Stoel, Ex'r, etc. vs. Flanders and wife.

in order of time the performance of the other party, the decisions are uniform that no recovery can be had upon the contract. Kellogg v. Nelson, 5 Wis. 125. In that case there had been part performance, and some of the wheat delivered, without requiring the other party to furnish the bags to carry it in, which was held to be the condition precedent to the delivery. This case shows how strict must be the performance of a condition precedent before any recovery can be asked.

In Warren v. Bean, 6 Wis. 120, the parties had made up an issue by the pleadings of performance of the condition precedent, which was not sustained, but the trial court had allowed evidence of performance of the work beyond the time mentioned in the contract, and of enlargement of the time, and of an acceptance of the work. It was held that this was error, and that, on the pleadings, full performance within the time was required. The performance of the condition precedent is required before any performance by the other party can be demanded. Martin v. Veeder, 20 Wis. 466.

In Hudson v. McCartney, 33 Wis. 331, payments for the work were to be made only when the same was done to the full and complete satisfaction of the superintendent, and upon his certificates. It was held that the plaintiff could not recover without the performance of this condition. precedent, even if he had done the work according to the contract in other respects. In the able brief of Messrs. Hastings and Greene in that case, the English, and many American, authorities are collated to the point that a condition precedent must be fully performed before the dependent obligation or agreement can have any effect whatever, and such is the discussion in Redman v. Etna Ins. Co. 49 Wis. 438.

In Drew v. Baldwin, 48 Wis. 529, the distinction is well and clearly made that a condition precedent must be per

Stoel, Ex'r, etc. vs. Flanders and wife.

formed before the estate can vest, and, because in that case the estate was conveyed and vested at once and before the condition was to be performed, it was held to be a condition subsequent, and that such was the intention of the parties. See, also, the authorities in the brief of the learned counsel of the respondent. The authorities are uniform in support of the nature and effect of a condition precedent as above laid down.

The learned counsel of the appellants complain that such a rule is arbitrary and harsh, and in many cases may work great injustice. If so, it is the fault of the party who assumes by his contract the strict and full performance of the condition before the undertaking or obligation of the other party shall take effect or have any force whatever. The only remedy or avoidance of the injustice complained of is that the party must not make such a contract, the legal effect of which he is presumed to have known. In view of all the authorities, there can be no doubt that the defendants were bound to the support and maintenance of Lewis and Mary Royce during their natural lives in the manner specified, before they can insist upon the satisfaction or discharge of the mortgage or any part thereof. The agree ment of Mary Royce, that she would not collect, receive, or ask for any interest upon the mortgage only while the condition was being strictly performed, conclusively shows that the mortgage not only remained, but should remain, the property of Mary Royce until the full and complete performance of the condition, or until lawfully excused from such performance. I need not specially notice the authorities cited by the learned counsel of the appellants on this point, for they were all cases of condition subsequent, and not applicable. In such cases it may be that the claims, for the first time asserted in this court in this case, that the defendants should in equity be allowed a proportionate compensation for their part performance, and that the actual

Stoel, Ex'r, etc. vs. Flanders and wife.

damages for the breach of the condition should be ascertained, may be considered, for such conditions are not favored in the law, and are construed strictly, because they tend to destroy estates already vested. Drew v. Baldwin, supra. But such claims have no place in such a case as this is, upon the facts found and conclusions of law, or upon the pleadings.

Finally, there is no chance for doubt or hesitation in holding in this case that the defendants not only failed to perform the condition but placed themselves, by their most wicked and unnatural conduct and cruelty towards Mary Royce, in such an attitude towards her that neither law nor humanity would allow them to attempt any longer to support and maintain her in the house and home of her daughter, where, under the contract, she had a right to remain. They most signally violated their contract, both in letter and spirit, by a course of treatment so cruel and inhuman as to shock the sensibilities of mankind. "They ill-treated and abused her, both by the application of personal violence and coercion, and by confining and imprisoning her and depriving her of personal liberty without any sufficient reason, justification, or excuse, and thereby rendered her continued residence with them uncomfortable, and her life with them unendurable, whereby she was compelled to and did make her escape and depart from their residence." The defendants, by their answer, allege that Mary Royce refused to accept their further care and support, and they tender her a further performance of their contract if she will accept the same. This comes very near "adding insult to injury." The finding of the court on this subject is a verity in the case, and cannot be questioned. They now ask in this court, by their learned counsel, that they be compensated, on principles of equity, for the support and maintenance already rendered (and for such support and care). The engagement of able and distinguished counsel in their behalf

Klix, Adm'r, etc. vs. Nieman.

was properly due to the presumption of innocence, and their valuable services have been consistent with the safeguards which the law throws around even the guilty; but, having done their full duty, they were unable to excuse or palliate such atrocious conduct, or to show that by it the defendants had not violated the condition precedent to their having any interest in the mortgage except to pay it. It is very unpleasant to the courts, as well as to the counsel, to be compelled to pass upon such a record of infamous conduct, and it is to be hoped that such a case of cruelty by a child towards an aged mother may never again occur.

By the Court. The judgment of the circuit court is affirmed.

KLIX, Administrator, etc., Appellant, vs. NIEMAN, Re

spondent.

February 3

March 1, 1887.

Negligence: Unguarded excavation: Death of child.

The owner of a city lot is not bound to fence or guard an excavation or pond therein not situated so near the street as to make it unsafe for persons passing, and is not liable in damages for the death of a boy who, while playing about such excavation or pond, falls therein and is drowned.

APPEAL from the Circuit Court for Milwaukee County. Action to recover damages for the death of the plaintiff's intestate, alleged to have been caused by the defendant's negligence. The allegations of the complaint are sufficiently stated in the opinion. The plaintiff appeals from an order sustaining a general demurrer.

For the appellant the cause was submitted on the brief of J. Coleman. He contended that the owners of land are

Klix, Adm'r, etc. vs. Nieman,

liable for injuries resulting to children, although trespassing at the time, when from the peculiar nature and open and exposed position of the dangerous defect or agent, the owner should reasonably anticipate such an injury. 1 Thomp. on Neg. 304, 305. And the question of such negligence or liability is one for the jury. 2 Thomp. on Neg. 1140; Hydraulic Works Co. v. Orr, 83 Pa. St. 332; Birge v. Gardiner, 19 Conn. 507; Kerr v. Forgue, 54 Ill. 482; Koons v. St. L. & I. M. R. Co. 65 Mo. 592; Keffe v. M. & St. P. R. Co. 21 Minn. 207; Lovett v. S. & S. D. R. Co. 9 Allen, 557; Lynch v. Smith, 104 Mass. 52; Karr v. Parks, 40 Cal. 188; Robinson v. Cone, 22 Vt. 213; Drew v. Sixth Ave. R. Co. 26 N. Y. 49; Oldfield v. N. Y. & II. R. Co. 14 id. 310; Cosgrove v. Ogden, 49 id. 255; Barksdull v. N. 0. &C. R. Co. 23 La. Ann. 180; Railway Co. v. Stout, 17 Wall. 657; S. C. 2 Dill. 294; Ewen v. C. & N. W. R. Co. 38 Wis. 613.

For the respondent there was a brief by Johnson, Rietbrock & Hulsey, and oral argument by Mr. Johnson. They argued that the owner of land is not bound to fence or guard an excavation or depression, pond or pool which he did not make or cause to be made upon his land, for the benefit of strangers, young or old, who had no right to go upon the land. Nor is such owner liable for injuries occasioned by an excavation made by himself upon his own land unless it be so near a public or private way as to interfere with the safety of persons lawfully using the way. 1 Thomp. on Neg. 361; Shearm. & Redf. on Neg. sec. 505; Blyth v. Topham, Cro. Jac. 158; Deane v. Clayton, 7 Taunt. 532; Hardcastle v. S. Y. R. Co. 4 Hurl. & N. 67; Binks v. Same, 113 Eng. C. L. 244; Barnes v. Ward, 9 C. B. 392; Hadley v. Taylor, L. R. 1 C. P. 53; Corby v. Hill, 4 C. B. N. S. 556; Hounsell v. Smyth, 7 id. 730; Beck v. Carter, 68 N. Y. 283, 289; Kohn v. Lovett, 44 Ga. 251; Howland v. Vincent, 10 Met. 371; Gramlich v. Wurst, 86 Pa. St. 74.