This cause is now here for the third time, upon questions distinct from any heretofore decided. ■ See 13 Wis. 31; 17 Wis. 413.
The first exception is to the order of the court overruling the defendants’ objection to any evidence being received under the complaint, because it is not alleged that repairs costing over five dollars became necessary, nor were such repairs adjudged necessary by the engineers. The first ground of objection does not exist. It is alleged in the complaint, that repairs which would cost over five dollars became necessary. The other ground of objection is equally untenable. A copy of the lease is set out in the complaint, from which it does not appear that repairs costing above the sum of five dollars were to be adjudged necessary by the engineers before the defendants should be required to make them. The agreement was, “and positively all repairs are to be made by either or both parties, as soon as there is an appearance of any thing failing, to avoid a break down, or a heavy repair or delay, — the head sawyers to be judges of the mill gearing, and the engineers to be judges of the engine and boiler.” The object of this is apparent. It was, that, when there was an appearance of any thing failing, *332the sawyers or engineers should be the judges, in order that the parties bound to make the repairs could make them so as to amoid a ireak down, heavy repairs, or delay. But the complaint alleges that the machinery actually broke down, so that it could not be run or used. That was not a case to be judged of. by the engineers, within the contemplation of the parties to the agreement. It required no engineering skill to determine it, but was a fact to be inquired into like any other, bpth as to the nature of the injury and the sum required to repair it.
The objection to the reading of the depositions of the witnesses Patterson and Duffield is not sustained by the record. The notices and certificates required by law to be annexed to them are not embraced in the bill, nor is it stated that there were no such notices or certificates. The presumption is that the depositions were regularly taken and correctly admitted by the court below, until the contrary is shown by the party objecting. It is incumbent on the party assigning error to establish it by the record. Besides, the objection was, that it did not appear that the witnesses resided more than thirty miles from the place of trial. The place of residence of each witness is stated in his deposition; and the court, taking notice of the geographical divisions of the state, must know that they resided more than that distance from the place of trial.
And we think that the testimony of the plaintiff Rinekley and of the witness Seeley, taken on a former trial, was clearly admissible under the stipulation signed by the attorneys in the action. The stipulation is general, that the testimony “ may be read in evidence on the trial of this cause,” and will not sustain the construction that it was to be read only on the first trial which was had after the stipulation was made.
And the remaining question, as to whether the stipulations of the lease were dependent or independent, we are also of opinion was correctly decided by the court below. The promise “ to run the mill not to exceed three hundred cuts of the saw *333per minute,” goes only to part of tbe consideration on both sides, and a breach may be paid for in damages. The rule in such cases is, that the defendant has his remedy on the promise, and shall not plead it as a condition precedent. It is considered as an independent and not a dependent promise, and the plaintiff may sue without averring performance in the declaration. The court instructed the jury that running at a rate exceeding three hundred cuts per minute was no defense, unless it caused the breakage in question. This instruction was sufficiently favorable to the defendants. But there is another reason why I think the defendants cannot defeat the action of the plaintiffs on this ground. The lease provides that the engineers were to be the judges of the rate of speed at which the mill was run. It also provides that the defendants were to have the privilege of selecting the engineers; and it seems that they did select them. At all events it was their right to do so. Now, with engineers of their own selection and under their own control, who were to judge of the rate of speed and whether it exceeded that prescribed by the contract, it seems to me that the defendants cannot complain that the mill was run too fast, unless they show that the plaintiffs were in some way responsible for it, which they have not attempted to do. If the running of the machinery was entirely controlled by the engineers, as it appears to have been, then the excessive rate was not the fault of the plaintiffs, and the defendants have no cause of complaint against them.
It follows from these views, that there Avas no error in the proceedings, and that the judgment must be affirmed.
By the Oourt. — Judgment affirmed.