Volume 108 — Wisconsin Reports

<p> Street railways: Negligence: Injury to child in street: Contributory neg- . ligence of child and of parents: Court and jury: Proximate cause: Speed of car: Loss of services: Evidence. </p> <p>1. In an action to recover for loss of the services of a boy less than seven years old who was run over and injured by a street car, the questions whether the boy was guilty of contributory negligence and whether his parents were negligent in permitting him to be alone upon the street are held, upon the evidence, to have been for the jury.</p> <p>2. The excessive and negligent speed of a street car cannot be said to have been the proximate cause of the injury to a boy who unexpectedly ran in front of the car, if the motorman had no reason to expect any such action on his part and the accident would have happened in the same way had the car been going at a normal and reasonable speed.</p> <p>8. The evidence in this case is held to show that the boy unexpectedly stepped or ran in front of the car when it was only a few feet distant, and, there being no reason to say that the motorman could have anticipated such action, his failure to anticipate it cannot be called negligence.</p> <p>4. In an action by a parent to recover for loss of the services of a minor child, evidence as to the parent’s pecuniary condition, the amount of his property, his earnings, and the size of his family, is inadmissible.</p>

<p>Title to office: Trial by jury: Eligibility: Residence: Evidence: Naturalization proceedings: Admissions: Res ad judicata.</p> <p>On November 18,1898, appellant became a citizen of the United States by the judgment of a district court of the state of Minnesota rendered on evidence as to his residence in that state to the effect that he had resided there continuously for the year immediately preceding his application; and in September, 1899, pursuant to an appointment to the office of lumber inspector of the Thirteenth district of Wisconsin, then held by the relator, he formally qualified therefor, and thereupon demanded possession of the books and papers of the office, -which demand was complied with, the relator supposing appellant to be eligible to the office. Thereafter the relator was informed that appellant was not an elector of the state of Wisconsin, and thereupon he commenced this action to regain possession of the office upon the ground that he was entitled thereto till.a person should be appointed and should qualify who was eligible to the position. The cause was tried by the court with a jury. The record of the proceedings of the Minnesota court was received in evidence against a general objection, and was held conclusive upon appellant on the question of his eligibility to the office. Held:</p> <p>1. Proceedings to try the title to an office constitute a civil action in which controverted questions of fact are triable by a jury as a matter of right.</p> <p>2. The record of the naturalization proceedings was properly received in evidence, (a) as an admission against interest, (b) as a former adjudication as to a material fact, hence binding upon the appellant.</p> <p>3. The naturalization proceedings were in effect an action in rem and the result binding upon the world not only as to the ultimate fact established but the facts upon which such result was based.</p> <p>4. It appearing conclusively that the adjudication of citizenship by the Minnesota court, as to residence in the state of Minnesota, was based wholly on prooí of a year’s residence there immediately preceding the making of the application for citizenship, the truth thereof was vital to the conclusion reached, and the decision on that point necessarily became a part of the judgment and is as binding upon appellant as the judgment itself, regardless of whether the federal statute calls for the particular year’s residence covered by the proof or not.</p> <p>5. The conclusiveness of the judgment of the Minnesota court is ruled by the doctrine regarding judgments in rem and the rule that the res adjudieaia, as to a final judicial determination, extends to every proposition assumed or decided by the court upon which the final conclusion is based.</p> <p>[Syllabus by Marshall, J.]</p>

<p>Municipal corporations: Streets: Change of grade: Determining damages: Laches of owner: Mandamus.</p> <p>1. Sec. 113 of the city charter of Superior (oh. 124, Laws of 1891) authorizes the board of public works to change the established grade of any street, but provides that the owner of abutting propei'ty may recover his damages in the manner set forth in the charter. Sec. 119 provides that before any established grade shall be changed the board shall determine the damages and benefits which will accrue to each parcel of real estate. Proceedings for the construction of a viaduct changing the established grade in front of the relator’s premises were instituted in July, 1899, and the work was done shortly thereafter, without any action being taken to determine his damage. He was fully cognizant of what was being done, but made no protest and no demand to have the damages determined until in March, 1900, several months after the viaduct had been completed and opened for travel. Held that, because of his laches, it was proper to refuse to compel the city authorities by mandamus to proceed to determine the damages.</p> <p>2. The right to damages in such case being entirely statutory, and the charter providing a way in which they shall be ascertained, quaere whether such remedy is not exclusive.</p>

<p>Appeal from a judgment of tbe circuit court for Douglas county: A. J. Yifje, Circuit Judge.</p> <p>Claim of plaintiff against McDonald’s estate for a balance of account, §661.52 and interest, for groceries, etc., furnished by the plaintiff to the deceased and H. ~W. Moore as copart-ners prior to April 1,1893, to which the defense was the six-year statute of limitations and payment. No proof of the former was offered. Upon appeal from decision of the county court, trial was had in the circuit court with a jury, whereon was offered in evidence a receipt by the plaintiff, which was found amongst the papers of the deceased, and was in the following words:</p> <p>“West Superior, Wis., Moh. 29, 1893.</p> <p>“M. Pioneer Provision Co., West Superior, Wis.</p> <p>In account with Twohy Mercantile Co., Wholesale Grocers. Mch. 28. To balance of acct. §688 02</p> <p>To merchandise. Moh. 28. Note due. $501 54</p> <p>“ Rec’d payment in full, Mch. 29, 1893.</p> <p>“Twohy Meed. Co., by Forfar.”</p> <p>The plaintiff offered testimony of its officers to the effect that this receipt was given without any payment whatever to it, at the request of the deceased, McDonald, to facilitate him in settling with his other creditors; that the note therein mentioned was then held by a bank, and was paid to it by McDonald, but that the account mentioned in the receipt, which was identical with the one upon which the claim was based, had never been paid, nor any part thereof; that at the time of giving- said receipt McDonald promised to pay the amount of the account later, and repeated that promise at various times afterwards. This evidence was objected to, and its admission is now assigned as error, both for the reason that it seeks to modify the written receipt or settlement, and that the officers of the plaintiff corporation are incompetent witnesses as against the estate. At the close of the evidence both parties moved for direction of verdict in their favor. Plaintiff’s motion was granted, and verdict directed and returned for $983.98, from judgment upon which this appeal is brought.</p>

<p>Appeals from orders of the circuit court for Jefferson county: B. F. DüNwiddie, Circuit Judge.</p> <p>They argued, among other things, that judgments of probate courts may be set aside for fraud, accident, or mistake, the same as other1 judgments, by action in a court of equity. 2 Woerner, Am. Law of Administration, § 508; 2 Freeman, Judgments, §§484®,. 500®/ 2 Pomeroy, Eq. Jur. §§ 836, 831, 811; 3 id. §§ 1152-1154; Johnson v. Coleman, 23 Wis. 452; Stowellv. Eldred, 26' Wis. 504; Ba/rber v. Rukeyser,'3§ Wis. 590; Hiles v. Mosher, 44 Wis. 601; Revil v. Clifford, 55 Wis. 161. The circuit court, as a court of equity, has general and original jurisdiction over the administration of estates, concurrent with the county court. And that jurisdiction will be exercised whenever it appears that a complete and adequate remedy cannot be given in the county court. Ra/wley v. Tesch, 72 Wis. 299; Lamberton v. Peróles, 87 Wis. 449; Meyer v. Gm'thwaite, 92 Wis. 571; Gicmella v. Bigelow, 96 Wis. 185; Burnham v. Norton, 100 Wis. 8; Rill v. True, 104 Wis. 294; McLachlcm v. Staples, 13 Wis. 448; Bassett v. Warner, 23 Wis. 673; Gat-lin v. Wheeler, 49 Wis. 507-520; Black v. Whitall, 9 N. J. Eq. 572; Baker v. ORiordan, 65 Cal. 368; Vanmeter v. Jones, 3 N. J. Eq. 520; Arnold v. Spates, 65 Iowa, 570; Ridenbaugh v. Burnes, 14 Fed. Rep. 93; 11 Am. & Eng. Ency. of Law (2d ed.), 1315, 1316. As to what constitutes inadequacy of remedy, see Ryan v. Schwartz, 94 Wis. 403; Gary, Probate Law, § 23®.</p> <p>contended, inter alia, that several causes of action are improperly united. Each one of the plaintiffs has a separate cause of action, distinct and independent of the other. They have no common pecuniary interest. Barnes v. Beloit, 19 Wis. 93, 95; Shanahan v. Madison, 57 Wis. 276, 283. An action does not lie by a legatee to set aside an assignment of a chose in action by an executor on the ground of inadequacy of consideration and mistake on the part of the executor as to the value of the claim, in the absence of actual fraud or collusion. Deffendarfer v. Dicks, 20 Weekly Dig. 507; Levy v. Passavant, 19 App. Div. 71; Vietor v. Levy, 72 Iiun, 263,. affirmed, 148 N. Y. 739; Penny v. Ma/rtin, 4 Johns. Oh. 566. When one of the distributees under a will consents to take a portion of the property allotted to him, though unequal in value, it is a waiver of any objection for want of a just, division. Desverges v. Desverges, 31 Ga. 753; Grady v. Porter, 53 Oal. 680, 686; Tóbélmrm v. Hildébrandt, 72 Oal. 313,. 316; Barlage v. D., G. H. & M. R. Co. 54 Mich. 564, 570; WMtmcm v. Watson, 16 Me. 461; Smith v. Payne, 2 Bush, 583; Haden v. Hádenos Heirs, 7 J. J. Marsh. 168.</p> <p>contended,, inter alia, that all the actions and inactions of the plaintiffs in reference to the Tesch papers and the Gogert papers, as shown by the complaint, manifest snch laches, gross carelessness, indifference, and negligence in reference to those papers, and their respective rights under them, as to preclude them absolutely from recovery against this defendant. Powell v. Murra/y, 2 Edw. Oh. 636; Hammond v. Hopkins, 143 U. S. 224; Norris v. Haggin, 136 U. S. 386; Carmichael v. Argard, 52 Wis. 607; Conner v. Welch, 51 Wis. 431, 443; Ln re Estate of Holden, 37 Wis. 98, 107; Coon v. Seymour, 71 Wis. 340; Rogers v. Vcm Norlwick, 87 Wis. 414; Thomas-v. Thomas, 88 Wis. 88; Melms v. PabstB. Co. 93 Wis. 153,. 173. The allegations of the complaint that the plaintiffs were not aware of the invalidity of the notes and mortgages. in question “ until some months after the death of W. T. Rambusch,” is an insufficient statement of the time at which the plaintiffs learned of the frauds that had been committed by Rambusch. In this the complaint is fatally defective. Marsh v. Whitmore, 21 Wall. 178; Rogers v. Vcm Nortwicky 87 Wis. 414, 429.</p>

<p> Real-estate brokers: Commissions: Court and jury. </p> <p>¡Defendant, wishing to sell a farm, agreed to pay a commission to a broker if the latter would bring him a man with whom he could deal. The broker brought a man who wished to trade, but he and defendant disagreed as to values and separated, without further communication until about six months later. The broker testified that in the meantime he had several conversations with defendant, urging the latter to make the trade, the last being about two weeks before the trade was consummated. Defendant claimed that the trade was an independent transaction, brought about by another real-estate agent. The latter testified that he acted as the agent of the other party to the trade. Held, upon the evidence, that it was a question for the jury whether the original negotiation was completely closed and ended, so that the trade finally made was an independent one with which the broker had nothing to do.</p>

<p>Appeal from a judgment of the circuit court for Green county: B. F. DüNWLddie, Circuit Judge.</p> <p>Action for damages for deceit. It is claimed in the complaint, in substance, that February 20, 1896, the Citizens’ Bank of Monroe, Wisconsin, being the owner of a $2,000 note payable to its order, signed by plaintiff as accommodation maker with and for defendants Speich and Marty, received payment thereof from defendant Grunert and delivered the paper to him accordingly; that thereafter defendant Grmiert caused such paper to be placed in the First National Bank of Monroe for collection and plaintiff to be notified thereof; that, believing the note was still an outstanding obligation against him as represented, plaintiff paid the same September 18,1896, the amount of the payment being $2,147. Judgment was prayed for accordingly.</p> <p>The answer of defendants was to the effect that Grunert did not pay the note but purchased the same and held it as an outstanding obligation against all the makers thereof until it was taken up by plaintiff as stated in his complaint.</p> <p>The cause was tried by a referee, who found the facts to be, in substance, as follows: August 31, 1895, plaintiff, at the request and for the accommodation of defendants Speich and Marty, joined with them in making a $2,000 note to the Citizens’ Bank of Monroe, Wisconsin, on which the interested makers obtained the face thereof. February 20, 1896, defendant Grunert, who had extensive business dealings with Speich and Marty, at their request and on their account, paid the note to the bank, charging the amount thereof to them in his book account with them. About September 18,1896, Grunert demanded payment of the note from plaintiff, who, believing it was still an outstanding obligation against him as represented by Grunert, paid the same, the amount of the payment being $2,147. No part of said sum has been made good to plaintiff except $300 paid by Speich and Marty. After plaintiff took up the note as aforesaid, Speich deeded to him a cheese factory lot claimed to be worth $250, but without any request from plaintiff.</p> <p>On such facts the court rendered judgment in plaintiff’s favor for $1,847 and interest from the time he paid the note to Grunert.</p>

<p>Appeal from a judgment of the circuit court for Rock county: R. E. DuNwiddie, Circuit Judge.</p> <p>This action was commenced to compel the defendants to deed to the plaintiff certain property described in the complaint, situated in the city of Beloit, Wisconsin. The facts disclosed by the evidence and the findings are as follows: The plaintiff and Robert Hall were husband and wife, and in 1894 Hall was seven ty-five years of age, and plaintiff sixty-one. Hall died February 20,1896, leaving no children, the plaintiff being his sole heir. The defendants are husband and wife. Hall took the defendant John Nichols into his family when he was about three years of age, and always treated him as a son. Hall had children, but all of them were dead. The plaintiff was his second wife. In 1894 Hall owned the property described in the complaint, which consisted of three store buildings and the land upon which they were situated, yielding an average yearly income of about $900 or $1,000. He also had a homestead, worth from $1,500 to $3,000, life insurance of the face value of $4,100, a note of Nichols for $1,000, and other personal property of the value of about $300. On August 9, 1894, Hall and plaintiff executed and delivered to Nichols a warranty deed of the three store buildings, which was recorded September 20, 1898. The plaintiff claims, and the court so found, that at the time of this transaction Hall desired to convey this property to her; that he believed the only method of so doing was to deed to a third party; that he had confidence in Nichols, and, upon his promise to convey the property to plaintiff, the deed above mentioned was made for the sole and only purpose of getting the title to said premises in plaintiff.</p> <p>Findings 6 and 11 —the ones most vigorously attacked — are as follows: “ (6) That the said John Nichols about the same time conveyed said premises to this plaintiff, and that both of said deeds were placed in a drawer in the safe then in the store of said Nichols, with the other papers of said Robert Hall in the drawer of said safe of said Jolm Nichols, and where at the time the said Hall kept his papers, and to which drawer the said Hail had a key.” “ (11) That on or about the 28th day of September, 1898, and at the time when this plaintiff was very sick, said John Nichols, with intent to cheat and defraud the plaintiff out of said premises, ■caused to be duly recorded iu the office of the register of •deeds for Eock county, Wisconsin, the said deed from said Eobert Hall and the plaintiff to the said John Nichols, and suppressed and concealed or destroyed the said deed from «aid John Nichols to this plaintiff. And that said John Nichols has always, until said September 28,1898, acknowledged ■said plaintiff to be the owner of said premises, and acted as the agent of this plaintiff in the care thereof, and until after September 28,1898, never in any manner claimed to be the owner thereof, or any interest therein, and that neither of said defendants were the owners of any interest in said premises.”</p> <p>The defendants’ answer sets forth that for many years Nichols had worked for Hall, and received little or no compensation other than his support. That in 1889 he was about to leave Beloit and engage in business elsewhere, when Hall requested him to remain, and agreed that if he would so remain and aid him in caring for his business affairs he would give him his business property, consisting of the property mentioned, reserving the income thereof for himself and plaintiff during their lives; that the deed of August 9, 1894, was executed pursuant to this agreement, ■and that Nichols had collected the rents, and, after paying-insurance, taxes, and repairs, had paid the remainder to Hall and to plaintiff, until June, 1899, when, at the request •of the plaintiff, the collection of the rent, etc., was turned •over to her.</p> <p>Upon the trial the court made findings sustaining the plaintiff’s theory, and entered a judgment against defendants, from which they have taken this appeal.</p>

<p> Master and servant: Personal injuries: Cause of accident: Defective apparatus: Negligence of co-employee: Evidence: Burden of proof: Court and jury: Special verdict: Instructions. </p> <p>1. In an action for injuries sustained by plaintiff wliile operating a wood-embossing machine, caused by an explosion of gasoline gas, which was used in heating the metal dies of the machines, a finding in the special verdict to the effect that the explosion was caused by leakage of the pipes under the floor of the small building in which plaintiff was working, which conveyed gasoline from an outside tank through the inclosed space beneath the floor and up through the floor to the machines, is held unsupported by the evidence, which fails to show affirmatively that there was any such leakage and shows conclusively that there was neither explosion nor combustion beneath the floor.</p> <p>2. It having been shown that a co-employee of plaintiff was in the habit of permitting gasoline to drip from the burner of his machine after it had been extinguished, and that enough gas might have been formed in the room in that way to account for the explosion, there could be no presumption, from the mere fact of the explosion, that there was any defect in the apparatus supplying the gasoline, but the burden was upon plaintiff to show by a preponderance of reasonably direct evidence the existence and proximate efficacy of such a defect; and it was error therefore, even upon the assumption that the accident might have been caused either by a defect or by the co-employee’s negligence, to submit those two possible causes to the jury, for the adoption of one or the other, as if they stood on an entire parity as to quantum of proof necessary to give either its legal effect.</p> <p>3. Where, as in this case, the plaintiff, upon whom the burden rests, has failed to show by any reasonably direct evidence that defendant has been guilty of any negligence which caused the injuries complained of, the court should so decide and should not, by submitting it to the jury, imply that the question is an open one.</p> <p>4. Where a special verdict is taken it is not only improper but erroneous to instruct the jury generally upon the law of the case and, especially, so as to inform them of the legal effect of the answers to the questions submitted.</p>

<p> Practice: Issues: Evidence: Settlement of accounts. </p> <p>1. After the commencement of an action upon an open account the defendant therein brought an action to foreclose a mortgage executed to him by the plaintiff and not put in issue by the pleadings in the former action. On' the trial of the former action, while the foreclosure/action was still pending and undetermined, the mortgagor was allowed to give evidence tending to prove that the note secured by the mortgage had been fully paid and satisfied. Held, improper.</p> <p>3. In an action upon an account which extended over a considerable number of years, the evidence is held to show — contrary to a referee’s finding, confirmed by the trial court — that during that period there had been at least one complete settlement of the accounts between the parties.</p>

<p>Appealable order: Certiorari: Vacating judgment at subseguent term: Foreclosure of mortgages: Notice of lis pendens.</p> <p>1. An order setting aside a foreclosure judgment because notice of lis pendens had not been duly filed, but not granting a new trial, is not appealable under subd. 2 or subd. 3, sec. 3069, Stats. 1898; and if the court had no power to make such order its action may be reviewed on certiorari.</p> <p>2. A judgment of foreclosure of a mortgage, entered without compliance with the requirement of sec. 3187, Stats. 1898, that a notice of lis pendens shall be filed twenty days before judgment, is irregular but not void, and the court has no power to set it aside, because of such irregularity, at a subsequent term.</p>

<p> Promissory notes: Agreement to return to maker: Breach: Damages: Insolvency of maker: Special verdict: Instructions to jury. </p> <p>1. For breach of a contract to return a promissory note to the maker upon demand there may be a recovery of actual damages, although the maker has not paid the note.</p> <p>2. If, in such a case, the note has been transferred to a bona fide holder, the damage to the maker is the continued existence of his liability thereon, and the measure of his recovery would be the value of the note, where no special damage is shown.</p> <p>3. Learned v. Bishop, 42 Wis. 470, and Selleek v. GiHsivold, 57 Wis. 291, distinguished.</p> <p>4. The fact that the maker of the note, in such a case, is insolvent or “ execution proof ” does not necessarily render the note valueless or preclude damage to him from the existence of the liability. At most, his financial condition is a circumstance to be considered in assessing the damages.</p> <p>5. The jury having been instructed, in such a case, that the measure of damages was the actual value of the note, and that plaintiff’s solvency was an element to be considered in ascertaining the amount, it was not error to refuse to submit in the special verdict a question as to whether judgment against plaintiff on the note could be collected on execution.</p> <p>6. Where a special verdict is to be rendered, general rules of law governing the rights of parties should not be given to the jury in the charge so as to inform them of the effect of their answers to the questions submitted; but general instructions as to the weight of evidence, burden of proof, and the conduct of the jury generally, are proper.</p> <p>7. The refusal to give an instruction which is in part improper is not error, since under sec. 2853, Stats. 1898, it must be given without change, as requested, or refused in full.</p> <p>8. Where a question in a special verdict is in itself so clear and unambiguous as not to require any explanatory or qualifying charge, the omission or refusal to give an instruction of that nature is not a prejudicial error, even though the instruction was a proper one.</p>

<p> Surface waters: Flowing upon adjacent lands: Underdrainage. </p> <p>To relieve liis farm from surface water which gathered in depressions or low places thereon defendant constructed a system of under-drainage located entirely upon his own land, through which the water was discharged on his own land near a dry run, in which it flowed aoi'oss the lands of intermediate proprietors to plaintiff’s land. Such underdrainage enabled defendant’s land to absorb and hold more of the surface waters coming upon it, and the -quantity flowing from it into the dry run and upon plaintiff’s land was not increased. Held, that plaintiff had no cause of action.</p> <p>For a note on rights as to flow of surface water, see Gray v. McWilliams (98 Cal. 157), in 21 L. R. A. 593.—Rep.</p>

<p> Wills: Contest: Allowance of counsel fees out of estate: Executors: Stipulation. </p> <p>1. In a contest as to the validity of a will the allowance to the parties of counsel fees to be paid out of the estate, in addition to statutory costs, is without authority of law; though upon the settlement of an executor’s account he may receive credit for expenses of that nature properly incurred by him.</p> <p>2. The person named as executor in a will is not an executor until he has qualified as such and been confirmed in his office.</p> <p>•3. If the parties to a will contest do not include all who are beneficially interested in the estate, a stipulation between them that counsel fees shall be allowed, payable out of the estate, is not binding or effective.</p>

<p>Appeal from a judgment of the county court of Wauke-sha county: M. S. Geiswold, Judge:</p> <p>Action to set aside aside-an administrator’s sale because he was interested therein. Defendant Mark Gibson was one of the administrators. The intestate died December 11, 1870, leaving a minor child, Louis Gibson, the plaintiff. The sale was made April 15, 1872, ostensibly to George H. Gibson, Mark Gibson’s son. The evidence shows that Mark Gibson assisted his son to pay for the property upon the pretext that the latter had an associate in bidding off the property who failed to produce his part of the money to complete the purchase. About six months after the sale was. confirmed, two months after the completion of the deed, and a month and a half after the recording thereof, George deeded one half of the property to his father. He died in 1893, leaving his father and mother, the defendants, as his only heirs. From that time to the commencement of this action defendants have held the entire title to the property, basing their right thereto upon the administrator’s sale. Plaintiff became of age April 7, 1890. February 21, 1895, he commenced an action of ejectment against defendants to obtain possession of the property, upon the ground that the administrator’s sale was absolutely void. Judgment •was rendered in favor of defendants. Upon appeal to this court, it was said that the evidence indicated the existence of facts rendering the sale void, but the judgment was affirmed because the administrator’s deed was voidable only, and, till set aside in an equitable proceeding for that purpose, ejectment would not lie in favor of the person entitled to avoid it, be having no legal title to the property. [102 Wis. 501.] The judgment of this court was pronounced without prejudice to the right of plaintiff to bring such an equitable action.</p> <p>This action was commenced April 27, 1899. The court found facts as above indicated, also the following: The land brought a full price at the sale. It was not struck off on the day advertised for the sale, though the bid of George H. Gibson was then received. The sale was adjourned, and on the adjourned day, without again offering the property for sale, it was agreed to report the sale as made to George in accordance with his bid theretofore made, which was done. Marie Gibson was in no way interested in the sale at the time it was made, nor till after the confirmation thereof, except that he was interested in having his son become the purchaser. He extended accommodations to his son not accorded to others, in order to further his desire to have the property go that way, and in that manner was unduly interested in the sale, though he committed no actual fraud nor did anything to the actual detriment of the estate he represented or the heirs of the intestate. The proceeds of the sale were all used in paying mortgage and other claims against the estate. Defendant Mcvrk Gibson has occupied and improved the property for many years, believing he had a good title thereto, his improvements during that period amounting in value to $2,000. If plaintiff ever had a cause of action it is barred by the statute of limitations.</p> <p>Judgment was rendered accordingly, and plaintiff appealed.</p>

Dice, Circuit Judge. The claimant filed a bill against the estate of John Dailey,, deceased, in county court, for services as housekeeper and servant, based upon a promise that, if she would perform such services, he would leave her his property. The county court found against the claim. On appeal to the circuit, court, and upon some additional evidence, that court made findings for claimant, and gave her judgment for $792 and costs.

<p> Contracts: Signature induced by false statements as to contents: Negligence: Court and jury. </p> <p>1. A German of considerable experience in the business of selling farm machinery signed a written contract to purchase two grain drills. He could read business papers in English, and his adult son, who had a good education and acted as his bookkeeper, was present, but neither of them read or tried to read the contract, though there was nothing to prevent it. Held, that he was guilty of negligence which prevents his defending against an action on the contract on the ground that he was induced to sign it by fraudulent representations as to its contents.</p> <p>2. Where plaintiff’s right of recovery is clear upon the undisputed evidence, the trial court, upon setting aside a verdict for defendant, may render judgment for plaintiff.</p>

S. GilsoN, Circuit Judge. The plaintiff in error was convicted of the offense of rape upon a child of the age of ten years.

B. WxmaN, Circuit Judge. To the point that a verdict should have been directed on the ground of contributory negligence, they cited, besides cases cited in the opinion, Downs v. St. Paul Gity R. Go. 75 Minn. 41 O’Rourke v. H. O. G. To the point that, plaintiff was too young to be held guilty of contributory negligence as a matter of law, they cited, besides Wisconsin cases cited in the dissenting opinion, Berry v. H. Y. G. & H. R. R. Go. 92 N. T. 289; Costello v. Third Ave.…

Croix county: B. E. DüNwiddie, Judge. Appeal from an order sustaining demurrer to a complaint by the plaintiff, a taxpayer, on behalf of himself and other taxpayers, to enjoin the execution, delivery, negotiation, and sale of certain county bonds, and to enjoin certain of the defendants, designated as a committee, from tearing down or removing old county buildings, or contracting for the building of new.

D. Hastings, Je., Circuit Judge. They contended, inter alia, that the appraisal agreement was represented by the defendant to be, and construed and acted upon by the parties to it as, an award under and pursuant to the terms of the policy, hence having the effect in said policy provided, and that by estoppel of construction defendant is denied the right to claim for it any other effect.

<p>Motion for an alternative writ of mandamus.</p>

<p> Lien on logs: Hire of horses. </p> <p>Although horses were rented for the express purpose of being used in-work of a lienable nature upon logs, the owner is not entitled to a lien for their hire, under seo. 8329, Stats. 1898, unless they were used and worked by him or by some person as his agent or servant.</p>

<p> Land contract: Sale by receiver of vendor: Foreclosure by assignee: Counterclaim against receiver: Conveyance by assignee: Title: Defect of parties: Demurrer. </p> <p>1. The receiver of a corporation, under an order of the court, sold a land contract and notes given for the deferred payments thereon, no condition accompanying the sale. Subsequently assignees of the purchaser at such sale commenced an action to foreclose the land contract, but did not make the corporation or the receiver a party. Held, that the purchaser at the receiver’s sale took title to the contract and notes free from claims and debts arising out of the receivership, and that the defendant could not maintain a counterclaim for damages for breach, by the receiver, of a contract for a general retainer, or for legal services performed for the receiver.</p> <p>2. A court of equity should not compel the vendee in a land contract to accept, as a fulfilment of the contract, a conveyance from'the vendor’s assignee of the contract while the legal title remains in the vendor, who is not made a party to the action,— even though the objection that there is a defect of parties is not properly taken.</p> <p>3. The rule that a vendee who has gone into possession under a' land contract cannot retain possession and refuse to pay the purchase money on the ground that the vendor’s title is defective, does not apply to the objection that a conveyance from the vendor’s as-signee of the contract does not convey the legal title.</p> <p>4. A demurrer on the ground that there is a defect of parties, which fails to state whether the defect consists in the omission of a plaintiff or a defendant or to name the person who should be made a party, is insufficient under secs. 2649, 2651, Stats. 1898, to raise that question.</p>

<p>A-pipeat. from a judgment of the circuit court for Price ■county: JohN K. Paeish, Circuit Judge.</p> <p>This is an action of oertiorcvri brought to set aside certain proceedings of the town board of supervisors of the town ■of Ilill, Price county, purporting to alter two certain highways in said town. The petition for the alteration of the highways was signed by the requisite number of freeholders, and the alteration of highways desired was described in said ■petition as follows: “ To alter a highway in said town known .as the Settlement road, and passing at the place to be so ■altered along the north section line of section 10, township 34 north,, of range 2 east, the same being 4 rods wide, and a road on the east section line of said section 10 — 34 — 2 east, as follows: Beginning at a point 16 rods south of the northeast corner of section 10, township 34, range 2 east; thence southwesterly 86£ rods to a point on the Spirit Lake road 13 rods east from •§• line where said Spirit Lake road crosses the -J line 12 rods north from the sw ■§- post of the ne \ of the ne £ of section 10, township 34 north, of range 2 east, — all ■of the same passing through the northeast quarter of the northeast quarter, section 10, township 34 north, of range 2 east,'in Brice county, Wisconsin.” The situation will more clearly appear on examination of the following map of section 10 named in the petition:</p> <p> </p> <p>The road marked “ Settlement Road ” upon, the north side of section 10 and the road bearing no name upon, the east side of section 10 are the roads which were expected to be altered by the proceedings upon the petition, and the diagonal road marked “ Proposed Road ” upon the map was an entirely new highway running through the plaintiff’s lands, by the laying out of which it was expected to alter the first-named roads. The supervisors acted upon the petition in, accordance with the statute, and finally made an order purporting to alter said highways in the exact terms of the petition.</p> <p>The relator was the owner of the east half of the northeast quarter of the section, through which the new road ran; and he refused to accept the damages awarded him, and brought this action, claiming that there had been no legal alteration of any highway. Return having been duly made to the writ by the board of supervisors, the circuit court affirmed the proceedings of the board, and the relator appealed.</p> <p>contended, inter alia, that the description is sufficient. 15 Am. & Eng. Ency. of Law (2d ed.), 361; Hyde Parle v. Gownty Gomm’rs of Norfolk Go. 117 Mass. 416/ Taft v. Gomm. 158 Mass. 526; Jackson v. Pankin, 67 Wis. 285; State ex rel. M., L. S. db W. P. Go. v. O’Connor, 78 Wis. 282; Neis v. Franzen, 18 Wis. 537. If the road in the case at bar is such an independent separation from the old road that it cannot be an alteration, this proceeding ought to stand so far as to establish it as a new road. Bliss v. Deerfield, 13 Pick. 1(A, Gomm. v. Gounkj Gomm’rs of Berkshire Go. 8 Pick. 343; Paymond v. County Oomm’rs of Gumberla/nd Go. 63 Me. 112.</p>

<p> Debtor and creditor: Fraudulent conveyances: Husband and wife. </p> <p>Nine years after giving to his wife, for money borrowed from her, a note for §2.300, hearing ten per cent, interest, a husband purchased land for $6,000 and applied the amount due on the note in part payment therefor, furnishing the rest of the purchase price himself. He took the title in his own name, treated the property as his own for seven years, and then, being insolvent, conveyed it to his wife without consideration. He had previously transferred to her other property and money to a considerable amount, and she was assisting him in the effort to keep his property out of the reach of his creditors. On the strength of his ownership of the land he had obtained credit from plaintiff, and the conveyance to the wife was made while plaintiff’s action against him on the debt was pending, and was not recorded until the day before the entry of plaintiff’s judgment. It was claimed that the land was originally purchased with the understanding that the husband should take the title and convey to the wife at any time she desired it. Held, that the conveyance to the wife was properly adjudged void as to creditors. Martin v. Remington, 100 Wis. 540, distinguished.</p>

<p>Appeal from a judgment of the circuit court for Ashland county: John K. Paeisii, Circuit Judge.</p> <p>The plaintiffs on May 16, 1898, served a summons in garnishment against H. E. Whitcomb and Howard Morris, as receivers of the Wisconsin Central Railroad Company and of the Wisconsin Central Company, to charge them as garnishees in a suit against one Archie McKinnon. The garnishees answered that on March 17th they contracted with McKinnon for the purchase of 301 pieces of piling at the price of $525.80; that the same were delivered prior to the 12th day of April, 1898; that the price had not yet been paid; that on the 12th day of April one Alex Me Call notified them that the piling was wrongfully cut and removed from real estate belonging to him, and was his property, and demanded that payment therefor be made to him; that on May 4th one A. D. Smith notified them that said piling was cut and removed from his real estate, and was his property; that on May 17th said Smith gave written notice to the garnishees that he had sold, assigned, and transferred all his interest in said piling to said Alex Me Call. They denied any other liability, and interpleaded Me Call. Issue was joined on the answer, and trial was had between plaintiff and MeCall, first to the court with a jury. At the completion of the evidence the court concluded that the issue was for the court, and discharged the jury, and afterwards made findings.</p> <p>It appeared on the trial that on January 17 and April 5, 1898, A. D. Smith, by two written contracts, sold to McKin-non the standing timber on premises described in each contract, giving to said McKinnon the right to cut the timber on the land, but providing that the title and possession of the logs and timber should remain in the party of the first part until the whole contract price was paid. There was clue Smith upon the first of these contracts about $1,100, and on the second $600. On May 17th, by a writing, said Smith, in consideration of $1,734.77, sold, granted, and conveyed unto A. Mo Gall all logs, timber, and piles cut from the lands mentioned in the foregoing contracts, which were annexed, and all right which he (Smith) might have to seize the said timber for nonpayment of contract price, and to recover for any trespass by any one in removing tamarack piles, and to recover said piles from those in possession, and also assigned the contracts themselves. On the same day McKin-non transferred to MoOall all of his rights in the logs and piling cut from the Smith land as security for various advances made by MoOall to him in accordance with a previously existing contract and arrangement between them whereby he was to get out certain timber for MoOall; Mo-GaTl advancing certain specified sums of money, and paying such sums as necessary for stumpage and for lienable claims; and such contract providing that the title to the land or stumpage in all cases should be taken in the name of Mo-Gall,, and be held by him as security for all his advances. An extended trial was had upon the state of the accounts between MoOall and McKinnon on May 16, 1898.</p> <p>The court found that the garnishee defendants, Morris and Whitcomb, were not indebted to the defendant McKin-non at the time of the garnishee summons, and had no property in their possession or under their control belonging to him. He also made findings upon McGalVs right, under his contract with McKinnon, to have the title to all timber, lumber, etc., as security for advances which he was bound to make; that the contract for the Smith logs and timber was by mistake taken in the name of McKinnon, but that said Mo Gall was the equitable owner, and that MoOall was not indebted to McKinnon at the time of the service of the summons herein, or subsequent hereto, and had no property belonging to said McKinnon, whereupon, it was adjudged that the garnishee action be dismissed, from which the plaintiffs appeal.</p>

This is an action for money had and received. The facts were not materially in dispute, and are as follows: In the year 1891 the plaintiff was the equitable owner of a quarter section of land in Ashland county, and made a contract with the defendants, who are lawyers, to take the necessary legal proceedings to perfect his title, for which services the plaintiff was to deed to the defendants a one-half interest in the land as soon as the title was perfected.

Papish, Circuit Judge. Appeal from an order dismissing an appeal from a determination of the county board of supervisors of such county •disallowing a claim. Such disallowance took place October '29, 1892. The appeal was seasonably taken to the circuit court. The county clerk mislaid the papers in his office and for that reason failed to make a return on the appeal according to law, to the clerk of the circuit court, till December 10, 1899.

<p> ■Orders: Review on appeal from judgment: Exceptions: Insufficiency of complaint: Waiver: Tax titles: Insufficient notice of sale. </p> <p>1. An order refusing to dismiss an action for want of prosecution under sec. 2811a, Stats. 1898, is an intermediate order and will not be reviewed on appeal from a judgment subsequently rendered unless it was excepted to and the order and exception incorporated into the bill of exceptions.</p> <p>"2. The question whether a complaint states a cause of action will not be considered on appeal unless it was raised in the trial court by demurrer or objection to the admission of any evidence thereunder.</p> <p>5. A county treasurer’s notice of the sale of lands for taxes, stating that they would be sold at a time designated, “ in the town of B.,” without stating where, does not comply with sec. 1130, Stats. 1898 (providing that such notice shall state that the lands will be sold at; public auction “at some public place, naming the same, at the seat of justice of the county ”), and a deed based upon the sale conveys no title.</p>

Appeals from judgments of the circuit court for Bayfield county: John K. Parish, Circuit Judge. Two actions to recover the value of certain timber cut by defendants upon lands owned by the plaintiffs. The defendants justified under tax deeds. In the Midlothian Gase-the land involved was S. % N. E. \ and S. E. 16 — 41—5 W. In the Cumberlmd Gase the land was described as N. 1¿ N. E. -J, of the same section.

<p> Taxation: Redemption moneys: Action against county cleric after six years from sale. </p> <p>Under seo. 1168, Stats. 1898, if the county clerk holds tax redemption, money after the expiration of six years from the date of the sale of the property, he holds it in trust for the county treasurer or the county and not for the holder of the certificate redeemed, and the latter cannot recover such money from the clerk.</p>

Y. BardeeN, Circuit Judge. This is an action upon a policy of indemnity insurance.

C. SilveRthobN, Circuit Judge. Action to recover on an insurance policy. One Harris, a general agent of the defendant insurance society, took Donald McDonald’s application for life insurance therein for $5,000, the application being accompanied by the applicant’s-note for $315.25, the amount of the first premium, payable ten days after the date thereof to the order of the assurer..

C. SilveethoeN, Circuit Judge. Appeal by plaintiff from an order sustaining a general 'demurrer to the complaint, which set forth substantially the following facts: Plaintiff was engaged in an extensive wholesale and retail lumber business, in which it was its custom to contract for .and purchase large quantities of lumber, in order that it might have in advance a fixed and sufficient supply to meet its trade and contracts, to the knowledge of the defendant.

0. Silveethorn, Circuit Judge. Defendant, a town mutual fire insurance company, on May 17, 1898, issued to plaintiff its policy, to run for five years, upon real and personal property, to wit: Dwelling house, $600; furniture and clothing, $100; surplus produce, •$25; stables, $60; hay, fifteen tons, $90; grain, $50; two horses, $132,— and other articles and stock.

C. Silveethoeít, Circuit Judge. They contended, i/nter alia, that the objections to the order of adoption on the ground that there-was no notice to or consent of the parents only go to the jurisdiction of the person of the parents and can only be raised by them. Sahiltz v. Roenitz, 86 Wis. 31; Pa/rsons -u. Pa/rsons, 101 Wis. 81; Mohr v. Porter, 51 Wis. 487; O'Dell v. Rogers, 44 Wis. 136; Mélms v. Pfister, 59 Wis. 186; Weld v. Johnson Mfg.

C. SilvebthoRN, Circuit Judge. This is an action to recover the reasonable value of services claimed to have been performed by the plaintiff for the defendant between June 1, 1898, and April 6,1899, in looking after and taking care of certain unused buildings near Clifford Station, Lincoln county, Wisconsin, and also in looking after certain lands of the defendant in that vicinity.

0. Silverthorn, Circuit Judge. Action to recover damages for trespass upon real estate. The cause was tried by the court. ' The findings of fact on disputed questions are substantially as follows: In the months of January and February, 1894, defendants cut and removed from plaintiff’s lands 371,440 feet, board measure, of pine timber, of the full value of $1,485.76.

Dick, Circuit Judge. This is an action in equity, brought by the plaintiff against one D. H. Bement, an insane person, and the defendants Bollock and Nehls, who were sureties upon a bond given by one Bambusoh, the general guardian of said Bement, upon the sale of the real estate of his ward. The facts set forth in the complaint are sufficiently stated in the opinion.

Dioe, Circuit Judge. Appeal from an order refusing to set aside a judgment as to appellant, the judgment having been rendered against him and two other persons as partners. The order appealed from does not refer to the papers on which it was based, nor the returns of the clerk to this court show the papers upon which the motion was heard. The returns are three in number.

<p>Appeal from a judgment of the circuit court for Ashland county: ~W. C. SilveRtiioeN, Judge.</p>

<p> Injunetional order: Vacating: Notice: Suspending business of corporation: Highway by user: Logging roads: Custom: License to use: Malicious revocation. </p> <p>1. Under secs. 2781 and 2811, Stats. 1898, the court cannot, except upon notice, vacate an injunetional order granted without notice by a court commissioner upon a complaint stating facts sufficient to give him a colorable right to make the order, even though such-facts are not sufficient to warrant the interference of equity in plaintiff’s behalf.</p> <p>2. An order restraining a lumbering corporation, a part of whose business was the handling of logs, from continued trespasses in building roads and hauling logs over lands owned by plaintiff, is not within the meaning of sec. 2?80, Stats. 1898, which prohibits a court commissioner from granting an injunction “to suspend the general and ordinary business of a corporation.”</p> <p>3. More than twenty years before the commencement of an action to restrain trespasses a logging road had been made at the place in question, which had been used at times in later years by persons logging in that neighborhood, and at times some settlers had hauled a few loads of hay over it. After nonuse for a number of years it had grown up to brush and was incumbered by windfalls. The town had never adopted it as a highway or done any work on it. Held, that the road had not become a highway by prescriptive use.</p> <p>4 A custom in logging sections for loggers to use old roads' over private lands, and to make repairs necessary to such use, does not give the right to use such a road against the consent of the owner. Any implied license of use would be revocable at any time, even if the revocation were prompted by malice or ill will.</p>

<p> Appeal from county court: Granting leave after time has expired: Errors: Affidavit of merits: Abuse of discretion. </p> <p>1. Error of the county court in admitting in evidence, in support of a claim against a decedent, notes purporting to have been signed by him, without proof of his signature, does not necessarily establish “that justice requires a revision of the case” and that an appeal from the allowance of the claim should be granted, under sec. 4035, Stats. 1898, after the time for appeal has expired.</p> <p>S. In such a case the petition for leave to appeal was supported only by an affidavit of the executor’s attorney, showing that the failure to perfect an appeal in due time was due to an excusable mistake, and stating that the exeeulor “believes that justice requires are-vision of the case for the reason that there never was any consideration for said notes, and the estate ” does not owe the debt, “as said executor is informed and believes,” but not stating what information the executor had or any facts justifying his belief. It was not asserted that the notes were not duly executed by the deceased; and affidavits on behalf of the claimant were to the effect that they had been so executed. Held, that the denial of the petition was not an abuse of discretion.</p>

<p>Appeal from an order of the circuit court for Eau Claire county: JaMes O’Neill, Circuit Judge.</p>

<p> Defective adoption of child: Compensation for services: Presumption: Rebuttal: Void contract to leave property at death: Limitation of actions: Pleading: Estates of decedents: Special verdict: Finding construed: Validity of contract. </p> <p>1. Where a boy was received into a family as a son, under defective adoption papers, and rendered services in that capacity, the presumption that such services were not to be paid for can only be rebutted by proof, either direct or circumstantial, which establishes an express contract to pay for them.</p> <p>2. An oral contract in such case whereby, in consideration of his mother’s consent to the adoption of the boy and of his services to be rendered as an adopted son, the person intending to adopt him agreed that she would give him all her property, real and personal, at her death, is void as to the real property under the statute of frauds and, being indivisible, is wholly void; but such a contract nevertheless rebuts the presumption that the services of the boy were to be gratuitous.</p> <p>3. When, in such case, the services of the boy had ceased and he had attained his majority, he could, if entitled to recover at all, have made his demand and brought action for the value of his services, the void contract being no defense and of no effect to extend the time of payment; and the statute of limitations began to run accordingly.</p> <p>4. Under sec. 3841, Stats. 1898, the statute of limitations need not be pleaded as to a claim against the estate of a decedent.</p> <p>5. In view of the language used in the questions submitted for the special verdict, of the instructions given to the jury, and of the evidence returned to this court on appeal, a finding of the jury that a person promised and agreed to devise real estate is held to be equivalent merely to a finding of an oral promise or understanding, and not of a valid (i. e. a written) agreement, although the verdict does not specifically state that it was oral, and although the bill of exceptions is not certified to contain all the evidence.</p>

<p>Limitation of actions: Pleading: Demurrer: Amendment: Discretion: Beview on appeal: Stare decisis.</p> <p>1. Subd. 7 of sec. 2649, and sec. 2651, Stats. 1898, permit a complaint to be demurred to because the action was not commenced within the time required by law, only upon condition that the particular section of the statute of limitations or subdivision of a section relied upon be thereby specifically pointed out.</p> <p>2. The court has the same discretionary power to permit an amendment to a pleading setting up the statute of limitations as to permit any other defense to be so pleaded.</p> <p>3. The doctrine that the bar of the statute of limitations extinguishes the right involved and creates a new one in the adverse party which is in the nature of property, within the meaning of that term as understood in respect to constitutional guaranties, is not in harmony with the doctrine that the defense of the statute of limitations is unconscionable and that a trial court may, in the exercise-of its discretionary power, on that ground alone, refuse in all cases to permit it, where its availability depends upon judicial favor.</p> <p>4. The judicial polic^that regards statutes of limitations in an unfavorable light and defenses under them unconscionable, is not in accord with the legislative policy. The latter ought to prevail.</p> <p>5. In a matter properly regarded as purely discretionary with the trial court, its action, reasonably in accord with a supreme judicial rule, will not be disturbed to satisfy the necessities of a particular case, though the rule itself be so discountenanced as to in effect change it.</p> <p>6. In accordance with the principles stated, the decision of the trial court, refusing to permit a demurrer to be amended so as to cure an excusable and excused mistake in respect to pleading the statute of limitations, is affirmed, while the reason upon which the decision is grounded is discountenanced so far as being a safe guide for future judicial administration.</p> <p>[Syllabus by Marshall, J.j</p>

<p>Appeal from an order of the circuit court for Eau Claire county: JaMes O’Neill, Circuit Judge.</p> <p>The plaintiffs Stoókwéll and Van Rovenberg are residents and taxpayers of the county of Eau Claire, and bring this action on behalf of themselves and other taxpayers. They join with them L. J. Mueller, who was the lowest bidder for the work hereinafter mentioned, but is admitted not to be a necessary party. The defendants are Eau Claire Comity, W. R. Robbs, the contractor, and certain members of the county board of supervisors, who had charge of the erection of a county asylum for the chronic insane.</p> <p>The complaint sets out that the county had decided to erect a building for that purpose; the appointment of the committee, who had secured plans and specifications for the building and another set for the heating apparatus to be used therein; the advertisement for bids for the erection of the building and for separate bids for the heating plant. It then details the requirements of the notice for bids, and compliance therewith by the plaintiff Mueller; that the contract for the erection of the building was awarded to one Long; that plaintiff Mxieller offered to put in the heating plant for $6,112, which was the lowest bid. He notified the committee of his readiness to enter into a contract and furnish the required bond, but the committee rejected his bid and accepted the bid of the defendant Robbs, whose bid was $6,175, and entered into a written contract with him. The complaint farther states that the acts of defendants were attempted to be performed under secs. 603, 604, Stats. 1898, and that the letting of the contract to Robbs was in violation of sec. 604; that their rejection of Mueller’s bid was without any cause or reason, except that the committee desired to favor Robbs and give him an unlawful preference, and that the defendants threatened to carry out such unlawful contract. A temporary and permanent injunction was prayed for.</p> <p>To this complaint the defendants made answer wbicb substantially admits the allegations of the complaint with reference to the erection of the building, reception of bids, and letting of contracts. It then sets out the bids of Mueller and Holla, and as a reason for accepting the bid of the latter it alleges, in substance, as follows: Mueller lived at Milwaukee, 250 miles from Eau Claire. He was wholly unknown to the committee. Ilolbs was a resident of Eau Claire, and well known to the committee, and for many years had been engaged in doing similar work, and was known to be responsible and of ability to perform such work. The committee believed it was probable that, as the work progressed, changes might be necessary in some of the details of the work, and that such matters could be more easily arranged with a contractor who was close to the place of the work, and who, it was supposed, would give his personal attention to it. The committee further realized the fact that an act of in competency or unfaithfulness in the performance of the work might bring losses to the county, “which in comparison would dwarf into absolute insignificance (if it is not already so) the sum complained of; ” that in jobs of this kind defects were likely to occur which might not be discovered as the work progressed, or until the plant was in active use, and which could be more readily remedied by a contractor near at home; that in case of repairs they could be more readily and cheaply obtained from the person who constructed the work. Reference was made to certain provisions of the contract to the effect that the drawings, plans, and specifications were intended to co-operate, and that work mentioned in one and not in the other was to be executed as though mentioned in both, without extra charge. Questions would constantly arise with reference to such matters which made it essential that the contractor should be on the ground so they could be árranged as the work progressed, and the committee believed better and more satisfactory results could be obtained in the adjustment of such matters with the defendant Hobbs, by reason of their knowledge of his business methods, than could be obtained from Mueller, whom they did not know. The answer then alleged that the other plaintiffs were only assessed to the amount of $400 in property in the county, and that the additional tax they would be required to pay would be only the fractional part of a mill; that Hobbs had paid to the county treasurer the sum of $3 to be applied on the contract.</p> <p>To this answer the plaintiffs demurred on the ground that it did not state facts sufficient to constitute a defense. On the hearing it was urged that the complaint did not state a cause of action. The court so found, and sustained the demurrer to the complaint. From the order so entered the plaintiffs have taken this appeal.</p> <p>They argued, among •other things, that laws requiring public contracts to be let to the lowest bidder are binding, and will be strictly enforced by the court. All contracts awarded in violation of •such laws are illegal and void, and persons performing work thereunder are entitled to no compensation therefor. Mitchell v. Milwaukee, 18 Wis. 92; Wells v. Burnham, 20 Wis. 112; Bicketson v. Milwaukee, 105 Wis. 591-604; Brady v. New York, 20 N. T. 312; People ex rel. Goughlin v. Gleason, 121 N. T. 631; Tiedeman, Mun. Corp. § 172; 1 Dillon, Mun. Corp. § 466; Addis v. Pittsburgh, 85 Pa. St. 379; Richardson v. Grant Go. 27 Fed. Rep. 495; Murphy v. Hapa Go. 10 Cal. 497; Heidelberg v. St. Francois Go. 100 Mo. 69; Townsend v. Holt Go. 40 Neb. 852; 15 Am. & Eng. Ency. of Law (1st ed.), 1091, and cases cited. When bids are advertised for and are filed in compliance with the advertisement, their merits both actual and relative must be determined solely by a consideration of the terms and conditions set forth in the advertisement or other public notice, and an award on other grounds and considerations will be invalid. Tiedeman, Mun. Corp. § 113; Shaw v. Trenton, 49' N. J. Law, 339; Mazet v. Pittsburgh, 137 Pa. St. 548.</p> <p>contended, inter alia, that where the injury is so trifling as in this case a court of equity will not interfere. Anderson, Law Diet. 615; Oa/mpbell v. Mellen, 61 Wis. 612; Randall v. Bailey, 66 Wis. 285; Kelley v. Oorson, 8 Wis. 182; Payne v. Jelleff, 61 Wis. 246; Smith v. Bowen, 61 Wis. 258; In re Thurston, 51 Wis* 104; Meggett v. Eau Olai/re, 81 Wis. 326; Kell/y v. Chicago,, 62 Ill. 279. Equity will not interfere in such a case as this where it is evident that there was no bad faith and it appears that the accepted bid is really the lowest and most advantageous. A reasonable discretion is vested in the county board to determine these things. People ex rel. Bel-den v. Oont/racti/ng Boa/rd, 27 N. T. 378; East Rimer O. Z. Go. v. BormeThy, 93 N. T. 557; Kelhy v. Ohicago, 62 Ill. 283.</p>

<p>Appeal from an order of the circuit court for Eau Claire county: James O’ETeill, Circuit Judge.</p> <p>A demurrer was sustained to the plaintiff’s complaint on the ground that it failed to state facts sufficient to constitute a cause of action. The alleged cause of action may be briefly stated as follows: The plaintiff, H. O. Ellis, executed an undertaking to pay costs on an appeal and damages, if the judgment was affirmed, in an action wherein one Whereatt was plaintiff and the defendant J. E. Ellis was defendant. The condition of the undertaking was broken, and a judgment, yet unpaid, was entered thereon against plaintiff. Plaintiff is not indebted to J. E. Ellis, who is insolvent, and garnishment proceedings are now pending to enforce payment against plaintiff. On September 1, 1893, J. E. Ellis made a conveyance of all or nearly all of his available property to <the defendant SoutJmestern Land Conypmiy. This conveyance is alleged to have been in fraud of creditors and in fraud of the rights of plaintiff. ETo proceedings have been taken to collect the judgment from J. E. Ellis, or to follow the property so fraudulently conveyed. Plaintiff is unable to pay the judgment at this time, and in this action seeks to have such conveyance set,aside, to have a receiver appointed, and to have the grantee therein account for the property it received, and out of the proceeds to have the judgment in question paid. The appeal is from the order sustaining the demurrer.</p>

In the assessment roll for 1899 relator was assessed, “ Moneys, accounts, bonds, credits, notes, and mortgages, $3,000.” Upon the meeting of the board of review in J uly of that year he appeared before the board, objected to such assessment, and requested that the same be stricken from the assessment roll, and testified orally, mainly ip response to questions by the city attorney.

They argued, among other things, that it is sufficient to charge the defendant if its acts were of such a character that in the exercise of proper care it might have foreseen that injury to others might probably result therefrom, even though it could not anticipate the precise injury which did happen to plaintiff would happen to her.

This is an action to recover damages for personal injuries. The complaint alleges, in substance, the corporate character of the defendant, and the fact that it was engaged in operating an electric street railroad in the city of Eau Claire upon a highway of said city called Price street, crossing at right angles another street called Mill street, upon which last-named street there is situated a railroad track owned by the Chicago, Milwaukee & St. Paul Railway Company, over…

Action to recover damages for the death of Christ Peterson, alleged to have been caused by the -wrongful conduct of the servants of the defendant in charge of one of its trains, for which conduct it was claimed defendant was liable. The ■deceased and his brother started from a place called Eoxboro to beat their way on trains to their homes near Black- River Ealls, Wisconsin, a distance of several hundred miles.

D. Hastings, Je., Judge. Action by administrator on behalf of widow for damages resulting from the death of Ralph Tabor by alleged negligence of defendant.

0. Ludwig, Judge. This is an action brought by the administrator of the estate of Florence Folk to recover damages for the death of said Florence, caused by the negligence of the defendant.

H. Johnson, Circuit Judge. Action to enforce subcontractors’ and other liens upon property under ch. 143, Stats. 1898. The cause was tried by the court, and the findings, so far as material to this appeal, were as follows: On March 12,1897, Otto Biemann, 0. 0.

0. Ludwig, Judge. The plaintiff sues to recover the sum of $670.51, claimed to be his due upon a bond executed to him by the defendants, the condition of which is as follows: “The condition of this obligation is such that whereas the said J. H. Wus-sow has this day entered into an arrangement or agreement with the said John Slensby by the terms of which the said •John Slensby is to run for him, the said J. II.

II. JohNSON, Circuit Judge. Petition for tbe appointment of a guardian of Alfred H. Welch, made originally by Eliza Murdock, a sister resident in Indiana, and one Joseph A. Warren, a friend, alleging said Welch's incompetence to manage his property by reason of his extreme old - age, failing health, and mental inability.

<p>Appeal from a judgment of tbe superior court of Milwaukee county:- J. C. Ludwig-, Judge.</p> <p>This is an action on a contract of guaranty accompanying a building contract. In 1892 and 1893 the plaintiff, Rreisoh-mar, as owner, erected a building upon certain lots owned by him in the city of Milwaukee, costing $11,500. The defendant Gross was the contractor for the carpenter work and hardware in said building, at the price of $3,733. His contract was in writing, and the defendants Bruss and Wol-laeger, as sureties, signed the instrument of guaranty attached to the building contract, by which they guaranteed the faithful performance of said contract by Gross, and agreed to indemnify and save harmless the plaintiff against any liabilities, judgments, and mechanics’ liens, costs, and •expenses which might come against the plaintiff in consequence of the letting of said contract to Gross, or result from •carelessness or neglect of Gross or his employees. This action was brought to recover of Gross and bis said sureties the amount of certain subcontractors’ liens and the costs of foreclosing the same, which KretseTvmar had been obliged to pay on account of the failure of Gross to pay them. The defense of the sureties, Bruss and Wollaeger, was that material changes had been made in the plans and specifications and in the building, by reason of which the sureties were discharged.</p> <p>The action was tried by the court. There is no bill of exceptions. The court, after finding the execution of the building contract and the contract of guaranty, found that the building contract contained the following provision: “ That in case any alterations should hereafter be made by order of the party of the second part or by direction of the said superintendent, by varying from the plans or specifications either by adding thereto or diminishing therefrom, or otherwise however, such alterations shall not vacate the contract hereby entered into, but such additions and deductions shall be estimated by said superintendent at their proper value and added to or deducted from the gross amount to be paid as above mentioned; provided, however, that no claim shall be recognized or allowance made unless the order for such shall be given in writing, and that no alteration shall operate to extend the time hereinbefore fixed, nor render void the contract for the completion of said work and the furnishing of said materials.”</p> <p>The court further found that the contractor, Gross, completed his contract, but failed and neglected to pay certain subcontractors and materialmen, and that said subcontractors and materialmen thereafter foreclosed mechanics’ liens upon said building, which liens amounted in all, with the necessary costs and expenses, to the sum of $2,274.08; that the defendants Gross, Bruss, and Wollaeger refused to defend said action, though this plaintiff duly tendered them the right to defend; and that the plaintiff was obliged to expend the said sum of $2,274.08 to remove said liens.</p> <p>The court further found that during the progress of said work alterations were made in the plans and specifications ■and in said building by the direction of the plaintiff and •architect, which increased the cost of the building in the sum ■of $467, which said alterations were estimated and fixed by the architect and superintendent at such sum, and that the increase of the contract price by the amount so estimated by the architect as value of said extra work, changes, and ■alterations was such a change and alteration that it amounted do a material change of the contract, and so changed the position of the sureties to their prejudice that they should be released from their contract of suretyship, and that judgment should be entered in their favor dismissing this action ■as to the sureties, and that the plaintiff should have judgment only against the defendant Gross for the sum of $1,424.08, with interest, being the amount of said mechanics’ liens, less $850 of the contract price which the plaintiff had retained in his hands.</p> <p>Judgment was entered in accordance with these findings, •and the plaintiff appeals from that part of the judgment which dismisses the action as to the sureties.</p> <p>They ■argued, among other things, that under the terms of this ■contract it was perfectly proper for the parties to make any reasonable changes and alterations which might be desired, ■as the building progressed, without in any manner releasing the sureties from their liability on their guaranty. Yoimg ■v. Yoimg, 21 Ind. App. 509; Dorsey v. McQee, 30 Neb. 657; U. S. v. Freel, 92 Eed. Rep. 299; Consaul v. Sheldon, 35 Neb. 247; DeMattos v. Jordan, 15 Wash. 378; Hayden v. Coolc, 34 Neb. 670. The sum of $467 in excess of the price of the building as originally contemplated was not such a material increase over the contract price that the sureties should be released. Oonsaul v. Sheldon, 35 Neb. 247; G’Rourlee v. Bv/rke, 44 Neb. 821; Dorsey v. McGee, 30 Neb. 657; Ashen-hoedel v. Fimdlcvy, 53 Mo. App. 256. A surety for the performance of a contract will be released from liability by a ehange or alteration of such contract without his consent only when such change is material and substantial. Stephens v. Elver, 101 Wis. 392; Smith v. Molleson, 148 N. T. 241.</p> <p>They contended, inter alia, that the additional cost incurred, without a written order as stipulated, amounting as it did to fully one eighth of the entire contract price, was such a change of condition and modification of the contract as to release the sureties. Oowdery v. Hahn, 105 Wis. 455; Stephens v. Elver, 101 Wis. 392; Brandt, Suretyship & G. (1st ed.), § 338; Lloyd, Building, § 69; Stillman v. Wickham, 106 Iowa, 597; Northern Light Lodge v. Kennedy, 7 N. Dak. 146.</p>

<p> Chattel mox'tgages: Invalidity as to creditors: Sales by mortgagor: Diversion of proceeds with consent of mortgagee:. Pleading: Evidence. </p> <p>1. A mortgage oí a stock of merchandise permitted the mortgagor to sell and to make additions to the stock, but was silent as to the disposition to be made of the proceeds of sales over and above the additions. In a foreclosure action it appeared that sales were largely in excess of the additions; that only a small part of such excess was applied on the mortgage debt; and that the mortgagee knew the fact and made no objection. Held, that in the absence of any explanation the court might properly assume that the remainder of said excess was used by the mortgagor pursuant to some understanding, express or implied, with the mortgagee; and that by reason thereof the mortgage, even if valid on its face, was void as to creditors.</p> <p>3. Where such an understanding between mortgagor and mortgagee exists, the fact that the mortgagee afterwards takes possession of the property does not validate the mortgage as against creditors.</p> <p>3. Where the facts invalidating a chattel mortgage appear from the complaint in a foreclosure action and from evidence admitted without objection, they sustain a finding of such invalidity, even though no such issue was tendered by the answer.</p> <p>4. In an action to foreclose a chattel mortgage the fact that the mortgagor had other creditors is properly shown by the record of a voluntary assignment by the mortgagor, showing the filing of claims against him which were not objected to,— the plaintiff having become a party to the assignment proceedings by filing his claim secured by the mortgage, and having contested the right of the assignee to possession of the mortgaged property.</p>

Action of ejectment. The complaint is in the usual form. The action was originally commenced against defendants O. 8. Pierce and William H. Killen. The complaint was duly filed April 13,1893, and on the same day a Ms pendens was filed in due form. The summons was served on said defendants April 14,1898.

The pleadings and facts are similar to those in Webster v. Fierce, ante, p. 407, and the questions of law presented by the appeal are the same. The actions differ only in the parties defendant, the lands involved, the date of the tax deeds, and some other matters not material to the legal questions upon which the appeal turns.

PaRish, Circuit Judge. Action to recover on an insurance certificate issued on the life of Louis Toepel in favor of his wife. The policy provided, among other things, that if any assessment made pursuant to the insurance contract should not be paid within the period stipulated the policy should be void.

0. Ludwig, Judge. They contended, inter alia, that the proposal made by Crilley and O'Dormell, and the ■acceptance thereof by the common council, constituted a ■contract. Adams v. IT. S. 1 Ct. 01. 192; Wiles v. Hoss, 114 Ind. 371; Matter of Protestant Episcopal School, 58 Barb. 161; People ex rel. C. P. P. Co. v. Supers of San Eraneisco, 27 Oal. 655; People ex rel. Taylor v. Brermcm, 39 Barb. 522; Smalley v. Hates, 36 Kan. 519.

<p>Appeal from an order and judgment of the circuit court for Milwaukee county: James O’Neill, Judge.</p>

<p> Deeds: Reformation: Fraud: Omission of reservations: Evidence.' </p> <p>1. Solemnly executed instruments are not to be set aside or reformed except upon evidence sufficient to establish mistake or fraud so clearly as to leave no substantial doubt.</p> <p>A finding of the trial court that an absolute conveyance of land by a person since deceased to one of her daughters was obtained by fraud of the grantee, and that it should be reformed so as to impose upon it a reservation of the payment of certain sums to other daughters, is held to be unsupported by the evidence (stated in the opinion), which fully establishes the intentional execution of the deed without reservation or condition.</p> <p>^3. Declarations consistent with a mere promise on the part of the grantee that certain sums shall be paid are of themselves, alone, insufficient to establish that a reservation or condition was intended to be incorporated in a deed.</p>

<p> Corporations: Subscriptions to stock: Bight of action: Fraudulent representations: Powers of directors. </p> <p>1. In an action by a corporation to recover a balance due upon a subscription to its capital stock, the complaint alleged and the answer admitted, in effect, that at the time of such subscription plaintiff was a duly organized corporation, authorized to issue shares of its capital stock and to receive subscriptions therefor. Held, that this authorized the court to assume that at least one half of the capital stock had been duly subscribed and at least twenty per cent, thereof actually paid in, as required by sec. 1778, Stats. 1898; and that an action on the subscription agreement could be maintained. Anvil M. Co. v. Sherman, 74 Wis. 226, distinguished.</p> <p>2. No statement as to what a corporation will do or intends to do in 1 the future, made to induce a subscription to its capital stock, constitutes a fraud which will be a defense to an action on the subscription contract.</p> <p>8. A director has no power, unless specially authorized, to bind the corporation by false and fraudulent representations, or even by an express promise.</p>

Dice, Judge. This is an appeal from an order overruling a separate demurrer of the defendant Elliott to the same complaint which was passed upon by this court in the case of Gores v. Day, 09 Wis. 2Y6.

Elliott, Circuit Judge. Action to restrain defendants from interfering with plaintiff’s business by endeavoring to ride upon its street cars, without paying the fare demanded pursuant to its lawful regulations, and to judicially establish the validity of such-regulations ; also to enjoin the prosecution of numerous suits brought against the plaintiff growing out of its enforcing such regulations, and to enjoin the commencement of further suits of the same character.

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. JOHNSON, Circuit Judge.</p> <p>Action on a benefit certificate of $2,000, issued by the defendant on the life of Richard IT. Hart. The beneficiary being dead, the action is brought by children of deceased. The certificate was issued upon condition that the member should comply with all existing laws, rules, and regulations of the order, and such as might, from time to time thereafter, be adopted, and which should be and form a part of the contract. At the time of Mr. Hart’s death, Law 24 provided, among other things, as follows: “In case of death by suicide, whether sane or insane, except where insanity of such member shall have been prior thereto judicially determined, the entire and only liability under the contract shall be the amount of premiums paid thereon to the association by the insured, as shown by the records of the association,, with interest thereon at six per cent, per annum, and the same shall be received by the beneficiary in full settlement, of his policy.” Law 29 required that satisfactory proofs of all claims should be filed within ninety days from date of death; that true answers should be made to all questions-asked relating to the health and death of insured; and that, in case of an inquest, there should be attached to, and made a part of, such proofs, “ certified copies of the evidence, ver-•diet, and proceedings on snob inquest.” The answer alleged noncompliance with Law 29, and also that ITart died from, suicide.</p> <p>Upon the trial the plaintiffs offered in evidence the proofs of death, which included the instructions of the supreme lodge; the report of the committee of the subordinate lodge •of which deceased was a member; a recommendation by the lodge of payment of the claim; a certificate of the coroner that he had investigated the cause of death and that the cause of death was suicide by carbolic acid; a certificate of a friend, who also stated that the cause of death was suicide; and a certificate of the undertaker of the interment. The death occurred January 9, 1899. A demand for payment of the claim was made March 22d, and on April 28th the defendant, by its attorney, denied liability on the ground that Hart died by his own hand, and offered to pay the amount •of premiums paid by deceased, with interest. Other formal proofs were made, and plaintiffs rested their case.</p> <p>A motion for a nonsuit was overruled, and duly excepted to. The defendant attempted to prove that objections to proofs of death were made on the ground that they were not accompanied by a certified copy of the testimony taken by the coroner, but, under objection, the court ruled out the testimony. The defendant showed by the coroner that several witnesses were sworn on the inquest, and by the doctors who made the examination of the body that death resulted from carbolic acid poisoning.</p> <p>A motion for direction of a verdict for the defendant was denied, and the court instructed the jury that the failure to attach copies of the testimony taken at the inquest was not a material omission; that the statement in the proofs of death that Hart’s death was from suicide “raises a presumption against the beneficiaries; ” and that the burden of proof was on them “to. establish to a reasonable certainty that the deceased came to his death from some other cause than suicide.” A verdict was found for plaintiffs for the amount of the certificate, less the amount of premiums paid by deceased, which had been paid into court by defendant. A motion for a new trial was denied, and from a judgment for plaintiffs the defendant brings this appeal.</p> <p>They argued, among other things, that the statements contained in the proofs of death were competent evidence as to the cause of death. Hanna v. Oonn. M. L. Ins. Go. 150 N. Y. 526; Buffalo L., T. dé D. S. Go. v. Knights Templar dé M. M. A. Asso. 126 N. Y. 450; Insurance Go. v. Newton, 22 Wall. 32; Insurance Co. v. Higginbotham, 95 U. S. 380; Keels v. Mut. K. K. I. Asso. 29 Fed. Eep. 198; Bachmeyer v. Mut. R. F. I. Asso. 82 Wis. 255; 8. O. 87 Wis. 325; John Hancock M. I. Ins. Go. v. Hick, 44 L. E. A. 846, note.</p> <p>contended, inter alia, that the proofs of death were admissible only to show compliance with the condition of the policy, but not to show that death was by self-destruction. Travelers' Ins. Go. v. Nicklas, 88 Md. 470; Leman v. Manhattan I. Ins. Go. 46 La. Ann. 1189; Home B. Asso. v. Sargent, 142 U. S. 691. It was incumbent upon defendant to prove suicide. Mut. B. I. Ins. Go. v. Daviess' Fx'r, 87 Ky. 541; Hit. I. Ins. Go. v. Wiswell, 56 Kan. 765; Leman v. Manhattan I. Ins. Go. 46 La. Ann. 1189; Fisher v. Fidelity- M. I. Asso. 188 Pa. St. 1.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>On August 25, 1893, defendant leased to plaintiff for five years, at the rate of §83.33 per month, “ the certain two-story frame building known and numbered 264 "West Water street, and the real estate upon which the same is situated.” The building was a somewhat dilapidated frame building of advanced age, consisting of a store and an imperfect second story, twenty feet front. At the time of the leasing an equally dilapidated frame building belonging to one Lange stood about sis feet south of the leased building, and between the two was an old stairway, used in common to reach the sec--ond floor of both buildings. These steps were supported on one side by cleats nailed to the leased building and on the other by uprights a foot or two from Lange’s building. At the top was a platform extending from building to building, and giving access to both. In May, 1895, Lange proceeded to tear down his building, and to excavate for the erection of a new one up to his line, which was about one foot south of the leased building, thus necessitating the removal of the stairs. Thereafter plaintiff continued to occupy the ground floor as a store, making no use of the second story, and paid his rent without objection or protest up to the end of the lease. He brings this suit alleging the removal of the stairs by other parties, his resulting deprivation of the use of the upper story, and damage in the sum of $1,000. The jury allowed him $8.33 per month for the remainder of his leasehold term,— $333.20.</p> <p>It appeared that plaintiff, in January, 1896, caused suit to be commenced by his then attorneys, Eelker, Goldberg & Eelker, against this defendant, for damages resulting from the partial eviction, predicated upon breach of an implied covenant for quiet enjoyment. Defendant offered in evidence a written acknowledgment from Eelker, Goldberg & Eelker of settlement of said action for the sum of $25, paid December 10, 1896. In order to qualify it for admission, defendant offered Mr. Felker as a witness, and having by him established the fact that he was attorney, and that the written agreement was made and delivered, and the amount therein specified -paid,. asked him whether or not plaintiff authorized the making of that settlement. He replied that he could not give that information except as the .result of communications between plaintiff and himself in the capacity of client and attorney, and submitted to the court whether he should state it. The question being objected to by plaintiff, the court ruled that it called for privileged communications, and sustained the objection. Plaintiff was asked if he received the $25 so paid Eelker, Goldberg & Eelker, or any part of it, and objection thereto was sustained. The evidence was1 conflicting as to whether plaintiff consented to the removal of the stairs.</p> <p>Upon the verdict, judgment was rendered for plaintiff, from which defendant appeals.</p> <p>to the point that the questions asked of plaintiff’s former attorneys with reference to their authority to settle the former action were not within the privilege secured by the common law and the statute, especially after the execution of the written settlement, cited Thayer v. MoEwen, 4 Ill. App. 416, 418, 419; ■Snow v. Gould, 74 Me. 540, 48 Am. Rep. 604; Henderson v.. Terry, 62 Tex. 281; Burnside v. Terry, 51 Ga. 186; Wyla/nd v. Griffith, 96 Iowa, 24; Todd v. Munson, 53 Conn. 579; Moffatt v. Hardin, 22 S. 0. 9; House v. House, 61 Mich. 69; Bipon v. Davies, 2 Nev. & M. 310; 19 Am. & Eng. Ency. of Law (1st ed.), 136-141; Day v. Moore, 13 Gray, 522; Gower v. Emery, 18 Me. 79; Kelly v. Wright, 65 "Wis. 236, 238, 239; Hanlon v. Doherty, 109 Ind. 37; Weeks, Att’ys at Law (2d <ed.), 323, 326, 338, 364; Mechem, Agency, §§ 881, 882; Murphy v. Waterhouse, 113 Gal. 467; Rossea/u v. Bleau, 131 N. Y. 177.</p> <p>They contended, inter alia, that plaintiff’s former attorneys had no ■right, without his express consent, to compromise the claim for a small portion thereof. Weeks, Att’ys at Law, 380-'■385, 458, 471; Kelly v. Wright, 65 Wis. 236; HooJcer v. Brandon, 75 Wis. 8. The exclusion of their testimony as to their authority was proper. Dudley v. Beoh, 3 Wis. 274; Getzlaff' v. SeUger, 43 Wis. 297; Bacon v. Frisbie, 80 N. Y. 394.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. II. JohNSON, Circuit Judge.</p> <p>They contended, inter alia, that it was error to refuse to allow defendant to show that the word “ delivered,” as used in the correspondence of the parties, had a peculiar significance among bean dealers, and that it signified that the price included the freight to the place named and did not refer to the place where title should pass. McLaughlin v. Marston, 78 Wis. 670; 2 Jones, Ev. §§ 461, 462; Gamón v. Macligan, 15 Wis. 144,153; Scott v. Beeves, 77 Wis. 312; Janesville G. Mills v. Ford, 82 Wis. 416; Beaker v. Holm, 89 Wis. 86; Gehl v. Milwaukee P. Co. 105 Wis. 580; A. J. FTeimeyer L. Co. v. B. de M. B. B. Co. 40 L. R. A. 534, 537; Tregelles v. Sewell, 7 Hurl. & N. 574. In the absence of an express agreement to the contrary, delivery by a vendor to a carrier passes the property to the vendee. 21 Am. & Eng. Ency. of Law, 528-530; Doyle v. Both Mfg. Co. 76 Wis. 48, 54; Bamsey é¡ Gore Mfg. Co. v. Kelsea, 22 L. R. A. 415, and note. The consignment of the carload of beans to the plaintiff, and his acceptance and indorsement of the bill of lading, certainly passed the property to him. Doyle v. Both Mfg. Co. 76 Wis. 54; Sarbecker v. State, 65 Wis. 171; Swanks v. McCarty, 81 Wis. Ill; Usher, Sales, § 232; Newmark, Sales, § 152; 2 Schouler, Personal Prop. (3d ed.), §§ 264,273; Thomas Emery’s Sons v. Irving Nat. Bank, 25 Ohio St. 360; Merchants’ Nat. Bank v. Bangs, 102 Mass. 291. The terms of the bill of lading complied with plaintiff’s directions, and the actual payment by the plaintiff of the draft attached to the bill of lading removes all doubt that the parties intended that the title to the goods should pass to the plaintiff at the time of shipment from Saginaw. Stock v. Inglis, 12 Q. B. Div. 564; Dows v. Nat. Exch. Bank, 91 U. S. 618. This being the case, the defendant having delivered the goods in accordance with the contract to the carrier at Saginaw, it is not responsible for the delay, if any, in reaching East St. Louis, and instead of directing a verdict for the plaintiff it should have been directed for the defendant.</p> <p>They argued, among other things, that the title remained in the defendant until East St. Louis was reached. Hooper v. G. & N. W. B. Go. 27 Wis. 81, 91. Oral evidence could not be given of the meaning of the word “ delivered.” Elofrson v. Lind-my, 90 Wis. 208; 2 Jones, Ev. § 460.</p>

<p> Corporations: Sale and pledge of stock: Equity: Compelling recognition of stockholder’s rights: Declaration of dividends: Fraud: Dim-itation of actions: Jurisdiction of circuit and county courts: Estates of decedents. </p> <p>1. A complaint showing that a contract by which a corporation was to sell shares of its stock to plaintiff had been so far performed as to place the title to the shares in plaintiff, though they were left in the hands of a pledgee to secure payment of plaintiff’s note for the purchase price, and that the action was brought to compel recognition of his rights as a stockholder, which had been fraudulently or wrongfully denied him, and for incidental relief by way of an accounting to ascertain the profits accruing upon his stock which should have been declared as dividends and applied upon his said note, is held on demurrer to state an equitable cause of action against the corporation, although the heirs of the pledgee, who are alleged to hold all the stock of the corporation, but do not appear to have any title to plaintiff’s shares, are not made parties to the action.</p> <p>2. Although the action was not commenced until more than nine years after the making of the contract and the pledging of plaintiff’s shares, yet, plaintiff’s right to the shares not having been denied until a short time before the commencement of the action, and his note for the payment of which they were pledged not having been paid by the application of declared dividends as provided in the contract, the action was not barred either by the six-year statute of limitations (subd. 3, sec. 4323, Stats. 1898) or by laches.</p> <p>3. Although courts will not, as a general rule, interfere with the discretion of the directors of a corporation as to the declaration of dividends, yet when it appears that they are guilty of fraud or bad faith or a wilful abuse of their discretionary powers either in declaring or in refusing to declare a dividend, a court of equity will interfere and compel the proper action. [Whether the directors must be joined as parties to the action, in order to obtain such relief, not determined.]</p> <p>4. The circuit court has jurisdiction of an action for equitable relief which is obtainable only in a court of general jurisdiction, even though the interest or right in question is connected with the estate of a deceased person, which is in course of administration in the county court.</p>

<p> Railroads: Injury to fireman: Assumption of risk: Reliance upon engineer's promise to remove danger. </p> <p>1. As a locomotive was backed out of the roundhouse the fireman, who had never before made a trip on that particular engine, called the engineer’s attention to the absence of the proper metallic shield on the indicator glass of the lubricator, telling him he must get a shield, and the engineer promised to do so. The place to procure a shield was at the roundhouse. The fireman knew fully the danger of leaving the glass unguarded. The engine did not start on its trip until about two hours later, during which time it was located at some distance from the roundhouse, and the fireman was with it, working about the cab, with every opportunity to observe whether the shield was put in place or not; and when the engine started on its trip he must have known that the glass was still unguarded. About three hours later, during the trip, the glass exploded, causing injury to the fireman. Held, that he had assumed the risk. The reasonable time during which, if at all, he might continue in the service upon the faith of the engineer’s promise to procure the shield, expired when the engine started on its trip.</p> <p>"2. Whether in such case the engineer stood in the master’s place in respect to guarding the glass so as to provide a reasonably safe place in which the fireman might work, so that the fireman had a right to continue at work upon the faith of the engineer’s promise, is considered but not decided.</p> <p>As to the rights of a servant who continues work on the faith of the master’s promise to remove a specific cause of danger, see note to Illinois Steel Co. v. Mann (170 Ill. 200), in 40 L. R, A. 781. — Rep.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>This action is upon an account stated. It appears that prior to September 21,1895, the defendant had had dealings with plaintiff in the purchase and sale of machinery, and that there was an open and unliquidated account between them. A few days prior to the date last mentioned the plaintiff sent its agent to Milwaukee to make a settlement. The parties got together and spent about four days in looking over their accounts, and at the close the defendant signed a statement in writing, at the foot of the account, in which he admitted that he was indebted to plaintiff in the sum of $1,333.14. The answer set up false representations by plaintiff’s agent and duress. After hearing the evidence, the trial court directed a verdict for the plaintiff for $1,540.46, upon which verdict judgment was duly entered. A motion for a new trial on the ground of error and newly discovered evidence was denied. Defendant appeals.</p>

<p> Statute of frauds: Covenants: Mortgages: Judgment for deficiency. </p> <p>1. A covenant under seal is not within the statute of frauds (sec. 2307, Stats. 1898), providing that every special promise to answer for the debt of another person shall be void unless the agreement, or some note or memorandum thereof, expressing the consideration, be in writing, etc. The seal itself imports a consideration. Sec. 4195.</p> <p>2. One who executes a deed under seal, containing a covenant on his part, jointly with the grantor of the land conveyed by the deed, to pay a certain mortgage on the land, becomes thereby “personally liable for the debt secured by the mortgage ” and “ upon the same contract which the mortgage is given to secure,” within the meaning of sec. 3156, Stats. 1898; and upon foreclosure of the mortgage judgment for deficiency may go against him.</p>

Elliott, Circuit Judge.’ On November 20,1899, the appellant filed with the county clerk of Milwaukee County a claim against said county in the sum of $130. This claim was for medical treatment, medicine, and board furnished by the Wisconsin Neeley Institute Company to one James Jelinck for the purpose of curing him of inebriety, and said claim was duly assigned to the appellant before presentation.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Eugene S. Elliott, Circuit Judge.</p> <p>This action was commenced against F. Soltman, as contractor, and Amalia S. Prasser and her husband, to foreclose a mechanic’s lien against premises owned by Mrs. Prasser. The M. Hilly Lumber Compcmy also claimed a lien as a subcontractor, and was subsequently brought in as a defendant. To its claim Mrs. Prasser made answer, setting up that she made a written contract with the defendant Soltman to furnish material for, and do the necessary work •and labor in the erection of, the building upon which the lien was claimed. At the same time said defendant, with one Rohde and the said M. Ililly lumbar Company, executed to her a written guaranty that Soltman would faithfully perform his contract, and that said guarantors would indemnify and save the owner harmless from all judgments, mechanics’ liens, costs, and expenses by reason of said contract ; and claimed that by reason thereof said Hilly Lumber Company ought not to be allowed to enforce its said lien. The controversy before us is whether said lien can be enforced or not. The court made findings in favor of Mrs. Prasser, and denied the enforcement of such lien. The Hilly Lumber Company appeals from this portion of the judgment which denies its lien and gave Mrs. Prasser a judgment for costs.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: EugeNe S. Elliott, Circuit Judge.</p> <p>Action to remove a cloud on title to real estate. On or about August 7, 1893, defendants commenced an action sounding in tort against John B. Koetting. Such proceedings were duly had therein that on August 8, 1893, the real estate in question was attached and the requisites of the statute to perfect such attachment complied with. Koetting appeared in the action and demanded a copy of the complaint, which was served. The attachment papers were seasonably filed, but the summons and complaint were not filed till after the termination of the action hereafter mentioned •challenging the validity of attachments levied prior to defendants’ attachment. No answer to the complaint was made by Koetting nor any proceedings taken by him subsequent to the demand and appearance aforesaid. Such proceedings were duly taken in an action commenced against Koetting by plaintiff herein that the real estate in controversy was attached subject to defendants’ attachment, August 9, 1893, and such proceedings were thereafter taken that judgment was rendered against Koetting in such action, which was enforced by a sale of all the interest which Koet-ting had in the attached property at the date of the attachment, and title was perfected in plaintiff pursuant to such sale. Defendants commenced a second action against Koet-ting and G. C. Trumpff August 30, 1893, for money due upon contract. Judgment was rendered against Koetting and Trumpff in that action September 23,1893. Nothing was done by defendants in regard to their first action before the commencement of this except what has been related. The subject of such first action was damages caused to defendants by false and fraudulent representations made to them by Koetting regarding the solvency of the South Side Savings Bank, a banking institution in the city of Milwaukee, of which he and Trumpff were the proprietors, whereby defendants were induced to deposit in such bank some over $6,000 in money, resulting in a loss to them of the greater part thereof. The subject of the defendants’ second action was the contract liability of Koetting and Trumpff, as partners, to pay to the former the amount of their deposit. The claim of plaintiff in this action was that defendants’ attachment lien was lost by their laches or was waived by operation of law.</p> <p>The trial court found facts as above stated and further found that plaintiff was duly appointed receiver for the South Side Savings Bank in proceedings to wind up its affairs ; that he acquired title to the property in controversy in the course of his administration in such winding-up proceedings; that the title thus acquired was subject to defendants’ attachment lien acquired August 8,1893, and that they never abandoned such attachment, nor waived it, nor was it discharged in any manner whatever; that defendants participated in the winding-up proceedings of the bank by pre-seating the claim, which was involved in the second action, the creation of which, under the circumstances, was the ground of the first action; that such claim was allowed and that they received thereon two five per cent, dividends; that the reason of their delay in respect to enforcing the attachment lien was that there were prior attachments on the property for enough to absorb it, if they were held to be valid; that an action was brought by plaintiff to avoid such prior attachments, and that defendants thought best to delay proceeding to enforce their attachment till the final determination of plaintiff’s action; that the result of such action was that such prior liens were found to be invalid, in November, 1898. Upon such facts judgment was awarded to defendants and was duly rendered.</p> <p>They contended, inter alia, that the lien of defendants’ attachment was lost by their failure to follow up the attachment levy and prosecute the action to judgment with diligence. Pelree v. Bell, 2 Bush, 58; Van Loam, v. Kline, 10 Johns. 129; Gummings v. Tabor, 61 Wis. 185. The cause of action against Koetting for fraud in procuring the deposits was merged in the judgment recovered against-Koet-ting jointly with Trumpff for the same demand. Freeman, Judgments, §§ 215, 216; Black, Judgments, 729; Union B. & T. Go. v. Traube, 59 Mo. 355; 15 Am. & Eng. Ency. of Law, 336; Bowman v. Furtell, 15 Jones & S. 403; Gaylus v. N. Y., K. cfc S. R. Go. 76 N. Y. 609; Dyer v. Tilton, 23 Yt. 318; Bowen v. Mimdemlle, 95 N. Y. 241; Nioholl v. Mason, 21 Wend. 339; Thomas v. Rumsey, 6 Johns. 26; Norton v. Doherty, 3 Gray, 372; Goodrich v. Yale, 97 Mass. 17; Smith v. Way, 9 Allen, 472; Eldred v. BamJc, 17 Wall. 547.</p> <p>argued, among other things, that the respondents could proceed against Koetting alone on the ground of fraud, or could proceed against Koet-ting and Trumpff as copartners and hold them liable for money had and received, or they could maintain both actions. The two remedies were consistent and could be pursued simultaneously. I Ency. of PL & Pr. 362; New York L. I\ Oo. v. Ohapmcm, 118 N. T. 288; Morgcm v. Skidmore, 3 Abb. N. C. 92; Bowen v. Mandeville, 95 N. T. 237,240; Morgan v. Skidmore, 55 Barb. 263; Allaire v. Whitney, 1 Hill, 484. An election will be compelled only where a judgment in one action would be a bar to a judgment in the other. lara/ussvni v. Carquette, 24 Miss. 151; Wanzer v. Be Bav/n, 1 E. D. Smith, 261; G-oldberg v. Dougherty, 7 Jones & S. 190; Whitney v. Allaire, 1 N. T. 312; Corn Exchange Ins. Oo. v. Babcock, 8 Abb. Pr. (N. S.), 257; Bank of Lodi v. Washburn E. L. As E. Go. 98 Wis. 547; Bishop v. MoOillis, 82 Wis. 120. If the court should decide that the remedies were inconsistent, yet the respondents had and still have the right to enter judgment and proceed in the first action. Where a party has the choice between two inconsistent remedies or causes of action, and he deliberately adopts the one, such election becomes conclusive upon him and precludes him from subsequently adopting another. Warren v. Landry, 14c Wis. 151; Bishop v. MoOillis, 82 Wis. 120, 128; Frcrney v. Wauwatosa P. Co. 99 Wis. 48; Bank of Lodi v. Washburn E. L. A P. Oo. 98 Wis. 547; Podermund v. Clark, 46 N. Y. 354; Goss v. Mather, 2 Bans. 283; S. O. 46 N. Y. 689; Linden v. Fritz, 3 Am. L. J. 421. As soon as the choice is made and one of the alternative remedies proffered by the law adopted, his act at once operates as a bar as regards the other, and the bar is final and absolute. 7 Ency. of PL & Pr. 363, and cases cited; Moller v. Tuska, 87 N. Y. 166; Morris v. Bexford, 18 N. Y. 552; Kinney v. Kiernan, 49 N. Y. 164; Podermund v. Clark, 46 N. Y. 354.</p>

<p> Libel: Newspaper publication: Report of “public official proceedings: ” Charge of bribery: Liability of officers of corporation. </p> <p>1. A newspaper publication stating that “there is a general supposition that ” plaintiff and another “ have, by means of their wealth and political power, obtained absolute control of the mayor and a majority of the counoilmen ” of a city, that “the officers thus directly or indirectly bought are held in much public contempt,” but “ the men who did the buying have in no wise lost caste,” and plaintiff continues to be an honorable leader in social circles —is not a report of any “public official proceeding,” within the meaning of sec. 4256a, Stats. 1898, and is libelous per se.</p> <p>2. Officers, stockholders, or members of a publishing corporation are not liable for a libelous publication simply because of official position or membership; but if they in any way aided, assisted, or advised its publication or circulation, or their duties as officers or agents were of such a character as to charge them with the performance of functions concerning the publication and circulation of the paper, such duties being of such nature that the law implies that such officers or agents knew or ought to have known of the publication, they are liable and cannot defend on the ground merely that they did not know about the libel until after it was published.</p> <p>3. In an action for libel the complaint, liberally construed, charged that certain defendants, who constituted a majority of the directors of a newspaper corporation, had caused the corporation, through its newspaper, to adopt a policy of bitter opposition to a proposed ordinance relating to a street railway company; that in following out this policy they had caused violent and inflammatory articles to be published defamatory of the plaintiff and insinuating that he was guilty of criminal and unlawful methods in attempting to secure the passage of the ordinance, and had been guilty of bribery; and that in further continuance thereof they caused the false and defamatory matter in question to be published and circulated. Held, that a cause of action was' stated against said directors. Simonsen v. Herdld Co. 61 Wis. 626, distinguished.</p>

<p> Sale of chattels: Consignment for sale: Agency: Evidence. </p> <p>1. If a consignee of goods is at liberty, under the contract between him and the consignor, to sell at any price he likes and receive páyment at any time he likes, hut is to he bound, if he sells the goods, to pay the consignor for them at a fixed price, their relation is not that of principal and agent, and the consignor cannot maintain an action against the purchaser for the price.</p> <p>3. A consignee may, by the terms of his agreement, be the agent of the consignor until the consigned goods are sold, and when they are sold become, as between him and the consignor, the purchaser of, and principal debtor for, the goods.</p> <p>8. Where, in an action by the consignor against a purchaser from the consignee, defendant claimed that at the time of his purchase the consignee was not an agent but a vendee of the plaintiff, evidence that prior to the action the plaintiff exacted payment from the consignee and drew upon the latter for the price is admissible.</p>

C. Ludwig, Judge. This is an action for personal injuries. The facts shown in the evidence were as follows: State street, in the city of Milwaukee, is a public highway running east and west, upon which the defendant company operates double railway tracks, the cars being propelled by electricity.

<p> Street railways: Negligence: Injury to person driving across tracks: Contributory negligence: Duty to look and listen: Right of way: Special verdict: Instructions to jury. </p> <p>1. The doctrine of comparative negligence does not prevail in this state. Therefore, in a case involving the subject of contributory negligence, the rule that obtains in some jurisdictions does not apply, that if plaintiff was guilty of contributory negligence he may yet recover if defendant discovered his peril in time to have avoided injuring him by the exercise of ordinary care; nor the rule that, notwithstanding plaintiff’s negligence, he may recover if defendant was guilty of gross negligence, speaking of fault not amounting to actual intent to injure, or that wanton disregard for the safety of others equivalent thereto sometimes called constructive intent; nor the rule that if plaintiff’s negligence preceded that of the defendant in time, and the latter by the exercise of ordinary care could .have avoided injuring the former and failed to do so, the negligence of the former is considered a condition, and the negligence of the latter the sole proximate cause of the injury, notwithstanding such condition was a mere continuance of the negligent act and concurred with defendant’s fault at the instant of the accident to produce it.</p> <p>2. The doctrine in this state is that contributory negligence of the plaintiff, however slight, precludes his recovering of the defendant on the ground of negligence, regardless of the degree thereof, speaking of conduct characterized by inadvertence, not that misconduct known in the decisions of this court as gross negligence.</p> <p>3. Before crossing a railway track, regardless of whether it be a steam or electric street railroad, a person should look both ways and listen for a coming car and perform that duty when and where it will be reasonably certain to effect its purpose; and diversion of attention, generally speaking, will not excuse the performance of such duty; neither will misconduct on the part of the railway company.</p> <p>4. If in taking a special verdict questions be submitted covering singly • all the material controverted facts in issue, a refusal to submit other questions covering the same subjects in a different form, or covering evidentiary facts, is propel'.</p> <p>5. A refusal to instruct a jury in accordance with suggestions contained in special questions presented for submission to them, or the giving of instructions in regard to a particular subject, is not reversible error, if, by the verdict rendered, it is clear that the facts necessary to the applicability of such instructions given or refused did not exist.</p> <p>6. An ordinary traveler upon a public street where a street-car line is located and operated under a public franchise having no restrictions or regulations as to the manner of operating cars, has not the same right to go upon the track and compel the stopping of a car to enable him to pass over the track as the operator of the car has to delay his passage to enable the car to pass.</p> <p>7. The ordinary traveler has the right of way in crossing a street-car track in advance of an approaching car, if, calculating reasonably from the standpoint of a person of .ordinary care and intelligence so circumstanced, he has sufficient time, proceeding reasonably, to clear the track without retarding the movement of the car if its rate of speed is lawful; and if it turns out that he has miscalculated, he is not chargeable with want of ordinary care or with violating any rights of the railroad company if it is compelled to retard the motion of the car or even stop it to enable such person to cross the track; and in no event is such a person a wrongdoer so as to excuse the operator of the car from not exercising ordinary care to avoid injuring such person, though the fault of such person may preclude him from recovering damages for any injury that may result in part from his conduct.</p> <p>■8. If a person about to cross a street-car track in the circumstances above stated, observes a car that is coming towards him at an unreasonable rate of speed, or if in the exercise of ordinary care he ought to observe it, such care requires him to take that into consideration in determining the probability of his being able, proceeding reasonably under the circumstances, to clear the track and avoid being injured by a collision with the car.</p> <p>9. If a person, traveling with a horse and carriage, approaches a street crossing to pass over double street-car tracks located on the street running at right angles with that on which he is approaching, observes a car coming from the left on the track nearer him and one from the right on the other track, and stops for such cars to pass, the horse being located about ten feet from the nearest car rail, and the car from the left passes by and stops at the right-hand crosswalk and the one from the right passes over the street, — the conditions being such that he can see the farther track at the right, looking by the front end of the stationary car, from a point about 100 feet from the crossing to a point about 100 feet further to the right and can see such track in front of him to the left of the stationary car for about forty feet from the point of crossing, leaving .about sixty feet of the farther track to the right out of view because of the stationary car,— and a second car is approaching from the right on the farther track, a little way behind the first car coming from that direction, and at the instant the second car passes by he looks both ways for other approaching cars and sees one coming from the left, though not dangerously near, and none coming from the right, though at the instant of taking the observation one has just passed out of view within the sixty feet of track shut out •frota observation by the stationary car and is approaching at a speed of ten miles an hour, an unusual rate of speed for that situation and under the circumstances, without giving any signal of its approach, and he then starts to cross the track believing the way to be safe, he is not guilty of a want of ordinary care as a matter of law. The rule requiring one to take an observation of a railroad track before attempting to cross it, reasonably calculated to acquaint him of the presence of cars in dangerous proximity to the crossing, is not in conflict herewith.</p> <p>[Syllabus by Marshall, J.]</p>

<p>Appeal from a judgment of the superior court of Milwaukee county. J. 0. Ludwig, Judge.</p> <p>This-is a controversy between son and father. Both parties are physicians, practicing in the city of Milwaukee. The plaintiff brings this action against his father to recover the sum of §12,000 for consulting and advising with him in his practice, from January 1, 1892, to October 31,1897, basing his right to recover upon an express promise by the father to pay what such services were reasonably worth. The answer is a general denial, with a counterclaim for money advanced by the defendant to pay for advertisements in several Milwaukee papers. The plaintiff replied by way of denial.</p> <p>The jury brought in a special verdict, in which they found: (1) That plaintiff performed services for defendant between January, 1892, and October, 1897; (2) that about January, 1892, defendant agreed to pay plaintiff for future services to be rendered by him in defendant’s business; (3) that plaintiff performed such services pursuant to such agreement; (4) that such services were reasonably worth $11,000. The defendant moved to set aside the verdict and for a new trial on grounds, among others, as follows: That the verdict was excessive, and the result of passion and prejudice, incited by remarks of counsel and by repeated offers of incompetent testimony; that the court erred in instructions to the jury, and failed to give certain instructions requested by defendant; that the court erred in the reception and rejection of evidence; and that the verdict was against the weight of the evidence. Upon consideration of the motion, the court ordered that “ the plaintiff either take $6,000, or a new trial will be granted.” The plaintiff remitted $5,000 from the verdict, and entered judgment for $6,000 damages and costs. The defendant appeals.</p> <p>To the point that it was error to refuse to set aside the verdict because of the improper remarks of plaintiff’s counsel in opening the case and his persistent offers of incompetent testimony to influence the jury, they cited Sohaidler v. G. dé JT. W. 'R. Go. 102 Wis. 564; Andrews v. O., M. & St. P. R. Go. 96 Wis. 348; Sohillinger v. Verona, 88 Wis. 317; Taylor v. G. dé W. W. R. Go. 103 Wis. 27; Waterma/n v. G. dé A. R. Go. 82 Wis. 613; Sasse v. State, 68 "Wis. 530; JEllioU v. Espenhaim,, 59 Wis. 277; Hrnnies v. Vogel, 87 Ill. 242; McDonald v. People, 126 Ill. 150, 9 Am. St. Rep. 547, and note; Sutton v. C, Si. P., M. efe O. P. Co. 98 Wis. 157; Scripps v. Reilly, 38 Mich. 10;- Cleveland P. Co. v. Banks, 15 Neb. 20; Tucker v. Henniker, 41 N. H. 317; Kinnaman v. Kinnamcm, 71 Ind. 417.</p> <p>contended, inter alia, that appellant cannot now avail himself of any improper remarks of counsel during the trial, because no objection or exception was taken at the time. Mei/ropolitam, St. R. Co. v. Johnson, 90 Ga. 500; Lynch v. Peabody, 137 Mass. 92; Meuoke v. Milwcvukee St. R. Co. 69 Wis. 401; Laue v. Madison, 86 Wis. 462; Powers v. Mitchell, 77 Me. 361; Learned v. Hall, 133 Mass. 417; Dowdell v. Wilcox, 64 Iowa, 724; Mulcairns v. Janesville, 67 Wis. 35; Wegner v. Second Ward S. Bank, 76 Wis. 250; Meyer v. Milwcvukee St. R. Co. 90 Wis. 526.</p>

<p> Landlord and tenant: Agreement to put house in good condition: Counterclaim for breach: Amendment: Tort or contractf Agency: Damages: Evidence: Merger of prior negotiations in lease: Implied covenants. </p> <p>1. In an action to recover rent defendant counterclaimed upon a promise made prior to the leasing to put the premises in first-class condition, alleging insufficiency of the heating apparatus as a breach. The counterclaim' was amended so as. to allege that prior to the leasing plaintiff had knowingly made false statements as to the sufficiency of such heating apparatus, to induce defendant to enter into the lease, and that defendant relied thereon. Held, that this was not intended to change the cause of action to one in tort, but merely to negative any inference of intended waiver of the alleged pre-existing contract as a result of the making of the lease.</p> <p>■3. The alleged promise to put the premises in first-class condition was • made by a real-estate agent who had been asked by plaintiff to find a tenant for the house and whom defendant had asked to find a house for him, but there was no evidence that plaintiff had authorized the making of such promise or even knew of it. Held, that there could be no recovery thereon.</p> <p>3. The evidence as to damages in support of such a counterclaim should show not merely that defendant was inconvenienced in or deprived of the use of a part of the house, or that he burned a large amount of coal, because of the insufficiency of the heating apparatus, but should show the effect of such inconvenience or- deprivation on the rental value of the premises, and the value of the extra coal consumed.</p> <p>4. It appeared, in such case, that the letter of the agent which contained the promise that plaintiff would put the house in first-class condition was a mere preliminary proposal, and that after further negotiations the parties “ concluded a bargain ” and, after the work on the house was completed, executed a lease for more than three years. Held, that all previous negotiations were merged in the lease, and that under sec. 2204, Stats. 1898, no covenants as to the condition of the house were implied therein; so that there was no contract to support the counterclaim.</p>

<p>' Appeal from a judgment of the circuit court for Milwaukee county: D. Ii. JOHNSON, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: D. H. JohNSON, Circuit Judge.</p>

M. Webb, Circuit Judge. This is an action in equity by the plaintiffs, as judgment creditors of one J. E. Leahy, to set aside as fraudulent a number of mortgages, deeds, and other transfers of real'and personal property made by Leahy. The transactions involved were numerous, and the testimony voluminous; but the dispute was principally as to the proper legal inferences to be drawn from the facts, rather than as to the facts themselves.

J. YiNje, Circuit Judge. In the year 1890 Mrs. Yernam, the owner of the property in controversy, mortgaged the same to the Land & River Improvement Company, which mortgage was assigned to plaintiff. May 23, 1895, she conveyed the property to said •company, subject to the mortgage. May 1, 1896, the company executed to Robert De Forest, Samuel E. Kilner, and George Sherman, as trustees, a trust deed of this and a large amount of other property to secure certain of its bonds. .

H. JohNsoN, Circuit Judge. This is a suit in equity to annul and enjoin enforcement of special assessment certificates issued under a reassessment for the same work involved in the certificates held invalid in Sawnderson v. Herman, 95 Wis. 48, for the reason in that case that no assessment of benefits and damages resulting from a change of established grade had been made.