Logemann and another vs. Pauly. "Westover," and had been in the vessel business for years, and he testified that the "Westover" would be worth $35 a day, and the "Bliss " $10 additional. W. E. Holmes, a vessel broker of Chicago, testified that the "Westover" and "Bliss" were worth from $40 to $50 per day, and that there was a good demand for vessels of this character during the period named. On the part of the plaintiffs, in rebuttal, Charles G. Forster testified that he was in the lumber business in Milwau kee, and operated vessels in that business since 1892; that freight rates on lumber between April and July, 1895, were from $1.12 to $1; that the general demand for lumber carrying vessels at that time was light, and he never heard of the rental of steamboats during that period; that all he knew was of a certain boat rented by the Schroeder Lumber Company as a tow, but had not heard of the renting of any steamboat; that it would be hard for him to say, as rates went, what the earning capacity of the "Westover" would be during that period; that that would depend on whether there was a steady run or not; that it might have made, during the time mentioned, $1,200. George D. Sheriffs testified that he was secretary of the Western Malleable & Gray Iron Company, and had had business which brought him in connection with shipping in 1895; that he was posted on the freight rates from Menominee to Chicago; that lumber was carried on the steamer "Joyce" from these ports; that the carrying capacity of the "Westover," which was an iron boat, was about 50,000 feet more than that of the "Joyce," which was a wooden one; that he should say the rental value of such a boat during that period would not be very much because of the low rates of freight, and that, if the owner of the boat should receive $200 a month, that would be getting good pay during that period. There was testimony of various witnesses in reply to and explanation of the testimony given in support of the claim for damages, Logemann and another vs. Pauly. and of other facts and circumstances, from which it was claimed that the lower estimates for rental were sustained, and that, notwithstanding the alleged buoyancy of business in 1893 and 1894, testified to by some of the witnesses, the "Westover" was condemned on account of a defective boiler and other needed repairs, August 5, 1893, and she had to be towed home to Milwaukee; and there was no claim that there was anything done to her by way of repair before the contract for a new boiler was made, January 31, 1895, and that she was idle at the docks in Milwaukee river from August, 1893, till August, 1895. The case, so far as we are able to see, was one of protracted delay in performing an important contract, seriously affecting the defendant in the use of his boats for a period of eighty-two days, and materially reducing his profits in the use to which they were adapted, and to which they would have been devoted. In view of the facts and circumstances appearing in the record, we think that the trial court erred in modifying the referee's report by reducing the award of damages to the defendant from $20 per day, or the gross sum of $1,640, to $10 per day, or $820, for the eighty-two days during which the plaintiffs failed to make timely performance of their contract to complete and deliver the boiler in question. For this reason the judgment of the superior court must be reversed, and the cause remanded to that court with directions to set aside said modification of the referee's report, and to allow the defendant's said damages at the sum of $1,640, as reported and found by the referee, and then give judgment on said report accordingly. By the Court.-Judgment is ordered accordingly. Goesel vs. Davis. GOESEL, Respondent, vs. DAVIS, Appellant. September 24-October 11, 1898. Practice: Questions for special verdict: Instructions to jury: Evidence Husband and wife: Agency. 1. A question proposed for special verdict, compound in form and call ing for a direct affirmative or negative answer, which would not determine anything, is properly rejected. 2. Where the special verdict covers all the issuable facts, the rejection of a proposed question is not error. 3. Where there is to be a special verdict, the right to recover being a matter of law to be determined by the court on the facts found, instructions to the jury may properly be limited to the particular questions, and no general instructions be given. 4. To render a wife competent to testify in behalf of her husband to a transaction in respect to which she acted as his agent, her authority as agent and the scope of it should be made to appear; and her testimony should be confined within that scope. APPEAL from a judgment of the circuit court for Milwaukee county: D. H. JOHNSON, Circuit Judge. Reversed. Action to recover $1,400 and interest claimed to be due plaintiff from defendant on a sale of land. It was admitted that plaintiff sold the lands for $1,475, $75 of which was paid down. Plaintiff claimed the balance was to be paid in one year without interest, while defendant claimed that it was paid when the deed was delivered, by $1,400 par value in the stock of the Caledonia Land Company. There was no question on the evidence but that the stock was delivered to the plaintiff, but he claimed it was turned out as security for the $1,400. The sole contested question was whether the stock was turned out in payment for the land or as security for payment of $1,400 in one year. A special verdict was rendered at the request of the defendant. The issues were found in favor of the plaintiff. Judgment was rendered accordingly, and defendant appealed. Goesel vs. Davis. For the appellant there was a brief by W. J. & J. H. Turner, and oral argument by W. J. Turner. They argued, among other things, that the wife can only be permitted to testify, when the husband is a party, because of an exception to the general rule. In order to qualify her, and before her evidence should be taken at all, her agency in the transaction must be established. Jones, Ev. § 759; Bartlett v. Clough, 94 Wis. 196; Gibbs v. Holcomb, 1 id. 23; Chunot v. Larson, 43 id. 536; Marsh v. Pugh, id. 597; Hazer v. Streich, 92 id. 505. The testimony must be shown to be within the scope of the agency. Chunot v. Larson, 43 Wis. 536; Hazer v. Streich, 92 id. 505. The agency of the wife cannot be established by her own testimony. Jones, Ev. § 256; 9 Am. & Eng. Ency. of Law, 840. For the respondent the cause was submitted on the brief of K. Shawvan. MARSHALL, J. There was evidence tending to show that defendant was represented by one Ganing in making the trade with plaintiff. The scope of the agent's authority was called in question. On that the court was requested to submit to the jury the following question: "Was Ganing authorized by the defendant to buy the plaintiff's property for cash or was his authority limited to trading of land stock?” The request was refused, and that is assigned as error. The ruling was proper because of the form of the question, if for no other reason. It called for a direct answer in either the affirmative or negative. Such an answer would not have determined anything. The question, if submitted and answered would have been, in effect, that the agent was authorized to do one or the other of two things, but which of the two would have remained undetermined. Questions for a special verdict should be plain, single, and each so worded as to cover some fact in issue, or some fact properly issuable under the pleadings, and requisite to a determination of the Goesel vs. Davis. controversy between the parties. Eberhardt v. Sanger, 51 Wis. 72; Jewell v. C., St. P. & M. R. Co. 54 Wis. 610; Klochinski v. Shores L. Co. 93 Wis. 417. A compound question calling for a direct affirmative or negative answer, where either may be favorable or unfavorable to either party, has been repeatedly condemned by this court. The question under discussion clearly falls under that condemnation. Moreover, if the question were properly framed, its rejection could not be successfully assigned as error, because the verdict rendered clearly covers all the issuable facts in the case. Error is further assigned on the refusal to give certain general instructions as to the law governing the right of plaintiff to recover. Such instructions were not applicable to a special verdict, and were properly rejected on that ground. Where there is such a verdict, the right to recover being one of law to be determined by the court on the facts found, instructions may properly be limited to the particular questions, and no general instructions whatever be given. Burns v. North Chicago R. M. Co. 60 Wis. 541. It is further assigned as error that the plaintiff's wife was permitted to testify, against objection, to a conversation between herself and defendant, by which means she was able to state, substantially, what her view of the contract was between plaintiff and defendant. No theory is apparent as to what influenced the trial court to permit that evidence, unless it be that the rule applied, allowing a husband or wife who is the agent of the other in respect to a business transaction, to testify thereto within the scope of such agency. That she was incompetent to testify on any other ground is too clear to require consideration or discussion. To render her competent to testify on such ground, her authority as agent, and the scope of it, should have been made to appear, and her testimony have been confined within that scope. No authority whatever is shown here for plaintiff's wife to act as his agent, except the mere fact that she was "sent to |