formation. The proof is overwhelming to A CHRISTIANSON, J., concurs in result, SMITH, J. The J. R. Watkins Medical Company, appellant, is a Minnesota corpora, tion having its principal place of business at Winona. It is engaged in manufacturing and selling medicines, extracts, and other articles. The defendant Miller had been engaged for several years in selling merchandise furnished by such corporation under written guaranteed contracts, prior to the contract J. R. WATKINS MEDICAL CO. v. MILLER upon which this action is founded. At the et al. (No. 4224.) (Supreme Court of South Dakota. June 25, 1918.) 1. GUARANTY 66-DISCHARGE OF GUARANTOR-NEGLECT OF CREditor. time this contract was entered into Miller was indebted to the corporation for merchandise furnished under previous contracts in the sum of $1,559.29. The last contract, the one in question here, was dated December 1, 1914, and terminated March 1, 1916. It obligated the corporation to furnish Miller merchandise at the usual and customary wholesale prices, to an amount which he might reasonably require for sale within certain designated territory, and obligated Miller to make personal canvass with team and wagon for the sale of such merchandise at least three times a year, and to pay whole997(3)-REVIEW-sale prices at times specified and required Where contract providing for sale to buyer of wholesale quantities of proprietary medicines contains new promise of buyer to pay old debt, guarantors of buyer's indebtedness thereunder are released from liability for merchandise purchased under the contract by seller's failure to require buyer to make reports of sales and remittances as called for by contract, but are not released thereby from guaranty of payment of old debt. 2. APPEAL AND ERROR FINDINGS. Where court directs verdict, its findings of fact will not be reviewed on appeal, where both parties moved for a directed verdict, and where evidence is sufficient to have sustained a similar verdict by a jury. 3. GUARANTY 54-DISCHARGE OF GUARANTOR MATERIAL ALTERATION OF INSTRUMENT. Where sales contract contains promise of buyer to pay a debt under a former contract, but amount thereof is in blank when contract is executed and when guaranty of buyer's indebtedness thereunder is appended thereto, the subsequent filling in of the amount of old debt without consent of guarantors is a material alteration of the instrument. 4. PRINCIPAL AND AGENT SIGNING OF AGENCY BLANK. 14(2)-IMPLIED INSTRUMENT IN Where sales contract contains promise of buyer to pay a debt under former contract, but amount thereof is in blank when guaranty of buyer's indebtedness thereunder is signed, guarantors who did not know amount of such debt did not, by signing guaranty with amount not stated in the contract, authorize seller to insert amount. 5. GUARANTY 21-ALTERATION-ESTOPPEL. Where sales contract contains promise of buyer to pay a debt under former contract, and a guaranty of buyers indebtedness under such contract is signed, while amount of old debt is left in blank, guarantors are not, by so signing, estopped to deny liability on the amount thereafter filled in without their consent. Appeal from Circuit Court, Roberts County; Thomas L. Bouck, Judge. Action by the J. R. Watkins Medical Company, a corporation, against C. H. Miller, Andrew Christianson, and C. O. Johnson. Judgment for defendants Andrew Christianson and C. O. Johnson, and plaintiff appeals. Affirmed. Batterton & Bunde, of Sisseton, and Tawney, Smith & Tawney, of Winona, Minn., for appellant. C. R. Jorgenson, of Sisseton, for respondents such merchandise be paid for or returned to the company as prescribed in the contract. The contract in a clause near the end of the printed part contained the following provision: "The indebtedness due on the date of this agreement from the party of the second part to the party of the first part for goods and other articles sold and delivered to him under a prior agreement is hereby mutually agreed to be the sum of $1,559.29, which said sum and indebtedness the second party hereby promises and agrees to pay during the term of this agreement, and payment of which is hereby so extended." The defendants Christianson and Johnson at the solicitation of Miller became guarantors of this contract at the time of its execution. Miller himself obtained the signatures of these guarantors and forwarded the contract and guaranty to plaintiff. The manner of the execution of the contract was found satisfactory by the corporation, and the guarantors were formally notified of their At the termination of acceptance as such. this contract Miller was indebted to plaintiff in the sum of $487.83 as a balance due for merchandise furnished during the period of the contract. This indebtedness, together with the $1,559.29 prior indebtedness, aggregated $2,047.02, for which sum this action was brought against the guarantors and Miller. Miller made no defense, and no question is raised as to the misjoinder of causes of The guar action. The amount of Miller's indebtedness to the corporation is conceded. anty appended to the contract and signed by Christianson and Johnson is as follows: "In consideration of one dollar in hand paid by the J. R. Watkins Medical Company, the receipt whereof is hereby acknowledged, and the execution of the foregoing agreement by said company, and the sale and delivery by it to the party of the second part of its medicines, extracts, and other articles, and the extension of the time of payment of the indebtedness due | S. D. 293, 103 N. W. 38, 9 Ann. Cas. 644; from him to said company as therein provided, McComb v. Baskerville, 20 S. D. 353, 106 N. we, the undersigned sureties do hereby jointly and severally promise and guarantee the full and W. 300; Farmen v. U. S. Express Co., 25 S. complete payment of the said sum and indebt- D. 96, 125 N. W. 575; Share v. Coats, 29 edness and for said medicines, extracts, and S. D. 603, 137 N. W. 402; see, also, McCorother articles, and of the prepaid freight and express charges thereon, at the time and place mick v. Nat. City Bank, 142 Fed. 132, 73 and in the manner in said agreement provided." C. C. A. 350, 6 Ann. Cas. 544, and mono[1] The answers of Christianson and graph note. Nor is this rule affected by the Johnson admit the execution of the contract fact that the evidence is conflicting. Gitty of guaranty, but deny that the contract of V. Allen, 62 App. Div. 622, 71 N. Y. Supp. Miller which they guaranteed contained 88. the words and figures "fifteen hundred and We have carefully considered the evidence fifty-nine and 29/100 dollars ($1,559.29)" at in the record, and, without attempting to the time they signed the guaranty. The anreview it, we are satisfied there is sufficient swers also allege as a defense the failure of evidence to sustain the findings of the trial the corporation to require Miller to make court upon the motion. But appellant further reports of sales and remittances of money contends that, even though the facts be as required by certain provisions of his confound by the trial court, the court agreed tract. We deem it unnecessary to consider in directing a verdict for defendants for the the effect of the provisions last referred to, reason that it is undisputed and conceded, further than to observe that they in no way and so stated by Christianson and Johnson affect the liability upon the guaranty of the in their evidence, that the contract, among previous indebtedness of $1,559.29, if it its printed provisions which were not alterwas absolute and unqualified. We are of ed or changed, contained a complete agree the view, however, that any material depar- ment to pay the indebtedness of Miller to ture by plaintiff from the terms of the conthe corporation "due on the date of this tract or in the manner of its execution would agreement," and that the insertion of the release the guarantors from liability for amount of such indebtedness in the blank merchandise furnished under this contract. space left therefor in the contract was not J. R. Watkins Medical Co. v. McCall, 116 a material alteration, and for the further Minn. 389, 133 N. W. 966. But such rereason that the execution of the guaranty lease would go no farther than to affect by defendants, leaving vacant space in the the indebtedness for merchandise furnished contract for filling in the true amount of under the particular contract. J. R. Wat- Miller's previous indebtedness, carried with kins Medical Co. v. McCall, supra. If the it the implied assent of the guarantors that guaranty of payment of the previous indebt- the true amount might be inserted. There edness be considered as absolute and unqual- is no contention here that either of the deified, it was in no way affected by the fail-fendants was induced to become a guaranure of the corporation to require a compli- tor by any trick or artifice, and it is conance on the part of Miller, with provisions of the contract as to current transactions under it. At the close of the trial plaintiff and defendant each moved for a directed verdict. The trial court directed a verdict for defendant who is respondent here. In this case the trial court in its order directing a verdict expressly "finds as a matter of fact that the instrument which was signed (guaranteed) by these defendants Christianson and Johnson did not contain the words 'fifteen hundred fifty-nine dollars and twenty-nine cents' or figures expressing the same amount at the top thereof, and the court further finds that the said contract has been materially altered, since they signed the same by the insertion in the contract of said words without their knowledge and without their consent, and, that being so, it becomes the duty of the court to direct a verdict for each defendant upon all the issues." [2] The findings of the trial court upon such motion are conclusive of the facts, regardless of the weight of contradictory evidence, if such finding is supported by substantial evidence, which would sustain a sim. ceded that they each read the contract before signing the guaranty. It is conceded that the contract was not changed in any respect after the guaranty was signed, save by the insertion of the true amount of Miller's indebtedness. We are of the view after a careful consideration of the language used that the provision of the contract which is quoted above did not amount to a contract or agreement to pay an indefinite or undetermined amount of indebtedness due from Miller to the corporation, but that the insertion in the contract of the specific amount of such indebtedness was essential to give it any binding force whatever. Reading the contract with the blank space unfilled, it does not even amount to a declaration that there is any such indebtedness. If this view is correct, the filling in of the blank space changed the contract from one which did not guarantee payment of an existing indebtedness into one which did guarantee such payment. [3] But, assuming appellant's contention that the guaranty with the blanks unfilled should be construed as a contract to pay Miller's existing indebtedness, we are of the the instrument, his act must be held binding on appellant, at whose direction the signatures of the guarantors were procured. Certainly Miller was not a stranger to the transaction within the rule suggested. We have examined the assignments relating to the admission and exclusion of evidence, but are of the view that none of them are prejudicial, and that they do not require a separate review. the contract without the assent, actual or im- | indebtedness was inserted by Miller after plied, of the guarantors, would constitute respondents signed and before he delivered a material alteration, for the reason that the insertion of the amount of such indebtedness would change the evidentiary effect of the instrument, and though the amount inserted be concededly correct, such alteration would render the instrument itself competent evidence of the amount of such indebtedness, and would thus relieve plaintiff of the burden of proving it by other evidence. Low v. Argrove, 30 Ga. 129; Schmidt v. Quinzel, 55 N. J. Eq. 792, 38 Atl. 665; Craighead v. McLoney, 99 Pa. 211. As to sureties, see Miller v. Stark, 148 Pa. 164, 23 Atl. 1058; Moss v. Maddux, 108 Tenn. 405, 67 S. W. 855. It is shown by the undisputed evidence, and necessarily implied from the findings of the trial court, that the (Supreme Court of South Dakota. guarantors had no knowledge, at least of the amount, of Miller's past indebtedness to the corporation, at the time they signed the guaranty, or at any time until demand of payment by plaintiff. [4] Appellant, however, contends that it is presumed as a matter of law that the plaintiff was authorized to insert the correct amount of such indebtedness in the blank space left in the contract. We cannot agree with that view. Appellant cites numerous decisions which are claimed to sustain his contention. An examination of these decisions and others discloses that they may be resolved into two classes: First, those in which the obligor has directly assented to and authorized the filling in of such blank spaces, or where from the circumstances of the transaction such assent and authority must be inferred; and, second, those in which the obligor, by reason of his own acts, is held estopped to deny that he assented to and authorized the filling of such blank spaces. In the latter class are Ormsby v. Johnson, 24 S. D. 494, 124 N. W. 436; Palacios v. Brasher, 18 Colo. 593, 34 Pac. 251, 36 Am. St. Rep. 305; Rollins v. Ebbs, 138 N. C. 140, 50 S. E. 577; McCormick v. Bay Ci ty, 23 Mich. 457. The order and judgment of the trial court are affirmed. LUSK v. CITY OF YANKTON et al. (No. 4296.) 1918.) June 25, 1. ADVERSE POSSESSION 16 (1) - CONTROL BY CITY. Twenty years' open, notorious, exclusive, and continuous acts of ownership and control by a city over land, by leasing and giving licenses to many persons to occupy it with buildings, by granting right of way across it, and using parts for gravel pits and other purposes, gives it title. 2. VENDOR AND PURCHASER 232(1)-BONA FIDE PURCHASER-POSSESSION AS NOTICE. Actual possession by a city of land puts a purchaser on inquiry and notice of its title by adverse possession. 3. VENDOR AND PURCHASER 224 BONA That the deed given a purchaser is a quitclaim puts him on inquiry and notice of another's title by adverse possession. 4. ADVERSE POSSESSION TLE AFTER ACQUISITION. 109-Loss oF TI A city is not estopped to claim its title by former adverse possession of 20 years by its taxing officers assessing the land for taxes for 4 years and receiving them of persons who had bought with notice; there having been no 10 years' payment of taxes by the purchasers under color of title, necessary under Code Civ. Proc. § 54, for acquisition of title. Appeal from Circuit Court, Yankton Coun ty; R. B. Tripp, Judge. Action by W. C. Lusk and others agains'. the City of Yankton and another. From a judgment for the City, plaintiffs appeal. Af [5] The insertion of the amount of the indebtedness being a material alteration not assented to by respondents either in fact or by necessary implication, only the question of estoppel remains to be considered. We are of the view that appellant cannot, by its own unauthorized and material alteration of the contract, create an estoppel as against respondents. It is suggested that there is nothing in the record to show that the alteration was in fact made by appellant, and, if made by a third person, that it would not avoid the contract. But, so far as the record discloses, the contract after the guaranty was signed was never in the custody or possession of any person other than Miller, and appellant's own of- McCOY, J. This action was brought to ficers and employés. And if the amount of determine adverse claims of title to a certain firmed. Harry Kunkle and French, Orvis & French, all of Yankton, for appellants. Joseph Janousek, of Yankton, for respondent. parcel of land lying between the Missouri | use and control of the whole of said strip of river and First street of Todd's plat of the land between the Missouri river and the city of Yankton, the same being a strip of south end of said blocks 2, 3, and 4. For land varying in width from 130 feet to 225 the reason that the trial court has based the feet, 3 blocks in length, commonly known in conclusions of law and judgment solely upon the city of Yankton as the "levee." Findings the findings of fact as to respondent's 40 and judgment were in favor of defendants, years of exclusive, continuous, adverse posfrom which judgment the plaintiffs appeal. session of said land, the question of said dedication growing out of the filing of said plats becomes immaterial and a matter not necessary to a proper determination of the issues involved on this appeal, and we shall therefore only consider the question of adverse possession and the title obtained thereby by respondent. Among other findings of fact the court found that for more than 40 years prior to 1914 the city of Yankton had been in exclusive, hostile, open, notorious, continuous, and adverse possession of said land, presumptively with the knowledge of plaintiffs' grantors and predecessors in interest. Appellant contends that the court erred in its conclusion of law that the defendant city of Yankton had acquired absolute title to said real estate by such adverse possession, for the reason that there are no findings of fact sustained by the evidence that would warrant or justify such conclusion of law. It appears from the evidence preserved in the record that the title to the tract of land comprising Todd's plat to the city of Yankton between 1860 and June 5, 1868, was in much doubt. On the 5th day of June, 1868, a patent for said land, including the strip of land in dispute, was issued to J. B. S. Todd; that on the 21st day of August, 1868, said Todd made and filed a plat dividing said tract of land into city lots, blocks, streets, and avenues, thereby dedicating the said streets and avenues to the public use of the city of Yankton, and on the said plat so filed on the 21st day of August all that strip of ground lying immediately south of the south end of blocks 2, 3, and 4, and extending to the Missouri river, was designated as First street, thereby making a wide street varying in width from 210 to 305 feet; the said plat so filed on the 21st day of August contained no surveyor's certificate as to the correctness thereof as required by the then existing law. One week later, on the 28th day of August, 1868, the said Todd withdrew from record the said plat theretofore filed by him on the 21st day of August for the purposes of corrections and alterations, and on the said 28th day of August made and filed another plat duly certified by a surveyor as to the correctness thereof and with the alteration appearing thereon that immediately south of said blocks 2, 3, and 4 was a street 80 feet in width designated as First street, and thereby leaving the strip involved in this suit excluded and outside the plat then so filed by him. One of the contentions of respondent is that the land in question was by said plat filed on August 21st dedicated to the city of Yankton as the part of a street, and that the subsequent withdrawal of said plat and filing of another a week later could not and did not affect the dedication so made, and that thereafter the city of Yankton and the public accepted said dedication, and by reason thereof has ever [1] It appears from the record that as early as August, 1872, the city of Yankton commenced exercising open and notorious acts of ownership and control over the strip of land in question by leasing and giving licenses to many persons to occupy the same with storage houses and other buildings, by granting rights of way across the same, and by using parts thereof for gravel and sand pits and other purposes. Such open, notorious, exclusive, and continuous acts of ownership and control by respondent, while possibly not lasting 40 years, were, however, continuous at all times from August, 1872, up to and including the year 1907, and being a period much longer than 20 years necessary to obtain full and complete title by adverse possession. We are therefore of the opinion, and so hold, that at the time of the beginning of this action the respondent city was the absolute owner by adverse possession of said land, and that the findings of the court in this relation were fully sustained by the evidence. It appears from the record that in the year 1907 one Josephine Moore, a daughter and heir of said Todd, acquired by deeds all the interest of all the other heirs of said Todd, then deceased, in and to the lands in question, and that she thereafter in 1910 instituted proceedings in probate by virtue of which the lands in question were distributed to her and to all other heirs of said Todd of whom she had obtained said deeds; that on the 14th day of November, 1912, the said Josephine Moore by quitclaim deed conveyed the land in question to the Yankton Pressed Brick Company, and on the 5th day of August, 1915, the Yankton Pressed Brick Company by warranty deed conveyed said land to plaintiffs; that on the 14th day of November, 1912, the same date on which said Josephine Moore conveyed said land to the said brick company, the said brick company gave to her a mortgage for $1,500, evidently either a portion or all of the purchase money coming to her as consideration for said conveyance; that thereafter the said brick company failed to pay said mortgage indebtedness, and upon a foreclosure of said mortgage said Josephine Moore became the purchaser at such foreclosure sale, and there brick company redeemed the said property | 23 Idaho, 495, 130 Pac. 1002. The facts in from such foreclosure sale. It will be no- this case do not show that respondent city ticed that Josephine Moore by a quitclaim deed conveyed her interest in said land to the said brick company on November 14, 1912. [2] At that time the respondent city was in the actual possession of said land, which was notice to the world of its title which it had long prior thereto acquired by completed and fully ripened adverse possession. The plaintiffs in this case were officers and stockholders of the brick company, and had no tice of respondent's title at the time they received said deed and at the time they made redemption from said mortgage sale, for the reason that at said times the respondent was in possession claiming title to this land, which gave notice to the world of respondent's rights. [3] Another circumstance is also sufficient to put the brick company and plaintiff's upon inquiry and notice, namely, the plaintiffs and said brick company knew that the brick company acquired title, if any, through a quitclaim deed from Josephine Moore. This is one of the instances where a quitclaim deed is a danger signal and charges those claiming under it with notice of all outstanding adverse equities. 39 Cyc. 1693; Parker v. Randolph, 5 S. D. 549, 59 N. W. 722, 29 L. R. A. 33, and note; Fowler v. Will, 19 S. D. 131, 102 N. W. 598, 117 Am. St. Rep. 938, 8 Ann. Cas. 1093. In the case of Byron Reed Company v. Klabunde, 76 Neb. 801, 108 N. W. 133, the court said: "A quitclaim deed is of itself a red light to warn the grantee that the rear end of the transaction is exposed to equities." by writing or any other act transferred or surrendered title of this land to plaintiffs or to any of plaintiffs' predecessors in interest, or in any manner whatsoever recognized or by conduct or otherwise estopped itself from claiming title as against said brick company or plaintiffs. The record does show that the brick company and plaintiffs undertook to take possession and held adversely to respondent for a short time, but the findings, and evidence show that the respondent notified plaintiffs and their predecessors in interest to keep off this land, and that respondent at all times during the adverse claim of plaintiffs and said brick company claimed to own this land, and instructed its attorney to take proper steps to protect its title. Therefore we are of the view that respondent has in no manner estopped itself from claiming full and complete title as against appellants who are not innocent parties without notice of respondent's rights. There is some evidence to the effect that some of the city officials were stockholders in said brick company and might have been interested in the city losing its title. But by no lawful act of the officials of respondent city authorized to act for it did it ever by any kind of conduct estop itself from claiming title to said land. After the respondent city had acquired title by fully ripened adverse possession it could only divest itself of title by some method of lawful alienation. Under the circumstances the acts of Josephine Moore and the brick company and plaintiffs were wrongful and hostile as against the respondent. They were trespassers on respondent's rights, and could gain no equities by such wrongful acts or such adverse possession short of 20 years' open, notorious, and continuous trespassing, or by 10 years' adverse possession and payment of taxes under color of title, none of which was ever done. 2 C. J. 256. [4] The respondent city long prior to any claim of title on the part of the Pressed Brick Company or plaintiffs had perfected and acquired full and complete title to this land by adverse possession. After having so perfected title by 20 years' exclusive adverse possession, it was not then incumbent [5] Some contention is made that respondor necessary on the part of respondent to ent, as a matter of equity, should reimburse still keep on perfecting and completing the plaintiffs for the redemption money paid. In same from year to year in order to hold the the first place, plaintiffs did not pay said retitle theretofore already completely acquired demption money, but the record shows that by such 20 years' adverse possession. Aft- the same was paid by the brick company, and er a person has fully and completely acquir- in the second place it would be highly ined title by 20 years' adverse possession, it equitable to require the respondent so to do. is not then necessary for such person to lon- If respondent was compelled to reimburse ger remain in actual possession in order to the plaintiffs for the amount of this redempretain or protect his title. The only way tion money, it would thereby be compelled a person who has so acquired complete ti- to pay all or a large part of the value of this tle by adverse possession can thereafter lose land in order to retain its title thereto. Conor divest himself of such title is by aliena- sidering the fact that neither the plaintiffs tion in writing or by some third person there- nor the brick company were innocent purafter acquiring title by adverse possession chasers without notice of respondent's rights, as against him, or by some clear acts or con- but were wrongdoers and trespassers, it duct amounting to an estoppel to claim such would not be possible or equitable that retitle. 2 C. J. 256-259. The fact that the spondent should thus be deprived of title or original owner of the land re-enters and pays full right to this property to which it had taxes will not affect a prior acquired title become the absolute owner long prior there |