against the defeated party. If we rule as plaintiff desires on this point, we may look for a transcript to tax in almost every case tried. Wisconsin S. F. Co. v. D. K. Jeffris Lumber Co., 132 Wis. 1, 111 N. W. 237.

Plaintiff attempted to tax $50 for photographs and $1,500 for a map of the burned district offered and received in evidence at the trial. Complaint is made because these items were wholly rejected by the court. Appellant contends that, because these were received in evidence, it follows that the cost thereof to him must be allowed under the statute. It is the province of the trial court to determine whether these were disbursements "necessarily paid or incurred." Section 7976, G. S. 1913. To a large extent this involves an exercise of discretion and judgment. No abuse is shown, nor is this record such that we can say that the court's finding that these were not necessary disbursements is not sustained. The affidavit of respondent's attorney makes it clear that the matters which the map and photographs tended to prove might as well have been proven by oral testimony. No doubt the photographs and map were convenient, but it does not follow that they were necessary. Thompson v. Germania Life Ins. Co. 97 Minn. 89, 106 N. W. 102; Hoyt v. Jones, 31 Wis. 389; Mark v. City of Buffalo, 87 N. Y. 184; Miller v. Highland Ditch Co. 91 Cal. 103, 27 Pac. 536; Bathgate v. Irvine, 126 Cal. 135, 58 Pac. 442, 77 Am. St. 158; Weiss v. Meyer, 24 Ore. 108, 32 Pac. 1025.

Another objection is urged to the judgment that, while the court allowed plaintiff to tax for certified copies of reports of the state fire warden, only 1-37 of the amount paid was permitted in the judgment. We think the court was right. The affidavit of respondent's attorney makes it plain that these reports were procured for the trial of the 37 cases mentioned, that all the other cases had been settled and in the settlement thereof the disbursements of the several plaintiffs were adjusted and paid by defendant. This leaves defendant liable to this appellant only for the proportionate share he has incurred. There is no showing that he has paid or incurred more than his share. The case of Jermain v. Lake Shore & M. S. R. Co. 31 Hun, 558, seems applicable.

We do not think the point that defendant's appeal from the clerk's taxation of costs was ineffective because taken a day too late, under the rules of the district court, is well taken or merits discussion.

Judgment affirmed.

WADE DAVIS v. WILLIAM H. CONDIT.1

January 23, 1914.

Nos. 18,332—(197).

action against third person.

Breach of promise to marry An affianced husband has no cause of action against one responsible for the seduction of his affianced wife, or for the alienation of her affections, or, for her debauching, making proper the breach by him of the marriage

contract.

Action in the district court for Hennepin county to recover $20,000. From an order, Steele, J., sustaining defendant's demurrer to the complaint, plaintiff appealed. Affirmed.

Jay W. Crane, for appellant.

Kerr, Fowler, Ware & Furber, for respondent.

PER CURIAM.

Appeal from an order sustaining a demurrer to the complaint.

The complaint alleges that the defendant maliciously debauched and seduced the affianced wife of the plaintiff, and alienated her affections, and maliciously interfered with the marriage contract then subsisting, causing him properly to break it.

The common law gives the affianced husband no cause of action for the seduction of his affianced wife and no statute gives one. See Case v. Smith, 107 Mich. 416, 65 N. W. 279, 31 L.R.A. 282.

The right to recover for alienation of affections or for criminal

1 Reported in 144 N. W. 1089.

conversation is a right arising from the marital relation. It is not extended to parties to a betrothal.

The plaintiff claims that the act of the defendant was a malicious interference with the marriage contract between himself and his fiancée. In Joyce v. Great Northern R. Co. 100 Minn. 225, 229, 110 N. W. 975, it is held that a wrongful and malicious interference by a stranger with the contract relations of others, by causing one to commit a breach, is an actionable tort. The breach of contract in the case at bar was by the plaintiff, not by his affianced wife. Because of her unchastity he was justified in breaking the contract; but we are unable to hold that the situation of the parties is such that the plaintiff has a cause of action against the defendant for bringing. about her unchastity, though he acted maliciously.

An employee hired for no definite time was required to deposit a month's wages with the employer to guarantee that he would keep sober while at work. The jury under proper instructions found that the agreement relating to the deposit was not one for liquidated damages. The evidence supports the finding.

Action in the municipal court of Minneapolis to recover $75 for services. The defense is stated in the opinion. The case was tried

1 Reported in 145 N. W. 29.

Note. On the general question whether a sum deposited to secure performance of a contract is a penalty or liquidated damages, see note in 38 L.R.A. (N.S.)

before Montgomery, J., who denied plaintiff's motion for a directed verdict and a jury which returned a verdict for $83.66 in favor of plaintiff. From an order denying its motion for a new trial, defendant appealed. Affirmed.

A. S. Keyes and Henry Ebert, for appellant.

Edward M. Nash, for respondent.

HOLT, J.

Plaintiff worked for defendant from October 4, 1910, until some time in March following as a compounder of liquors. When hired it was agreed that the first month's wages, $75, should be retained by defendant "on the conditions that I wouldn't get drunk while I was in their employ," as plaintiff testifies. Plaintiff sues for the $75 retained under this agreement. The defense is, plaintiff was discharged for repeatedly becoming intoxicated while at work, and thereby defendant became entitled to the money as liquidated damages. The court assumed that plaintiff breached the agreement, and submitted to the jury the single question whether the deposit was in the nature of liquidated damages or a penalty. No point is made that the answer was not for the jury. No fault is found with the guide given them for determining the issue, and which was practically in line with Taylor v. Times Newspaper Co. 83 Minn. 523, 86 N. W..760, 85 Am. St. 473. Hence the only matter presented here is the sufficiency of the evidence to sustain the finding that the money could not be retained by defendant as liquidated damages.

Courts are inclined to place that construction upon contracts of this nature which will give actual compensation for a breach rather than one which creates a forfeiture. The considerations to be kept in mind in construing such contracts are well stated in Keeble v. Keeble, 85 Ala. 552, 5 South. 149. We need not discuss these in detail as applied to the instant case. It is sufficient to point out that judging from the salary, the position plaintiff filled could not have been of great consequence to defendant. He did not come in direct contact with its customers, for he worked in the cellar, and the effect of his blends could neither have attracted nor deterred the trade. And, what perhaps weighs most, he was not hired for any

definite time, nor does the evidence disclose any suggestion that his position was likely to be of any permanency. The service could be terminated at any time at the pleasure of either party. In Keeble v. Keeble, supra, the one who contended that the stipulated liquidated damages should be construed as a penalty held the position of ostensible partner and manager of the business at a large salary. It is easy to perceive how a breach of an agreement to keep sober by such an employee would result in large damages, difficult of ascertainment, to the employer. The case of Henderson v. Murphree, 109 Ala. 556, 20 South. 45, also cited by appellant, is where a person, without capital, was taken into a partnership, on condition that if he got drunk the partnership terminated and his interest therein became forfeited to the firm, and that, in such event, for the time he had been a member of the firm, stipulated wages should be paid him. Neither case is authority for holding that the parties to this action intended the deposit as anything more than security for payment of damages resulting from a breach of the condition.

Order affirmed.

DANA H. JENKINS v. MINNEAPOLIS & ST. LOUIS RAIL ROAD COMPANY.1

January 23, 1914.

Nos. 18,345—(203).

Negligence in regard to signals and lights-question for jury.

1. Evidence in an action to recover damages for injuries sustained by the driver of a wagon in a railway crossing accident considered and held sufficient to take the case to the jury as to defendant's negligence with reference to warning signals, speed of the train, and necessity for lights thereon.

1 Reported in 145 N. W. 40.

Note. On the question of the failure to give customary signals as excusing nonperformance of duty to look and listen, see note in 3 L.R.A. (N.S.) 391.