hereby offering specifically, to perform said | ferring that right on a business competitor. contract or agreement as on its part stipulated to be performed. (4) That your orator may be decreed to recover from the said Gauntlett Dry Goods Company, the said defendant, for the price and value of goods, patterns, fashion guides, and fashion | books prepared for the defendant and shipped to it, amounting in the neighborhood of $300." A prayer for general relief followed. It is claimed the demurrer should have been sustained because: First. It appears from the allegations in the bill of complaint that the complainant has a full, adequate, and complete remedy at law. That if the allegations therein contained are true, the only relief to which the complainant is entitled is a moneyed judgment at law for damages. Second. It appears from the contract for which suit was commenced, and which contract is made a part of the bill of complaint, that the defendant was prohibited from entering into any such contract for the reason that all such contracts are declared to be against public policy, illegal, and void. We think this is a sound and just conclusion, because it will compel the Siegel-Cooper Company to either perform its agreement or lose all benefit from breaking it, and at the same time will shield the plaintiff from part of the loss caused by the breach, if persisted in. Lumley v. Wagner, 1 De G. M. & G. 604, 21 L. J. Ch. N. S. 898, 16 Jur. 871, 6 Eng. Rul. Cas. 652; Donnell v. Bennett, L. R. 22 Ch. Div. 835, 52 L. J. Ch. N. S. 414, 48 L. T. N. S. 68, 31 Week. Rep. 316; Montague v. Flockton, L. R. 16 Eq. 189, 42 L. J. Ch. N. S. 677, 28 L. T. N. S. 580; Singer Sewing Mach. Co. v. Union Buttonhole & E. Co. Holmes, 253, Fed. Cas. No. 12,904; Chicago & A. R. Co. v. New York, L. E. & W. R. Co. (C. C.) 24 Fed. 516, 521; Goddard v. Wilde (C. C.) 17 Fed. 846; Western U. Teleg. Co. v. Union P. R. Co. (C. C.) 1 McCrary, 558, 3 Fed. 423, 429; Western U. Teleg. Co. v. Rogers, 42 N. J. Eq. 311, 11 Atl. 13. The injunction, when granted, may not be absolute, but may be based on some equitable condition that will prevent either party from taking advantage of the other, such as the We consider the questions in the order waiver by the plaintiff of the breach of the stated: contract by the principal defendant. The First. In support of this contention question raised by the demurrer does not counsel cite Grandchamp v. McCormick, 150 relate to any matter of discretion or propMich. 232, 114 N. W. 80, Detroit Trust Co. erty, but to the power of the court to grant v. Old Nat. Bank, 155 Mich. 61, 118 N. any relief, conditional or otherwise. We are W. 729, and many other cases. An exami- satisfied with the opinion below upon the nation of these cases will show they are not subject, and should adopt it as our own controlling in this case. The case at bar is without comment, but for a point not thus more like Standard Fashion Co. v. Siegel- far considered, which seems to us a conCooper Co. 157 N. Y. 60, 43 L.R.A. 854, clusive answer to the demurrers, and which, 68 Am. St. Rep. 749, 51 N. E. 408, where, if overlooked, might lead to some confusion. among other things, it is said: "But even The action is for the specific performance of if upon a trial of the action, specific per- a lawful contract, duly executed by both formance of the contract in its entirety were parties thereto. It is capable of performance refused as impracticable, still the bill by both, and there is no reason for nonpershould be retained as one permitting an in-formance by either. A court of equity has junction, in the sound discretion of the jurisdiction of such actions, and .the comcourt, to restrain the defendants from vio- plaint sets forth the contract, readiness to lating the negative and severable covenant | perform on one side, a refusal to perform on of the Siegel-Cooper Company, that it would the other, and facts showing no adequate not 'sell, or allow to be sold, on its premises, remedy at law. A complete cause of action during the duration of this (the) contract, is therefore alleged, and the only reason for any other make of paper patterns' than; not awarding general relief to the plaintiff those of the plaintiff. The learned appellate is that its nature is so complicated as possidivision, one of the judges dissenting, over-bly to require multiplicity of orders by the ruled the demurrers on this ground, holding that the court should extend its remedy as far as it is able, and thus prevent principal defendant not only from making money by breaking its agreement, but from inflicting a double wrong upon the plaintiff by depriving it of the right to sell, and con court in its efforts to superintend the details of an extensive and peculiar business. This fact does not deprive the court of jurisdiction, but justifies a refusal, in its sound discretion, to exercise it. It confers no right upon either party. The court does not refuse to act because the defendants object to its acting, for it would refuse, under the circumstances, if both parties requested it to proceed; but it refuses because the execution of its decree would require protracted supervision. It is the difficulty of enforcing, not of rendering, judgment that causes it to hesitate. The office of a demurrer is to sweep away a defective pleading, and in the case before us it attacks the substance of the complaint; yet the complaint is good in substance, for it sets forth a cause of action in equity. While it is true that the court, in its discretion, may not hear the cause, or after a hearing may refuse relief owing to the difficulty of enforcing its decree, still this does not make the complaint defective, nor authorize a general demurrer, which 'must be founded upon an absolute, certain, and clear proposition that, taking the charges in the bill to be true, the bill would be dismissed at the hearing.' Beach, Eq. Pr. 225. Upon the facts before us, it is in the power of the court to enforce the agreement the same as it is in the case of railroad contracts; but the difficulties attending the enforcement are so great that the court would ordinarily refuse to undertake it, as there is no public interest involved. As there was complete jurisdiction and a perfect cause of action against both defendants, the demurrers must be overruled. Coatsworth v. Lehigh Valley R. Co. 156 N. Y. 451, 51 N. E. 301." See also St. Regis Paper Co. v. Santa Clara Lumber Co. 173 N. Y. 149, 65 N. E. 967; McCall Co. v. Wright, 198 N. Y. 143, 31 L.R.A. (N.S.) 249, 91 N. E. 516; Powell v. Dwyer, 149 Mich. 141, 11 L.R.A. (N.S.) 978, 112 N. W. 499; Buckhout v. Witwer, 157 Mich. 406, 23 L.R.A. (N.S.) 506, 122 N. W. 184; 22 Cyc. 769-771. Second. Is the contract void as against public policy? An answer to this question in the negative is found in Buckhout v. Witwer, 157 Mich. 406, 23 L.R.A. (N.S.) 506, 122 N. W. 184. And the cases cited therein. We do not think the case is within the inhibition of the state. The decree of the court below is affirmed, with costs, and defendant is given twenty days in which to answer. Steere, Brooke, and Stone, JJ., concur with Moore, Ch. J. Blair, J., being ill, took no part in the decision. Ostrander, J., concurs upon the ground that the contract in question is not in restraint of trade within the meaning of the contract in question. McAlvay, J., concurs with Ostrander, J. It is seen that the decision adverse to the validity of such a contract, in MANUFACTURERS' & M. INSPECTION BUREAU v. EverWEAR HOSIERY Co., was reached in the light of cases involving the question as to the validity of contracts to procure testimony. This question has already been fully discussed in the notes in 30 L.R.A. (N.S.) 278, and 19 L.R.A. 371. But the cases discussed in those notes, while possibly pointing toward some general formula that may be applied in the solution of the present question, are not at all controlling with respect thereto, for the reason that a decision in any particular case depends upon whether the particular contract involved is deemed to be of such a character as to come within the condemnation of public policy. But one case has been found in addition to MANUFACTURERS' & M. INSPECTION BUREAU V. EVERWEAR HOSIERY Co. which involves a contract to induce the detection of offenses as distinguished from the collection of evidence to fasten a particular offense upon some person; and that case, like the HOSIERY CO. CASE, involves stipulations for contingent compensation, which were held invalid. Thus it is held that a contract of county authorities to pay a person for investigating the validity of a public vote in favor of a railroad aid subscription, at the rate of $100 for the first ten votes shown to have been illegal, $200 for the next ten, etc., and a gross sum of $1,200 in addition in case the illegality of the majority in the election is judicially decreed, was held void in Gillett v. Logan County, 67 Ill. 256, upon the ground that it was contrary to public policy in that it was such as to encourage attempts to suborn witnesses, to tamper with jurors, and thus taint with corruption the atmosphere of courts of justice. It should be noted that this note does not deal with the general question of rewards. L. A. W. 1 a period of time, is sufficient, without for-, 101 Wis. 423, 77 N. W. 915; Bostwick v. mal signature of it, to exclude parol evi- Mutual L. Ins. Co. 116 Wis. 393, 67 L.R.A. dence of its terms. 705, 89 N. W. 538, 92 N. W. 246. 4. Parol evidence is admissible to show that a written contract apparently good on its face is a mere cover for an illegal transaction. Contract validity. 5. A contract by which one undertakes for a contingent fee to detect larceny or embezzlement among the employees of his employer, and apprehend persons accused and bring them before the employer, with proof that the stolen property is in their possession, is void as contrary to public policy. (November 19, 1912.) Timlin, J., delivered the opinion of the court: commenced and tried in the civil court for This action at law upon contract was Milwaukee county, appealed to the circuit court, where a new trial was had without objection or motion to dismiss the appeal from the civil court. The plaintiff recovered judgment in consequence of a directed verdict, and the appellant appeals, assigning error (1) that the circuit court acquired no jurisdiction because the notice of appeal was not served upon the judge of the civil court (2) the circuit court erred in excluding evidence in support of the averments in the answer. diction of the parties in any event, and of the subject-matter of actions at law on contracts the circuit court always had jurisdiction. Bull v. Christenson, 61 Wis. 576, 21 N. W. 521; Givans v. Searle, 136 Wis. 608, 118 N. W. 202. With reference to the first error assigned, it is sufficient to say that the parties after the defective appeal from the civil court, without any motion to dismiss that appeal or other objection to the jurisdiction, apPPEAL by defendant from a judgment peared generally and tried the case de novo of the Circuit Court for Milwaukee and trois conferred jurisCounty affirming a judgment of the Civil Court in plaintiff's favor in an action brought to recover compensation for services of an industrial expert. Reversed. The facts are stated in the opinion. Mr. A. M. Newald for appellant. Mr. B. F. Saltzstein, for respondent: There was confirmation of a contract entered into between the parties and a continued course of conduct by both parties, inconsistent with any other theory except that they were acting under the contract as confirmed by respondent. 9 Cyc. 260, 269; Watkins v. Rymill, 31 Week. Rep. 337, 52 L. J. Q. B. N. S. 121, L. R. 10 Q. B. Div. 178, 48 L. T. N. S. 426, 47 J. P. 357; Sellers v. Green, 172 Ill. 549, 40 L.R.A. 589, 50 N. E. 246. The contract is not attacked for fraud or mistake, and, in the absence of fraud or On June 29, 1910, plaintiff wrote to defendant: "Confirming our verbal arrangement of June 27th, I will say that we will place an industrial and economic expert in your plant for the purpose of checking the general industrial conditions therein, at the rate of $150 per month. This operative is to be placed upon your Pay roll at the same rate of wages that other workmen of his class are receiving. Whatever wages are to be paid to this man are to be deducted from the above-mentioned sum, except wages earned by this mistake, one who signs or accepts a writ-operative by working over time or on Sunten contract is conclusively presumed to know its contents and assent thereto. Standard Mfg. Co. v. Slot, 121 Wis. 14, 105 Am. St. Rep. 1016, 98 N. W. 923; McCord v. Flynn, 111 Wis. 78, 86 N. W. 668; Deering v. Hoeft, 111 Wis. 339, 87 N. W. 298; Montgomery v. American Cent. Ins. Co. 108 Wis. 146, 84 N. W. 175; Straker v. Phenix Ins. Co. 101 Wis. 413, 77 N. W. 752; Jackowski v. Illinois Steel Co.. 103 Wis. 448, 79 N. W. 757; German Bank v. Muth, 96 Wis. 344, 71 N. W. 361; Hooker v. Hyde, 61 Wis. 207, 21 N. W. 52; John O'Brien Lumber Co. v. Wilkinson, 117 Wis. 468, 94 N. W. 337; Brown v. Search, 131 Wis. 109, 111 N. W. 210; Frei v. McMurdo, day and holidays, and also any wages earned by him in excess of $3 per day will not be deducted. It is further under stood that this contract can be terminated by either party at their option; however a weeks' notice is desired. We take this opportunity of thanking you for the business and assure you that the same is appreciated." The "verbal arrangement" referred to in this letter occurred on June 27, 1910, and on this day one of the employees of the The plaintiff began work for defendant. defendant received the letter of June 29th on or about the day of its date, but did not answer it. It continued to accept the services of this man and of other subordinates If the defendant had signed its acquiescence at the foot of the letter in question, there could be little doubt that parol evidence of a prior oral understanding varying this writing would be inadmissible. But assent by acceptance of the letter, acceptance of the services tendered after June 29th, with silent acquiescence in this version of the "verbal arrangement," is quite as potent to close a contract as a written declaration to that effect. Bills of sale, promissory notes, deeds, and many other writings are signed by one of the contracting parties and delivered to another, who receives the same, and orally or by conduct acquiesces therein. This party cannot afterwards be heard to alter or modify the writing by proof of some antecedent oral agreement which has become represented by and merged in the writing. Hooker v. Hyde, 61 Wis. 204, 21 N. W. 52, and cases cited in opinion. of the plaintiff who came afterward, and ance of daily service thereunder. The letter the plaintiff began on June 29th making in question does not by reference to the daily reports in writing to defendant, and "verbal arrangement" make that a part of continued this until September 8, 1910. the writing, but it purports to give in writThe defendant received all these reports. ing the true version of the precedent oral The vice president of the defendant, who contract. had general management of its factory and who claims to have had the "verbal arrangement" with plaintiff, testified: "After receiving this letter, the operatives of the plaintiff company were placed in the employ of our company. There were several of them. Part of the time I placed them at their respective duties myself; and that was after the receipt of this letter. On each occasion when the plaintiff would send in one of its operators, it would send him with a letter of introduction to me. I would read the letter and then place the employee. I received several of these letters of introduction after the letter of June 29th, and placed those men upon those in troductions. Services were rendered by the plaintiff's employees at the plant of the defendant between these dates, June 27th and September 6th. They did hosiery work, and submitted written and verbal reports each day. I received all these written and verbal reports, and the first of the written The witness was then asked whether he reports was June 29th and the last was retained the reports received after June September 8th." It also appeared that on 29th from the plaintiff, whether he ever August 31, 1910, the plaintiff sent and de- complained to the plaintiff regarding the fendant received a statement of account nature of these reports, and whether he showing a balance due from defendant to made any objection to the nature of these plaintiff of $92.20, also one on September reports. Objections to these questions were 10, 1910, showing a like balance of $234.45, sustained. There was no error in this ruland the vice president of the defendant ing, because no time was fixed with refertestified that this last was a correct state-ence to any of the questions, and objections ment of the services rendered at the rate of $150 a month less deductions for wages paid to the men by defendant; in other words, corresponding with the quoted letter of June 29th. to the nature of the reports were not relevant to the question of defendant's acceptance of the contract embodied in the letter of June 29th. Neither could it affect this question if the defendant returned all the reports after it received plaintiff's bill. He who assigns error must affirmatively show error. The foregoing testimony was given while the witness was being examined on the part of the plaintiff as an adverse witness pursuant to § 4068, Stats. The defendant's counsel undertook what is called a cross- After the plaintiff rested, the defendant examination of this witness, in the course recalled its vice president as a witness in of which he asked the witness to state the its behalf, and offered evidence, whereupon terms of the oral contract or "verbal ar- the court made substantially the same rulrangement" referred to. The evidence was ings. The witness then further testified excluded, and this ruling is the principal that after June 29, 1910, he had conversaground of complaint on this appeal. So far tions with a representative of the plaintiff as the ruling was based upon the ground relative to the contract in question. Being that the terms of the letter of June 29, asked what the conversations were, counsel 1910, could not be varied or altered by for plaintiff interposed an objection on the parol evidence of a precedent valid oral ground that the testimony sought to be agreement varying from the written agree-elicited was incompetent, etc., and tended to ment, the ruling was correct. There was vary the contract. Although this ruling ample proof of the acceptance of and acquiescence in the terms of the letter of June 29th for more than two months, by accept was correct so far as the evidence attempted to merely vary the writing by proving a different binding and controlling oral con sician did so, a settlement was reached, tract, there is another ground upon which the evidence first above ruled out might have been admissible. Parol evidence is competent to show that a writing apparently good on its face is a mere cover for an illegal transaction; in other words, to show illegality. Twentieth Century Co. v. Quil-A, 655, it was held that a contract to secure ling, 130 Wis. 318, 110 N. W. 174. "Contracts to pay for collecting and procuring testimony to be used in evidence, coupled with the condition that the contractee's right to compensation depends up on the character of the testimony procured, or upon the result of the suit in which it is to be used, have been universally condemned by the courts as contrary to public policy, for the reason that such agreements hold out an inducement to commit fraud, or procure persons to commit perjury." Note to Hughes v. Mullins, 13 Ann. Cas. 209, 213; Sherman v. Burton, 165 Mich. 293, 130 N. W. 667, 33 L.R.A. (N.S.) 87, and note; Goodrich v. Tenney, 144 Ill. 422, 33 N. E. 44, 19 L.R.A. 371, and cases in note, 36 Am. St. Rep. 459; Neece v. Joseph, 95 Ark. 552, 129 S. W. 797, 30 L.R.A. (N.S.) 278, and cases in note, Ann. Cas. 1912 A, 655; Quirk v. Muller, 14 Mont. 467, 25 L.R.A. 87, 43 Am. St. Rep. 647, 36 Pac. 1077. evidence of a given state of facts which will permit the winning of a lawsuit is void as against public policy. It is said: “A contract is void as against public policy if by it one of the parties agrees to secure such testimony as will enable the other to win an existing or contemplated suit. It is not necessary that the contract should contemplate the production of perjured testimony. It is void because its tendency is to promote unlawful acts." In Gillett v. Logan County, 67 Ill. 256, where the county authorities contracted with one McNeal to hunt up and prepare testimony for the county for a fee in part contingent upon the outcome of the case in which the testimony was to be used, the contract was held illegal. On account of its corrupting tendency it was considered against public policy. In Casserleigh v. Wood, 56 C. C. A. 212, 119 Fed. 308, the contract is set out in the Stanley v. Jones, 7 Bing. 369, 6 Eng. Rul. statement of facts preceding the opinion of Cas. 376, presented a case where the prom-the court, and it provides a contingent comisor believed he had been defrauded, and pensation to the promisee for disclosing evithat the promisee was in possession of evidence theretofore collected by him and then dence to make this manifest, and to prove in his possession. The court said: "While that the promisor was entitled to recover considerable sums of money from the persons who defrauded him, so he agreed to pay the promisee one-eighth part of the clear amount of such sum as he might thereafter recover through the means of the promisee. This contract was held illegal, and it was thought that it amounted to the offense of champerty. It is also said that, if there was any difference between this contract and champerty, the difference was strongly against the legality of the contract, because "the bargain to furnish and to procure evidence for the consideration of a money payment in proportion to the effect produced by such evidence has a direct and manifest tendency to pervert the course of justice." Thomas v. Caulkett, 57 Mich. 392, 58 Am. Rep. 369, 24 N. W. 154, was where no litigation was pending or apparently contemplated, but the promisor considered that he had a cause of action arising out of injuries in a railroad accident, and procured the promisee, who was a physician, to go with him and lay the facts relative to the extent of his disability before the railroad company's counsel and medical advisers in consideration of a contingent fee. The phy such contracts may at times result in the In Lyon v. Hussey, 83 Hun, 15, 31 N. Y. Supp. 281, no litigation was pending, but the contract sued on was one to furnish evidence to establish the claim of the plaintiff in a litigation to be commenced. The court said: "It is clear that such a contract is against public policy." See also Langdon v. Conlin, 67 Neb. 243, 60 L.R.A. 429, 108 Am. St. Rep. 643, 93 N. W. 389, 2 Ann. Cas. 834, where the contract was between an attorney and another person, by which the latter agreed to assist in looking after and procuring witnesses whose testimony was to be used in cases, and to secure the employment of the attorney in such cas es, all in consideration of a share of the |