Ritter vs. Ritter. between the plaintiff and the defendant, whereby it appeared that the plaintiff was indebted to the defendant in the sum of $110.26, upon a full, complete, and final accounting between them; and then alleged the same by way of counterclaim, and prayed judgment for that amount. The plaintiff replied, denying the counterclaim, with certain exceptions. The case was thereupon referred to a referee to hear, try, and determine. Upon such trial and hearing the referee found that there was due to the plaintiff from the defendant $172.55, and that the plaintiff was entitled to judgment against the defendant for that amount, with costs. On motion to modify and confirm such report, the trial court found, in effect, that there was an obvious mistake in the referee's report in not finding that the $526.57 which is admitted to have been paid by the defendant to the plaintiff, as stated in the written agreement of settlement made June 12, 1895, included $243.63 allowed to the plaintiff by the defendant, and being one half of the moneys collected by the defendant upon accounts made during the month of April, 1895, and also $256.88, being one half of the total profits of $513.76 made during that month, thereby allowing the plaintiff to participate twice in the accounts made during the month of April, 1895; that those two items, thus counted twice, amounted, in the aggregate, to $500.50, being the amount of the mistake alleged in the answer. The court also accounted for the same mistake by showing that the plaintiff was credited with $1,700.25, being one half interest in the new accounts receivable, and charging him on the corresponding account with only $1,200.25, being the one half of $2,400.51, making a difference of $500. 1. These findings of the trial court are sustained by the evidence. In fact, the mistake is conceded by counsel, but it is contended that it is more than offset by other mistakes in favor of the defendant. No such mistakes, however, are alleged in the pleadings, nor do they seem to have been brought to the attention of the trial court. We cannot re Ritter vs. Ritter. view questions not decided by, nor presented to, the trial court. The trial court corrected and restated the accounts between the parties, and found that there was due to the defendant from the plaintiff $110.26, and ordered judgment in favor of the defendant for that amount, and this is an appeal from the judgment entered thereon accordingly. The questions presented are purely questions of fact. We think they were correctly decided. 2. Counsel contend that this is an action at law, and that the clerk correctly limited the taxation of costs to $15. We are clearly of the opinion that this action for an accounting between partners is equitable in its nature, and that the costs were properly taxed on that theory. 3. It is claimed that the costs were not taxed in time. Although the findings of the court bear date November 10, 1897, yet they were not, in fact, made and filed with the clerk until January 5, 1898. On January 20, 1898, the defendant served his bill of costs and notice for the taxation of the same. The clerk limited the taxable costs to $15. Thereupon the attorneys for the defendant gave notice of retaxation of such costs, and after the hearing of that motion, and on March 21, 1898, the court vacated and set aside such taxation by the clerk, and ordered that the clerk tax in favor of the defendant full costs and disbursements as and for a case in equity, and insert the same in the judgment; and thereupon, and on April 1, 1898, the judgment was perfected accordingly. The costs having been taxed within the sixty days, the defendant did not waive his right to costs by reason of the delay in the retaxation of the same, under sec. 2894a, Stats. 1898. That statute makes a party responsible for his own negligence and delay, but not for such delay in securing a retaxation of costs. State v. Reesa, 57 Wis. 422. By the Court.- The judgment of the superior court of Milwaukee county is affirmed. Cotzhausen vs. H. W. Johns Mfg. Co. of New Jersey. COTZHAUSEN, Respondent, vs. H. W. JOHNS MANUFACTURING COMPANY OF NEW JERSEY, Appellant. September 2-September 20, 1898. Contracts: Parties: Deceit: Corporations: Consolidation: Assumption of obligations. 1. A third person who, by false representations, induces a person to enter into a contract with another, does not thereby become a party to such contract so as to be liable in an action thereon, although he may, perhaps, be liable in tort for damage resulting from his deceit. 2. A corporation formed by the consolidation of several others does not, by assuming all their debts, obligations, and contracts, render itself liable for a tort theretofore committed by one of them. APPEAL from a judgment of the circuit court for Milwaukee county: D. H. JOHNSON, Circuit Judge. Reversed. The complaint in this action charged that the defendant is a New Jersey corporation, organized in June, 1891, and is a consolidation of a number of corporations previously existing, among which was the II. W. Johns Manufacturing Company of New York, and that the defendant company assumed all the debts, obligations, and contracts of the previous corporations which were consolidated to form the defendant; that in the year 1889 the plaintiff was erecting a businessblock in Milwaukee, and invited bids for roofing the same, and received a written proposal from one Phillip Gross, of Milwaukee, then the agent of the H. W. Johns Manufacturing Company of New York, who proposed, in behalf of said company, to construct the roof known as the "H. W. Johns asbestos roof," manufactured by said company under a patent, for five dollars a square; that the plaintiff at first rejected said bid, but that the H. W. Johns Manufacturing Company of New York, by its Chicago agents and the said Gross, made repeated representations to the plaintiff as to Cotzhausen vs. H. W. Johns Mfg. Co. of New Jersey. the good qualities of the H. W. Johns roof (which representations are fully set forth in the complaint, but are not necessary to be repeated here), and that the plaintiff finally, by means of such representations and relying thereon, changed his mind and accepted said bid for the asbestos roof of said company, the price being reduced to $4.75 per square. The complaint further alleges that the roofing was done in the summer and fall of 1890, and was entirely paid for in November, 1891, but that the roof proved to be worthless, and entirely failed in the winter of 1894, and that the representations, assurances, and warranties of said H. W. Johns Manufacturing Company of New York, and its then agents, as to the character, quality, and durability of the material employed, utterly failed, so that an entirely new roof had to be put upon the building, and that by reason of the premises the plaintiff was damaged to the amount of $2,000, for which he prayed judgment. The answer denied that the H. W. Johns Manufacturing Company of New York ever made the contract set forth in the complaint, and denied that Phillip Gross was at any time the agent of said company, and alleged that the roofing contract set forth in the complaint was entered into between the plaintiff and Gross upon his own account. Upon the trial of the action it appeared that Phillip Gross in September, 1889, was engaged in business in Milwaukee, and had the exclusive right to sell and use the asbestos roofing manufactured by the H. W. Johns Manufacturing Company of New York, but was not the agent of said company for the purpose of making contracts to put on roofing, and that on the 6th of September he made a written bid to the plaintiff on his own account to furnish and lay complete an II. W. Johns asbestos roof for five dollars per square upon the plaintiff's building. It further appears that in the latter part of April, 1890, the H. W. Johns Manufacturing Company of New York transferred the exclusive right to use and Cotzhausen vs. H. W. Johns Mfg. Co. of New Jersey. sell their roofing in Milwaukee to Messrs. A. Monsted & Co., and that the further negotiations had with regard to the roofing were had with Monsted & Co., and resulted in the making of the following written contract on the 5th of August, 1890: "Messrs. A. Monsted & Co. agree to place the asbestos roof on Metropolitan Block, furnishing all necessary material, in first-class manner, at $4.75 per square. Work must be commenced within twenty-four hours after roof is in readiness, and finished without any unreasonable delay. "F. W. VON COTZHAUSEN. "A. MONSTED & Co." Prior to the making of this contract, one Near, a traveling salesman of the II. W. Johns Manufacturing Company of New York, had called on the plaintiff with Monsted & Co., and left with the plaintiff circulars commending the H. W. Johns roofing, and also made oral representations as to its character; but it did not appear that either Near or Monsted claimed to act on behalf of the company in making contracts, nor did it appear that either of them was authorized to make any such contracts on behalf of the company. The evidence further tended to show that the roof put upon the building by Monsted & Co. proved to be defective, and a special verdict was rendered in the action as follows: "(1) Was the defendant company organized on or about the 25th of June, 1891, and did it begin business on or about the 1st day of July, 1891, and is it a consolidation of the following previously existing corporations, namely, the II. W. Johns Manufacturing Company of New York, organized in 1887, the Asbestos Packing Company of Boston, the CalmerSpence Company of New York, C. W. Trainer & Co. of Boston, and the Shields & Brown Company of Chicago? Answered, 'Yes,' by consent of counsel. "(2) Did the defendant company then assume all the debts, obligations, and contracts, of every kind and nature, of each of the pre-existing companies aforesaid, including the obliga |