000, Neb. 382, 41 N. W. 250; Lachman v. Block,

note.

The transaction in question is clearly within this rule, and defendant may be held to his obligation in all its parts, though Johnston was a minor and refused to perform.

47 La. Ann. 505, 17 South. 153, 28 L. R. A. 255; Davis Sewing Machine Co. v. Richards, 115 U. S. 524, 6 Sup. Ct. 173, 29 L. Ed. 480. See note to Deering Co. v. Mortell, 21 S. D. 159, 110 N. W. 86, 16 L. R. A. (N. S.) 353. It is urged that the defendant was ignorant [7] 4. The claim that the defendant was of Johnston's minority, and hence should be released by an extension of the time of payrelieved from the contract obligation. There ment of the installments granted to Johnis no claim made of active misrepresentation ston by the plaintiff is not sustained by the

evidence. The evidence does not establish [dollars ($45.55)," and striking out the words that the party, who called on Johnston for and figures "two and 28/100 dollars ($2.28) payment, had any authority to grant him interest on said thirty-six dollars," and inan extension of time of payment. The facts serting in lieu thereof "five and 58/100 doland circumstances in evidence do not show lars ($5.58) interest on said forty-five and that an extension of time was in fact agreed 55/100 dollars," and also striking out the upon. Mere indulgence to Johnston by the words and figures "ninety-five and 69/100 collector cannot be held to amount to an dollars," and inserting in lieu thereof agreement to extend the time of payment."one hundred eight and 60/100 dollars." Stevens v. Elver, 101 Wis. 392, 77 N. W. 737; Grafton v. Hinkley, 111 Wis. 56-58, 86 N. W. 859; Benjamin v. Hillard, 64 U. S. (23 How.) 149, 16 L. Ed. 518.

Appeal from Circuit Court, Winnebago | J. H. M. Wigman, of Green Bay, for ap. County; Geo. W. Burnell, Judge. pellants. Greene, Fairchild, North, Parker Action by Nic Bur, Jr., against Gerhard & McGillan, of Green Bay, for respondent. Bong and Bertha M. Holland. From a judgment for plaintiff, defendants appeal. Re- SIEBECKER, J. (after stating the facts as versed as to the last-named defendant, with above). [1] The plaintiff's right to foreclose directions, and affirmed as to defendant Bong. his mortgage, although the note secured by Plaintiff brings this action to foreclose a the mortgage is barred by the statute of limmortgage and for the sale of the property itation, has been well established by the demortgaged. In 1890 the defendant Bong was cisions of this court. Wiswell v. Baxter, 20 the owner of lot 14 and an undivided three- Wis. 680; Knox v. Galligan, 21 Wis. 470; ninths of lots 15 and 16 in block 42 in the Phelan v. Fitzpatrick, 84 Wis. 240, 54 N. W. city of Green Bay. In 1891 he mortgaged his 614; Duecker v. Goeres, 104 Wis. 29, 80 N. interest in this real estate to one Vroman. W. 91. The mortgagee, under such circumThe remaining six-ninths of lots 15 and 16 stances, is also entitled to recover interest were owned by the children of Bong. In on the principal sum if the note and mort1892 Bong became possessed of the title to gage provide for the payment of interest. Wiswell v. Baxter, supra. another one-ninth of lots 15 and 16, and on July 18, 1893, he executed a mortgage to the plaintiff on lot 14 and on the undivided fourninths of lots 15 and 16. This mortgage was recorded. The notes given to evidence the original indebtedness, the last one due October 5, 1894, have long since become barred by the six-year statute of limitation. The court found that $750 of the principal, secured by the mortgage, remained unpaid, that no interest has ever been paid on the principal, and that there is now due $926.73 as interest. The court awarded judgment for the recovery of these sums and of foreclosure of the mortgage and sale of the premises embraced in the mortgage. In 1894 Vroman foreclosed his mortgage on the three-ninths of lots 15 and 16 and received a deed therefor. In 1897 he conveyed his three-ninths in lot 15 to one Schauer by quitclaim deed, and Bong conveyed to Schauer his undivided oneninth, and the five children conveyed to Schauer one-ninth each. By these conveyances he became owner of the entire nine-ninths of lot 15, but the one-ninth conveyed by Bong was subject to this mortgage of the plaintiff. None of these quitclaim deeds made any mention of the mortgage. In October, 1898, Schauer conveyed by warranty deed lot 15 to Bertha M. Holland, which deed was recorded the same day. She built a house on this lot, and has remained in possession thereof ever since. The plaintiff's mortgage The mortgage being duly recorded when was executed and recorded in July, 1893. Bong deeded his interest in lot 15 to Schauer The defendant, Bertha M. Holland, has held and he to defendant Holland, it requires some possession of the premises since October, distinct act of denial on their part, of being 1898, until the commencement of this action in possession in subordination to plaintiff's in January, 1913, and has paid the taxes. rights, to terminate the acknowledged relation She had no actual knowledge of the exist-existing between the plaintiff as mortgagee ence of plaintiff's mortgage, and has been in exclusive possession of the premises as owner of the land. The defendant Bong has been and now is the owner of the one-ninth of lot 16, mortgaged by him to the plaintiff, and has since acquired a larger interest therein. Upon these facts, which were undisputed, the court held that the plaintiff was entitled to judgment of foreclosure and sale of the undivided interest in lots 15 and 16. From such judgment this appeal is taken.

[2, 3] The defendants contend that the plaintiff has lost his interest and rights to their property by reason of their adverse possession of the premises as against him and all others claiming any interest therein. There is no dispute but what plaintiff obtained a valid mortgage covering an undivided oneninth interest in lots 15 and 16 on July 18, 1893, which mortgage was duly recorded and remains unsatisfied of record to the present time. The mortgagor, Bong, defaulted in the payment of the sum of $750 of the original indebtedness and of the interest which accrued on the entire principal after the same became due, which the court found now amounts to $926.73. The circuit court found that there is due the plaintiff from the defendant Bong these sums, amounting to $1,676.63, and that plaintiff's rights under these mortgages have not been cut off by adverse possession of the premises on the part of Bong or Bertha M. Holland. The general rule is that possession of the premises by the mortgagor is presumed to be in subordination to the rights and interests of the mortgagee or purchaser under foreclosure sale, until it is shown that such possession was in fact adverse to the rights and interests of the mortgagee, in the premises. Avery v. Judd, 21 Wis. 262; Wright v. Sperry, 25 Wis. 617; Seeley v. Manning, 37 Wis. 574.

and the mortgagor Bong and those holding under him to set adverse possession running. The record of the mortgage is constructive notice to all subsequent purchasers of the mortgagee's rights in the premises. Under such circumstances the mortgagor and those holding under him continue to hold in subordination to the mortgagee's rights, unless it be shown that their possession was in fact inconsistent with and adverse to the rights of the mortgagee. Maxwell v. Hartmann, 50