Stebbins vs. Killeen.

judgment of the justice thereon, the defendant appealed to the circuit court and said judgment was affirmed. From said judgment of the circuit court, the defendant appealed to this court. No errors are assigned except that said judg ment is against the law and evidence. In such a case the judgment will not be reversed if the plaintiff's evidence tended to support it (Lyle v. Dellinger, 54 Wis. 404); or when the evidence was sufficient to sustain it (Rood v. Am. Exp. Co. 46 Wis. 639); or when the questions of fact were fairly submitted to a jury upon conflicting evidence (Chamberlain v. Dickey, 31 Wis. 68; Jaquish v. Ithaca, 36 Wis. 108; Caswell v. C. & N. W. R. Co. 42 Wis. 193).

In this case, the evidence on behalf of the plaintiff, if it had not been contradicted or rebutted by the defendant, was sufficient to entitle the plaintiff to recover; that is sufficient for affirming the judgment. The evidence was very conflicting, and the credibility of the witness was in question, and it was peculiarly a case for a jury, and their verdict is conclusive.

We think the circuit court committed no error in affirming the judgment of the justice, and therefore the judgment of the circuit court is affirmed.

By the Court.- Judgment affirmed.

INDEX.

ABATEMENT OF ACTION.

See CRIMINAL LAW, 2.

1. The fact that an action is prematurely brought should be pleaded in
abatement. Collette v. Weed,
428

2. Where all of a lot of logs should have been scaled before an action
was brought for the shortage, and the plaintiff had caused all that
he was able to find to be so scaled, the fact that a few more were
discovered after the commencement of the action should not defeat
the action, especially where that fact was pleaded not by way of
abatement but as a defense on the merits.
Ibid.

ACCEPTANCE. See SALE OF CHATTELS, 2, 6.

ACCORD AND SATISFACTION.

In an action for a balance due upon contract for labor and materials,
the defendants pleaded an adjustment and settlement in writing
and full payment thereunder. Held:

(1) On the trial the plaintiff might avoid the alleged settlement
by showing that his signature thereto was obtained by fraud.

(2) The amount paid to the plaintiff under the settlement having
been conceded by the defendants to be due to him, he was not
bound to return it in order to rescind the settlement. Leslie v.
Keepers,
123

ACCOUNT BOOKS as evidence. See EVIDENCE, 1.

ACTION.

(A.) Cause of Action.
See BANKRUPTCY, 4. CHATTEL MORTGAGES, 2. CONTRACTS, 1-3, 5-7.
CONVERSION. DEBTOR AND CREDITOR, 1, 2, 11. DEED. EVIDENCE,
3. HIGHWAYS, 1, 5. JOINDER. LANDLORD AND TENANT, 2-6.
LIENS. LOGS AND TIMBER, 3. MUNICIPAL CORPORATIONS, 3.
NAVIGABLE RIVERS. NEGLIGENCE, 2, 3. OFFICERS. PARENT AND
CHILD. PARTIES. PATENTS. PAUPERS. PLEADING. RAILROADS,
(B.), (C.). RECEIVERS. VENDOR AND PURCHASER, 5, 6. VOLUN
TARY ASSIGNMENT, 1.

(B.) By whom to be brought.

See CHATTEL MORTGAGES, 2. DEBTOR AND CREDITOR, 1, 2. PARTIES.
RECEIVERS, 2. VOLUNTARY ASSIGNMENT, 1.

(C.) Commencement.

See LIMITATION OF ACTIONS. TAX TITLES, 8, 4.

(D.) Abatement.

See ABATEMENT OF ACTION.

Against a City.

For causing death of person by negligence, 50.

For damages from unlawful change of grade of street, 241.

For injuries to person from defective sidewalk, 678.

Against a Town.

For support of pauper, 192.

To restrain the incurring of expense or issuance of town orders in
anticipation of levy of unlawful highway tax, 546.

Against Public Officers.

Sheriff. For conversion of chattels, 497, 563. To restrain proceed-
ings to collect judgment, 587.

Town officers. To restrain issuance of town orders in anticipation
of unlawful highway tax, 546.

Town Supervisors. Mandamus to compel opening of highway, 158.
To set aside proceedings in laying out ditch, 248. Mandamus to
compel appointment of appraisers, etc., 502.

Town Treasurer. Mandamus to compel acceptance of license fee,
etc., 135. For conversion of chattels, 608.

Against a Railroad Company.

Condemnation of land, 180.

For causing death of person by negligence, 184.
Garnishment, 212.

For assault and battery by employee, 469.

For injuries to person from negligence, 474, 520, 616.

Against an Insurance Company.

On a fire policy, 298, 510.

Against a Bank.

Replevin, 234.

Against other Private Corporations.

For balance of purchase price of land, 34.

To enforce lien for services on lumber, 89.

For purchase price of chattels, 112, 674.

On judgment, 231.

For breach of warranty of harvester, 612.

Against Estates of Decedents, Executors, Administrators, etc.
Ejectment, 24.

Claim against decedent for money had and received, 152.
Claim against decedent on foreign judgment, 215.

Against a Receiver.

Petition for leave to sue receiver, 44.

Against Assignee for Benefit of Creditors.
Garnishment, 442.

By the State.

Mandamus to town officers, 135, 159, 502.

Information for injunction against obstruction of navigable river,
165.

Complaint for selling liquor without license, 400, 538.

Information for burglary, 416.

Information for murder, 530.

By a Town.

For expense of supporting pauper, 192.

By a School District.

Replevin, 246.

By Public Officers.

Overseer of poor house and county asylum. To recover reward for

return of insane person, 384.

By a Bank.

Petition for leave to sue a receiver, 44.

On promissory notes, 390.

Garnishment, 442.

By other Private Corporations.

For specific performance of contract to assign invention, 73.
Garnishment, 296.

On promissory notes, 577, 612.
For conversion of chattels, 608.

By Executors or Administrators,

Upon a certificate of deposit, 16.

For death caused by negligence, 50, 184, 271.

To set aside conveyance of land, 150.

To foreclose mortgage, 256.

To probate will, 372.

For conversion of chattels, 505.

By an Assignee for Benefit of Creditors.

Replevin, 234.

For conversion of chattels, 497.

Actions arranged according to their subject matter.
On a judgment, 215, 231.

On policy of insurance against fire, 298, 510.

On a certificate of deposit, 16.

On promissory notes, 390, 436, 458, 577, 603, 612.

To recover rent, 309.

For breach of covenants of seizin, etc., 626.

For breach by lessor of covenants of lease, 309.

To recover reward offered, 384.

For breach of written warranty on sale of chattels, 428, 612.

For balance of purchase price of land under oral agreement, 34.
For purchase price of chattels, 1, 112, 176, 380, 465, 555, 674, 682.
On express oral contract to pay debt of another, 454.

For commissions on sale by agent, 412.

For contract price for labor and materials, 123, 312, 425.

For value of chattels (conversion waived), 624.

For value of services, etc., 61, 380.

For money had and received, 152.

To recover amount paid on judgment, 657.

To recover double the expense of rebuilding partition fence, 491.
For expense of supporting pauper, 192.

For breach of oral contract to form partnership, etc., 344.

For breach of oral contract not to enter into certain business, 436.