employment, and by force prevent a railway company from using its road and carrying on its business, will excuse the company for loss by detention of goods so caused. Geismer v. Railroad Co., 102 N. Y. 563, 7 N. E. Rep. 828; Railway Co. v. Hollowell, 65 Ind. 188; Railroad Co. v. Bennett (Ind.), 6 Amer. & Eng. R. Cas. 391; Railroad Co. v. Hazen, 84 Ill. 36. In this State we are bound to hold to the common-law principle. Our legislature has so declared (Rev. St. art. 277), and we are not at liberty to go beyond it.

ARBITRATION, INCIDENTAL TO CONTRACTS OF INSURANCE.

Policies of insurance now form one of the largest class of contracts in use, and perhaps find their way before the courts for construction or the determination of differences under them oftener than any other in the commerce of our country, covering every phase of personal and physical disability; following death under any circumstances; including nearly every property interest, and made upon conditions meeting the demands of either the insurer or insured, they are fruitful sources of disagreement, especially of minor questions. Nearly all of them provide for submission to arbitration, differences that may arise between the parties in case of loss.

Origin. This practice, it is said, can be traced to the infancy of insurance, and originated in a laudable desire to avoid the vexation, delay and expense of litigation relating at least to any question less than liability under the policy.

Scope of Submitting Clause.-In many instances, much more frequent in the early history of insurance, it was sought to require all matters1 of difference that arose, to be first referred for arbitration; but the courts as early and as often held such a stipulation of no binding force, and the rule, as applied in a later case, was adhered to, when the question arose over the non-payment of a sum stipulated to be paid. Various reasons are given for withholding the force

1 May on Insurance, § 492; Phillips on Insurance, §§ 865 and 1941.

2 Phillips on Ins., § 1941; May on Ins., §§ 492 and 493; Gray v. Wilson, 4 Watts. (Penn.) 41; Lauman v. Young, 32 Pa. St. 810; Ins. Co. v. Morse, 20 Wall. (U. S.) 445; Cobb v. N. E. Mut. Ins. Co., 6 Gray (Mass.), 191; Rowe v. Williams, 97 Mass. 163. (Cases cited in note.)

3 Lutro Tunnel Co. v. Segregated Belcher Min. Co., 7 Pac. Rep. 271, 19 Nevada, 121; Gladstone v. Osborne, 2 Car. & P. 550.

of such a provision, and the ones underlying most decisions are two, viz: That it would be against public policy, and that it would substantially oust courts of jurisdiction over them; and it is aptly suggested in a decision given credit as possessing high judicial merit and a long established precedent, that it would be creating the ludicrous position of compelling a party to resort to the courts to enforce a provision to keep out.7

The fair result of the authorities is, that if the contract is in such terms that a reference to a third person is a condition precedent to the right of the party to maintain an action, then he is not entitled to maintain it until that provision is complied with; but if on the other hand the contract is to pay the loss with a subsequent contract to refer the question to arbitration, contained in a distinct clause collateral to the other, then that contract for reference shall not oust the court of jurisdiction.8 The distinction is clearly traceable among the decisions of the courts of high repute, between an agreement to submit every matter in dispute, which would include the question of liability under the policy, and any other difference subservient to the right to recover in an action.

Agreement Operative and Inoperative.The agreement not to sue being dependent upon the agreement to arbitrate, if the latter never becomes operative by the expressed desire9 of the party in whom the option rests,

Cobb v. Gray, Id.

5 Hunger on Ins., 351; Angle on F. & S. Ins., § 354; Flauds on Fire Ins., 632; Mitchel v. Ves. Jr., 136; Trott v. City Ins. Co., Cliff. 439; Stephenson v. Ins. Co., 54 Me. 55; Old S. L. & D. D. Co. v. Com. U. A. Co., 5 Pac. Rep. 232 (66 Cal. 253); Adams v. Ins. Co., 11 Pac. Rep. 627 (70 Cal. 198); Allegre v. Maryland Ins. Co., 6 Har. & J. 408; Robinson v. George's Ins. Co., 17 Me. 131; Hill v. Hollister, 1 Wils. 129; Amesburg v. Bonditch Ins. Co., 6 Gray, 696.

6 Scott v. Avery, 20 Eng. L. & Eq. 327.

7 Yeomans v. Guard F. & M. Ins. Co., U. S. Cir. Ct. Dis. of N. J. 5 Ins. L. F. 858, 3 Cent. L. J. 792; Laubalum v. Anchor M. Ins. Co., 22 New B. 14; Gauche v Sandon & S. Ins. Co., 10 Fed. Rep. 347; Carroll v. Girard Fire Ins. Co., 13 Pac. Rep. 863; Holens v. Richet, 56 Cal. 307.

8 Reed v. W. F. & M. Ins. Co., 138 Mass. ; Canfield v. W. F. Ins. Co., 55 Wis. 419; Phoenix Ins. Co. v. Badger, 53 Wis. 283; Gere v. Council Bluffs Ins. Co., 67 Iowa, 272; Goldstone v. Osborne, 2 C. & P. 550; Liverpool, L. & Globe F. I. Co. v. Coeighton, 51 Ga. 95; May on Ins., § 494.

9 Gere v. Council Bluffs Ins. Co., 23 N. W. Rep. 137, 67 Iowa, 272; Robinson v. George Ins. Co., 17 Me. 131; Scott v. Phoenix Ins. Co., 1 Stu. K. B. 152.

then the agreement not to sue becomes inoperative. 10

When and When Not a Bar.-If the contract does not contain a provision not to sue until after an award is made, a stipulation to refer a controversy arising out of it to arbitration is no bar to an action by either party to recover damages for a breach of the contract, unless it was intended as a condition 11 precedent.12 The rule would be different if there was a reference pending or an award made. 13 A simple agreement to refer where no reference has been had does not take away the jurisdiction of any court, nor is it a condition precedent to suit, but is a mode of providing what should be deemed conclusive evidence of the fact submitted.

Not Specifically Enforced.-There cannot be a decree for the specific performance of a stipulation to arbitrate.14 At common law

(the rule is changed by the different statutory provisions), arbitrators cannot compel the attendance of witnesses, administer an oath, compel the production of documents, books of account and papers, or insist upon the discovery of facts from the parties under oath. Therefore, equity refuses to compel a party to submit to a tribunal which confessedly does not possess power and adequate means within itself to investigate the merits of a case. Another reason is, the court has no power to compel the parties to name the arbitrators, or to agree upon them, and not having authority to select them itself, the

10 Phoenix Ins. Co. v. Badger, 53 Wis. 283, 10 N. W. Rep. 504; Gibbs v. Conn. Ins. Co., 20 N. Y. S. C. Rep. 611; Mark v. National Fire Ins. Co., 24 Hun, 565, 91 N. Y. 663; 2 Dig. Fire Ins. Dec. 40, 41; Leach v. Neptune Fire Ins. Co., 58 N. H. 245; Nuring v. Firemens' Fund Ins. Co., 30 N. W. Rep. 350, 63 Mich. 633; Wallace v. German American Ins. Co., 1 McCrary, 335, 2 Fed. Rep. ; 2 Wood's F. Ins., 115, 116; Schollenberger v. Phoenix Ins. Co., 7 Ins. L. J. 697; Mentz v. America Fire Ins. Co., 79 Pa. St. 478; Reed v. Washington Ins. Co., 138 Mass. 572; Stephenson v. Piscataqua Ins. Co., 54 Me. 55; Cobb v. New England M. M. Ins. Co., 6 Gray, 192; Troll v. City Ins. Co., 1 Cliff. 439; Losher v. Northwestern Nat. Ins. Co., 18 Hun, 98; Hurst v. Litchfield, 39 N. Y. 377; 2 Wood, Ins. 1016.

1 Oakwood Retreat Assic. v. Rathbone Imp., etc., 26 N. W. Rep. 742, 65 Wis. 177; Mentz v. America Fire Ins. Co., 79 Pa. St. 478; Tasher v. Northwestern Nat. Ins. Co., 25 N. Y. 98; Hurst v. Litchfield, 39 N. Y. 377. 12 Perkins v. United States Electric Light Co., 16 Fed. Rep. 513; Gauche v. Landon & L. Ins. Co., 10 Fed. Rep. 347.

13 Hill v. Hollister, supra; Mitchel v. Harris, 2 Ves. Jr. 129; Street v. Rigby, 6 Ves. Jr. 814; Gere v. Council Bluffs Fire Ins. Co., 23 N. W. Rep. 137, 67 Iowa, 272. 14 Chicago M. N. B. Ry. Co. v. Stewart, 19 Fed. Rep. 5.

decree would be incapable of enforcement. As shown in closing this article, the policy of the common law has been to permit parties in all cases to revoke a submission to arbitration; hence to decree a specific performance would conflict with a fundamental principle that is especially sacred in this branch of our jurisprudence. Another reason that no doubt has suggested itself from the authorities holding an agreement to submit all matters to arbitration of no binding force is, that to compel parties to submit to arbitration would oust courts of jurisdiction, and tend to refer difficult legal questions to inexperienced persons.15 perienced persons.15 This subject is elaborately discussed by Justice Story in Tobey v. Bristol Co., 3 Story, 826, who concludes thus: "The very impracticability of compelling the parties to name arbitrators, or upon their default for the court to appoint them, constitutes, and must forever constitute, a complete bar to any attempt on the part of a court of equity to compel the specific performance of any agreement to refer to arbitration. It is essentially, in its very nature and character, an agreement which must rest in the good faith and honor of the parties, and, like an agreement to paint a picture, or to carve a statute, or to write a book, or to invent patterns for prints, must be left to the conscience of the parties, or to such remedy in damages for the breach thereof as the law has provided."

Revocation. It is a general rule applicable to all agreements to submit to arbitration (and there seems to be no reason why it should not apply to insurance contracts), that parties may decline to perform or carry out this provision at their choice, and this right is recognized and guarded very carefully throughout all decisions involving this question.16 M. C. PHILLIPS.

15 Noyes v. Marsh, 123 Mass. 286; Hill v. More, 45 Me. 515.

16 Greason v. Ketelles, 17 N. Y. 490; Nuring v. Firemen's Fund Ins. Co., 30 N. W. Rep. 350, 63 Mich. 633.

THE NULLITY OF PROTECTIVE LAW.

The constitution of New York provides that cruel or unusual punishments shall not be inflicted. With this provision in force the legislature enacts that execution shall be by electricity instead of hanging.

Execution by electricity is such a novelty that it had never been heard of when the constitution was adopted. It is such an experiment that no man can say that he ever saw death from such source, except as pure accident; it is so without precedent that the attention of the world is drawn to it as an idea of recent and fresh production. Yet, when the prisoner pleads that such a law violates the protective clause, the judges declare that execution by electricity is not an unusual punishment.

Besides changing the means of death, the mode and detail are also changed. The prisoner, instead of a sentence for some fixed date, is to be placed in solitary confinement for a period of from one to seven days; at some unknown hour his cell door is to open and he is to be led out to die, without preparation or farewell, in close secrecy-by machinery not yet patented, and in some way not even known to his judges (except that it is to be by shock). He is also moved to an indefinite distance out of the district where convicted and where it is morally certain that neither his family nor ghostly adviser can follow him (although these in mockery are permitted to attend him). In solitary confinement he is to remain, not knowing of the time or method of his vivisection, except only that while short it is supposed to be exquisitely painful-practically by burning a hole through his brain-all these things are left to be magnified by his imagination inflamed by the loneliness of his solitary confinement and the necessary absence of every friend on earth.

The circumstances of his taking off surround themselves in his mind with all the horrors of the second death; with all the terrors of the day of judgment and with all the agony that a poetic and sentimental cruelty can place about them, besides which, remains the fact that all these incidents are peculiar to this new law and were never before known to Anglo-Saxon jurisprudence. But the judges, in wise language, beating down the only and essential meaning of the words of their native tongue, say that such incidents of the execution are neither "cruel" nor "unusual."

The constitution of Colorado contains a like protective clause. The last general assembly adopted a similar law, except the

electricity. The prisoner in Colorado also, is to be carried to a public slaughter house and there, at his jailor's pleasure, with the same secrecy and mystery, is to be privately butchered. The trial courts of that State have already intimated that such manner of punishment is neither cruel or unusual.

In Utah, a Mormon applies for naturalization; after taking much testimony the court ascertain that his church teaches, and he believes, that where church and State conflict he must obey the church, and on this ground citizenship is refused. On the same ground the members of every other church should be disfranchised. They all teach, and from the essence of religion must teach, that the church must be obeyed before the law. The persecutions without exception, have been because the persecuted obeyed their church and not the law-and yet this decision stands in the very face of the constitution of the United States which forbids the passage of any law prohibiting the free exercise of a man's religion.

The result is a practical repudiation of the Bill of Rights. The natural and self-evident meaning of words is denied them. Could language be more plain than the common English adjectives "unusual" and "cruel;" and yet that which was never heard of before is decided to be "usual;" that refinement of suffering, keener than any pain from the ax or the rope, is declared free from all element of cruelty aside from the undenied proposition that all forms of death are cruel to a certain extent; and to prefer obedience to God rather than man is declared to be a tenent beyond the protection which we thought was enjoyed as a part of a religious liberty. R. S. MORRISON.

Denver, Colo.

FRAUDS-STATUTE OF CONTRACTS TO MANUFACTURE.

CENTRAL LITH. & ENG. CO. V. MOORE.

Supreme Court of Wisconsin, December 3, 1889.

1. Contracts-Work and Labor-Sales.--A contract by A to manufacture for B a quantity of engravings and lithographs for theatrical purposes, which are useful only to B, is a contract for work and labor and not a contract for sale, though A is required to furnish the materials.

2. Bailee-Loss by Fire.-If B fails to call for such goods within the time specified in the contract and

they are subsequently des'royed by fire while they are in A's possession without his fault, the loss falls on B. 3. Bailee-Insurance.-An insurance affected on such goods by A for his own benefit, B not having paid the contract price therefor, does not affect the contractual relations between A and B.

ORTON, J.: By two certain agreements, one dated September 15, and the other November 2, 1885, the plaintiff agreed to manufacture a large quantity of engravings and lithographs for theatrical purposes, for the defendant and for his special use, to be taken and paid for during the theatrical season of 1885-86, and all of the work was to be completed and ready for delivery by the 15th day of December, 1885. A large portion of the goods were taken and paid for during the theatrical season above stated, and the remainder was ready for delivery by the 15th day of December, 1885, and during that theatrical season, and was not called or paid for until it was burned up on the 26th day of May, 1886, on the premises of the plaintiff, where it was piled up and set apart for the defendant. The plaintiff had procured insurance on this remainder of the work, and received part of what was due on the contracts, for the loss, from the insurance company. This suit is brought to recover the balance unpaid. The jury found that the plaintiff had manufactured the goods ready for delivery at the time fixed in the contract, and had them ready for delivery at all times thereafter, until the fire occurred; and that the hand-colored proofs under one contract, and the quality of the paper under the other, were accepted by the defendant as sufficient; and that he also accepted a part of all the different kinds of work, and paid for the same, during the theatrical season; and that the theatrical season ended on the 1st or 5th day of May, 1886. The only ambiguity in the contracts was as to when the theatrical season ended or was to end, and that the jury has supplied, and we think on sufficient evidence, by the last above finding. The jury found, also, that it was agreed and understood that the title of the property should pass to the defendant the 15th day of December, 1885, the time the work should be finished, and that manufacturing the goods and selling them apart subject to the defendant's order, it was mutually understood, should be delivery to the defendant. These two findings dispose of questions of law which depend upon the meaning, construction, and legal effect of the written contracts, and they ought not to have been submitted to the jury. But the court sufficiently ruled the same way, by refusing to set the same aside, and to grant a new trial, and the verdict of the jury, in this respect, has done no harm.

The learned counsel on both sides, and the court below, treated this transaction as a sale of personal property. It was not a sale. When the contracts were entered into there was nothing in solido to be the subject of a sale. The mere paper, as the basis of this valuable work of mechanical art, was not only of insignificant value, but

was not the subject of sale. The defendant did not wish to buy blank paper, and the plaintiff had none to sell. The plaintiff was to manufacture these engravings and lithographs for the especial, peculiar and exclusive use of the defendant in his business as a theatrical manager. They were advertisements adapted to the names and characters of his theatrical performance. It was the plaintiff's work of skill that gave the property produced by it any value. It was work and labor performed according to the order and direction of the defendant, and according to the terms of the contracts. When the required works were produced and ready to be taken away by the defendant and paid for, it was then not a sale. The plaintiff did not own them, and did not wish to own them, for they were of no use or value whatever to him, and were only of use and value to the defendant. When the job was completed according to the contracts, then the defendant was under legal obligation to take them away, and pay the amount agreed upon, during the theatrical season which ended May 5, 1886. If he does not do this, what are the legal rights of the parties? Is there any question about delivery or acceptance? Clearly not. It makes no difference to the plaintiff whether the defendant takes them away or not, for he is entitled to be paid for the job, or for his work according to the contracts. The contracts are that the works shall be paid for "as they are delivered;" that is, as they are delivered during the theatrical season of 1885-86. After that the money is due at all events. The defendant is liable because he has not accepted the work, and taken it away, and paid for it, according to the contracts. It is not even property out of which the plaintiff could reimburse himself, for it is of no value to him, or to any one else, except the defendant. How long must the plaintiff wait? The money is due, and he may sue for it. These are, especially, contracts for work and labor of this peculiar kind, and the transaction is more clearly not a sale than almost any other where the new thing is produced by work and labor for another. For in such cases the article produced is generally of some considerable value to the mechanic, or it may be sold in the market. But not so here. But the contracts themselves call it work and labor. In both it is that the "party of the first part agrees to lithograph, in a workmanlike manner, for the party of the second part, the following described work." They provide that the party of the first part shall print, engrave, and lithograph for the other party the various kinds of work. The plaintiff is stated to be lithographers, wood-engravers, printers, and binders. These contracts may be likened to a job that a printer does for another, and according to his directions, when the work consists of hand-bills or advertisements set up in attractive form, and adapted exclusively to the business of such person, and useful to no one else. The job is completed according to contract, and the other party has failed to take them away and pay for them. May not.

the printer sue? Or an artist paints the likeness of another according to contract. It is not called for, but left a long time on the artist's hands. The work was well done and acceptable to the person who ordered it. It is of no use to the artist, or of any value to any one, except to him whose likeness or picture it represents. In all these cases it is too clear for argument that the tranaction is not governed by the law of sales, but of work and labor. In these supposed cases, if the hand-bills and advertisements in the one case, and the likeness in the other after the time for taking them away and paying for them had expired, are burned up, whose loss is it? They are put by themselves in a safe place until called for. Why should the printer or the artist lose by the fire, and the person who ordered the work done, and who is in default in not taking it away and paying for it, and by whose negligence it was left with the artist where it was burned, without his fault, suffer no loss? The law works no such injustice. These cases are alike in principle. They are clearly analogous.

The defendant, by his own default and neglect, left his engravings and lithographs with the plaintiff, and under his care and custody, as a naked bailee, for some time after the time he agreed to take them away and pay for them, and they were burned. They were piled together and set apart for the defendant in a safe place, and he had accepted the work as being according to the contract. There can be no doubt, as we have said already, that the plaintiff had an action for the money agreed to be paid after the time for payment had expired. In that view, the fact that the work was afterwards burned up is immaterial, unless caused by the plaintiff's negligence. But, in analogy to a sale of the property, it was left in the plaintiff's care by the fault of the defendant, and if there was any loss by flre he must suffer it. Where several articles of the same kind were purchased, and only one taken away, and the others left with the vendor, to be called for at any time the vendee chose, the title of the property passed to the vendee at the time of the sale. Bullis v. Borden, 21 Wis. 139. So the title of this property passed to the defendant, December 15, 1885, when it had all been manufactured according to the contracts, and part of it taken away, and after that remained with the plaintiff or under its care, until called for, during that theatrical season. Where one had stored in a certain warehouse a large number of barrels of flour, and sold the same to another, to be paid for "when used or disposed of," a part of them had been disposed of or taken away and paid for. Most of the remaining barrels were destroyed by fire with the warehouse. It was held that the property burned belonged to the purchaser, and that he was liable at once for the price of that burned up. Boland v. Benson, 54 Wis. 387, 11 N. W. Rep 911.

There is another principle of liability in such a case, and that is that the defendant was liable

for not accepting and taking away the goods manufactured after the time he was required by the contracts to do so, as in Ganson v. Madigan, 15 Wis. 144. The defendant had ordered a reaping-machine of the manufacturer of a certain kind. The machine was what the defendant had ordered, and the plaintiff had set it apart for the defendant, so as to be capable of identification. It was held that the plaintiff could have sold the machine to satisfy his lien upon it, and recover the balance of the purchase price, or could have held it subject to the defendant's order and recover the whole price. In Mixer v. Howarth, 21 Pick. 207, where it is an agreement with a workman to put materials together and construct an article for the employer at an agreed price, it was held that it was not a sale until actual delivery and acceptance, and the remedy was for not accepting it on the agreement. To the same effect are Spencer v. Cone, 1 Metc. 283; Goddard v. Binney, 115 Mass. 450. In Atkinson v. Bell, 8 Barn. & C. 277, the defendant ordered certain frames, with alterations made on them, of the patentees, and when ready for delivery refused to accept them. It was held that the plaintiff might recover for his not accepting them. To the same effect is Lee v. Griffin, 2 Best & S. 272, where a person ordered a set of artificial or false teeth made to fit his mouth. It was held that the plaintiff might have recovered from the defendant for his not accepting them, if the contract had been in writing; and Mead v. Case, 33 Barb. 202, was to the same effect, where blocks of marble were directed to be finished, polished, and lettered with inscriptions as a monument. But finally, on this general question, this court recently decided that a transaction or contract not by any means so clearly not so, was not a sale, but for work and labor. In Meincke v. Falk, 55 Wis. 427, 13 N. W. Rep. 545, the article to be manufactured was a family carriage, specially ordered of a particular model. The plaintiff's skill, labor, and workmanship were the special inducement in giving the order, and without such order the plaintiff would not have manufactured it, and it was not kept as a part of his general stock. The carriage was completed according to the contract or order, and the defendant refused to accept it. The action was for the value of the carriage, and for storing it for the defendant, on the ground of non-acceptance. In that case Mr. Justice Cassoday reviewed very fully the authorities on the question, which were conceded to be somewhat in conflict. It was held that it was not a sale of the carriage, but a contract for work and labor, and that, therefore, the verbal contract was not within the $50 statute of frauds. The complaint in this action was not for the price of the goods, as sold to the defendant, but the ground of the action is that "the defendant has never ordered the same shipped, nor taken or paid for the same, or any part thereof;" in effect, that the defendant had refused to accept the same.

This case, therefore, falls directly within the