on the part of defendant as to the tract of land sold, plaintiff could not recover a sum in excess of $100 as commissions on

the sale.

[3] But the fact that plaintiff sued for more than he could recover would not defeat a recovery of the amount legally due. This brings us to a consideration of the alleged concealment on the part of the plaintiff of the price at which the land was sold as affecting his right to recover $100 commissions. It cannot be doubted that defendant's refusal to proceed with the sale resulted from his mistake as to the identity of the land sold. It is conceded that plaintiff had no knowledge of this mistake until after he had sold the land to Gaines & Atkins. The contract with these buyers recites that plaintiff received from them $100 in cash to apply on the purchase price of the land. The plaintiff remitted to defendant $25, but, if it be assumed that this was part of the $100 cash received, the record does not show what disposition plaintiff made of the remaining $75. What report, if any, plaintiff made to defendant of this sale, we do not know. It was within defendant's power to disclose this, but the statement of facts is silent. Why should not the same inferences be drawn from the absence of facts from an agreed statement that might be drawn from the absence of evidence? If plaintiff failed to report fully all the facts in connection with the sale, may it not fairly be assumed to have been because of defendant's refusal to proceed with the sale, rather than a concealment evidencing a design on his part to accomplish a fraudulent purpose? If the deal had been closed. according to the terms of sale, the excess of $3 per acre must have been included in the second mortgage to defendant, and would thus have come to his knowledge. Possibly the plaintiff may have intended to demand the excess of $3 per acre as his commission, as he has done in this action, but such demand would not in itself constitute fraud, when founded upon a claimed legal right, even though the court should determine that plaintiff was not legally entitled to that commission. Actual fraud is always a question of fact (Civ. Code, § 1203), and must always be an ultimate conclusion of fact deducible from probative facts stipulated

or proved (Towle v. Sweeney, 2 Cal. App. 29, 83 Pac. 74; Home Inv. Co. v. Clarson, 21 S. D. 72; 109 N. W. 507). We are of opinion that the facts as stipulated do not sustain the final conclusion of fraudulent concealment of the price at which the land was sold.

[4] The only question remaining is the mistake on the part of defendant in the land sold as affecting plaintiff's right to a commission. It is conceded that plaintiff neither participated in or by any act contributed to this mistake. The question presented is precisely the same as it would have been had defendant by mistake listed the Clark county land for sale, never having owned it, and plaintiff without any knowledge of the mistake had sold it on the terms authorized. In such case it is too plain to require discussion or citation of authorities that plaintiff could recover the stipulated commission. Arnold v. Nat. Bank of Waupaca, 126 Wis. 362, 105 N. W. 828, 3 L. R. A. (N. S.) 580. In such case the ordinary rule of mistake has no application. Anson, Contracts, p. 130; Strong v. Lane, 66 Minn. 94, 68 N. W. 765; 9 Cyc. 398, d. 2, where it is said: "The rule, however, that both parties must assent to the same thing and in the same sense, has no reference to the misconception of a party not authorized by the language used or by the terms of the agreement. If the agreement describes the subject-matter and the description does not admit of two meanings, the fact that one of the parties thought that it was something else does not affect the contract." The contract in this case as evidenced by plaintiff's letter of February 28, 1907, describes this land as "N. W. 18-113-57 in Clark County, S. D." In this description there was no possibility of mistake. There was clearly negligence on the part of defendant in failing to notice that the land was the Clark county quarter, but for that negligence plaintiff was in no way responsible, nor can his right to commission on a sale of the land be in any manner affected thereby. In Arnold v. Nat. Bank of Waupaca, supra, the court says: "It is entirely clear, as already stated, that, if an individual employs an agent to find a customer for certain lands, he becomes liable for the agreed compensation, whether he owns them or not,

although he may have acted on the mistaken supposition that he has title."

* * *

We are of opinion the trial court was in error in holding the stipulated facts sufficient to sustain the finding "that the plaintiff thus secretly contrived to extort from the defendant the sum of $3 per acre in addition to the commission of $100 agreed to be paid the plaintiff by the defendant for negotiating the sale of said land." The case is remanded to the circuit court, with direction to enter judgment for plaintiff for the sum of $100, with costs of that court, unless upon defendant's motion, for good cause shown, upon due notice to plaintiff, the trial court shall direct that the stipulation of facts relating to the question of fraud on the part of plaintiff be vacated, in which case a new trial shall be had, appellant to recover costs of this appeal.

WHITING, J., not sitting.

BAILEY v. MAYOR AND COM'RS OF CITY OF SIOUX FALLS et al.

If a city had no authority to assess property for sewer drainage because not benefited by the proposed sewer, the assessment would merely be void, and would not be fraudulent in any sense, authorizing relief on that ground.

Public notice of the time and place of a hearing before municipal authorities on the question of assessments for public improvements, such as sewers, is sufficient to constitute "due process of law."

If there is a possibility for dispute whether a certain parcel can be drained by a proposed sewer, the action of the city in including it within such drainage district is conclusive upon the courts.

Acts 1909, c. 110, relates to the establishment of sewer districts, and section 10 provides that, whenever any contract for the construction of "any main or trunk sewer" is made, the city engineer shall make estimates for a special assessment upon the parcels within the sewer district, etc., and report to the city council the following facts: (1) The cost of "said main or trunk sewer." (2) The number of feet frontage "within the sewer district" upon the streets in which "such main or trunk sewer is to be constructed." (5) An estimate of the cost of the construction of a sewer along the same course as that "in which said main or trunk sewer is to be constructed of a size sufficient to provide sewerage for the property if it

were not to be used as a 'main or trunk sewer,' and of construction suitable for the construction of lateral sewers' in said district." (6) The amount required to construct "said main or trunk sewer" in addition to that assessed on lots abutting on the streets in which "said main or trunk sewer" is to be constructed. Section 11 provides that the total benefit of "a main or trunk sewer" shall be deemed the contract price. Section 13 provides for cases when it becomes necessary, in order to furnish an outlet for the "main or trunk sewer constructed within any sewer district" under the act, that adjoining or outlying property be acquired, etc., and section 7 provides that whenever a petition is made "for the construction of a main or trunk sewer, or a part of a main or trunk sewer therein," the council shall pass a resolution of necessity, and may order the construction of "said sewer," etc. Held, that the city was not authorized to construct more than one main sewer and the necessary laterals in one sewer district, so that proceedings to assess property for the cost of more than one main sewer in the district are void, since property drained by one main sewer would be excessively taxed for the excess cost of another main sewer not directly benefiting it.

Const. art. 6, § 17, requiring all taxation to be equal and uniform, applies to special assessments by municipalities within a taxaton district, such as special assessments for sewers.

(Opinion filed, October 3, 1911.)

Appeal from Circuit Court, Minnehaha County. Hon. FRANK B. SMITH, Judge.

Action by Anna O. Bailey against the mayor and city commissioners of Sioux Falls and others. From an order denying a motion for a temporary injunction, plaintiff appeals. Reversed and remanded for issuance of injunction.

Bailey & Voorhees, for appellant.

Assessments for local improvements can be justified only upon the theory that the lands upon which they are laid are specially benefited by the improvements for which they are laid and hence ought to bear the burden rather than property generally; and if a law should authorize such assessments to be laid, without reference to benefits, it would either take property for the public good, without compensation, or it would take property from one person for the direct benefit of another; and in either aspect it would be unconstitutional. Stuart v. Palmer, 74 N. Y. 183; Kirby v. Shaw, 19 Pa. 258; Schenley v. Commonwealth, 36 id.

29; McGonigle v. Allegheny City, 44 id. 118; In the Matter of Washington Avenue, 69 id. 360; Patterson v. Society, etc., 24 N. J. 385; Tidewater Co. v. Coster, 18 N. J. Eq. 519; In the Matter of the Drainage of Lands, 35 N. J. 497; St. John v. East St. Louis, 50 Ill. 92; Lee v. Ruggles, 62 id. 427; In the Matter of Albany Street, 11 Wend. 149; Litchfield v. Vernon, 41 N. Y. 123.

D. J. Conway and R. H. Warren, for respondents.

The legislature has the power to determine for itself, or to delegate power to the municipal authorities, to determine the boundaries of a special assessment district, and to determine what property shall be included within such district as benefited by the improvement to be made; to declare not only that the property within such district shall be conclusively deemed to be benefited by the improvement, but that it is benefited to the full amount of the cost of the improvement; and also to declare the rule by which such entire cost shall be distributed over the property so found to be benefited and included within the district. Winona & St. P. R. Co. v. City of Watertown et al., 1 S. D. 46; Rolph v. City of Fargo, 42 L. R. A. 646; Webster v. Fargo, 82 N. W. 732; Webster v. City of Fargo, 181 U. S. 394; French v. Barber Asphalt Paving Co., 181 U. S. 341. Special benefits constitute the only basis in theory of law for special assessments for local improvements; and therefore the important question always arises as to what property is benefitted and ought to be included within a special assessment district. This is purely a question of fact to be determined by the legislature, or by the municipal officers to whom the legislature has delegated the power of establishing special assessment districts and making local improvements therein to be paid for by special assessments on the property within the district. The adoption of plans for such a district and the determination of the boundaries of the district constitute the findings of such officers upon this question of fact.

Fallbrook Irrigation District v. Bradley, 164, U. S. 112; French v. Barber Asphalt Pav. Co., 181, U. S. 341; French v. Barber Asphalt Pav. Co., 58, S. W. 934.