ty, at least where the latter has thereby been misled into changing his position. And this seems to be so not only in cases where the surety had no knowledge or notice of the alleged fraud or mistake, but also where, knowing that the settlement was fraudulent or erroneous, he assumed from the ward's long acquiescence that the latter was satisfied.

Thus, in Aaron v. Mendel (1880) 78 Ky. 427, 39 Am. Rep. 248, holding a suit against a surety to be barred by laches, by reason of acquiescence in the settlement for four years, the court said: "Knowing that a release had been given, and hearing no complaint of it, he had a right to assume that it was satisfactory, and that his liability as surety for the guardian was at an end. He was not bound to inquire into the terms of the settlement or the manner in which the release was obtained, but, from his knowledge of its existence, and being in ignorance of the fraud and undue influence by means of which it was procured, there was nothing to put him on inquiry, and he not only had no reason to seek indemnity, but, on the facts known to him, he had no legal ground upon which to ask it." And see further reference to and quotation from this case in the reported case (STATE TRUST & SAV. BANK v. OTERO, ante, 55).

A judgment in a former action against the guardian alone, annulling a fraudulent settlement and fixing the amount due the ward, will be binding on the sureties as to the question whether the ward proceeded with due diligence, where the matter of the ward's laches was necessarily an issue in that action. Douglass v. Ferris (1893) 138 N. Y. 192, 34 Am. St. Rep. 435, 33 N. E. 1041.

Although on the facts it was held in Douglass v. Ferris (N. Y.) supra, that there was no laches, the court said that the ward's omission to promptly repudiate and rescind a settlement (procured by the guardian's fraud), and long acquiescence by the ward in what was done, with knowledge of all the facts, would furnish a good defense to the sureties. But it qualified that statement by asserting

that mere delay would not affect the obligation of the sureties, provided the right to proceed against the guardian was not barred by the Statute of Limitations.

b. Particular periods.

Twelve years.

In holding that a delay of twelve years after the discharge of the guardian, before the ward brought suit against the surety, did not amount to laches, in Gillett v. Wiley (1888) 126 Ill. 310, 9 Am. St. Rep. 587, 19 N. E. 287, the court not only adopted a statutory limitation of sixteen years, but, in view of the fact that the ward was ignorant and of weak mind and body, it relied further upon the rule that the failure to use reasonable diligence to discover the fraud may be excused when there exists a relation of trust and confidence between the parties, rendering it the duty of the party committing the fraud to disclose to the other the truth, and where it was through the acts of the former that the latter was induced to refrain from inquiry; and observed, also, that the surety knew of the ward's condition. Eleven years.

See Epes v. Williams (1897) 2 Va. Dec. 485, 27 S. E. 427, supra, II. b.

Nine years.

In holding that there was no laches in delaying suit on a bond for nearly nine years after the ward (then apparently not of age) was fraudulently induced to sign a release, the court in Carter v. Tice (1887) 120 III. 277, 11 N. E. 529, took the view that the sureties were not misled by the ward's want of action, since they were chargeable with knowledge of the fraud. Eight years.

In holding sureties to be relieved by the ward's acquiescence for over eight years after a final settlement, in Hart v. Stribling (1889) 25 Fla. 433, 6 So. 455, where no fraud or improper influence was alleged, the court took the view that the settlement deprived the sureties of an opportunity of obtaining indemnity by rendering it unnecessary, and perhaps impossible, for them to take any steps to secure themselves,

But in holding that a suit against the sureties of a deceased guardian was not barred by estoppel, where the ward waited six or seven years after signing an acknowledgment that the former's final account was correct, the court in People use of Johnston v. Borders (1889) 31 Ill. App. 426, observed, inter alia, that the guardian was not discharged, that it did not appear that either of the sureties ever knew that the ward had signed the receipt, and that inquiry at the court would doubtless have revealed the fact that no money was paid when the receipt was signed.

Six years.

Acquiescence for more than six years after the allowance by the probate court of a final settlement was held in High v. Snedicor (1876) 57 Ala. 403, to preclude the ward's suit against the guardian's sureties, where no fraud or bad faith was alleged.

Five years.

The ward's duty to the surety to make known withi.. a reasonable time his objection to a settlement contract appears to have been the ground for the decision in Hardin v. Taylor (1880) 78 Ky. 593, that, by delaying five years after the settlement (made upon his becoming of age) before complaining, the ward could not hold the surety.

But in Witt v. Day (1900) 112 Iowa,

110, 83 N. W. 797, a discharge of a guardian and his sureties was set aside, notwithstanding suit was not brought within five years after the ward became of age, the court observing that the ward did not learn of the fraud until shortly before suing. Four years.

See Aaron v. Mendel (1880) 78 Ky. 427, 39 Am. Rep. 248, supra, III. a.

And see Buckner v. Buckner (1888) 10 Ky. L. Rep. 78, where a son had acquiesced in a settlement "during his father's life" (time not shown) and for four years after his death, and kis claim (against "others") was held to be barred, especially as he allowed two years to elapse after his alleged discovery of the facts before bringing suit.

Two years and ten montas.

The decision in the reported case (STATE TRUST & SAV. BANK V. OTERO, ante, 55) that the lapse of two years and ten months after the settlement and before the ward sued the guardian operated as laches was predicated largely upon the ground that the ward knew that he was being cheated, and that the surety, having similar knowledge, relied upon the ward's failure to repudiate the settlement within a reasonable time by suit or otherwise, and thereby lost the opportunity of recourse against the guardian.

But a ward's delay of nearly two years after discovering that a settlement, effected about ten months before, was fraudulent, before suing the guardian, against whom he obtained. judgment, was held not to constitute laches so as to relieve the sureties, in Douglass v. Ferris (1893) 138 N. Y. 192, 34 Am. St. Rep. 435, 33 N. E. 1041, where immediately after the discovery the ward demanded that the settlement be rescinded, offering to restore certain property, to which demand the guardian assented, agreed to make restitution, and in fact subsequently paid the ward part of his claim. The court said that the sureties did not know of the original decree approving the settlement, and consequently could not have been misled by it; and negatived the suggestion that the ward should have notified

them of the fraud, by pointing out that their duty was not merely passive, but that they had agreed to be responsible to him for all time, rather than merely for any particular time.

Twenty-nine months.

In holding that an ex-wife who had been under her husband's guardianship was precluded from holding his surety, by her laches in delaying suit for twenty-nine months after her settlement with him upon her becoming of age, and for twenty months after she knew of his fraud and was no longer subject to his will, having separated from him, the court in Greenup v. United States Fidelity & G. Co. (1914) 159 Ky. 647, 167 S. W. 910, said that there could be no doubt that she knew that his note, given in settlement, was worthless, and that the settlement was procured by duress, if it was in fact so obtained.

Over two years.

In Smith v. Smithson (1886) 48 Ark.

261, 3 S. W. 49, where a guardian had been dead several years and his accounts were settled by the probate court, the contention that no claim was presented against his estate within two years after the granting of administration was overruled, in holding a surety liable for the guardian's defalcation.

Twenty months.

In Kirby v. Taylor (1822) 6 Johns. Ch. (N. Y.) 242, it was said that a release by a ward, without the knowledge or consent of the surety, and acquiescing in that release for twenty months, without setting up any pretense of fraud or undue means in procuring it, would be a complete exoneration of the surety; that the latter had a perfect right to regard the discharge as valid, and that it deprived him of the opportunity of obtaining indemnity by rendering it unnecessary for him to take any steps for that purpose. E. W. H.

the contract provides that the buyer is to keep an agent at the factory until a specified number of cans are in the warehouse, who is to grade the pack, and product so graded and stored to be accepted as graded, although the purpose of his presence is to instruct the canner, who is inexperienced in packing and processing pod-run peas, where the buyer testifies that, if the agent found slack filling of cans, he

would expect him to call attention to it.

Appeal, § 665 disturbed.

when special verdict

5. A special verdict cannot be disturbed on appeal if the appellate court cannot say that it finds no support in the evidence.

[See 2 R. C. L. 129; 1 R. C. L. Supp. 432; 4 R. C. L. Supp. 90; 5 R. C. L. Supp. 79; 6 R. C. L. Supp. 73.]

Statement by Owen, J.:

This is an action to recover damages for the breach of a contract for the purchase of peas. The plaintiff owns and operates a pea canning factory at Chetek, Wisconsin. The defendant is a dealer in canned peas with its principal offices and place of business at Waukesha, Wisconsin. On February 14, 1924, plaintiff and defendant entered into a written contract by which plaintiff agreed to sell and defendant agreed to purchase plaintiff's entire pack of peas for the season of 1924, pod run or ungraded as to size, at prices therein specified. By the terms of the contract the seller warranted and guaranteed that the goods to be delivered under the contract would comply with the federal Pure Food and Drugs Act June 30, 1906 (U. S. C. title 21, § 1), and should not be in any manner adulterated, or misbranded, except such part, if any, as may be shipped under labels furnished by the buyer, in which case it was understood and agreed that the guaranty as to misbranding was null and void. It was further agreed that the buyer would keep an agent at the factory during the first days of packing until at least 8,000 cases were in the warehouse, "said agent to grade the entire pack of peas packed under this contract into the warehouse, and peas so graded and stored in warehouse, to be accepted by buyer as graded and stored. Such agent to

grade balance of all peas not less often than once per week until pack is completed."

The factory started packing peas for the defendant on July 22, 1924. Under and pursuant to the terms of the contract requiring a buyer to keep agent at factory during the first eight days of the pack, the defendant sent one W. A. Christensen to Chetek to supervise the packing of the peas. It seems that these peas were going out under the Niana label, and in order to have those peas conform to peas packed in other plants under that label it was necessary that they be processed in the Niana way. Christensen remained at the plant some seven or eight days, gave instructions with reference to the processing of the peas, kept close watch of the work as it progressed, made frequent tests and observations, and took note of the fill of the cans until 8,963 cases had been packed and stored in the warehouse.

It appears that, at about the time Christensen was leaving, a representative of the company named Potts was sent to the factory to regrade the peas; a dispute concerning the grade having arisen between plaintiff and Christensen. While he was there he observed the fill of the cans and claimed the cans were slack filled. Upon his return to Waukesha he took with him a number of the cans then packed, which were opened by the defendant. The de