remedy at law: Hibernian Ben. Soc. v. Kelly, 28 Or., 173; 52 Am. St. Rep. 769. See, also, the extended notes to Williams v. County Court, 53 Am. Rep. 110, White v. Stender, 49 Am. Rep. 287, and Holland v. Mayor, 69 Am. Dec. 189.

ASSESSMENTS BY FRONTAGE are discussed in the case of Violett v. Alexandria, 92 Va. 561; ante, p. 825 and note. See, also, the extended notes to People v. Mayor, 55 Am. Dec. 288. The cost of grading a street should be distributed among the lotowners on a square by imposing upon each his aliquot portion of the whole cost, estimated according to the extent of his lot on the street: Louisville v. Hyatt, 2 B. Mon. 177; 36 Am. Dec. 594. An assessment for street grading may be made upon each frontage foot equally: Schenley v. Commonwealth, 36 Pa. St. 29; 78 Am. Dec. 359, and note at page 370.

TAXES PUBLIC CELEBRATIONS.—A municipal corporation cannot, unless authorized by the legislature, raise money by taxation for the purpose of celebrating great historical events: Extended note to Zigler v. Menges, 16 Am. St. Rep. 371.

ASSESSMENTS-NECESSITY FOR NOTICE-DUE PROCESS OF LAW.-That notice must be given a property owner and an opportunity to appear and contest the same, where his property is assessed for a local improvement, is discussed in Violett v. Alexandria, 92 Va. 561; ante p. 825, and note.

KIEL V. CHOate.

[92 WISCONSIN, 517.]

NEGOTIABLE INSTRUMENTS.-AS BETWEEN TWO INDORSERS, whose names appear on the back of a promissory note, parol evidence is admissible to prove their agreement that each should be liable for one-half only.

Action by J. N. Kell against Choate and Bray for contribution, it being claimed by the plaintiff that while a certain promissory note had been executed in his favor, and had been by him indorsed in blank, and under his indorsement had been placed that of the defendants, such note and indorsements had been made for the accommodation of other persons, under a parol agreement between the two indorsers that, as to themselves, each should be liable for one-half only. The whole evidence to this effect was objected to in the trial court, but the objection was overruled, the evidence received, and judgment rendered thereon in favor of the plaintiff. The defendants appealed.

Hooper & Hooper, for the appellants.

Eaton & Weed, for the respondents.

518 NEWMAN, J. It was settled for this court by Cady v. Shepard, 12 Wis. 639, that, where a note is indorsed by a payee and a third party, the legal inference from the instrument itself that the payee is the first indorser may be explained by oral evidence of the facts and circumstances under which the in

dorsement was made, in order to show the proper order of liability among the indorsers. The indorsement itself is not such a written contract between the indorsers themselves as cannot be explained by or evidence. 519 Between the indorsers, the presumption no doubt is, that as between themselves, their liability is in the order in which their names appear upon .the paper. But that is a fact which is collateral to the contract of indorsement, and may be proved and the presumption rebutted by oral evidence. The authorities are nearly or quite uniform: 2 Randolph on Commercial Paper, secs. 740, 741, 908, and cases cited; 1 Daniel on Negotiable Instruments, 3d ed., secs. 703, 704, and cases cited; 2 Wharton on Evidence, 3d ed., secs. 942, 1060, and cases cited in note 1; 18 Cent. L. J. 382; Browne on Parol Evidence, sec. 83, and cases cited. It does not conflict with the rule that parol evidence is inadmissible to contradict or vary the terms of a written contract. No doubt, within this rule, a blank indorsement is to be treated as a written contract. But the blank indorsement forms a new and independent contract between the indorser and indorsee. It implies a promise that the paper is due and payable according to its tenor; that the maker or previous indorsers will pay it at maturity, when duly called upon and notified; and that the indorser will pay the same if they do not. The promise is made to the immediate indorsee not only, but to each subsequent indorsee. It is an agreement between the indorser and subsequent holder of the note. But it does not import an agreement among the indorsers themselves as to the order or manner of their liability. The indorser is liable alone on his contract of indorsement, and not jointly with the maker on the note itself: Boyd v. Beaudin, 54 Wis. 193, 201; 1 Daniel on Negotiable Instruments, 3d ed., sec. 669; 2 Parsons on Notes and Bills, 23.

The obligation of one indorser to contribute to one who has paid the note does not arise from any breach of the contract of indorsement, but only from its fulfillment. It is not an action upon the contract of indorsement at all, but is a liability which springs collaterally from it. It arises out of an agreement between the indorsers themselves. In the absence of evidence of a special agreement, the law implies 520 that they have agreed to be liable severally, in the order in which their names appear upon the paper. But this presumption is of little weight in the presence of evidence showing an actual agreement. Such evidence does not contradict or vary the contract of indorsement, which is only collaterally in issue: Browne on Parol Evidence, 18; Abbott's Trial Evidence, 7, 294; 1 Greenleaf on Evidence, sec. 89; Phill

ips v. Preston, 5 How. 278. The charge was correct in substance, and fairly submitted the question to the jury.

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

NEGOTIABLE INSTRUMENTS - INDORSEMENT - PAROL EVIDENCE TO VARY EFFECT OF.—As a general rule, oral evidence is inadmissible to change the contract of indorsement: Notes to Drennan v. Bunn, 7 Am. St. Rep. 366, 367, and Kulenkamp v. Groff, 15 Am. St. Rep. 287. Parol evidence is admissible to prove that an indorsement was made upon the express agreement the note should be negotiated at a specified place only: United States Nat Bank v. Ewing, 131 N. Y. 506; 27 Am. St. Rep. 615, and note. See, also, the note to Adrian v. McCaskill, 14 Am. St. Rep. 793, 794.

STATE V. STeinborn.

[92 WISCONSIN, 605.]

ELECTION, BALLOTS, LATENT AMBIGUITY.-Where there are two men in the same town with the same name, one of whom is a candidate for office at an election and the other is not, and there are ballots which do not designate which of these persons are voted for thereon, parol evidence may be received to show for which the votes were intended.

ELECTIONS-BALLOTS, CONTRADICTING.-Where there are two persons in the same town, one commonly known as “C. H. C., Sr.." and the other as "C. H. C., Jr.." both being eligible to an office for which the former only is a candidate, parol evidence is not admissible to prove that ballots on which the name "C. H. C., Jr.,” appeared were intended for "C. H. C., Sr."

ELECTIONS, EVIDENCE OF INTENTION OF THE VOT ERS.-Parol evidence is not receivable to explain what is placed upon a ballot, nor to contradict or vary it, nor can the intention of the voter as expressed upon his ballot be explained by parol evi dence, except for the same general purpose that such evidence might be received to explain any other written instrument.

Action to determine the right to the office of town treasurer. In the town were two men named Cornelius H. Cremer, both eligible to office; the one who was in fact a candidate for the office in question usually added after his name the designation, Sr., and the other after his name the designation, Jr. There were several votes for Cornelius H. Cremer without any designation after the name. There were also seven ballots having the name of Cornelius H. Cremer, Jr. The two questions presented were: First, whether the ballots having no designation could be counted for Cornelius H. Cremer, Sr., who was the candidate, and also whether the ballots bearing the designation Cornelius H. Cremer, Jr., could also be counted for Cornelius H. Cremer, Sr. In the trial court, all the ballots were counted in favor of Cornelius H. Cremer, Sr., thus giving him a majority over the other candidate, who thereupon appealed.

Morrow & Masters, for the appellant.

D. F. Jones, for the respondent.

607 NEWMAN, J. Doubtless, parol evidence was competent to show for which Cremer the ballots which failed to designate were intended to be cast. The evidence disclosed a latent ambiguity in them. But, clearly, there was no defect or ambiguity in the seven ballots which designated C. H. Cremer, Jr., as the person voted for; and the parol evidence failed to disclose any defect or ambiguity. On the contrary, it did disclose the pertinence and force of the abbreviation "Jr." in pointing out which of the two of the same name was intended. Instead of disclosing an ambiguity in the ballots, it showed that they were industriously accurate and free from uncertainty.

Parol evidence to show the intention of the voter is receivable on the same general ground and for the same general purpose as parol evidence to explain written instruments is received. It is not receivable to explain what is already plain on the face of the instrument, and in no need of explanation; nor to contradict or vary the instrument: Attorney General v. Ely, 4 Wis. 420, 429; State v. Elwood, 12 Wis. 551, 558; State v. Goldthwaite, 16 Wis. 146. To find that these seven voters whose ballots read for C. H. Cremer, Jr., voted for C. H. Cremer, Sr., is in direct contradiction of the definite and unambiguous evidence of the ballots themselves. These ballots cannot be counted for the relator, unless it can be found, on competent evidence, that it was his name which was on the ballots when they were cast. The intention of the voter cannot be proved to contradict the ballot, nor in opposition to the paper ballot which he has deposited in the ballot-box. A ballot which is unambiguous cannot be varied by parol proof. Nor can it be proved that the voter intended to vote for one man when his ballot was cast for another: McCrary on Elections, 2d ed., sec. 407; Cooley's Constitutional Limitations, 611; People v. Seaman, 5 Denio, 409; People v. Pease, 27 N. Y. 45, 84; 84 Am. Dec. 242.

60s It is plain that there was no competent evidence to show that these contested ballots were cast for the relator. They were unambiguous, and it was not competent to vary their plain import by parol evidence; and without them the relator was not elected.

At the close of the testimony, the appellant moved for the direction of a verdict in his favor. The court denied the motion. This was error.

By the Court. The judgment of the circuit court is reversed, and the cause remanded for a new trial.

ELECTIONS-BALLOTS-PAROL EVIDENCE.-A ballot is to be construed as any other writing, and, while a resort to parol evidence may be had for the purpose of interpreting what would otherwise be doubtful, it cannot be shown by such or any evidence that the intention of the voter was anything different from what plainly appears on the face of the ballot: Rutledge v. Crawford, 91 Cal. 526; 25 Am. St. Rep. 212, and note. This question is fully discussed in the extended note to Gumm v. Hubbard, 10 Am. St. Rep. 317.

HUBER V. LA CROSSE CITY RAILWAY COMPANY.

[92 WISCONSIN, 636.]

ELECTRIC RAILWAYS, CARE TO PREVENT INJURY FROM ELECTRICITY.-An electric railway corporation, which has employed an electric light company to change the location and method of using street lamps, is bound to exercise toward the employes of the latter reasonable care and caution in the management and control of its railway and electric current, so as not to injure such employés while engaged in their work. It is bound to avoid acts the nature and probable consequences of which may be to inflict injury on persons thus employed, and is liable for such injuries as may result from an omission on its part to exercise such care.

NEGLIGENCE, DUTY OF ONE PERSON TO ANOTHER.Whenever one person is by circumstances placed in such a position with regard to another that everyone of ordinary sense would at once recognize that, if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause injury to the person and property of the other, the duty arises to use ordinary care and skill to avoid such danger.

NEGLIGENCE IS NOT THE PROXIMATE CAUSE of an accident, unless, under all the circumstances, it might have been reasonably foreseen by a man of ordinary intelligence and prudence. It is not enough to prove that the accident was the natural conse‐ quence of the negligence; it must also have been the probable consequence. The mere failure to ward against a result which could not have been reasonably anticipated is not actionable negligence.

NEGLIGENCE, QUESTION FOR JURY.-Whether the negli gence of the defendant was the proximate cause of an injury, so that it and the result stand in the relation of cause and effect, is a question for the jury, where the evidence is not clear, or the proper inference to be drawn from the evidence is in doubt.

ELECTRIC RAILWAY, INJURIES WHICH IT COULD NOT ANTICIPATE.-If an electric railway has taken all reasonable and proper precautions against any probable injury to persons and property in the streets or elsewhere, except possibly those whose duty it is to repair span and trolley wire or the wires of an electric light company, and the persons who are required to perform those duties are understood to be familiar with the application of electricity to such uses, and with the appliances required and employed for their safety, and the dangers against which they should guard, and one of these persons is injured because a span wire has become charged by the coiling over it and the trolley wire a portion of the latter, and there is no reasonable ground for supposing that a. prudent and care ful operative would have failed to notice it under the circumstances, but he, not noticing it, exposed himself to danger, and received in