I concur in the foregoing opinion as to the last proposition therein contained, but I express no opinion either way as to the question of pleading, as this question was not raised by counsel, and its determination is not necessary to a decision of the case.
Morgan, J., having acted as the trial judge in the above action, *45took no part in the above decision; Judge C. J. Fisk, of the First judicial district, sitting in his place by request. 88 N. W. Rep. 1043.