Chicago, St. P., M. & O. R. Co. v. C., M. & St. P. R. Co. 113 Wis. 161. etc., make the probable expense, inclusive of damage from accidents, outweigh the expense of making and operating the nongrade crossing. Doubtless the ultimate purpose of such a change would be safety, but that consideration alone would not induce it. Clearly, such a change of construction would not be an appliance similar to signals, merely because safety is the ultimate object. That escape from necessity of stoppage is a very important, if not the dominant, immediate object of an interlocking plant, is indicated by many things outside the testimony. Thus the complaint, while inferentially conceding that the purpose of safety had been sufficiently accomplished for fifteen or sixteen years, asserts that within a few years past the difficulty and expense of stopping trains have greatly increased, because of greater weight and speed, and that it would be a great inconvenience and hardship to require such stoppage. The response of defendant's general manager to the demand for such appliance indicates his view of its purpose, expressed before litigation. He says: "We have no use for it, as our trains are few and their time is slow." Again, statutes of various states make the stoppage of trains dependent on existence of interlocking plants, indicating legislative view that, for safety alone, stoppage of trains is the equivalent of the interlocker. This view is emphasized by one of the most intelligent and experienced of the witnesses, who, speaking of the semaphore signal, says: "I regard it as a perfectly safe method of guarding a crossing, if you want to undertake the plan of stopping all trains.' Several other witnesses testify to the dominance of the purpose of escaping the stoppage of trains, while still others assert pre-eminence to the motive of safeguarding the crossing. In view of the whole record, we should not doubt that there was evidence to support the view that the main purpose of installing an interlocking plant at a crossing is ordinarily Chicago, St. P., M. & O. R. Co. v. C., M. & St. P. R. Co. 113 Wis. 161. to avoid stopping trains, consistently with safety. We do not, however, consider that a very important question. Devices are not necessarily similar merely because their ultimate purpose is. A conductor's registering bell punch would hardly be similar to a station wicket and keeper, although the purpose of both be the same. Nevertheless the fact that in the operation of railroads the expense of interlockers at crossings has seldom been incurred, except to avoid the alternate precaution of stopping trains, is significant upon the probable understanding of the parties, for at the time of contract no such result could have been accomplished by installing the appliance. The statute as it then existed required stoppage in any event. Sec. 1808, R. S. 1878. Some light is thrown by authority upon the reasonableness, and therefore the probability, of appellant's construction of this contract. In Arkansas & 0. R. Co. v. St. L. & S. F. R. Co. 103 Fed. Rep. 747, the United States circuit court for the Western district of Arkansas held that demand for an interlocking plant as condition of crossing was wholly unreasonable. In Detroit, Ft. W. & B. I. R. Co. v. Commissioners of Railroads (Mich.), 86 N. W. Rep. 842, the supreme court of Michigan held that the expense of safety devices to facilitate convenience of operation could not be imposed exclusively upon the junior road. See, also, 3 Elliott, R. R. §§ 1126-1129, as to permissible impositions upon railroads seeking to cross others. One argument much urged by appellant is to the effect that respondent has not been able to suggest any appliance other than the signals in use at the time of making the contract, and therefore included by the word "signals," which is ever used to safeguard crossings, except the interlocking, and that the words "other similar appliances" must either apply to such plant or be meaningless. The premise is hardly correct, for there is evidence that gates swinging across the tracks may be, and frequently are, used. While such appliance serves as a signal, it would not be very aptly Chicago, St. P., M. & O. R. Co. v. C., M. & St. P. R. Co. 113 Wis. 161. described by that word, and might be by the subsequent phrase. Apart from this, however, many appliances for giving warning to train crews may be conceived other than the flagman, the ball signal, the semaphore, and the gate, which were the only ones in use when the contract was made. Electrical connection between the tracks of the crossing roads, whereby the passage of a train on one toward the crossing is by light or bell notified to the other, may be suggested. The now much-exploited wireless telegraphy may offer another method. In both such cases the warning may be said to be given by signal, but not by means of anything designated by that name at the date of the contract. Appliances for such new methods would be similar to the old, at least in purpose to warn the trainmen. An entirely reasonable and probable intent attributable to the general clause under discussion is that of providing for the case of subsequent discovery or invention, and we do not think it can be said to be meaningless because nothing to which it can apply has yet been generally adopted by railroads. In the light of all the evidence and of the words of the contract, we are unable to say that it so clearly appears that the interlocking plant is an appliance similar to those specifically mentioned in the contract, or that the purpose of the parties at the time of contracting was such as to necessarily include it, that we can repudiate the finding of the trial court thereon. We therefore agree with that court in the conclusion that the contract under consideration does not, under any circumstances, require defendant, at its expense, to install and maintain an interlocking plant. Appellant further urges that, although we so hold, still under the prayer of the complaint should be decreed what duty does rest on defendant, and that such duty be specifically enforced. The trouble with that contention is that defendant has not agreed to do anything until required, and paintiff has not required any other appliance than that al Reeg v. Adams, 113 Wis. 175. ready discussed. The court cannot properly make a catalogue of the various duties which plaintiff has the option to impose on defendant in advance of the exercise of such option. When requirement is made for performance of a duty within the contract, the defendant may comply, and no aid from a court be needed. We find no reason to change our former judgment of affirmance, and none to make necessary or desirable a rehearing of the appeal. By the Court. The motion for rehearing is denied, with out costs. MARSHALL, J., dissents. REEG, Respondent, vs. ADAMS and others, Appellants. November 9, 1901-February 18, 1902. Undertaking: Reformation: Supplying omissions: Pleading: Prejudicial error: Sheriffs: Officers: Execution against the body: Return. 1. An undertaking to discharge a defendant from arrest, which gives the title of the case, and recites that the defendant therein had been arrested, and that he as principal and certain others as sureties undertook "that the said shall at all times render himself amenable to the processes of the court," furnishes the means of supplying the missing word with absolute certainty and needs no reformation. 2. The complaint in an action on such undertaking stated two causes of action, one seeking a reformation of the undertaking and recovery thereon as reformed, and the other seeking a recovery as though it needed no reformation. A demurrer to each cause of action being overruled, the defendants answered, and a trial was had which resulted in a verdict for plaintiff. Held, that since the undertaking needed no reformation, it was error to overrule a demurrer to that cause of action, but, that under the provisions of sec. 2829, Stats. 1898, Reeg v. Adams, 113 Wis. 175. requiring the court to disregard any error not affecting substantial rights, the error was not prejudicial. 3. A complaint on an undertaking given to discharge a defendant from arrest, alleging that such undertaking was filed in the proper office by the plaintiff, plainly infers that the plaintiff accepted the bail, and is sufficient although it does not allege, as required by sec. 2702, S. & B. Ann. Stats., that the sheriff delivered to the plaintiff the order of arrest with his return indorsed thereon, together with a certified copy of the undertaking. 4. The provisions of sec. 2970, S. & B. Ann. Stats., that every execution shall be returned within sixty days after its receipt by the officer, applies to executions against the body as well as against property. 5. An execution against the body of defendant was issued May 28th, and on June 18th following, the sheriff made return thereon "not found." Held, that if the officer acted in good faith and on sufficient knowledge, he might return it before the expiration of sixty days after its receipt. APPEAL from a judgment of the circuit court for Clark county: JAMES O'NEILL, Circuit Judge. Affirmed. The complaint attempts to set out two causes of action. It is first alleged that the plaintiff commenced an action against the defendant Adams, and obtained an order of arrest thereon. Thereafter he was arrested by the sheriff, whereupon the defendants gave a written undertaking pursuant to sec. 2697, S. & B. Ann., Stats., a copy of which is as follows, omitting the verification: "Circuit Court, Clark County, Wis. "George Reeg, Plaintiff, VS. "Alfredo B. Adams, Defendant. "Whereas, the above-named Alfredo B. Adams has been arrested in this action: Now, therefore, we, Alfredo B. Adams, as principal, and E. D. Webster, liveryman, of the city of Neillsville, Clark county, Wisconsin, and H. M. Root, county clerk, of the city of Neillsville, Clark county, Wisconsin, undertake pursuant to the statute in the sum of one thousand dollars that the said shall at all times render |