they get the rock from the shaft house or rock house, and push in and clean the rock out. How Nick happened to start to work at the Allouez mine, he get a job and want to work; he went and got the job himself; he was carry water on surface about two months at the Allouez; he work about a month in Ahmeek as drill boy before he came to the Allouez; I knew he was working underground, and my wife knew it; I don't know what a drill boy exactly got to do; I know they pick the drills and change the tools for the miners; I knew he had to go underground to do that; I never objected to Nick working underground."

It will be observed that the witness had not worked underground, and there is nothing to show he knew how the work was conducted there. It also appears that the knowledge of himself and wife was limited to the statement that the deceased as a drill boy had to be underground.

The third count of the declaration related to a violation of the terms of the statute. Working underground is not in terms forbidden by the statute. The language used as applicable to the instant case is:

** * *

"No male under the age of eighteen years shall be allowed to clean machinery while in motion, nor employed in any other employment which may be considered dangerous to their lives and limbs."

Contributory negligence is usually a question for the jury. The court is here asked, by the motion to direct a verdict, to find it established as a matter of law. We do not think the testimony of Mr. Paskvan would justify such a course.

We are then confronted with the query whether the court, in view of the testimony of Mr. Paskvan, erred in refusing to give the request to charge which we have quoted. It will be observed that nothing is said in the request about the parents having knowledge that their minor son was employed in an employment

"which may be considered dangerous to lives and limbs," and that, having such knowledge, they consented thereto.

We do not find it necessary upon this record to say whether, in actions relying upon a breach of the statute, which was passed to safeguard the persons and lives of minors, the consent of the beneficiary under the death act would constitute contributory negligence which could be urged as a complete defense by the employer who violated the statute. We are clear, however, that the consent must be given understandingly and with knowledge that the work entered upon may be dangerous to lives and limbs. We think it equally clear the request to charge was not comprehensive enough in any view of the case to make a refusal to give it reversible error.

Mr. Paskvan in his direct examination was allowed to testify as to the wages he earned; that he had a sore eye; "my wife can't work very good; she got poor legs; the whole family is sickly;" the number of boys he had; and that one of them was blind in one eye. It is said this testimony tended to prejudice the jury and enlist unduly their sympathy in favor of the parents. No authority is cited in support of the contention that its admission was error.

In Mulhall v. Fallon, 176 Mass. 266 (57 N. E. 386, 54 L. R. A. 934, 79 Am. St. Rep. 309), it is said:

"In answer to the question to what extent, if at all, she was dependent upon her son for support, she answered that she was almost entirely dependent upon him for the last two years. This question was objected to, but was admissible. The extent to which particulars may be summed up in a general expression is a matter involving more or less discretion, and cannot be disposed of by the suggestion that the general expression involves the conclusion which the jury is to draw, or that it is law rather than fact. Poole v. Dean, 152 Mass. 589, 591 [26 N. E. 406]; Wind

185 Mich.-22.

ram v. French, 151 Mass. 547, 550, 551 [24 N. E. 914, 8 L. R. A. 750]. The question to what extent she was dependent upon her son called for details of fact in a perfectly proper way. Whether the answer showed a sufficient dependence to satisfy the statute remained for the jury to answer under the instructions of the court. Even more plainly admissible were interrogatories whether the son contributed to her support, and, if so, how much. The plaintiff also testified that she had to turn around and go three miles to earn [her] support;' that she had a boy that was hard set to earn from 8d. to 1s. a day, and another boy an invalid. How far these statements should outweigh the others was for the jury. See Houlihan v. Railroad, 164 Mass. 555, 557 [42 N. E. 108]; Daly v. Steel & Iron Co., 155 Mass. 1, 5 [29 N. E. 507]; American Legion of Honor v. Perry, 140 Mass. 580, 590 [5 N. E. 634]. Partial dependence for the necessaries of life would be enough, as it is made in terms by the English statute. 60 & 61 Vict. c. 37, § 7, cl. 2; McCarthy v. Order of Protection, 153 Mass. 314, 318 [26 N. E. 866, 11 L. R. A. 144, 25 Am. St. Rep. 637]; Simmons v. White Bros. (1899), 1 Q. B. 1005; Atlanta & Charlotte, etc., Railway v. Gravitt, 93 Ga. 369, 372 [20 S. E. 550, 26 L. R. A. 553, 44 Am. St. Rep. 145]."

In Cincinnati, etc., R. Co. v. Altemeier, 60 Ohio St. 10 (53 N. E. 300), the court said:

"In the case of parents it may be shown that they were in circumstances and health requiring that the deceased child should aid them by his services, not only during minority, but thereafter. In such cases the financial circumstances and health of the parents are very important, because a parent in poor circumstances would likely be compelled to depend largely upon his minor children for support, while a rich parent would receive no financial aid from his minor children, and, on the contrary, would find them a financial burden upon his hands. A rich parent whose child is a continual financial expense to him, and who has no reason to expect financial aid from such child, sustains little, if any, pecuniary injury from its death beyond the funeral expenses; while a poor parent, and especially if in bad health, might

reasonably expect substantial aid from his child, not only during its minority, but for years thereafter.

* * *

"Any fact which tends to show the amount of the pecuniary loss to the beneficiaries is competent evidence, whether it tends to increase or diminish the damages.

"The foregoing views are fully sustained by the following authorities, and cases therein cited: Potter v. Railroad Co., 21 Wis. 372 [94 Am. Dec. 548]; Potter v. Railroad Co., 22 Wis. 615; Johnson v. Railroad Co., 64 Wis. 425 [25 N. W. 223]; Thoresen v. Railroad Co. [94 Wis. 129], 68 N. W. 548; Lockwood v. Railroad Co., 98 N. Y. 523; [Bridgen v. Osmun], 92 Hun (N. Y.), 580 [36 N. Y. Supp. 1025]; [Pressman v. Mooney, 5 App. Div. (N. Y.) 121], 39 N. Y. Supp. 44; [Lustig v. Railroad, 65 Hun (N. Y.), 547], 20 N. Y. Supp. 477; Railroad Co. v. Crudup, 63 Miss. 291; Cooley on Torts (2d Ed.), §§ 271, 272; Chicago v. Powers, 42 Ill. 169 [89 Am. Dec. 418]; Staal v. Railroad Co., 57 Mich. 239 [23 N. W. 795]; Augusta R. Co. v. Glover [92 Ga. 132], 18 S. E. 406; Railroad Co. v. Leverett, 48 Ark. 333 [3 S. W. 50, 3 Am. St. Rep. 230]; Barley v. Railroad Co., 4 Biss. 430 [Fed. Cas. No. 997]; Railroad Co. v. Lafferty, 57 Fed. 536; Haehl v. Railroad Co. [119 Mo. 325], 24 S. W. 737; Railroad Co. v. Dunden, 37 Kan. 1 [14 Pac. 501]; Opsahl v. Judd, 30 Minn. 126 [14 N. W. 575]; Cook v. Clay St. R. Co., 60 Cal. 604."

See, also, Ewen v. Railway Co., 38 Wis. 613; Johnson v. Railway Co., 64 Wis. 425 (25 N. W. 223); Thompson v. Johnston Bros. Co., 86 Wis. 576 (57 N. W. 298); Thoresen v. Railway Co., 94 Wis. 129 (68 N. W. 548); Birkett v. Ice Co., 110 N. Y. 504 (18 N. E. 108).

We think the court did not err in admitting the testimony.

The other assignments of error have been considered, but we think it unnecessary to discuss them. Judgment is affirmed.

BROOKE, C. J., and MCALVAY, KUHN, STONE, OSTRANDER, BIRD, and STEERE, JJ., concurred.

AGNEW v. KELSEY WHEEL CO.

1. CONTRACTS-PATENTS-LICENSE-INTERPRETATION.

Where defendant had been granted an exclusive license to operate under a patent of certain electrical welding machines used in welding rims, its provisions granting to defendant the right to terminate the agreement but not granting such right to the plaintiff, the latter was not entitled to execute a further contract of license to other parties prior to such termination by the defendant. 2. SAME-WAIVER QUESTION OF FACT—INTENT.

Plaintiff, who claimed that the defendant had waived his right to rescind or terminate the contract, was entitled to have the question presented to the jury by a charge of the court as to defendant's failure to complain and as to evidence that upon failure to pay royalties plaintiff made a demand and defendant's secretary stated they had not been verified and that it at no time claimed that the contract was terminated; the question of waiver is usually a mixed issue of fact and law where there is any evidence tending to show an intent of the party to waive a right.

3. SAME-PATENTS-ROYALTY AGREEMENT-BREACH OF CONTRACT—

ASSIGNMENT.

Nor was

defendant entitled to a peremptory instruction as against the plaintiff upon the ground that the plaintiff had failed to inform him that his application for a patent had been rejected, it appearing a patent had been granted in Canada and that proceedings were pending in the United States patent office for the perfection of such claim to a patent as plaintiff claimed he was entitled to; defendant not having elected to put an end to the agreement.

4. SAME-BREACH-ASSIGNMENT-LEASE.

Nor was the contract breached by the assignment by the plaintiff of his rights subject to the defendant's license, which contained no prohibition or restriction against the transfer of the interest retained by plaintiff and where the rights of defendant company were sufficiently protected.