Volume 116 — Wisconsin Reports

H. Flett, Judge. This was an action of replevin, in wliicb tbe complaint substantially alleged that tbe plaintiff held a chattel mortgage upon certain dental apparatus and furniture sold by him to one Nathan Weinberg, whereon there remained due about $10, and that he held title to certain other dental apparatus by virtue of the reserved condition' in certain promissory notes given therefor by said Nathan Weinberg, providing that until their payment title and ownership should…

<p> Municipal corporations: Assessors: Service on board of review: Compensation. </p> <p>The city charter of Racine, under the head of “Assessors: their powers and duties,” provides (sec. 20, ch. 40, Laws of 1891) that the assessors shall assess all the property in the city in one assessment roll; that “the assessment shall he reviewed and corrected and notice of such review shall be given,” etc.; and that upon the correction of the assessment, the assessment roll shall he verified by the oaths 'of the assessors and deposited with the clerk. Held, that this makes it a part of the official duty of the assessors to serve upon the board of review, and that for such service they are not entitled to compensation beyond the salary fixed under sec. 15, which provides that such salary “shall be in full for all services by them to be rendered."</p>

<p>Appeal, from an order of the circuit court for Racine county: Frank M. Eish, Cirenit Jndge.</p> <p>This is an appeal from an order sustaining a demurrer to-a complaint in an action to restrain the defendant from cutting off the plaintiff’s water supply. The complaint alleges, in effect, the incorporation and organization of the plaintiff’ as a religious society in 1893; the granting of certain franchises and privileges to the defendant by the common council of the city of Racine in 1886-87; the acceptance thereof by the defendant in writing about that time; that such ordinance, among other things, required the defendant at all times to supply the 300 or more hydrants with water as therein required, at the prices therein mentioned, and also to-supply abundant water to any and all inhabitants of the city, as therein required, under such regulations and conditions as-the defendant might interpose, at annual rates not exceeding the maximum rates therein mentioned; and the ordinance-also contained this provision,</p> <p>“The said company shall furnish water, free, for all necessary purposes to the public schools and city buildings; for one drinking fountain in each ward; for construction of city work, and also- for all personal uses of all religious and educational institutions</p> <p>that in 1893 the plaintiff caused its land and church building to be connected by service pipe with the defendant’s water-mains for the personal uses of the plaintiff, and none other;. 'that from that time down to the commencement of this action the defendant had continued to supply the premises and •church building with water for the personal uses of the society, and none other; that, contrary to such provision of the ■ordinance, the defendant had persistently sent to the plaintiff ■■semi-annually, in advance, bills at the rate of $6 per annum for the water so supplied to the plaintiff for such personal uses, and demanded payment thereof, and threatened to ■shut off the water unless paid; that under the influence of such threats, and in ignorance of such provisions of the ordinance, the plaintiff paid such.bills as: were presented from time to time, without protest, until February, 1901, the total amount so paid being $45 ; that at the last mentioned date the plaintiff, under the advice of counsel, declined to make further payments; that July 1, 1901, the defendant •demanded the further payment of $3, and threatened to shut ■off the water if not paid, and so the plaintiff paid the same under protest. The complaint prays judgment that the defendant be permanently restrained from shutting off such supply of water to the plaintiff, and that ’the defendant be required to furnish and supply the plaintiff with such water free of charge, as required by the ordinance, and to repay to the plaintiff the amount so unlawfully exacted and collected from the plaintiff, and for costs.</p>

<p> Railroads: Exploding torpedo on trdclo: Injury to bystander: Liability: Scope of engineer’s employment: Court and jury. </p> <p>1. Upon the evidence in this case it is held to have been a question-. for the jury whether a torpedo placed upon the tract in front of an engine was put there by the fireman without the knowledge-of the engineer, or by the engineer himself.</p> <p>2. Railroad torpedoes should, as matter of law, be considered as-dangerous agencies.</p> <p>3. An engineer in whose custody a railway' company has placed' torpedoes to be used only as signals to trains, who for his own amusement puts one of such torpedoes, upon the track in dangerous proximity to third persons, and'then moves his engine over it, causing it to explode and injure one of such persons, is not acting beyond the scope of -his employment, but is violating a duty resulting from such employment, and the company-is responsible for his acts.</p> <p>4. An engineer who, knowing that a torpedo has been placed upon-the track in front of his engine in close proximity to bystanders, moves his engine over it in the course of his employment, is guilty of a negligent act for the proximate result of which, the railway company is liable.</p>

<p>Life insurance: Benefit societies: Transactions with members: Ultra vires: Contracts: Constitution of benefit society: Amendments: Certificate of membership: Voluntary associations, when subject to judicial control: Payment of dues: Waiver: By-laws: Conditions: Pleading.</p> <p>1. Transactions between a benefit society and its members are governed by tbe rule, that when a contract made by a corporation has been so far executed that to allow the corporation to repudiate it would work injustice to the other party thereto, who has in good faith relied thereon, the doctrine of estoppel applies and prevents repudiation, regardless of whether the corporation had a right to make it or not, unless the act of the corporation was in violation of some written law of the state, or of sound public policy.</p> <p>2. A certificate issued by a benefit society to a member pursuant to the then existing constitution of the society, and on which he has in good faith relied and paid his dues, cannot be avoided by the society on the ground of ultra vires, because an amendment to the constitution, authorizing the issuing of such certificate and under which it was in fact issued, was not made in the particular method provided by the constitution.</p> <p>3. W. had been a member of a benefit society for over twenty years prior to his death in 1897. Prior to 1894 the limit of death benefits incident to membership was $500. In 1894 there was an attempted change of the constitution increasing the limit of death benefits to $1,000. Under such change the society worked and issued its certificate to W., who paid the dues required thereunder. In 1896 the society again amended its constitution entirely doing away with all existing contracts, and providing for a death benefit of an indefinite' sum. W., on request to surrender his certificate, refused to do so, insisting on his rights thereunder. Held,, that the certificate, issued to W. pursuant to the constitution as it stood after the attempted amendment in 1894, was binding on the parties at the time of the amendment in 1896.</p> <p>4. A certificate issued to a member of a benefit society provided that the contract stated therein was subject to all existing bylaws, rules, and regulations of the order, and all that might he made. Held, that such reserve power warranted only those variances required in matters of detail necessary or advisable in carrying out efficiently the fundamental principle or scheme of insurance, not in changing the plan itself and nullifying all contracts entered into under it.</p> <p>5. An amendment of the constitution of a benefit society, providing that certificates of membership on which members have paid assessments on the basis of a death benefit of $1,000 shall be canceled, and substituting a death benefit indefinite in amount, is not a reasonable variance of the contract with the member, within a reserved power, made a part of the contract of insurance, to make future changes in the rules, by-laws, and regulations of the society.</p> <p>6. In matters of discipline and policy, not manifestly violating private rights, voluntary associations áre supreme and independent of judicial control, trat when they proceed so arbitrarily as to manifestly violate the private -rights of their members, they are amenable to the law the same" as any other person, natural or artificial.</p> <p>7. The action of a benefit society in notifying a member, while he yet has ample time to pay his dues, that his certificate would not be recognized as in force, effectively waives further payments so long as such attitude in that regard continues.</p> <p>8. A by-law of a benefit society providing that, in case of any differences between a member or his heirs and his lodge concerning benefits, the member or his heir should “have the right and the duty to apply to the grand lodge” before commencing action, does not apply where the society denies that the person bringing an action had the right of membership.</p> <p>- 9. Compliance with such by-law not being made a condition of a right, but a condition of invoking judicial remedies to enforce .a right, is waived by failure to plead it by answer, the complaint being so framed that no opportunity was afforded to take advantage thereof by demurrer.</p> <p>10. Such by-law, in effect, binding the member or heir, if at all, to submit the controversy to arbitration, compliance therewith is waived by an unqualified denial by the society of all liability.</p>

<p> Railways: Master and servant: Injuries to employee: Negligence: Assumption of risk: Co-employee. </p> <p>Plaintiff was injured while assisting in unloading a car loaded with lumber. The lumber consisted of a tier of planks along each side of the car, between which lumber of various sizes had been thrown in. The tiers of planks were retained by stakes fitted into sockets along the outer edges of the car. The car was tilted so that one side was lower than the other. While the car was being unloaded, one of the gang of laborers in which plaintiff was working, and in his presence, knocked out the stakes on the lower side of the car, lumber was pushed out over the tier of plank on that side, and a few minutes after the piles on that side fell on plaintiff. Held, that a nonsuit was proper, since, if the pile fell from the mere action of physical forces, the conditions were obvious, and assumed by plaintiff, and if from the removal of the stakes, or from pushing lumber over an unsupported pile, the negligence was that of a fellow servant. '</p>

Williams, Judge. Plaintiff, a physician and surgeon, brought this action in. justice court to recover for services in performing an operation upon the defendant’s newly-born imperfect child, alleging such services to be reasonably worth $50.

<p> Deeds: Covenant of seisin: Breach: Cause of action: False representations: Pleading: Joinder of causes of action. </p> <p>.1. In an action against a vendor for breach, of his covenant of seisin the complaint, among other things, alleged that the vendor never had possession, actual or constructive, of the land conveyed, nor any title or interest therein, and that other persons named had the title in fee simple and lawful right to the land under recorded tax deeds. Held, that a cause of action for breach of the covenant of seisin was stated, although tax deeds do not always divest the title of the original owner.</p> <p>■2. In such case where the cause of action alleged is not for rescission of the conveyance, but for damages for breach of the covenant of seisin, the plaintiff need not allege a reconveyance or an offer to reconvey the land.</p> <p>:3. Where a complaint attempts to state two causes of action, and the facts in either are insufficient to constitute a good “Separate cause of action, a demurrer will, not lie for misjoinder.</p> <p>4. In an action against a vendor for false representations in the sale of land, the complaint, among other things, alleged that the representations as to title were made with intent to defraud the plaintiff; that she, relying thereon, conveyed her house and lot to defendant in exchange for the land, and that the vendor knew, at the time, of outstanding tax deeds, ownership and title. Held, that the pleading stated facts sufficient to constitute a cause of action for damages for the alleged fraud.</p> <p>3>. Under sec. 2647, Stats. 1898, providing that plaintiff may unite in the same complaint several causes of action, whether they be such as were formerly denominated legal -or equitable, or both, where they arise out of the same transaction, or transactions connected -with, the same subject of action, an action-against a vendor for breach of his covenant of seisin may be joined with an action against him for false representations in. the sale of the same land.</p>

Halsey, Circuit Judge. This is an action to recover damages for an alleged malicious garnishment of the plaintiff’s wages in the state of Iowa. There is no hill of exceptions. The case was tried before a jury, and the following special verdict rendered: “(1) Hid the defendant, being a resident of Milwaukee,. Wisconsin, on or about the 18th day of August, 1892, deliver to the Horthwestem Collection Agency, for collection, a bill against the plaintiff for $15.35 ?

Halset, Circuit Judge. One Henry Gollusch, having been appointed administrator of the estate of Edna Eckhari, deceased, in the county court for Milwaukee county, presented to that court in -that estate a petition reciting a somewhat intricate relationship of said Edna to one John Pieckel, and consequent descent or inheritance from him; that said Pieckel left a will, which was in process of probate and execution in said court; that, although the estate of said John Pieckel…

Williams, Judge. Action on a joint and several promissory note, dated June 10, 1895, due one year after date, for $2,000, payable to plaintiff, with interest at five per cent., payable semi-annually, signed by J ulius Bruss and Wilhelmine Bruss.

0. Ludwig, Judge. This is an action to foreclose several notes, and a mortgage to secure the same, executed by the defendants John Schoer-ner and wife, May 8, 1890, to Paul Jenisch, for $2,000, with interest at six per cent., due November 8, 1895.

0. Ludwig, Judge. Tbis is an action to recover damages for tbe alleged negligent killing of Ferdinand Giese on tbe iltb clay of October, 1900, and is brought for tbe benefit of tbe appellant, bis widow, and administratrix of bis estate.

Halsey, Circuit Judge. The relator, baying presented Ms verified petition for mandamus requiring the defendant Wolshi, a justice of the peace, to make certain corrections in bis docket, and the alternative writ having issued, bearing teste May 1, 1901, the circuit court on November 12, 1901, entered an order reciting that the application of the.plaintiff for a writ having come on to be beard, and the respondents having filed affidavits in opposition to said application, and…

Halsey, Circuit Judge. On September 20, 1898, and for some years theretofore, the respondent Frederick Gallun was a hardware merchant in Milwaukee, and a regular depositing and borrowing customer of the appellant, although his borrowing had not exceeded $600 at any one time.

<p>Appeal from a judgment of the superior court of Milwaukee county: OeeeN T. Williams, Judge.</p>

<p>Appeal from a judgment of tlie circuit court for Milwaukee county: Eugene S. Elliott, Circuit Judge.</p> <p>Action to enforce a lien on real estate under sec. 3314, Stats. 1898, as to the owner of two> mortgages on the property, and other persons; and an action by the mortgagee against the lien claimant and such others to foreclose the mortgages. The actions were tried together on the issue raised by the answer of the mortgagee to the complaint in the lien action, and the answer of the lien claimant in the suit to foreclose the mortgages, as to whether such mortgages were encumbrances upon the property, affected by both claims, superior to the lien.</p> <p>The following points were decided by the trial court, omitting formal matters as to which there is no dispute: May 25r 1899, defendants Mary Siebert and Frank Siebert, her husband, for value gave the Model Building, Loan & Investment Association, a corporation organized under the laws of this state and of the character its name indicates, their bond to' secure the payment of $3,000 with interest, and as collateral security thereto gave the association a mortgage in the ordinary form, dated on snob day, on tbe premises described in tbe complaint, wbicb said mortgage, on tbe day of tbe date thereof, was duly recorded. It was provided in the bond, among other things, that in case of any default in tbe conditions thereof existing for tbe space of six months, or tbe ob-ligor suffering a mechanic’s lien to accrue- or be filed against tbe mortgaged property, tbe entire indebtedness should, at tbe option of such association, become due. Tbe provisions of tbe bond, in addition to tbe one particularly mentioned, are in harmony with tbe usual methods of dealing between a building and loan association and its borrowing members. Tbe amount due upon tbe bond and mortgage is $3,542.38, with interest from tbe date of the findings,' wbicb sum tbe association is entitled to recover. On January 2, 1901, tbe conditions precedent to tbe right of tbe association to declare duo tbe entire amount secured by tbe bond and mortgage existed, and it exercised its option in that regard by mailing copies of a notice of election in tbe matter to each of the debtors at their respective postoffice addresses in tbe city, of Milwaukee, •with tbe postage prepaid thereon. Facts similar to those mentioned exist as to the second bond and mortgage declared on in the foreclosure complaint and in tbe answer of tbe association in tbe lien action, for $1,000. Such mortgage was given by the Sieberts to tbe association December 16, 1899,, and was duly recorded December 19, 1899. Tbe amount the-association is entitled to recover on such bond and mortgage is $365.21, with interest thereon from tbe date of tbe findings. Facts exist, alleged in tbe complaint in tbe lien action,, entitling tbe plaintiff therein to a lien under sec. 3314, Stats.. 1898, for $199.61. Tbe lien petition was filed Jrdy 19, 1900.. Tbe lien dates from September 15, 1899, subject to- whatever right of priority tbe association has under sec. 2014 — 5,. Stats. 1898, wbicb provides that mortgages upon real estate,, taken by such associations, shall take precedence over all liens upon tbe mortgaged premises filed subsequent to tbe recording of sucb mortgages. Tbe court decided as a matter of law tbat by force of sucb statute tbe plaintiff’s lien was subordinate to tbe two mortgages, and ordered judgment of foreclosure of tbe mortgages, with suitable provisions for tbe protection of tbe lien claimant and other defendants interested in tbe property. Tbe lien claimant appealed.</p>

<p> Master and, servant: Negligence: Personal injury: Contributory negligence: Assumption of rislc: Infants: Immaterial error. </p> <p>1. An employee who was accustomed to cast off belts from pulleys,</p> <p>but who bad never before removed the belt from the pulley at the point at which be was killed, attempted to do so while standing on two transverse pieces of timber, of respectively six and four inch surface, and at an elevation of nineteen feet from the floor, to which he had stepped from a twelve-inch plank, with a guard rail on its side, located on the side opposite the pulley. Held, that the employee assumed the risk, and was guilty of contributory negligence precluding recovery.</p> <p>2. Assumption of risk is hut a' phase of contributory negligence, and</p> <p>it is immaterial whether the employee affected thereby be an adult or a minor.</p> <p>:3. It being shown that an employee assumed the risk incident to dangerous premises, there is nothing prejudicial in excluding evidence tending to show that in other parts of the premises, where similar work was required, a safer place was provided.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Eugene S. Elliott, Circuit Judge.</p> <p>This is an action to recover $582.94, alleged to be due the plaintiff for the breach of a contract entered into between the parties September 30, 1899, wherein and whereby the plaintiff agreed to devote his entire time and attention from December 31, 1899, to December 31, 1900, as a traveling salesman, to sell goods for the defendants in such territory as should be allotted to him, and in all respects to devote his whole time and attention to the interests of the defendants; that the defendants therein agreed to allow the plaintiff $100 per month during that period, and also during actual travels all necessary expenses, viz., $25 per week in cash, and also all mileage and excess boohs. The defendants agreed therein to allow the plaintiff “a commission of five (5) per cent, on all sales over $24,000,” except on Angora and ice wool yams, on which the defendants were to allow the plaintiff “a commission of two and one-half per cent, in cases where orders” should be accepted, the goods actually shipped and delivered, and the accounts collected by 'the defendants. The contract also contained this 'provision:</p> <p>“Both parties to this agreement have the privilege to cancel this contract by giving ten (10) days’ notice in writing, and at the close of said period the accounts to be settled on the same basis as though the full period of this contract had elapsed.”</p> <p>After alleging the business and relationship of the parties, and the making of such contract, the complaint alleges, in effect, that pursuant to said agreement the plaintiff entered into the employment as such traveling salesman December 31, 1899, and continued in such employment until June 20, 1900; that June 9, 1900, the defendants served upon the plaintiff notice that said contract with defendants as a traveling salesman was therewith canceled, and that from and after June 20, 1900, the plaintiff was discharged from the employment of the defendants, and inclosed their check for $100, the balance due the plaintiff for June, 1900, and that any other sums due and owing to the-plaintiff from the defendants would be paid according to contract; that from December 31, 1899, to June 20, 1900, the plaintiff continued in the employ of the defendants, and, pursuant to the contract, sold $212.75 worth of merchandise known as “Angorai Ice Wool,” and $23,558.63 worth of other merchandise; that January 2, 1901, the defendants furnished to the plaintiff, at his request, a statement showing the amount of goods sold by him pursuant to the said contract, as mentioned; that the plaintiff had received for his services so- performed the sum of $600.30, in cash and merchandise, and no more; that there is due to the plaintiff from the defendants, pursuant to said contract for services performed, and for commissions upon the merchandise sold, as mentioned, the sum of $582.94, for which the complaint prays judgment, together with costs of this action.</p> <p>The defendants answered by way of admissions, denials, and counter allegations, to the effect that June 3, 1900, they received from the plaintiff his resignation, to take effect September 1, 1900; that April 15, 1900, the plaintiff, in violation of such contract, and two other employees of the defendants entered into an agreement, to become partners in the same kind of business as the defendants, and to sell and deal in the same kind of goods and merchandise, to commence September 1, 1900, by reason of which the defendants suffered damage in the sum of $500, and also alleged similar facts by way of counterclaim.</p> <p>The plaintiff replied to such counterclaim, denying each and every allegation therein alleged.</p> <p>May II, 1901, the cause was referred to a referee, to hear, try, and determine. At the close of the trial the referee found the making of the contract, the services rendered, the amount of sales made, the resignation of the plaintiff, and his discharge by the defendants, as mentioned; (10) and also found that the clause of the- contract quoted was clear and unambiguous, and not subject to double construction;' that by its terms the defendants were only to pay a commission on sales in excess of $24,000, irrespective of when the contract should be terminated; (13) that the sales obtained through the solicitation and service of the plaintiff from December 31, 1899, to June 20, 1900, were only $23,776,38; (16) that tbe allegations of tbe complaint were true, except as to commissions, wbicb were not sustained; (17 and 18) that tbe allegations of tbe answer as to tbe plaintiff’s failure to devote bis whole time to tbe business of tbe defendants were not sustained by tbe evidence; (19) that there is nothing due the plaintiff for commissions or otherwise;; (20) that there is nothing due tbe defendants for failure of tbe plaintiff to comply with tbe contract. And as conclusions of law tbe referee found that tbe complaint should be dismissed, and that tbe defendants take nothing by reason of their counterclaim. On motion to modify and confirm such report of tbe referee, tbe trial court concurred, substantially, with tbe facts found by tbe referee, except in construing tbe clause of tbe contract quoted above so as to allow tbe plaintiff commissions on all sales in excess of $2,000 per month. In modifying such report, tbe late Judge Elliott said:</p> <p>“It is tbe duty of tbe court to put itself so far as possible in tbe position of tbe contracting parties, and from the language of tbe contract itself, tbe subject-matter, and tbe surrounding circumstances, to determine what they contemplated at tbe time of making the agreement. There is nothing vague or ambiguous or that calls for construction in tbe contract, except tbe phrasing of tbe stipulation wbicb provides that when tbe employment is terminated within tbe year the accounts shall ‘be settled on tbe same basis as though tbe full period of tbe contract had elapsed.’ I apprehend that tbe words ‘on tbe same basis’ are equivalent to ‘on tbe same terms’ or ‘conditions’ or ‘principle.’ What were tbe ‘terms’ or ‘conditions’ of tbe full period ? Evidently, $100 per month, and a commission upon sales in excess of $24,000. It is significant that the full period was twelve, months, and that commissions were payable when tbe sales average more than $2,000 per month for such twelve months. Tbe employment being terminated in less than tbe full period, tbe accounts were to be settled upon the same ‘basis,’ ‘terms,’ or ‘conditions’ as pertained to tbe full period; in other words, defendants were to pay tbe commissions in case tbe sales averaged oyer $2,000 per month. Only by such a construction is it possible to give meaning to the words The accounts to be settled.’ What accounts ? ■ Plaintiff’s salary was payable monthly, and did not call for a settlement, so, unless the words 'the accounts to be settled’ refer to commissions, they can refer to nothing. . . . Unless this stipulation was inserted for the benefit of plaintiff, it is wholly needless, since, except for it, defendants would not be obligated to pay any commission until sales had been made and collected exceeding $24,000. For the reason stated, I am brought to the conclusion that the parties contemplated, and intended that plaintiff should receive a commission whenever his sales and the collections thereupon averaged more than $2,000 per month for the full term of the one year, or such part thereof as he continued in the employ of defendants under the contract. The findings and conclusions of the referee will be amended as moved by the plaintiff, and as amended will be confirmed, and judgment entered accordingly.”</p> <p>From the judgment entered upon such amended findings and conclusions, the defendants bring this appeal.</p>

W. Buewell, Judge. Action upon a guaranty made by defendant, and delivered January 18, 1896, in the following words: “I hereby extend, the guarantee of 0. Kornreich’s account, which expires today, to an amount not exceeding twenty-five hundred dollars, until May 1st, 1897,” which guaranty, upon a former appeal, was held valid by this court as to all co-al sold to Korn-reich after January 18th. 110 Wis. 499, 86 FT. W. 174.

<p>Appeal from a judgment of tlie circuit court for Milwaukee county: WasbeN D. TaRRANT, Circuit Judge.</p> <p>This is an -action to recover $1,000, tire purchase price of a chocolate dip machine, f. o. b. Philadelphia, and $45, the expenses of a man going to Milwaukee to set up the machine,, and $40 for four special screens, reasonably worth and of the market value of $40, and interest on the total amount from April 10, 1900. The defendant answered by way of admissions, denials, and counter allegations, and set up a counterclaim to the effect that the plaintiff warranted and guarantied the machine to perform the work well for which it was intended, and be of great value and assistance to the defendant in the manufacture of confectionery, and that the machine in its work would be and prove to be entirely satisfactory to the defendant; that, relying upon such guaranty, the defendant agreed to test the machine in its business, and did thereafter thoroughly try and test tire machine in the manner, way, and form as directed by the plaintiff, and in so doing destroyed' and rendered worthless material of the value of $114.04; that such test proved the machine to be, and it was, utterly worthless and of no value, and demanded judgment for the $114.04, besides tbe costs and disbursements of tbis action. Tbe counterclaim was put in issue by a reply. At tbe close' of tbe trial a verdict was directed in favor of tbe defendant. Erom tbe judgment entered thereon dismissing the action-upon tbe merits, and for $35.52 costs, tbe plaintiff brings this-appeal.</p> <p> </p> <p>To that order tbe plaintiff wrote tbe defendant under date-of November 28, 1899:</p> <p>“We are in receipt of an order to our Mr. Werner for a chocolate dipping machine, and before shipping same would like your confirmation. We don’t like tbe term ‘entire satisfaction.’ It is very broad, although we have confidence that we can give you all we claim and more. We cannot afford to take big chances, as tbe machine weighs over a ton. We-will refer you to” several persons therein named.</p> <p>Tbe defendant replied under date of December 1, 1899:</p> <p>“We do not quite understand what you mean by wanting’ our confirmation of the order for machinery. We bad a perfect understanding with Mr. Werner when he was here, and be seemed to be a very honest and honorable gentleman. When tbe machinery arrives and is thoroughly tested, and if it proves as represented, we will be pleased to keep it, and pay for it, and I have no doubt that Mr. Werner was well satisfied that he was doing business with honorable people when he did business with us. We always try to buy the very best thing there i^on the market in machinery, and, if Mr. Wer-ner did not make us believe that what yon had was the best, he probably would not have left with our conditional order. We will forward to you to-day by mail the molds, as requested, and will write yon at the same time what particulars may be necessary.”</p> <p>December 13, 1899, the defendant wrote the plaintiff:</p> <p>“For the present we only wish to make the drop same as sample sent you, but, as we wish to run this machine to its capacity, you had better make us four extra screens. If the machine works as represented, we will want other designs, but for the present, in order to get started, we prefer this one mold only.”</p> <p>December 14, 1899, the defendant wrote the plaintiff:</p> <p>“We have decided to have you make the four extra screens ordered, — one each as per sample we are sending you under separate cover.”</p> <p>January 13, 1900, the defendant informed the plaintiff that the machine had arrived at Milwaukee. The plaintiff thereupon came to Milwaukee and set up the machine, and then proceeded to test it, but failed to make it work satisfactorily to the defendant or to his own satisfaction. The plaintiff then suggested that he would send for another box to run the baskets through, and put a steam coil therein to keep the sieves warm, and the defendant’s man said, “All right.” After the plaintiff left, the defendant received a postal card from him postmarked January 18, 1900, at Chicago, as follows:</p> <p>“I think best to have you get the brace hot box made there, and then you will have it as you wish; it will be quite a delay should I ship from home. Use the one you have for the perforated one or inside, and advise me how it worked as soon as you have it in shape. Wishing you abundant success,</p> <p>“Tours, W. II. WEEKS.”</p> <p>The defendant had the box made and put into the machine. It was a part of the machine, — similar to the one on when the machine came, — hut the machine gave bnt very little, if any, better success. January 23, 1900, the defendant wrote to the plaintiff:</p> <p>“We discovered yesterday that all of the chocolate drops we have turned out on your machine taste after paint, and it is impossible for us to send out the goods; they are a dead loss on our hands. Upon investigating-..your machine thoroughly, we find that what you stated to us was enamel on the inside of the machine turns out to be paint. The machine cannot be used in its present condition, and we cannot do anything with it until we hear from you. ' Kindly let us hear from you promptly.”</p> <p>The plaintiff replied under date of January 27, 1900, and after some discussion, among other things said:</p> <p>“Will you kindly let us know the amount of your loss, and send us samples of the drops, as we might be able to dispose of them in Chicago or in our city. Mr. Werner, to whom we have written, tells us that he will be in your city soon, and is-confident matters will be satisfactorily arranged. You can remove enamel by first taking alcohol, then turpentine, and thoroughly cleansing with a strong solution of potash. Trusting you will have no- further trouble, we remain, very truly yours.”</p> <p>February 1, 1900, the defendant acknowledged receipt of that letter, and wrote to the plaintiff:</p> <p>“We have on hand about 340 lbs. of chocolate that was-used in your machine that we have set aside; also about 300-lbs. of chocolate drops as per sample we." are sending you under separate cover. If you will test one of these, you will readily detect the taste in question. We hope that Mr. Wer-ner will be able to visit Milwaukee very shortly, as we have decided to let the machine rest until he calls.”</p> <p>April 10, 1900, the defendant wrote to the plaintiff:</p> <p>“The chocolate machine which we received from you on-trial, as per agreement dated Kovember 24th, we are obliged to reject. We inclose bill covering various items of expense, 'including chocolate and chocolate drops damaged by paint, •of which we notified yon some time ago. Upon receipt of your check for this amount ($114.04) we will be pleased to ¡return your machine.”</p> <p>July 30, 1900, this action was commenced.</p>

<p> Mechanics’ liens: Subcontractor of subcontractor: Conspiracy to defraud: Evidence. </p> <p>1. Secs. 3314, 3315, Stats. 1898, give a mechanic's lien to principal contractors, subcontractors, material men and laborers, but not to a subcontractor of a subcontractor. The owner of land contracted with M. to build a building thereon for $1,000. M. sublet the entire contract to L. for $1,000,'and L. sublet different parts of the work to various parties, who sought to establish their liens ’on the theory that the subletting to L. was fraudulent, and for the express purpose of placing them in the relation of subcontractors of a subcontractor. Held, that even if by reason of a conspiracy it could he held in equity that L. was in fact the principal contractor (a proposition not decided), participation of the owner in the conspiracy is absolutely essential to hind him.</p> <p>2. In such case the fact that the owner Knew that K, instead of M., was in fact erecting the building, is entirely consistent with good faith, and would not support a finding of conspiracy based on that fact alone.</p> <p>3. In such case proof that L, made his hid with hut an hour’s deliberation does not justify the conclusion of fraud in the contract.</p>

<p> Municipal corporations: Streets: Encroachments: Statutes: Notice: Equity: Mandatory injunction. </p> <p>A municipal corporation can maintain an- action in equity to obtain a mandatory injunction compelling the removal of an encroachment upon one of its public. streets. Its right so to do is not dependent upon a prior making and service of the statutory order to discontinue the encroachment under sec. 1330, Stats. 1898, requiring that the notice shall “specify the width of the road, the extent of the encroachment, and the place or places in which the same may he, with reasonable certainty.”</p>

0. Ludwig, Judge. In 1896 tbe plaintiff, together with several others, being* the organizers and owners of the Britannia Mining Company, placed 25,000 shares of its stock in the hands and name of one of their number, Dupré, as trustee, to sell such stock in order to realize a fund for the development of mining properties whenever they should so decide; otherwise retaining their respective ownerships. Plaintiff’s portion was 3,125 shares.

<p>Appeal from a judgment of the superior court of Milwaukee county: OeRen T. Williams, Judge.</p> <p>This is an action by the landlord to recover $324, as one year’s rent from May 1, 1899, to April 30, 1900, less $60, which the plaintiff received on account of rental of the premises to another party during that period. The lease was executed by the plaintiff and defendant April 8, 1896, and was for the term of one year from May 1, 1896, for the rent named, to be paid in even and equal portions on the 1st day of each month in advance, — the first payment to be made May 1, 1896, — and contained these provisions:</p> <p>“Permission is hereby given lessee to renew this lease for another year at the same rent upon giving thirty days’ notice in writing before the expiration hereof. Permission is given lessor to place a sign, ‘To Let,’ in premises, thirty days before the expiration hereof, if lease is not renewed, and permission is granted lessor during said time to show the premises to persons desiring to rent the same.”</p> <p>The complaint, among other things, alléges that the defendant continued to occupy the premises under the lease until April 30, 1899, and then removed therefrom without terminating such tenancy. The answer consists of admissions, denials, and counter allegations. A jury being waived, and trial had, it was found by the court at the close of the evidence, in addition to the facts stated-: (3) that after the expiration of the one year designated in the lease the defendant occupied the premises as tenant from year to year, with the consent of the plaintiff; (1) that such tenancy was not terminated April 30, 1899, by either party giving to the other notice in writing, as provided in sec. 2187, Stats. 1898 (5) that more than thirty days prior to April 30, 189Ó, and about March 20, 1899, the defendant, through the agency of his wife, negotiated with the plaintiff concerning a renewal of the lease for another year, and, at that time, notified the plaintiff, through such agency, that if he was to remain on the premises he would let the plaintiff’s wife know within two or three days, and that the defendant did not notify the plaintiff or his wife that he was to remain on the premises; (6) that thereupon the plaintiff, more than, thirty days prior to April 30, 1899, advertised the premises for rent in a daily newspaper published in Milwaukee, and such advertisement was published in each issue of such newspaper to and including April 29, 1899; (7) that more than thirty days prior to April 30, 1899, the plaintiff posted a notice on or near the de•mised premises to the effect that the same were for rent, and kept such notice so posted until after defendant had removed from said premises; (8) that the plaintiff waived the giving •of the notice in writing required by sec. 2181, Stats. 1898, .and accepted a surrender of the premises from the defend•ant April 30, 1899. And as conclusions of law the court found and decided that the defendant was entitled to judg■ment dismissing the complaint in this action upon the merits, .and for the recovery from the plaintiff of the costs of this •action, to be taxed, and ordered judgment accordingly. Prom the judgment entered accordingly, the plaintiff brings this .■appeal.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: Obben T. Williams, Judge.</p>

<p> Sales of chattels: Warranty: Notice of breach: Condition precedent: Reasonable time: Sufficiency of notice: Waiver: Prejudicial error. </p> <p>1. By a contract for the sale of an electric motor the seller made certain warranties, and it was agreed if, on starting the motor, it did not comply with the warranty the purchaser should “promptly notify” the seller at his address “by telegraph or mail, stating wherein said machinery is faulty,” no time limit being stated. Held, that compliance with such requirement was a condition precedent to the existence of any claim under the guaranty, and that such compliance must he within a reasonable time after starting the motor.</p> <p>2. In such case, a delay of two and one half months in notifying the seller of defects claimed to exist, is not a reasonable time.</p> <p>3. In such case notice that the machine “did not perform the work which it was required to do” does not comply with the requirement that the purchaser should notify the seller “wherein the machine was faulty.”</p> <p>4. The seller of a machine warranted it, providing the purchaser, on receiving and starting the machine, promptly notified the seller, by mail or telegraph, of any defects claimed. The seller acted upon and remedied a slight defect, which developed before the machine was set up. There was evidence that communications passed between the seller and its agent about the purchaser’s having trouble with the machinery subsequent to the difficulty that was remedied, but that the seller did not act on the later information. Held, that the seller did not thereby waive the conditions of the guaranty requiring notice.</p> <p>5. Error in not directing a verdict in favor of a party is cured by a general verdict in his favor.</p>

Appeals from a judgment of tbe circuit court for Milwaukee county: LaweeNoe W. Halsey, Circuit Judge. Two gentlemen, by tbe name of Ewing and Mitchell, having discovered what they believed to be a deposit of infusorial -earth in Eau Claire county, from which could be obtained a product valuable in certain manufactures, secured control or ownership of certain lands, and proceeded to make explorations.

<p>Street railways: Commercial railroads: Franchise to occupy city streets: Ordinances: Construction: Quo warranto: "Person,” in statute: “Franchise,” in statute: “Holding and exercising a franchise,” in statute.</p> <p>:1. A city ordinance granted to a commercial railroad, organized under sec. 1820, Stats. 1898, “its successors- and assigns,” the right to construct an elevated railroad over certain streets, many of which contained surface street railways. The ordinance was denominated a franchise; contemplated the erection •of passenger stations, etc.; limited the rate of fare within the city; required the carriage of policemen, firemen and health officers free, and required the company to huild and maintain certain bridges for the accommodation of teams and foot passengers as well as its trains. Held, that the ordinance attempted to, and did, grant a franchise to operate an elevated street railway, under sec. 1862, Stats. 1898 (providing for the 'formation and powers of street railways, and regulating granting franchises therefor), and that it was not a mere code of police regulations, regulating the use of the right conferred on commercial railroads by sec. 1828, Stats. 1898, to build and maintain their road across or along any street.</p> <p>2. An ordinary commercial railroad organized under sec. 1820, Stats. 1898 (providing for the organization of corporations for constructing, maintaining and operating railroads for public use in the conveyance of persons or property), is not endowed with the power to accept street railway franchises under said sec. 1862, Stats. 1898.</p> <p>3. A private corporation is a “person” within the meaning of sec. 3466, Stats. 1898, providing that an action may be brought by the attorney genera) in the name of the state “when any person shall usurp, intrude into or unlawfully hold or exercise any public office, civil or military, or any franchise within the state.”</p> <p>4. A street railway franchise to operate a system of street railways in a city, using the streets and alleys for that purpose, is a “franchise” within the meaning of said sec. 3466. The state may by quo warranto inquire into the title by which it is held, and, if the party assuming to exercise it has no title thereto, judgment of ouster will be rendered.</p> <p>5. Under said sec. 3466, Stats. 1898, a commercial railroad, by a formal acceptance under seal, as the ordinance required, accepted a franchise to construct and maintain a street railway over certain streets in the city of Milwaukee. Held, that it was holding and exercising the franchise, attempted to be granted, within the meaning of sec. 3466, Stats. 1898, as fully as if it had started to build its structure.</p>

Appeals from orders of the circuit court for Eau Claire county: Jakes O’Neill, Circuit Judge. This action was commenced November 13, 1890, by the defendants John 8. Oiuen and the Northwestern Lumber Company, as creditors, in their own behalf, and as representing all others similarly situated, against the Mutual Fire Association of Fau Claire, to have it adjudged insolvent, and to- wind up its affairs.

<p> bounties: Constitutional law: Statutes: Local Mil: Title: Body of act: Uniformity: Bees: Register of deeds: Special laws. </p> <p>1. Ch. 169, Laws of 1895, provides that in. counties having a population of 150,000 or upwards the register of deeds shall receive in lieu of fees a certain salary, and that the act shall go into effect fifteen months after its passage. The act is entitled “An act to make the register of deeds’ office of Milwaukee county a salaried office.” Held:</p> <p>(1) That the character of the act is to be determined hy its provisions and not hy its title, and that the body of said ch. 169 is general in its application.</p> <p>(2) That said ch. 169 does not conflict with sec. 18, art. IV, Const., providing that no private or local bill, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title.</p> <p>(3) That the general provisions are not rendered void by reason of their being contained in the same act with other provisions of merely local application, though the title of the act refers to the latter provisions only.</p> <p>(4) That the act applies to and embraces within its operation any and all counties answering the requirement when the act went into effect.</p> <p>.■2. Sec. 18, art. IV, Const., provides that no private or local bill shall embrace more than one subject, which shall be expressed in the title. Ch. 169, Laws of 1895, entitled “An act to make the register of deeds’ office of Milwaukee county a salaried office,” provided, in the body, for salary in lieu of fees for the register o£ deeds in any county of 150,000 population or oyer. Held, that, the act is not repugnant to said constitutional provision, since it is not required that the title go further than to express the subject covered by the body of the law, and, the statement of the primary purpose being in general terms, reasonably includes all the means designated to facilitate the accomplishment thereof.</p> <p>3. Prior to the time ch. 169, Laws of 1895, took effect, the register of deeds of Milwaukee county was compensated by fees and not by a salary, but that statute placed his office on a salary basis, and provided that the register should quarterly pay to* the county treasurer all fees and emoluments of “every kind”' received by him as register. Such provision was continued in. the revision of 1898 which took effect September 1, 1898. Held, that such statutory provisions embraced fees for registering of births, marriages, and deaths.</p> <p>4. Ch. 169, Laws of 1895, provided that the register of deeds in counties containing 150,000 population or upwards should be compensated by a salary, instead of fees, as had previously been the method of compensation, and required from the register a bond conditioned for the faithful accounting for and paying over all moneys which came to his hands as such officer. There was no change in the manner of the election of the register, the clerks in the office were his appointees, as had been the case before the enactment of said ch. 169, and the bond covered the fees that had formerly belonged to the register, but which, under the act, belonged to the county. Held, that the act in no way attempted to change or interfere with the then existing system of county government, and did not conflict with sec. 23, art. IV, Const., providing that “the legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable.”</p> <p>5. Ch. 169, Laws of 1895, does not violate sec. 1, art. VIII, Const., providing that the rule of taxation shall be uniform, and that taxes shall be levied on such property as the legislature shall' prescribe. The fees paid by the citizens for recording, whether under the fee or salary system, cannot be said to be a tax.</p> <p>6. Ch. 169, Laws of 1895, being a general law, does not violate subd. 6, sec. 31, art. IV, Const., which prohibits the enactment of any special or private laws for assessment or collection of taxes.</p>

<p>Life insurance: Benefit associations: Suicide: Waiver: Admissions-against interest: Evidence.</p> <p>1. The rules of a mutual benefit association provided that the local: tent was the agent of its members in collecting dues and assessments, and that the supreme tent should not be liable for any negligence, or bound by any illegal action or irregularity, of such local tent. The rules further provided that, in case of suicide, the association should be liable only to the amount of assessments paid in. Four days after the death of an insured, by suicide, the collector of a local tent accepted of the beneficiary the assessments due at the date of insured's death. Held, that if such reception of the dues was irregular, it was an error of the beneficiary’s own agent, of which she could not take-advantage.</p> <p>2. Where a mutual benefit association was liable for some amount, whether the insured committed suicide or not, the fact that the-association requested proofs of death, which were furnished, and the beneficiary, after her claim had been rejected because-of suicide, prosecuted at some expense an appeal before the-appellate tribunal of the association, does not operate as a waiver.</p> <p>3. Statements by a beneficiary in the proofs of death that the cause-of insured’s death was suicide are admissions against interest,, and establish prima facie the fact of suicide.</p> <p>4. In an action on a mutual benefit certificate the evidence examined, and held to support a finding that the cause of insured's-death was suicide.</p> <p>Winslow and Dodge, XX., dissent.</p>

<p> Life insurance: Debtor and creditor: Policy for benefit of married woman: Interest of beneficiary: Exemptions: Statutes: Policy on husband’s life: Tested and contingent interests: Children: Married women: Separate estate: Disability of married woman to assign rights as beneficiary under policy on life of another. </p> <p>M. By sec. 2347, Stats. 1898, insurance on the life of any person for the benefit of a married woman cannot he reached by her creditors or those of any other person. r</p> <p>.2. Ch. 376, Laws of 1891, now a part of sec. 2347, Stats. 1898, as regards married women, and, contingently, their children, changes the rule that a mere beneficiary in a policy of life insurance has no interest therein during the life of the assured which he cannot take away by naming some other person as beneficiary or disposing of the policy fund by will. Strike v. Wis. O. F. Mut. L. Ins. Co., 95 Wis. 583, 70 N. W. 819, so far as to the contrary, is overruled.</p> <p>.3. A policy of life insurance upon the life of any person payable to a married woman, with no provision therein as to a beneficiary in case she shall not survive to take, belongs to her children if she has any surviving her, with the same freedom from interference by creditors or others as in case of the first beneficiary.</p> <p>-4. By sec. 2347, Stats. 1898, as it now stands:</p> <p>(a) A married woman may, without her husband’s consent, take out a policy of insurance on -his life for her own benefit, or for such benefit and that of her children.</p> <p>(b) A policy of insurance taken out upon any life for the ■benefit of a married woman, nothing being said as to who shall be the beneficiary in case she shall not survive to take at the' maturity of the policy, vests a contingent right in the insurance fund in her, which is her sole and separate property, free from control or disposition by her husband or the person taking out the insurance, and beyond the reach of the creditors of any one.</p> <p>(c) Such a policy vests in the children of the married woman a contingent right to the insurance, safe from disturbance by her or any other person, or by such children, prior to the maturity of the policy and the fund reaching their hands.</p> <p>(d) The right in the children does not contemplate a joint enjoyment of the insurance fund by them and their mother. It is a mere right to the fund in case the mother does not survive to receive the same, there being no other disposition thereof provided for in the policy.</p> <p>(e) A policy of insurance of the character mentioned, with the added element providing for a disposition of the insurance fund upon the contingency of the wife not surviving to receive the same, vests in the wife the same right in all respects as if such secondary disposition were not made.</p> <p>(f) A married woman is under an absolute disability to pa^t with her beneficiary interest by assignment. Her husband or person paying the premium is under a like disability to disturb her rights by assigning the policy or changing the beneficiary therein, or disposing of the policy by will, and creditors generally are as completely debarred from resorting to the policy for the payment of their claims.</p> <p>(g) The policy and its proceeds are free from all interferences save lapses and forfeitures mentioned, militating against the proceeds thereof, upon the time arriving and circumstances occurring named as conditions precedent to the maturity of the contract in her favor, vesting in her with the right to personal possession of the fund as her separate property, leaving the same then subject to her obligations the same as any other portion of her estate.</p> <p>[Syllabus by Maiísham,, J.j</p>

<p> Equity: Deed of gift: Mental capacity: Undue influence: Evidence: Immaterial error: Assets of decedent’s estate. </p> <p>1. In an action to set aside a deed of gift, the evidence (stated in the opinion) is held to sustain findings of mental capacity in the donor, although at the time of the gift the donor was suffering from paralysis, and died about two months later.</p> <p>:2. In such case the evidence is held to sustain findings of absence of undue influence exerted on the donor, although By direction of the donor, assented to by tbe donee, tbe donee made suspiciously large payments for services to persons wbo became ber witnesses, and, shortly after donor’s death, tbe donee made large payments to tbe donor’s heirs and took- releases from-them.</p> <p>3. In an equitable action to set aside a deed of gift on. tbe ground of want of mental capacity and undue influence, tbe admission of incompetent evidence in behalf of defendant is immaterial error, where findings favorable to ber are supported by competent evidence.</p> <p>4. A decedent, absent from home at a hotel, was taken sick and sent for defendant, to whom be executed a deed of gift of practically all bis estate. Before defendant arrived, decedent- gave a sum of money to tbe hotel keeper for safe keeping. Tbe hotel keeper deposited it in a bank in defendant’s name, and it was all drawn; out by ber under decedent’s instructions, and used to pay expenses. Held, that no portion of that money belonged to decedent’s estate, and defendant was not liable therefor to decedent’s administrator.</p>

<p> Attachment: Conditions of issuance of writ: Motion to dismiss: Attachment, how executed? Due diligence in service of summons, when order therefor matter of right? Statutes: Writ of attachment, how executed: Due diligence in service of summons: Lien of attachment. </p> <p>.1. The only conditions oí the issuance of a writ of attachment in an action commenced in the circuit court are that, concurrently therewith, a summons he issued, unless that shall have theretofore occurred; that the action shall not have proceeded to final judgment, and that it shall he one in which such a writ is proper. Whether there is a cause of action in fact against the defendant, or the statutory conditions requisite to the execution of the writ be satisfied, or the facts in that regard exist, are immaterial on a motion to dismiss the writ as improvidently granted.</p> <p>:2. A writ of attachment can only be properly executed upon there being attached thereto an affidavit, made by the plaintiff or some one in his behalf, satisfying the calls of sec. 2731, Stats. 1898.</p> <p>.3. If property he seized under a writ of attachment without sec. 2731, Stats. 1898, being complied with, the seizure may be discharged on motion, hut the writ cannot be set aside on that ground as improvidently granted.</p> <p>■4. If the facts alleged in an affidavit for the execution of a writ of attachment, as to the liability of the defendant, do not exist, the provisional remedy must nevertheless abide the result of the suit, since no question in that regard can be raised in the proceeding to enforce the provisional remedy.</p> <p>.5. Independently of tho liability of the defendant, the grounds of the issuance of a writ of attachment can only be questioned by a traverse of the affidavit for the execution of the writ and trial of the issues thus formed according to sec. 2745, Stats. 1898.</p> <p>«6. The statutory requisites to the granting of an order for service of a summons by publication being satisfied, the right to such order is absolute regardless of whether the essential allegations of the complaint and affidavit upon which it is based are. true or not. 7.. Neither the issuance of a writ of attachment nor the seizure of property thereunder is requisite to an order for service of a. summons by publication in any case.</p> <p>8. The right to make service of a summons' by publication only affects the thing sought to be reached, in the action; therefore,, where the thing is property of the defendant within this state,, the order for service by publication by the express words of the statute is granted upon the complaint, duly verified and filed, and an affidavit, together showing the facts required to exist,, which in no case includes seizure of property into the custody of the law. Sec. 2640, Stats. 1898. , <</p> <p>9. A writ of attachment issues generally against the property of the defendant not exempt from execution, and may be executed by seizing any of such property wherever found within the-county'of the officer having the writ, even though the property be in the possession of the plaintiff.</p> <p>10. An affidavit for service of a summons by publication being made-one day before the granting of the order, and stating that the-plaintiff is unable with due diligence to make service of the-summons upon the defendant, and further stating the diligence exercised to make such service to be the placing of the summons in the hands of an officer for service, and his inability to serve the same, as evidenced by his return thereon dated' fifteen days before the making of such affidavit, is not, as a matter of law, insufficient to support the order as regards the statutory requirement that it shall be made to appear that plaintiff is unable with due diligence to serve the summons-upon the defendant.</p> <p>11. After property has been seized by an officer under a writ of attachment, he may leave the same with' the plaintiff as his bailee-to care for the same temporarily, without jeopardizing the lien-, of the attachment. The remark in Mahon v. Kennedy, 87 Wis. 50, 57 N. W. 1108, inconsistent therewith, withdrawn.</p> <p>[Syllabus by Mabshall, J.]</p>

<p> Estates of decedents: Testamentary trustees: Executors: Accounting: Principal and surety: Action on executor’s bond: Appeal and error: Limitation of actions. </p> <p>1. Where, on petition of beneficiaries under a will, the county court cites the executor to appear, file his account, and show cause why a trustee should not be appointed and the funds in the executor’s hands paid over to him, the distinctive purpose of the proceeding is not changed, nor does the court lose its power to entertain and consider the whole matter and appoint such a trustee, although it does not do so until after a hearing on the executor’s account, to which is attached a petition for construction of the will, followed by an appeal by the executor from the order stating his account. At most, if an irregularity, it is not one of which the surety on the executor’s bond can complain.</p> <p>2. Where an executor is also named as testamentary trustee under a will, his functions and duties as executor do not cease until his final account as such executor has been filed and allowed.</p> <p>3. Where a county court has jurisdiction to settle and allow an executor’s account, such settlement and allowance are binding on the sureties on his bond.</p> <p>4. Under sec. 4014, Stats. 1898 (providing that the county court may permit an action on an executor’s bond when the amount due has been ascertained and ordered paid, if the executor shall neglect to pay it when demanded), it is not necessary that a devastavit and default he determined against the executor before the commencement of an action on the bond.</p> <p>5. An action against an heir or legatee of a surety on an executor’s bond is not barred because no claim was filed against the estate of the surety, where it appears that the executor’s account was not filed until after the surety’s estate was settled.</p> <p>6. A question cannot be considered oh appeal in the absence of any findings, request for findings thereon, or exception that raises such question.</p> <p>7. An executor’s liability continues until his account is fully settled and the estate fully administered.</p> <p>8. Where no final order has been made distributing a decedent’s estate, recovery of the full amount found to be due from an executor may be bad against bis surety, in an action at law on bis bond, although tbe executor is a beneficiary under tbe will.</p>

<p>Certiorari to review an order of the circuit court for Wau-kesha county: James J. Dick, Circuit Judge-.</p> <p>Motion to quash a writ of certiorari addressed to the circuit court, and based upon the following facts: Tbe relator having brought an action in the county court for Waukesha county against the city of Waukesha to abate a nuisance consisting in the emptying of impure and noxious sewerage into a stream above and near her land, and to recover damages thereby occasioned, and that action being at issue, both as to the existence of tho nuisance and the amount of damages, it was called for trial on May 19, 1900. Thereupon the court directed (the parties consenting) that the action be tried upon the equitable issue, or upon all the issues except the question of damages; the judgment to provide, should it be against the defendant, for the ultimate assessment of damages by a jury or reference. Interlocutory judgment was entered in favor of the plaintiff, and, upon appeal to this court, was on April 9, 1901, affirmed, with slight modification. 110 Wis. 101, 85 N. W. 668, 84 Am. St. Rep. 902. After remission of the case, it was placed ■on the calendar, and the judgment of the county court modified to conform to the mandate of the supreme court; and thereupon, on March 4, 1902, the defendant filed an affidavit •of prejudice of the judge of said court, whereupon an order changing the place of trial to the circuit court of Waulcesha county was entered, and the records transmitted to that court. Thereupon the plaintiff, upon affidavits showing substantially the foregoing facts, moved the circuit court for an order remanding the record to the county court, which order, on June 10, 1902, was denied by the circuit court; that court holding that said action was properly removed. Original writ of certiorari from this court was sued out upon the assertion that the circuit court had no jurisdiction of the case, “to the end that this court may be certified of all proceedings in said action, and said order overruling plaintiff’s motion to remand the records in said action to said county court duly reversed.” The circuit court made return of the entire record, and now moves to quash said writ as improvidently issued.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: WarreN D. TabeaNt, Circuit J udge.</p> <p>About the 1st of July, 1900, the Pabst Brewing Company, of Milwaukee, was in treaty to erect on certain real estate belonging to it in Havana, Cuba, certain bottling and refrigerating works, and to sell the same at an agreed price, after erection, to one Reminez. They had substantially closed a bargain with the defendant to erect said buildings and put in the necessary machinery at a price of something over $50,000, whereupon the defendant entered into a written contract with the plaintiff to erect the buildings according to plans and specifications at an agreed lump price of $23,000. No time of completion was specified in that contract, but it was known to the plaintiff that Daly was bound to have the buildings completed and the machinery installed, ready for delivery to the Pabst Brewing Company, by December 1st of that year, and that the Pabst Brewing Company was'bound to deliver to Rem-inez by December 15th. Plaintiff immediately proceeded' with the work, and continued same with diligence up to’ November 8th, when it ceased active work thereon by discharging all except a few of the men, although it had on the’ ground a considerable amount of material, and retained there its foreman and a few men, who were engaged in sorting and arranging that material. The evidence of the progress made at that time is very conflicting, varying from the contention that the work was but one-third done to the contention that it was four-fifths completed. The court finds that it was somewhat more than half of the entire work. On November 21st the defendant went through a procedure before a notary, called a “protest,” in which he asserted imperfection in the work done, and thereupon took possession of the work, excluded the plaintiff, and completed it. The plaintiff claims that it did not abandon the work, but suspended for want of municipal permits, at the command both of the defendant and of the owner of the property; the defendant having agreed to obtain such permits. The defendant, however, claims that the conduct of the plaintiff constituted a wilful abandonment of the work. Plaintiff brought this action to recover the reasonable value of the work done, which the trial court found to be $11,500, of which $2,500 had been paid. The defendant denied any liability by reason of plaintiff’s abandonment of the work, and counterclaimed for that the work done was defective, both in material and workmanship, whereby it became necessary for him to spend a large sum in remedying such defects, and also claiming that he necessarily expended, in completing said buildings, about the sum of $35,500, or $15,000 in excess of the amount remaining due the plaintiff on its contract. The trial court found that plaintiff did not abandon the work, but suspended the same by reason of the failure of the defendant to procure necessary permits, and by reason of prohibition against proceeding without such permits, and that it was at all times ready to complete said work when that omission on the part of the defendant was remedied; that the defendant fraudulently, and for the purpose of preventing plaintiff from going on with the work, withheld said permits, and falsely made claim of defects in the workmanship and material of the work already done, and took possession of the premises, and excluded the plaintiff from completing its work; that the reasonable value of plaintiff’s work, above payments, was $15,000; that it was performed according to contract, and was not defective; and that no sufficient evidence had been given of the cost of completing the buildings; and accordingly rendered judgment ■allowing defendant nothing upon his counterclaims and •awarding plaintiff $15,000. From this judgment, defendant .appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: LaweeNce W. Halsey, Circuit Judge.</p> <p>Tbis is an action to recover damages on account of tbe defendant’s refusal to accept and pay for 160 bags of white ■clover seed in alleged breach of a contract made between tbe parties orally February 1, 1897, and confirmed by tbe following written memorandum on tbe following day:</p> <p>“Milwaukee, Eeb. 2, 1897.</p> <p>“M. & N. Gebl — Dear Sirs: Confirm purchase about 160 'bgs. white clover 8f; 9 bgs. 6c; 9 bgs. 5c; 25 bgs. red 7-|; screen 2c; buyer’s option March 1.</p> <p>“Truly yours,</p> <p>“Milwauiíee Peoduce Co.”</p> <p>Tbis was a contract requiring tbe plaintiffs to deliver and the defendant to accept tbe seed upon defendant’s request at any time prior to March 1st, and in no event later than that ■date. Tbe answer was, in effect, a general denial; but on tbe trial tbe making of the contract was admitted, and tbe defense relied on. was that the plaintiffs had breached the contract by not delivering or offering to deliver the seed according to the contract. The case was here upon defendant’s appeal from a former judgment in plaintiff’s favor, and will be found reported in 105 Wis. 573, 81 N. W. 666, where a full statement of facts will be found. Another trial of the action has been had, and much of the evidence given on the former trial has been substantially repeated on the present trial, with some-important differences, which will be found stated in the present opinion. The following special verdict was rendered by the jury:</p> <p>“(1) Did the defendant refuse to accept the clover seed in-question upon an offer by plaintiffs to deliver the same in accordance with the contract, and at a time when, by virtue of' the postponements agreed upon, they still had a right to deliver it?” Answered by the jury, “Yes.” “(2) If the court shall be of the opinion that the plaintiffs are entitled to judgment, in what sum do you assess their damages ?” Answered’ by the jury, “$779.07.”</p> <p>The defendant then filed the following exception:</p> <p>“The defendant excepts to the first question of the special verdict, and to the submission thereof by the court to the jury, for the reasons that said question assumes matters of fact not. admitted, involves two issues, does not submit any material issue to be determined by the jury, and the submission of said, question is contrary to law.”</p> <p>Upon this verdict judgment was rendered for the plaintiffs-for the damages found by the jury, with costs, and the defendant appeals.</p>

<p> Fire insurance: Standard policy: “Loss”: “Amount of the insurance”: “Amount of loss”: Apportionment of loss: Co-insurers. </p> <p>1. Under sec. 1941 — 43, Stats. 1898, providing that, by the standard fire policy of Wisconsin, the property covered is insured against loss to an amount “not exceeding-dollars,” the word “loss” is used, not as a limitation upon the amount of the insurance, hut primarily as a limitation of the liability.</p> <p>2. Under the standard fire policy of Wisconsin (sec. 1941 — 43 to sec. 1941 — 62, Stats. 1898), “the amount of the insurance” is the maximum amount of the risk assumed' — the face of the policy.</p> <p>3. Under said standard fire policy the “amount of loss” is the adjusted damage hy fire to the property covered hy the policy.</p> <p>4. Under said standard fire policy the “amount of liability,” as to any particular loss, is the amount of the adjusted damages . properly apportionable to the policy.</p> <p>5. Sec. 1941 — 43, Stats. 1898, prescribing the formal part of the standard fire insurance policy, enacts that the formal parts thereof shall provide for insurance against loss to an amount “not exceeding -• dollars,” etc., and sec. 1941 — 58 provides that other formal parts of such policy shall contain provisions that the insurer shall not he liable for a greater proportion of loss than the “amount insured” shall hear to the “whole insurance.” A policy on a Wisconsin standard form contained a provision that, in consideration of a reduced rate of premium, the assured agreed to maintain insurance to the extent of eighty per cent, of the value of the property, and “if at the time of fire the whole amount of insurance on said property shall he less than eighty per cent., this company shall, in case of loss or damage less than said eighty per cent., be liable for only such portion thereof as the amount insured hy this policy shall hear to said eighty per cent, of such actual cash value of such property.” During the life of the policy, and while the insurance in force was less than eighty per cent, of the value of the property, the property was damaged by fire to an extent less than eighty per cent, of its value. Held:</p> <p>(1) That the language of the policy indicated that the contracting parties understood the result of a failure by the assured to take out sufficient insurance to equal eighty per cent, of the cash value of the property would not be a x-eduction of the amount of insurance effected by the policy, but such a division of any loss apportioned to the face of the policy put of the whole insurance between the company and the assured, as would make him bear the burden that would otherwise be cast on it by his failure to take out insurance up to the limit specified.</p> <p>(2) That in apportioning the loss as between the different insurers, the amount of insurance effected by the policy was its face; but as between the underwi’iter of that particular policy and the assured, the latter should-bear, as co-insurer, any loss not regularly insured against by his failure to take out the full amount of insurance agreed upon.</p> <p>6. Sec. 1943a, Stats. 1898, prohibits the issuance of any policy containing any provision limiting the amount to be paid in case of loss below the actual cash value of the property, if within the amount of insurance for which premiums are paid, and prohibits the use of any co-insurance clause or rider except under named conditions. Several standard form policies were issued on a building. The one issued by the M. company contained a clause, in effect, that, if the property were not kept insured up to eighty per cent, of its value, the insurer would be liable for only such portion of the policy as the amount insured therein should bear to such eighty per cent. The building was not insured up to eighty per cent, when a loss occurred. In an action against companies, other than the M. company, it was held that sec. 1943a did not apply, the policies sued on containing none of the prohibited features; that the circumstance preventing the assured from obtaining full indemnity was the M. company’s policy, containing a limitation of liability pursuant to said sec. 1943a, and the assured’s election thereby to carry part of the insurance himself.</p> <p>7. Several standard form insurance policies were issued on a building. The one issued by the M, company contained a clause, in effect, that, in consideration of a reduced premium, insured agreed to keep in force insurance up to eighty per cent, of the cash value of the property insured, and, if he failed so to do, that the insurer in such policy should, in ease of loss or damage less than eighty per cent., he liable for only such portion thereof as the amount of insurance in force should bear to such eighty per cent. There was a loss of less than eighty per cent, at a time when the assured had failed to lteep up insurance to eight: per cent, of its value. Action was brought against companies other than the M. company. Held, that the defendant co panies must be held liable according to their contracts and n further; that the fact that the insured by his contract with thi M. company had stipulated away his right to full indemnity an ' received consideration therefor, did not relieve the defendant companies, whose premium was fixed with reference to such portion of the loss as the face of their policies, respectively, bore to the whole insurance on the property, from full contribution.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: LawbeNCe W. TIalset, Circuit Judge.</p> <p>On September 22, 1899, tbe defendants Stumpf & Lang-hoff entered into a contract with tbe defendant E. K. Markle Company, a corporation, to erect and construct for them certain shelving, counters, and tables, and place them in a building then being constructed for them on their premises, in tbe city of Milwaukee, for tbe sum of $1,678.50. Thereafter the-Markle Company let tbe contract to tbe plaintiff, as subcontractor, to do a part of said work, and to manufacture said' shelving, counters, and tables, for tbe lump sum of $867. During tbe progress of said work tbe plaintiff did extra work for said E. E. Markle Company amounting to $17.80. Prior to tbe commencement of this action said company paid plaintiff the siim of $500 on account. The court found that the plaintiff furnished the materials mentioned, which were placed in a building owned by Stumpf & Langhoff, and that the latter intended the same for their permanent and special use therein; that the articles so furnished were essential to the use for which they used the building; that they were specially adapted to the place where used; and that plaintiff had a mechanic’s lien therefor. The court further found the giving of notice and the filing of a Hear, and gave judgment for plaintiff for the entire amount claimed. The defendants Stumpf & Langhoff took issue with the material matters alleged in the complaint, and filed exceptions to the findings made. They also requested the court to make findings substantially to the effect that plaintiff’s contract was an entire contract, for a lump sum; that it was not said defendants’ purpose to make such shelving a permanent erection or addition to the freehold; that such shelving was but slightly attached to the building, and the tables were none of them attached to the building, except that two were glued around a center post. Due exceptions to the court’s refusal to find were taken. Judgment in plaintiff’s favor was duly entered, from which Stumpf & Langhoff take this appeal.</p>

<p> Wills: Codicils: Construction: Executors: Duties under power of sale: Appointment of trustee: Intestacy: Bequests by implication: Presumptions: Evidence. </p> <p>1. Tbe will of testator devised, bis homestead to bis four children. It further provided that all the residue of his estate should go to them in trust to sell and distribute to beneficiaries named. By a codicil, made after the death of one child, he gave one-twelfth of his estate to the children of such deceased child, to be held for them in trust, and directed that immediately after his death his homestead be sold and the proceeds disposed of according to the terms of the will and codicil. The will appointed an executor, and appointed the testator’s children as trustees to sell and distribute the residuum of the estate. Sec. 2128, Stats. 1898, provides that when a power in trust is created by will, and the testator has omitted to designate by whom the power is to be executed, its execution shall devolve upon the circuit court. Held, that sec. 2128 did not apply; that by the terms and provisions of the will the sale of the homestead was made a part of the administration of the estate, and, having appointed an executor, thereby the testator designated such • executor to make such sale.</p> <p>2. In such case, it was error to assume that the testator had omitted to designate by whom the power of sale was to be executed, and, by applying said sec. 2128 to the situation under said will, appoint a trustee to make such sale.</p> <p>3. In such case, there was nothing in the will expressly giving the trustees, appointed to sell and distribute the residue of the estate, any right or authority over the homestead. Held, that the sale of the homestead being a duty to be performed by the executor as part of the administration of the estate, and the proceeds, when realized, being a part thereof, such proceeds should be paid and distributed, as personalty, directly to the beneficiaries named, and it was therefore error to direct the executor (appointed by the court trustee for the purpose of making sale of the homestead) to pay over the proceeds to the three children as trustees, to be by them immediately -distributed.</p> <p>4.Testator gave his homestead and household effectp to his four children, and the residue of his estate to them as trustees for sale and distribution among designated beneficiaries. After the death of one child, he made a codicil by which he gave to the children of such deceased child one-twelfth interest “in all my estate, real, personal, and mixed.” The codicil further provided that the homestead be sold, and that its proceeds be disposed of “according to the terms of my will and the provisions of the codicils thereof.” Held, that the word “all” in the express command that the grandchildren were to have one-twelfth of all the estate, was too significant, definite, and unambiguous to warrant a construction that would deprive the grandchildren of one-twelfth of the proceeds of the homestead.</p> <p>5. Where a decedent has left a will, the question whether intestacy exists as to any part of his estate, and the rights of his heir thereto, depends not upon whether the testator intended such situation to exist, or supposed it would exist, hut whether he has, by his will, disposed of all his property.</p> <p>6. In determining whether there is intestacy as to any part of a testator’s estate, it is not absolutely imperative that express and unambiguous words of gift and designation of beneficiaries should be physically written in the will; it is sufficient that the court can find by necessary implication from the words used, that the testator had an intent that his property should go in a certain direction, and that he has so attempted to declare that intent.</p> <p>7. The presumption that one who makes a will intends to dispose of all his property is not conclusive on the question of intestacy. In determining that question, it is not without weight in interpreting and construing the language used, and may he used to aid the court in understanding what was attempted to he expressed.</p> <p>8. Testator gave his homestead to his four children, and the residue of his' estate to them in trust for sale and distribution among the four children and another. One child having died, he made a codicil reciting that he desired to modify that portion of his will giving certain of his estate to the deceased son, one of the four, and did modify it by revoking all devises and bequests made to him. He then gave to the deceased son’s two children a one-twelfth interest in all his estate, to he held in trust until their majority, provided, if either died during minority, that then a proportionate part of the devise should revert to the estate to he divided according to the provisions of the will and codicil. He expressly forbade the mother of the children from acting as trustee, and expressed a desire that none of his estate should, either directly or indirectly, pass to her or under her control. He also directed that his homestead should be sold immediately after his death, and the proceeds disposed of according to the terms of his will and codicil. In all other particulars he ratified his will. Held:</p> <p>(1) That the last will of testator consisted not of one paper, hut of the will and codicils together, and that they, interacting on each other, spoke his purpose that the entire estate should he divided between the five persons in the proportions named.</p> <p>(2) That none of his estate was intestate property.</p> <p>(3) That the grandchildren took their one-twelfth of the residuum of the estate subject to the trust created by the will.</p> <p>(4) That the grandchildren had no interest in the question whether or not the trust was valid as to the interests of those who were at once trustees and beneficiaries, nor whether there was any merger as to such interests.</p>

<p> Equity: Reformation of receipt: Equitable issues: Special verdict: Findings: Evidence. </p> <p>1. On the trial of an issue whether a written receipt for the payment of money should be reformed, so as to express that the amount paid was in full payment, settlement, satisfaction and discharge -of any and all claims held by the receiptor, the verdict of the jury is merely advisory.</p> <p>'■2. "Where a special verdict taken on the trial of an equitable issue is adopted by the court it must be regarded as the findings of the court.</p> <p>3. On the issue whether a written receipt for the payment of money should be reformed, so as to express that the amount paid was ■in full payment, settlement, satisfaction and discharge of any and all claims held by the receiptor, the evidence (stated in the opinion) is held to establish the right to such reformation.</p>

FI. Johnson, Circuit Judge. This is an action of ejectment, brought by the plaintiff b> recover possession of a lot upon what is known as “Jones’ Island,” in the city of Milwaukee.

Halsey, Circuit Judge. The following is the substance of the complaint: In 1873 plaintiff and defendant were married women living with their husbands, who were brothers, in Milwaukee, Wisconsin. Defendant’s husband died in 1881. She is now the wife of James De Baun. At the time first mentioned defendant had a separate estate and was engaged in business on her own account. Plaintiff and her husband removed to Paris, France, in 1873, and there resided for about three years.

C. Ludwig, Judge:. This is an action to recover damages suffered by plaintiff by reason of the alleged false and fraudulent representations ■of defendant’s agent. The complaint sets out the facts substantially as hereinafter stated, and alleges that the representations made by the agent were made fraudulently, and for the purpose of inducing plaintiff to rent said flat..

O. Ludwig, Judge. Action for personal injuries claimed to have been received! by plaintiff while attempting to board a car of the defendant,, which, 'as he claims, had come to a full stop a short distance from tbe street crossing, and wbicb was suddenly started as be bad bold of tbe same with bis bands and was raising bis foot to step tip, thereby throwing him to tbe ground, bruising him, dislocating bis shoulder, and causing fracture in tbe shoulder joint, by wbicb tbe use…

<p> Corporations: Corporate stock: Fraud: Promoters: Purchase of stock below par: Statutes: Pleading: Joinder of causes of action. </p> <p>1. Sec. 1751, Stats. 1898, provides that the capital stock of a corporation, divided into shares, shall he deemed personalty, and, when certificates thereof are issued, such shares may he transferred by indorsement of the owner and delivery of the certificate. See. 1753, and sec. 1, ch. 193, Laws of 1899, provides that “no corporation shall issue any stock or certificate of stock” except in consideration of money, or labor, or property estimated at its true money value, actually received by it, equal to the par value thereof, and that “all stocks . . . issued” contrary to that section shall be void. Sec. 1Y73 contemplates that a corporation may transact business with its own members before it is at liberty to do so with others, and sec. 4436 provides for the punishment of the issuance of a false certificate ■of stock. Held, that the words “issue any stock,” and “all stocks issued,” in sec. 1753, refer to certificates of stock, as distinguished from the stock itself. Clarice v. Lincoln L. Co. 59 Wis. 655, 18 N. W. 492, criticised, and Hinckley v. Pfister, 83 Wis. 64, 53 N. W. 21, in so far as it may be regarded as holding that a person who has subscribed for stock, but not paid in the full amount required by sec. 1753, can have no protection in equity against promoters who have defrauded the corporation, overruled.</p> <p>"2. Plaintiffs brought action against the promoters of a corporation to recover, in behalf of the corporation, the amount of the moneys which the promoters severally subscribed and pretended to pay in. The shares of stock in the corporation were of the face or par value of $100; and it was alleged in the complaint, among other things, that plaintiffs had only paid for their stock at the rate of $34 per share. Held, that, notwithstanding such allegations, the complaint stated a good cause of action in equity in favor of the plaintiffs for the benefit of the corporation.</p> <p>:3. In an action by subscribers to corporate stock against the corporation and its promoters, the complaint stated three good causes of action and thereon the plaintiff prayed judgment: •First, that the corporation have judgment for moneys subscribed but not actually paid in by the promoters for their stock; second, that plaintiffs recover of the defendants damages sustained by false and fraudulent representations as to the corporation’s assets, whereby plaintiffs were induced to purchase stock; and third, that the board of directors and defendants be enjoined from selling plaintiffs’ stock to pay assessments thereon and that defendants be enjoined from selling their own stock. Held, that the complaint stated a cause of action at law for damages and another in equity to prevent enforcement of liability of plaintiffs which were improperly united.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: LawRence W. ITalsey, Judge.</p> <p>This is an action for false imprisonment, in which the plaintiff, after a jury trial, recovered a judgment against the defendants for $500 and costs. It appeared upon the trial that the action grew out of a previous civil action in which the defendant Redislee had sued the plaintiff, IIolz before the defendant Wolslci, a justice of the peace, for the unlawful sale of mortgaged chattels. That action was brought in September, 1900, and the case was Sbntinued from time to time until October 26, 1900, when Redislee asked for a further continuance. The continuance was granted by the justice, and this entry made in his docket:</p> <p>“Plaintiff asked for an adjournment for the reason that his lawyer could not be present. Motion granted. Case is adjourned until the 2d day of November, A. X). 1900, at 2 p. m., at this office.”</p> <p>On the 2d of November Holz did not appear, claiming that the justice had lost jurisdiction, and a subpoena was issued for him, commanding his appearance. He refused to obey the subpoena, and, upon the fact appearing by affidavit, the justice, Wolshi, issued an attachment against him for contempt, upon which the defendant Strothenlce arrested him, and brought him before the justice, where he was detained some time. It further appears that upon the return of the constable with Holz the defendant Wolslci entered in his docket that the “defendant Fred Holz now appears in person, and asks that this cause be continued until the 8th day of November, 1900, at 2 o’clock in the afternoon of that day. Motion granted, and by consent of parties this action is adjourned,” etc. It also appears that while Holz was still at the justice’s office a complaint was made against him for using abusive language towards Strothenlce, and he was tried before Wolslci, and sentenced to imprisonment in the house of correction for fifteen days, and that he worked out the sentence. The testimony as to his imprisonment in the house of correction was, however, afterwards stricken out by the court, except so far as it was offered for the purpose of impeachment of Holz’s credibility as a witness. The ver•dict of the jury was general against all of the defendants.</p>

<p> Evidence: Account boohs: Admissibility: Statutes: Appeal and errorr Material error: Limitation of actions: Instructions to jury. </p> <p>1. Secs. 4186, 4187, Stats. 1898, make an account book, when verified in the manner there prescribed, presumptive proof of the charges therein contained, but provide that such books shall not be admitted as testimony of any item of money delivered at one time exceeding five dollars, or of money paid to third persons. In an action on contract plaintiff was allowed, against proper objections, to introduce in evidence, generally, as proof of his cause of action, an account book, not verified as the statute required in several material particulars, and containing charges for money paid at one time exceeding five dollars, and also charges of money paid to third persons. Held, that it was error to receive the book in evidence without any limitation whatever as to its evidentiary effect.</p> <p>2. Such error is not immaterial because defendant admitted on the trial that the plaintiff was entitled to recover the full amount demanded in his complaint, if he was entitled to recover at all, where it appears that the book may have been considered by the jury on the issue respecting the nature of the contract, and have turned the scale in plaintiff’s favor.</p> <p>3. Where the question of whether plaintiff’s claim was barred by the statute of limitations turned upon whether he was authorized by defendants to apply certain rents in his hands, belonging to them, in part payment of their indebtedness to him, it was proper to admit in evidence letters from a third party to defendants, requesting them to make certain payments to persons named, together with certain receipts to plaintiff therefor, plaintiff having testified that by authority of defendants he executed the requests contained in such letters, by collecting rents for defendants and making the payments therewith, taking therefor the receipts in his own name.</p> <p>4. Remarks of the court in overruling objections to the introduction of such letters and receipts, that “whether plaintiff had authority to collect the rent or not is not very material when we come right down to it,” criticised, and held to be language tending to confuse the jury.</p>

<p>Appeal from an order of tbe circuit court for Winnebago-county: Geo. W. BueNElu, Circuit Judge.</p>

<p>Appeals from a judgment of tbe county court of Winnebago county: 0. D. OlevelaNd, Judge.</p> <p>Action to recover on an accident insurance policy. The •complaint stated two causes of action; one for $25 per week for twenty-seven weeks for disability caused by a fall from a bicycle, and one for $25 per week for twenty-tbree weeks for disability caused by a' fall on a sidewalk, where plaintiff was walking by the aid of a crutch, he not having fully recovered from his first injury. The certificate of insurance specified plaintiff’s occupation as proprietor of a chair factory, and office duty. It insured him for $25 per week for not exceeding fifty-two weeks, as follows: - Eor loss of time resulting from bodily injury effected during the life of the certificate “through external, violent and accidental means, which shall independently of all other causes, immediately and wholly disable him from transacting any and every kind of business pertaining to his occupation above stated, . . . except that if the insured is injured while engaged temporarily or otherwise in any occupation or exposure classed by this association as more hazardous than that here given, his insurance and weekly indemnity shall only be so much as the premium paid by him will purchase at the rates fixed for such increased hazard.” On the face of the certificate it was conditioned upon acceptance by the assured of “the conditions contained in ■this certificate as a basis of this contract,” payment to be subject to the “conditions in his certificate contained and indorsed on the back hereof.” Among such indorsed conditions was this:</p> <p>“Written notice shall be given the said association at West-field, Mass., within ten days of the date of the accident, and injury for which claim of indemnity or benefit is made, with full particulars thereof, including a statement of the time, place and cause of the accident, the nature of the injury and the full name and address of the insured and beneficiary, and unless such notice and statement is received as aforesaid, all ■claim to indemnity or benefit under this certificate shall be ■forfeited to the association.”</p> <p>The issues presented for consideration in the circuit court were: (1) Was the condition on the back of the certificate a part of the contract of insurance ? (2) Was the notice of the first injury given in time ? (3) Was the notice of the second injury given in time ? (4) If plaintiff was entitled to recover at all on the first cause of action, was he entitled to recover $25 per week? (5) Was the second injury caused by external, violent and accidental means independently of all other causes, immediately and wholly disabling the plaintiff' from transacting any and every kind of business pertaining to his occupation stated in the certificate ?</p> <p>At the close of the evidence defendant’s counsel moved for the direction of a verdict, which was denied. Plaintiff also moved for the direction of a verdict, for $25 per week for twenty-seven weeks, which was also denied. The court then directed verdict in plaintiff’s favor for $10 per week for twenty-seven weeks, with interest. Judgment was rendered accordingly. Both sides appealed, plaintiff claiming that he-was entitled to recover $615, being $25 per week for twenty-seven weeks, with interest; and defendant that upon the undisputed facts of the case notice of the accident was not sent to it in time, and that therefore all claims under the certificate were forfeited.</p>

E. DuNwiddie, Circuit Judge. Action to recover money paid to defendant for three insurance policies. Plaintiff claimed that George S. Parker,.

Appeals from a judgment and an order of the circuit ■court for Milwaukee county: LawbeNCE W. Halsey, Circuit Judge. Two appeals from the circuit court for Milwaukee county, heard together by stipulation of the parties. Action to foreclose a mortgage.

<p>Appeal from an order of the circuit court for Milwaukee county: Wakreit D. TaRRant, Circuit Judge.</p> <p>Action to enjoin the GJiamber of Commerce of the City of Milwaukee from expelling or suspending plaintiffs from the chamber for an alleged violation of its rules of organization.</p> <p>The following facts were set forth in the complaint by appropriate allegations: Since more than one year prior to January 2, 1902, plaintiffs have been partners in business as Bartlett, Frazier & Co., except that during such period, prior to the date mentioned, plaintiff Pierce was taken into the firm. The business of the firm has been and is that of dealers in grain and other products and property, and public ware-housemen of grain. The members of the firm, except Pierce, are members of the defendant Chamber of Commerce in. good standing, and have been such since prior to November 29, 1901. Their business is extensive and profitable. On November 29, 1901, defendant L. Bartlett & Son Company was and since has been a duly organized corporation and a member of said chamber in good standing. Such Chamber of Commerce is a corporation, duly organized under the laws of this state. By force of its by-laws, all controversies between its members, of the nature of the one hereafter mentioned between plaintiffs and L. Bartlett & Son Company, are required to be submitted by the parties thereto, for settlement, to arbitration, with the right of appeal to a board of appeals of the chamber.</p> <p>The following are among the by-laws of the corporation:</p> <p>“If it shall be charged that any member of the association has failed to comply promptly with any contract, either verbal or written, has neglected or refused to comply promptly with the award of any board of arbitration or board of appeals,. rendered in conformity witb the rules and regulations of the association; or has refused or neglected to submit any matter of difference to arbitration, it shall be the duty of the board of directors, upon the complaint in writing of the aggrieved party, to consider the matter at any regular, adjourned or special meeting of said board, of which meeting the accuser and the accused shall have had at least six days’ notice in writing to attend; and if by a majority vote of the directors present — there being at least six votes in the affirmative — the charges made shall be decided to be sustained, the member in fault shall, by such finding, stand suspended from all privileges of membership until the matter complained of shall have been satisfactorily settled in the judgment of the board of directors. Should, however, the gravity of the offense be deemed such as to merit expulsion, the member in fault may, by a majority of two-thirds of the directors present — there being not less than six votes in the affirmative — be expelled from the association. Any member of the association suspended under the provisions of these rules shall stand suspended until he shall have complied -with and performed such further conditions of reinstatement, in addition to those herein provided, as the board of directors may, in its judgment, see fit to impose.”</p> <p>“The duty of the board of arbitration shall be to investigate and decide all disputes and difficulties of a financial and ■commercial character which may be submitted to it. The statements of the principals and witnesses in each case shall be under oath and be recorded.”</p> <p>“The decisions of the board of arbitration may be appealed from, and the case carried to the board of appeals for its revision, within three business days after a copy of the award of the former committee shall have been delivered to the parties concerned, and by notice of such appeal being given to the ■secretary; and the secretary shall immediately notify the ■opposite party of such appeal.”</p> <p>“It shall be the duty of the board of appeals to review such cases as may be appealed from the board of arbitration and fqrmally brought before it; and its decision shall be final and binding upon the parties. The board shall, however, before its decision, receive, under oath, such new evidence as may be offered, and if, in its judgment, evidence is produced which will justify a rehearing of the case by the board of arbitration, it shall remand the case to the said board of arbitration for a new trial. Any final award or finding of the board of appeals shall be based on the record of the board of arbitration, and shall be rendered in the same manner as the awards of the board of arbitration.”</p> <p>Prior to September 18, 1891, clerks of members of the chamber were authorized to do business in the exchange room for their employers, but not for themselves or any other person, firm or corporation. On snch day the rule on the subject was amended to read as follows:</p> <p>“Any person holding a clerk’s ticket shall have the right of entrance to the exchange room, but shall not have the right to transact any business for his employer, himself or any other person, firm or corporation. Any clerk’s ticket and the payment therefor may be declared forfeited by the board of directors upon satisfactory evidence that the holder of the same has violated any of the privileges granted by it.”</p> <p>The rule as so amended has been, since the date mentioned, enforced. November 29, 1901, Walter E. Brown was a clerk for plaintiffs, entitled to be admitted as such to the floor of the exchange, but without authority to do anything in violation of such rule. L. Bartlett & Son Company, on such date, with knowledge of Brown’s disability under the rules of the chamber, to make trades within its jurisdiction, recognized him as having authority to do so by purchasing, ostensibly of him as agent of plaintiffs, the privilege of calling on them to sell to said L. Bartlett & Son Company, at any time prior to the close of business of the chamber regularly held on the floor of the exchange, December 7, 1901, 50,000 bushels of wheat, contract grade, for delivery in May of the year 1902, and upon the next day caused Brown, as clerk for plaintiffs, to check up said transaction as that of plaintiffs and exchange with . it memoranda thereof.' Plaintiffs repudiated such transaction as soon as they were informed thereof. With a view to having the controversy as to whether such transaction was binding upon plaintiffs settled in the manner required by the rules of the chamber, December 18, 1901, L. Bartlett & Son Company duly lodged a complaint in writing against them, with the secretary of the chamber, setting forth the making of the trade, with all the particulars thereof, and alleging that on the morning thereafter, according to custom in conducting business on the floor of the exchange, Brown, whom plaintiffs had for a long time intrusted with the work of checking up their trades and giving mem-oranda thereof and paying and receiving money in respect thereto in the usual way, checked up the disputed trade, gave the customary memorandum thereof, made out by him with plaintiffs’ initials thereon, and received from the corporation the value of the privilege, $62.50; that December 7, 1901, the corporation demanded to exercise its privilege in the customary way; that plaintiffs refused to recognize its right in the matter by selling to it the grain called for; that thereupon it liquidated its damages for plaintiffs’ breach of contract, at $1,843.45, by buying in the open market on the floor of the exchange, in the usual way, the amount of May wheat it was privileged to purchase of plaintiffs. On such showing L. Bartlett & Son Company asked the board of arbitrators of the chamber to award it, against plaintiffs, the said sum of $1,843.45. To that complaint plaintiffs answered under the rules of the chamber, setting forth the facts before detailed as to Brown’s want of authority and their prompt repudiation of his violation of the rules of the chamber. The arbitrators decided, upon evidence submitted for their consideration, that plaintiffs never authorized or ratified Brown’s act in attempting to make a trade for them; that the money received by him from L. Bartlett & Son Company never came to their hands, but was dishonestly retained by him; that he was under disability to bind them in the matter under the rules of the chamber; that it was outside the scope of his employment; that he had no actual authority to make the trade, and that his legitimate duties as clerk for them gave him no apparent authority to do so. The complaint was therefore dismissed. .Tlie complainant appealed to the board of appeals, which, wholly on the record of the proceedings before the arbitrators, decided that if the trade in question as originally made was void, Brown’s act in checking np the transaction and delivering the memorandum thereof to L. Bartlett & 8on Company, according to the usual custom, ratified the transaction, and that complainant was entitled to recover the full amount of damages claimed, $1,843.45, and $81, cost of the arbitration proceedings. In making such decision the board of appeals wilfully violated the rules disabling clerks of members of the chamber from making trades within its jurisdiction, for their employers, and in so doing exceeded its jurisdiction and committed an inexcusable mistake of law. Plaintiffs have refused to abide by such award solely upon the ground that it is void for the jurisdictional error aforesaid. By reason thereof L. Bartlett & Son Company have instituted proceedings under the rules of the chamber to have plaintiffs punished by exclusion or suspension from such chamber unless they comply with the award; and if not restrained by the court the purpose of such proceedings will be consummated. Plaintiffs’ business is of such a character that if their status as members of the chamber in good standing is disturbed as threatened, they will be greatly and irreparably damaged, and their damages will be of such a character that the same cannot be estimated and measured in money. A permanent injunction was prayed for, restraining the chamber from disciplining plaintiffs because of their refusal'to abide by the award, and a temporary injunction, preserving the existing conditions of things pending litigation, was requested.</p> <p>L. Bartlett & 8on Company answered, setting forth the facts heretofore detailed respecting the transaction between it and Brown, and alleged that he was, at the time thereof, authorized and empowered, and held out to the world as entitled, to make for them such trades as the one in question; that he had been accustomed to do business of that kind ■openly and to their knowledge before the amendment of the rules mentioned in the complaint, and that his authority to continue as before was not thereafter revoked by any act on the part of plaintiffs. The answer set forth the facts relating to the trial of the controversy, respecting plaintiffs’ liability under the rules of the chamber and the result thereof as heretofore detailed, and alleged that all the questions raised by the ■complaint, including the effect of the rule of the chamber as to clerks doing business for their employers, as regards whether it merely renders a clerk violating it liable to punishment, or, in addition, renders the trade made by him void, were submitted to the arbitrators and board of appeals and were irrevocably closed by the final decision. The answer further set forth the rules of the chamber showing, among other things, that if the award of the board of appeals is valid, the board of directors has no discretion as to whether plaintiffs should be' disciplined for their refusal to abide thereby. It also set forth the evidence taken by the arbitrators. Such evidence is to the effect, in part, that it was one of Brown’s regular duties to check up his employers’ trades and deliver the customary memoranda thereof and receive money thereon; that prior to the amendment of the rule disabling clerks of members of the chamber from making trades for their employers, Brown had made trades upon the -floor •of the exchange for plaintiffs, and without any objection from them; that they had ratified such trades. There was further evidence showing that Brown made one trade after the amendment of the rules, which plaintiffs recognized, feeling honorably bound to do so, but that it was not a trade within the jurisdiction of the chamber. There was evidence tending to show that plaintiffs kept Brown in their employ after they knew that he was not reliable, and that they had such knowledge, before the transaction in question. The evidence on the part of the plaintiffs was unequivocal that they never authorized Brown to make any trade for them in violation of the rule disabling him from doing sucb business, and that they never recognized or ratified any violation of the rule by him as binding upon them.</p> <p>The defendant Chamber of Commerce and other defendants joined in an answer, setting forth, among other things, that in the proceedings before the arbitrators and before the board of appeals, the following questions were submitted for decision: Was Walter E. Brown authorized by Bartlett, Frazier & Oo. to make the trade in question with L. Bartlett & Son Company, said Brown being a clerk in the employ of the firm of Bartlett, Frazier & Oo. ? Did said Bartlett & Son Company have a right to assume that Brown had implied authority from Bartlett, Frazier & Oo. to make the trade in question? Did Bartlett, Frazier & Oo. ratify said trade-by the receipt of the consideration, $62.50, and the exchange of written ratifications, and otherwise, notwithstanding the consideration was paid to Brown and the ratification was-given in Bartlett, Frazier & Co.’s name by him, it being part of his regular duties, on behalf of plaintiffs, to ratify trades- and collect the consideration ? Said answer stated the result of the trial before the arbitrators, and of the hearing upon the appeal to the board of appeals, and alleged tkát all the proceedings in the matter were strictly in accordance with law, and without any wilful or other violation of the rules of the chamber.</p> <p>There was an'affidavit on behalf of Bartlett, Frazier & Oo. setting forth, among other things, that Brown, in making the transaction in question, acted without any authority from Bartlett, Frazier & Oo., either express or implied, and that in all cases where Brown delivered confirmation cards or memoranda in his capacity as clerk for plaintiffs, in the confirmation of their board trades, such transactions were confined to cases where a previous valid contract had been made with an authorized representative of the firm; that in the common and well-known custom of dealings in the Chamber of Commerce of the city of Milwaukee, such work is, as a< rule, performed by clerks having no authority to make trades; that such work does not involve a ratification of trades, but simply a checking over of contracts previously made by authorized persons, for the purpose of avoiding errors.</p> <p>Two motions were made upon the pleadings and the affidavit, to vacate the temporary injunction, one being made-by L. Bartlett & Son Company, and the other by the Chamber of Commerce and its codefendants aside from L. Bartlett' & Son Company. The motions were granted and plaintiffs-appealed.</p> <p>They contended, inter aZia/that the award of the board of-appeals of the Chamber of Commerce is conclusive both as to the facts and as to the-law, and, even if erroneous, cannot be reviewed by the courts. Consolidated W. P. Co. v. Nash, 109 Wis. 490 — 503; McCord' 'v. Flynn, 111 Wis. 78-88; 2 Am. & Eng. Ency. of Law (2d ed.), 778, 786, 787; Boston W. P. Co. v. Gray, 6 Met. 131; Burchell v. Marsh, 17 ILow. 344; Fudicker v. Guardian Mui. L. Ins. Co. 62 N. Y. 392; Meldrow v. Norris, 2 Cal. 74; Fairchild v. Adams, 11 Cush. 549, 555 ; Smith v. B. & M. R.. Co. 16 Gray, 521; Cutting v. Stone, 23 Vt. 571; Pitcher v.. Board of Trade, 121 Ill. 412, 420; Ryan v. Cudahy, 157 Ill-108; In re Haebler v. N. Y. Produce Ex. 149 N. Y. 414; Sperry’s Appeal, 116 Pa. St. 391; Woolsey v. I. O. O. F. 61 la. 492; Osceola Tribe No. 11, I. O. R. M. v. Schmidt, 57' Md. 9.8; Angelí & Ames, Corp. (11th ed.) § 418; Belton v.Hatch, 109 N. Y. 593; O’Brien v. Grant, 146 N. Y. 163, 173; The award of the board of appeals was proper. The trade was within the apparent scope of Webster’s authority. Mechem, Agency, sec. 223; Kelly v. Phelps, 57 Wis. 425; Barlcley v. B. & 8. B. Go. 71 N. Y. 205; Hatch v. Goddington, 95 U. S. 48; Wright v. Herrick, 128 Mass. 240; Gilchrist v. Brande, 58 Wis. 184; Claflin v. Lenheim, 66 N. Y. 301; Zoiler v. Jovin, 48 N. H. 324; Wilson v. Noonan, 27 Wis. 598, 608; Godfrey v. Schneclc, 105 Wis. 568. The appellant is liable on the ground of negligence. Wharton, Negligence, § 238; Wright v. N. Y. Gent. B. Go. 25 N. Y. 562; Davis v. D. & M. B. Go. 20 Mich. 105; Wood, Master & S. sec. 432.</p>

<p>Appeal from a judgment of tlie circuit court for Milwaukee county: Wabeen D. Tarbant, Circuit Judge.</p> <p>On December 3, 1901, one Ered J. Klein gaye tibe plaintiff, in consideration of $25 to bim paid, an option in writing to purchase certain described property in the city of Milwaukee, which option contained the following clause:</p> <p>“•In case said J. F. Mueller elects to purchase said land under this option, he is to pay at the office of Theo. Mueller, in Milwaukee, Wis., within four weeks from date thereof, forty-nine hundred and seventy-five dollars, when a warranty deed of said land shall be delivered, conveying said land free and clear of all incumbrances, and a complete abstract of title shall be furnished.”</p> <p>Said option was duly recorded. On December 9th thereafter, Klein died intestate. Within the period above limited, and on December 31, 1901, the plaintiff elected to purchase said land, and tendered at the office of said Theo. Mueller the sum mentioned in the option; but said Mueller refused to accept the same, giving as his reasons therefor that Klein was dead. February 10, 1902, the defendant O. J. Nortmann was duly appointed administrator of Klein’s estate. The other defendants are children and heirs at law of Klein. The plaintiff brings this action to enforce specific performance of said option contract. The court found the facts as above stated, and that all the allegations of the complaint were true and proven, and that plaintiff had duly performed the contract on his part. The defendants filed due exceptions, and from a judgment entered for plaintiff, bring this appeal.</p>

This is an action to recover the amount due upon a promissory note. Tlie complaint alleges tlie execution and delivery by tlie defendants to tlie plaintiff on or about October 1, 1895, of a promissory note in the following form: “$3,000. St. Paul, Minn., Sept. 20, 1895. “On or before one year after date, I promise to pay to tbe order of Bohn Manufacturing Company three thousand dollars, at Manitowoc Savings Bank,. Manitowoc, Wis. Value received.

Action for partition of a vessel licensed and registered under tbe navigation laws of tbe United States, and used upon tbe waters of Labe Michigan. Plaintiff and defendant owned the vessel in unequal shares, tbe former being tbe owner of one-third and tbe latter of two-thirds.

<p> Assault and battery: Precise date of offense: Instructions to jury: Evidence: Credibility of defendant: Damages. </p> <p>1. In an action for assault and battery the plaintiff made no pretense in her testimony of an assault on more than one occasion, and fixed that occasion with absolute positiveness on a certain day. The defense, besides direct contradiction of any assault, com-sisted of evidence tending to prove an alibi on the day specified. Held, that it was not error to give to the jury an instruction, in substance, that it was not essential that the evidence show that the acts complained of were committed on the day alleged; that if the evidence satisfied the jury that the act was committed at or about that day, and it was the very act described in the complaint, then it did not defeat the action if the date alleged in the complaint was not the precise day on which the specified act was committed. Taylor v. Young, 61 Wis. 814, 21 N. W. 408, followed.</p> <p>2. In such case, the court gave an instruction, in substance, that, if the jury believed the defendant’s testimony that he committed no assault, they must render a verdict in his favor. The jury were also instructed to consider and weigh the evidence and credibility of each witness who had testified in the case. Held, that the instruction was not so framed as to lead the jury to think they were merely to compare the plaintiff’s testimony with defendant’s testimony, and to exclude from their consideration all other testimony.</p> <p>3. In an action for assault and battery, in attempting undue familiarity with plaintiff and subjecting her to immoral solicitation, a verdict of $500 is not excessive although the physical and pecuniary injury may be insignificant.</p>

This is an appeal from an order entered in the circuit court ■October 28, 1901, dismissing an appeal from a judgment rendered by a justice of the peace on the ground that the appeal papers were insufficient to give the circuit court jurisdiction.

<p>Appeal from a judgment of tlie circuit court for Kewaunee ■county: Michael Kiewah, Circuit Judge.</p>

Tbis action was commenced against defendant Crowley and others to recover on a promissory note. A judgment was rendered against such others by default for the amount claimed. Crowley answered, claiming that what purported to be his signature was a forgery. Prior to the judgment mentioned, upon a stipulation signed by Crowley in person, in the absence of and without the knowledge of his attorney, an order was entered dismissing the action as to him without costs.

was the trusted agent of Margaret Somervaill, who died at the age of about eighty, and for many years prior had been feeble, mentally and physically, and largely incapable of caring for her own affairs; that as such agent he committed various acts of breach of trust, to his own benefit, consisting in procuring the purchase by said Margaret of various parcels-of real estate at grossly excessive prices, far above the true cost thereof to him, and thereby perverting to his own…

This is an action to recover damages for injuries suffered by the plaintiff by reason of being thrown from her buggy while riding upon a highway in the defendant town on the last day of September, 1900.

Action to foreclose a mortgage. Tbe facts admitted by tbe pleadings and found by tbe court are as follows: October 21, 1896, Mary Tweeddale owned certain land constituting ber homestead. She conveyed the same to her son, the defendant, Daniel Tweeddale, taking therefor a bond for her support: Said parties thereafter united in conveying the land to one Perry.

Maclcin was appointed administrator with the will annexed of the estate of Patrick Madden, deceased, in 1893. Said estate consisted almost exclusively of a parcel of land, to which the widow of the testator was entitled, in possession, during her life, and which, after her death, was devised one-half, clear of incumbrances, to a son, Philip, certain money legacies out of the land to others, and the residue after pay- ■ ment of debts, to Mary Ann Brown.

<p>Appeal from a judgment of the circuit court for Eond du Lac county: Michael BÚRWaet, Circuit Judge.</p> <p>This action was commenced April 17, 1900, by the plaintiff’s testatrix, Susan IT. Sizer, to remove the defendant from certain premises described, on the ground that he was wrongfully holding possession thereof after the expiration of the lease under which he entered into such possession. It appears, and is undisputed, that March 2, 1891, Susan H. Sizer’s grantor, R. B. Sizer, then the owner of the premises, made a lease in writing of the same to the defendant for the term of one year from April 1, 1897, therein agreeing to give to the defendant at the end of the first year the refusal for, two additional years at the same annual-rental of $180 per year, payable in monthly payments of equal amounts; and the said lease contained a provision to the effect that the said R. J. Sizer therein further agreed “to sell the property” to the defendant, “should he wish to buy it, at any time during the period of this lease or the extension, for the sum of $3,000, and to deliver the same to” the defendant “free and clear of all debts and taxes, for the aforesaid price of $3,000 cash.” The defendant therein agreed to pay the rent at the times and in the manner aforesaid during the continuance of the lease, and not to underlease the premises, nor assign the lease “without the consent of the lessor, and to quit and to deliver up the same to the lessor peaceably and quietly at the end of said term,” etc. And the lease also contained a provision that “the covenants herein contained shall bind the parties mutually, and their respective heirs, executors, administrators, and assigns.” The complaint alleges, in effect; the facts stated, and also that the defendant failed to purchase such premises as stipulated in the lease; that the period of the lease had expired; that the defendant held over the premises unlawfully and without permission of the complainant or the said R. J. Sizer; that April 6, 1900, the defendant was served with a written notice requiring the delivery of the premises to the complainant. Judgment was demanded that the defendant be removed from the premises. The defendant answered by way of admissions, denials, and counter allegations, to the effect that he had an option to purchase the premises at any time before April 1, 1900, for $3,000; that, relying upon such option, he had expended money and labor in improving the premises, and decorating the interior of the house, and filling up the yard; that March 26, 1900, the defendant notified R. J. Sizer of his election to purchase the premises, and that he was then ready to pay the agreed consideration of $3,000; that R. J. Sizer then and there promised to carry out such agreement, and agreed to complete the sale, and have the necessary papers made out to consummate the purchase; that the defendant repeatedly went to the office of the attorneys of R. J. Sizer to see that the papers were made out, as agreed, hut that they were not so made out; that he continued to go to the office of such attorneys to see about such papers until he was notified, to deliver up the premises, April 6, 1900; that the defendant and another on March 30, 1900, went to the abode of R. J. Sizer, and tendered payment of the $3,000, and then and there demanded of him a deed of the premises in accordance with the terms of the contract, and that such tender and demand were proclaimed at said abode of R. J. Sizer for the reason that the defendant was unable to find the said R. J. Sizer, although he made diligent search for that purpose; that he continued to search for the said R. J. Sizer from that time up to April 6, 1900, when the defendant received notice to quit the premises; that the defendant alleges that R. J. Sizer absented himself during the aforesaid times for the purpose of preventing the defendant from mating a tender to him of the $3,000; that April 19, 1900, the defendant was given the first opportunity to make the tender, as agreed, which he did, and then and there demanded a deed of conveyance of the premises, and that the said R. J. Sizer refused to accept such tender and to carry out his part of the contract for the sale of said premises; that the defendant is still in the possession of the premises, as the owner of the equitable title thereof; and that he is ready and willing to carry out his part of the contract, and to pay the price of $3,000, as the court may direct.</p> <p>At the close of the trial, the jury, by the direction of the court and consent of counsel, returned a special verdict to the effect that on or about March 24, 1900, the defendant notified R. J. Sizer that the defendant elected to purchase the premises described, pursuant to the terms of the contract of sale contained in the lease; (8) that when Susan IT. Sizer received the deed of the premises from R. J. Sizer to herself (March 29, 1897), and thenceforth, she knew or understood that theretofore said lease, or an instrument giving to the defendant an option to purchase said premises up to April 1, 1900, had been executed and delivered to Hie defendant by R. J. 'Sizer; (10) that April 6, 1900, Susan H. Sizer, plaintiff’s testatrix, did cause to be served on the defendant the notice in writing in evidence, demanding of the defendant the possession of the premises; (11) that on or about April 19, 1900, the defendant tendered to R. J. Sizer, in person, $3,000, in legal-tender money of the United States, as payment of the purchase price of the premises under such contract, and demanded of him a deed conveying said premises to the defendant pursuant to said contract, and that R. J. Sizer refused to accept said money, and refused to comply with the demand for a deed. And the jury further found, as matters of fact, (2) that March 30, 1900, the defendant demanded a deed of the premises, and tendered payment therefor, under the circumstances and in the manner alleged in the answer; (3) that March 24, 1900, and at all times since, the defendant was able, ready and willing to receive a conveyance of the premises, and make payment therefor, according to the terms of the contract of sale contained in the lease; (4) that April 6, 1900, the defendant informed R. J. Sizer that the defendant was ready to accept a deed of the premises, and to pay therefor according to the contract, and that, in reply, R. J. Sizer said that it was then too late for the defendant to do so; (5) that April 6, 1900, was the first time after March 24, 1900, when the defendant had any reasonable opportunity to make that statement to the said R. J. Sizer in person; (6) that R. J. Sizer did not absent himself, from March 26, 1900, until April 2,1900, from his home, for the purpose of avoiding defendant, and in order to prevent him from tendering payment for said premises to, and demanding a deed thereof from, R. J. Sizer, in person, under such contract of sale; (7) that on March 26, 1900, and thereafter up to April 2, 1900, for the purpose of demanding of said E. J. Sizer a deed of said premises, and of tendering to bim payment therefor, the-defendant did make diligent and reasonable search and inquiry for said E. J. Sizer, and did fail to find him; (9) that, at all times since April 1, 1900, the defendant has held possession of said premises, claiming the right to do so as the-equitable owner thereof, under such contract of sale, and the-tender or tenders of performance thereof on his part which defendant claims to have made. Judgment was thereupon ordered to be entered in favor of the defendant in accordance-with such special verdict. ' From the judgment so entered, the plaintiff brings this appeal.</p>

<p> Municipal corporations: Defective sidewalks: Negligence: Personal injuries: Charter provisions: Action against city and lot ovoner: Conditions precedent: Evidence: Competency of husband, wife being party: Appeal and error: Special verdict: Submission of questions: Instructions to jury: Immaterial error. </p> <p>1. Under tide charter of tire city of Fond du Lac (ch. 152, Laws of 1883), a party suffering injury by reason of a sidewalk being out of repair must exhaust Ms remedy against the lot owner, as a condition precedent to bis right to maintain an action against the city. In an action against said city for injuries occasioned by a defective sidewalk, in which the lot owner was joined, there was failure to plead and prove that plaintiff had exhausted her remedy against the lot owner. Held, that the action against the city could not he maintained, and it was not error to enter judgment in favor of the city.</p> <p>2. In such action, no claim was made, either in the pleadings or upon the trial, that recovery was sought for an original faulty construction of the sidewalk, but the distinct claim was made from beginning to the end of the trial óf failure to repair. The complaint was not amended. There was some slight testimony, which incidentally crept into the case, from which original faulty construction might be claimed. Held, .that it was too late to make claim, for the first time in the supreme court, that the provisions of the charter of Fond du Lac (requiring exhaustion of remedy against lot owner before action against city could be maintained) did not apply to cases of original faulty construction.</p> <p>13. Whether under the charter of Fond du Lac (ch. 152, Laws of 1883), there is a different rule as to' bringing actions against the city based on negligence occasioned by an original faulty construction of a sidewalk, from that occasioned by neglect to keep in repair, not decided.]</p> <p>4. Where a wife is defending an action in a representative capacity, an objection to competency of her husband as a witness is not tenable.</p> <p>5. In an action against a city and lot owner for personal injuries occasioned by lack of repair of a sidewalk, it is not error to exclude statements of a witness as to the condition of the walk at times which he was unable to locate as being anywhere near the time of the injury.</p> <p>6. In such case, it is not error to exclude statements of a witness that the condition of the sidewalk was bad. Such statements are mere conclusions, and invade the province of the jury.</p> <p>7. Where the findings of the jury exculpate the defendant from any liability, any error in the instructions to the jury on the subject of damages becomes immaterial.</p>

<p>Appeal from a judgment of the circuit court for Sheboy-gan county: Michael Kjbwaw, Circuit Judge.</p> <p>Action for damages for breach of alleged contract by the defendant to sell to the plaintiff, upon the plaintiff’s agreement to purchase the same, all the roll-rag paper needed to be used in the plaintiff’s manufacturing business from the 1st day of September, 1899, to the first day of September, 1900, at the price of $1.47J per 100 pounds, delivered at She-boygan. The complaint alleged failure to' deliver, after February 1, 1900, 199,510 pounds needed in its business, and demanded by the plaintiff, whereby it was obliged to purchase said paper elsewhere, at a price exceeding the contract price by $384.02, for which damages are prayed. The general facts disclosed by the evidence were that the plaintiff, for several years prior, had a contract with the defendant to furnish it all of its paper for each year at an agreed price; that in August, 1899, shortly before the expiration of such contract year, it was solicited by defendant’s agent to renew contract for an ensuing year, and did so; all correspondence on this subject being in evidence, and showing clearly the purpose on both sides to make such contract. Thereupon the defendant prepared, of date August 28th, a writing to the following effect:</p> <p>“An agreement between W. D. Messinger & Co., of Chicago, Ill., party of the first part, and the Excelsior Wrapping Co., of Sheboygan, Wis., party of the second part. . Party of the first part to^ furnish party of the second part what roll-rag paper (same as has been furnished during the last 12 months) at $1.42-| per hundred, lbs., f. o. b. Sheboy-gan, from Sept. 1st, 1899, to Sept. 1st, 1900, to be taken as ordered.</p> <p>“EXCELSIOR WRAPPER Co.,</p> <p>“By W. E. Tallmadgke, Manager.</p> <p>“W. D. MessiNger & Oo.,</p> <p>“Per G. IT. RichMONd, Agt.’</p> <p>Shipments as called for continued, with some delays not material to this action, until about February, when defendant repudiated responsibility to supply any more paper; claiming that the true construction of this agreement was to furnish only so much paper as had been furnished during the preceding year, which limit had then been exceeded. The court (jury haring been waived)’ found that the written contract above mentioned is indefinite and uncertain; that before the execution thereof both parties intended to make a valid contract for a year’s supply of paper; that after its execution both parties treated it as a valid contract for a year’s supply of paper; that defendant complied with it up to about the middle of January, 1900, and then refused to sell and deliver any more; that, previous to the time of such refusal, defendant had received an order for paper to supply plaintiff’s factory for the remainder of the term; that, after notice that it would do so, plaintiff purchased paper in the open market, for no more than its needs, at a necessary increase in price of $384.02. As conclusion of law, the court found that the contract entered into between the parties was a valid and legal contract for the purchase and sale of all the paper needed in plaintiff’s manufacturing business from September 1, 1899, to September 1, 1900, and accordingly rendered judgment in favor of the plaintiff and against the defendant for $384.02, from which defendant appeals.</p>

<p> Wills: Construction: Rights of beneficiary: Estates of decedents r Claim for support. </p> <p>1. A testator expressly charged bis estate with the support of his-son Henry “during bis natural life,” and expressly provided that in case said son survived bis mother, and remained unmarried, as be did, “all of bis real and personal estate remaining” should go to bis said son “during bis natural life, for bis-said Henry’s support,” and at bis death to be divided equally between tbe testator’s “legal surviving heirs, share and share-alike.” Held, tbat said son Henry, by virtue of such provision of tbe will, bad tbe absolute right to such support out of bis-father’s estate, independently of any contract with any one authorized to represent tbe estate.</p> <p>2. In such case, the rights of the testator’s heirs in his estate are subject and subordinate to Henry’s right to support.</p> <p>.3. Plaintiff, a grandson of said testator, and nephew of Henry, after the death of testator’s widow, furnished said Henry with his support, etc. On the death of Henry, plaintiff was appointed administrator of Henry’s estate and filed his claim therein for such support, and, on its allowance, filed it against testator’s estate. Hela,, that plaintiff was entitled to reasonable compensation out of the estate of testator for the support so furnished.</p>

<p>Schools and school districts: Board of education: Power to contract for text books: City charter: Common council: Statutes: Pleading: Injunction: Appeal and error: Res adjudicata: Parties.</p> <p>1. Sec. 514, R. S. 1878, declared that the several hoards of education. in cities should determine what school hooks should he used, and that any such board might he authorized by the board of aldermen, common council, or trustees to purchase text books for use in the public schools. Sec. 515 declared that such board should be charged with all the duties imposed on school district boards, so far as they were not expressly provided for or limited by special provisions of the act of incorporation, or other act under which such body was constituted, and that every city not having a system of school government specially provided by law should be governed by the provisions of ch. 27, R. S. 1878. Sec. 514 was amended at various times and, as amended by ch. 308, Laws of 1891, was, as see. 440a, re-enacted verbatim as part of the codification of the school laws of 1897 (ch. 354, Laws of 1897), and is now see. 440a, Stats. 1898. Sec. 515 was dropped out of the codification of 1897, but less than four months thereafter was literally re-enacted by the same legislature, and is now sec. 515, Stats. 1898. The charter of Fond du Lac (sec. 10, subch. XV, ch. 153, Laws of 1883) provides that the board of education “shall establish the text books to be used” in that city. Sec. 4986, Stats. 1898, provides that the laws contained in the Revised Statutes shall apply to and be in force in each city in the state, as far as the same are applicable and not inconsistent with the charter of any such city, but that when the provisions of any such charter are at variance with the provisions of the Revised Statutes, the provisions of such charter shall prevail unless a different intention is plainly manifested. Held:</p> <p>(1) That neither sec. 514, as it existed in the Revised Statutes of 1878, nor as modified and finally reduced to the form expressed in sec. 440a, Stats. 1898, took away any of the powers granted by ch. 153, Laws of 1883, to the board of education of the city of Fond du Lac.</p> <p>(2) That such board of education had the power to make an order for furnishing text books in the public schools of Fond du Lac, binding upon the tax payers and patrons of its schools for the term of five years, without the approval of the common council.</p> <p>(3) That such board of education having such power, in an action to restrain the execution of such an order, allegations of the complaint as to inexpediency, impropriety, and bad motives of certain members of the board are of no significance.</p> <p>2. Under the charter of Fond du Lac (ch. 152, Laws of 1883), the board of education has the power to establish the text books to be used in such city, and, acting under that power, such board adopted certain text books “as the regular text-books” in the branches thereby covered “in the city schools of Fond -du Lac for the next five years” then following, and entered into a five-year contract with tie publishers to furnish to purchasers the latest edition thereof at certain enumerated prices. In an action to restrain the consummation of such contract, the complaint, in addition to setting forth the facts as to the .contract, contained numerous allegations of undue influence brought to bear upon certain members 'of the board, and bad motives on their part in the action taken. A preliminary injunction was granted which the court refused to dissolve. Held, that the complaint failed to state a cause of action for an injunction, or any equitable relief, and the injunction was improperly granted and improperly' continued.</p> <p>3. Where a trial court refuses to dissolve an injunction such ruling is not res adjudioata on appeal.</p> <p>4. Where a board of education is a mere agency or instrumentality of the city government, and, as such, incapable of being sued, it is not, as such, a necessary party to an action to enjoin the consummation of an order of such board changing the school books to be used in the city schools.</p>

<p>Appeal from a judgment of the circuit court for Bi'chland county: Geo. ClemeNtsow, Circuit Judge.</p> <p>This is an action in equity brought by the widow and minor children of one Anson L. Smith, deceased, to cancel a certain deed to real estate executed by the said Anson-L. Smith and the plaintiff Ora, his wife, running to one A. hi. Smith, which deed is alleged to have been without consideration, and never to have been delivered. It appeared that the-land in question was originally owned by one Matthew R~ Smith, who died in the year 1881, leaving, him surviving, a-widow, named Catherine, who was his second wife, and four children by said second wife, viz.; Lena Leota, Anson La-Rose (husband of plaintiff Ora), Alva Matthew (being the same person named in the deed as A. M. Smith), and the appellant, Ohloran D. J. Smith. He also left a number of children by his previous marriage, whose names are not necessary to be stated. Catherine, his widow, had also been married before her marriage to Matthew, and had several children by such marriage. Matthew R. Smith left a will, which wa§ duly probated, the provisions of which, so far as material in this case, are as follows:</p> <p>“(2) I will and bequeath to my wife, Catherine Smith, all my property, personal, real estate, mortgages, bonds, notes,, and all moneys over and above my debts, for her to use to the-best of her knowledge and ability for herself and the four children left in her care as long as she lives, if she remains my widow, and at the time of her death to be equally divided' between these four children, Lena Leota Smith, Anson La-Rose Smith, Matthew Alva Clark Smith, Ohloran Delvan J.. Smith. (3) But if my wife, Catherine Smith, marries again,, then the property above described shall be sold. Out of this-I will give her five hundred dollars in cash, notes, or bonds, according to her wish. I will her the choice of the cows, or the value of one, and all her beds and bedding. I also will that the remaining value of the property shall be paid in four-payments; Lena Leota Smith to receive her payment first,, which shall constitute one-fourth of the remaining property;. An son La Rose Smith to receive the second payment; Matthew Alva Clark Smith to receive the third payment; Ohloran-Delvan J. Smith, the fourth and last payment. (6) I also-will that there are not any person or persons besides those before mentioned to have any share or portion of the said property. To all of my other children I have before this given all of my property that I intend for them to have.</p> <p>“M. R. Smith. [Seal.]”</p> <p>It further appears that Lena L. died intestate and unmarried in the year 1893. Anson L. died intestate August 3, 1896, leaving the plaintiff Ora,, his widow, and the remaining plaintiffs, his children and only heirs at law. Alva Matthew died, intestate and unmarried August 3, 1897; thus leaving the appellant, Ohloran, the only survivor of the four children. It also appears that Catherine, the widow, died September 4, 1899. On the 5th of March, 1896, the deed in question was duly executed, witnessed, and acknowledged by Anson L. and Ora Smith. It purported to convey to A. M. Smith the undivided one-third of the land in question, subject to the homestead and dower interest of Catherine, and it recites a consideration of $2,600. It was duly recorded upon the day of its execution. All of the foregoing facts are undisputed, and are found by the court to be true; the only fact in serious dispute being the question whether the deed was ever delivered. Upon this question Ora testified that the deed was made at a bank in Richland Center, in this state, at about nine o’clock in the morning on the day of its date; that A. M. Smith was not present at the time of the execution, and that no money was paid by any one at that time; that her husband, Anson, then took it, and after about half an hour brought it home to her; and that she has had it ever since; and that she knew that A. M. Smith was not in town that morning. One Pease testified that he was present when the deed was made, and that no one was there except Anson and his wife, and that no money was paid. There was some additional testimony by various witnesses of declarations made by A. M. Smith after the execution of the deed and after Anson’s death, to the effect that he knew nothing about the making of the deed, and that it did not cost him anything; that he never saw it, and did not think it had left Ora’s hands; that he claimed nothing by it, and calculated to let Anson’s children have the same as the rest of “us;” that it was Anson’s fault, and he never saw the deed, nor had any-</p> <p>tiling to do with it. On the part of the defendant one witness, testified to conversations with Anson in which Anson said that he had sold or deeded the land to Alva to defeat any judgment which might he rendered' against him in a lawsuit then» pending. Another witness testified that A. M. Smith was in Richland Oenter on the day the deed was executed,, and that A. M. afterwards told him that he had bought the place. Another testified that Alva said he had the deed of Anson’s share in the estate. The court found that the deed was never, in fact, delivered, and that no consideration was paid therefor, and that Anson owned the undivided fourth of said land at the time of his death, and that the deed in question should he canceled. There were a number of defendants, including the children of Catherine by her first marriage, when the action was originally brought; but prior to the trial all the defendants save the defendant Ohloran withdrew their answers, and the action was discontinued as-to them. Judgment was rendered for the plaintiffs, establishing their title to one-fourth of the land in question, and canceling said deed, from which judgment the defendant Ohloran appeals.</p>

<p>Appeal from a judgment of tbe circuit court for La Fay-ette county: Geo. ClemeNtsoN, Circuit Judge,</p> <p>Action to remove a cloud on title to real estate. Tbe land covered by tbe mortgage was owned and possessed by Phoebe McDevitt when she died, May 6, 1886. By her will, duly admitted to probate, she devised the land to Peter Gough and Francis Gough as executors and trustees, with directions to rent the same to the best advantage in their discretion, and apply the excess of rents received over repairs and taxes and the expense of executing the trust, to the support and maintenance of her stepson, James McDevitt, during his life, and upon his death to sell the same, perfect title thereto in the purchaser by a proper conveyance, and pay the proceeds thereof, together with any unexpended rents and profits in their hands, to her five children, share and share alike, provided that in case of the death of any of such children before that of James McDevitt, the share that would go to such deceased child, if living, should be paid to his heirs at law in equal parts. The estate was properly settled and the land in form assigned to the trustees. No order was made requiring a bond. The trustees executed the trust under the will till the commencement of this action, except that they did not sell the land and divide the proceeds as directed. Soon after Mrs. McDevitt’s death her stepson, James, was placed under the guardianship of Daniel McWilliams, with the understanding that he should have the use of the land and, as consideration therefor, pay the taxes thereon and support his ward. That agreement was carried out till McDevitt died, September 26, 1899. All the testatrix’s children survived her, and three of them survived McDevitt. Margaret Mul-lady, the child whose death preceded McDevitt’s, gave a quitclaim deed of the land to plaintiff July 3, 1889. She left surviving her five children, all of whom are named as defendants. Another of the children, Ann Fitzsimmons, gave plaintiff a quitclaim deed of the land before McDevitt’s death; and a third, Elizabeth McWilliams, gave a like deed after such occurrence. Under the three deeds plaintiff claimed to own án undivided three-fifths interest in the land when this action was commenced. Thereafter he obtained quitclaim deeds from the testatrix’s other two children. Under all of the deeds, at the time of the trial, plaintiff claimed to he the owner in fee of the whole title to "the land. All the children, supposing it was their right to take the property as land if they desired, and that the title was in them as to the remainder after the expiration of the life interest, elected to exercise that right, the deeds being made accordingly.</p> <p>The contention of plaintiff upon the trial was that the title to the land vested immediately upon the death of the testatrix in the executors and trustees to hold the same for the life of James McDevitt, and that the remainder, at such time, vested in the five children of the testatrix. Defendants claimed that the whole legal title vested in the trustees, with no right whatever in the children of the testatrix, except to participate in the distribution of the property when converted into money under the terms and conditions of the trust. The court took the latter view and rendered judgment accordingly. Plaintiff appealed.</p>

<p> Estates of decedents: Claims: Express contract: Evidence: Instructions to jury. </p> <p>1. An action against the estate of a decedent for hoard was based on an express contract. The claimant and decedent were not relatives. The court instructed the jury, that “it is not absolutely necessary to the establishment of an express contract' that the witnesses should be produced who were present when the contract was made. It may be inferred from circumstances-established to the satisfaction of the jury as true by the evidence, if from such facts and circumstances the jury are convinced that the express contract claimed was in fact made.” Held, that no error was thereby committed, as the rule that an express contract for board or service can only be established by direct and positive evidence, or by circumstantial evidence’ equivalent to direct and positive evidence, only applies where-the parties are near relatives. Tyler v. Burrington, 39 Wis. 376, and Wells v. Perlcins, 43 Wis. 160, distinguished.</p> <p>2. In an action on an express contract the defendant is not prejudiced by correct instructions as to implied contracts, the jury having been expressly charged that there can be no recovery on an implied contract. Such instructions amount to a warning to the jury, fairly tending to warn them against the error-of bringing in a verdict based on an implied agreement, in case an express contract was not shown to their satisfaction.</p>

<p>Appeal from a judgment of tbe circuit court for Lá Crosse county: J. J. Fruit, Circuit Judge.</p> <p>Action to recover damages by way of destruction of crops and permanent injury to soil from tbe casting of quantities of sand tbereon, suffered by plaintiff, tbe owner of low lands adjoining Bostwick creek, by reason of tbe inadequacy of a certain pile bridge constructed by tbe defendant across said creek; tbe inadequacy being alleged to be due botb to original construction and subsequent obstruction of tbe space? between tbe piles, so tbat it was insufficient to carry tbe waters of said creek under circumstances wbicb might reasonably be expected. Tbe damage was predicated upon a single storm occurring July 14, 1900. Tbe evidence of permanent damage consisted of a comparison of’tbe land shortly before tbat storm and immediately afterward. A special verdict was taken of eleven questions, to tbe following effect: (I) Tbe bridge was of sufficient capacity to allow tbe passage of such waters as ought reasonably to have been expected to flow through it. (2) Tbe bridge was not of sufficient capacity to allow tbe passage of “such waters, and any and all driftwood and other materials brought down by such waters, as ought. reasonably to have been expected to flow through it.” (3) Tbe driftwood wbicb floated down accumulated in and against said bridge, and caused tbe waters to flow over tbe plaintiff’s land. (4) Damage was thereby done. (5) Such damage was tbe natural and probable result of tbe want of such sufficient capacity in tbe bridge. (6) Tbe freshet of July 14, 1900, was not unusual nor extraordinary. (7) The storm of July 11, 1899, did not cause water to overflow the plaintiff’s land and carry sand upon it, so as to permanently injure it. (8) Neither did tbe storm of October 27, 1900. (9) (Immaterial.) (10) Damage to crops, $209.65. (II) Permanent damage to plaintiff’s land from tbe overflow of July 14, 1900, $700. Defendant moved to strike out tbe answers to the 5th, 7th, 8th, 9th, 10th, and 11th questions, and for judgment upon tbe corrected verdict and undisputed evidence, and, in tbe event of tbe denial of tbat motion, for new trial. Such motions were overruled, and judgment entered for tbe plaintiff for tbe amount of damages found in response to tbe 10th and 11th questions, from wbicb judgment defendant appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Vernon county: J. J. Rbuit, Circuit Judge.</p> <p>Tbis is an action to recover $1,187.80, witb interest from September 21, 1900, for moneys belonging to tbe plaintiff, received by tbe defendant B. A. Bussell between May 1, 1897, and March 15, 1900, while acting as traveling salesman fox tbe plaintiff, in excess of wliat lie paid and accounted to the plaintiff during that period. The action is based upon a written contract bearing date May 1, 1897, between the plaintiff and R. A. Russell, and a written guaranty of the same, executed by Russell and the appellants. By such contract Russell was to faithfully and diligently perform such duty as such salesman for one year from date, and might continue from year to year, with the right in the plaintiff to terminate the contract at any time; Russell to receive for compensation certain percentages on the profits of goods sold; he to pay his own expenses, including sample cases; but the plaintiff was at liberty to advance to him moneys for the purpose of defraying expenses, which Russell was to repay on demand, and “to furnish a good acceptable bond for the payment of any money due” to the plaintiff “in excess of the amount due” to Russell, “with all costs, attorney’s fees, and expenses and seven per cent, interest until paid;” the plaintiff to be the final judge of all credit given customers, and no order to be counted as a sale until accepted by the'plaintiff. The written guaranty executed under the hands and seals of Russell and the appellants, upon which the action is in part based, recites the making of such contract between Russell and the plaintiff, and that “in consideration of the sum of one dollar and other valuable consideration received from” the plaintiff, the receipt of which is thereby acknowledged, Russell and the two appellants did guaranty to the plaintiff as follows:</p> <p>"I hereby guarantee the payment to J ohn A. Tolman Company of any and all moneys collected by Ralph A. Russell for account of John A. Tolman Company, and for all moneys and goods which they may from time to time advance to said Ralph Russell, and any and all indebtedness . . '. which may hereafter become due to J ohn A. Tolman Company from him, whether by the terms of any contract or not, in excess of the amount due said Ralph A. Russell from said John A. Tolman Company. And I hereby waive notice of acceptance of this guaranty by John A. Tolman Company, and agree to accept a verified written statement of the account of Ralph A. Russell, as kept in the regular hooks of said John A. Tol-man Company, as correct as between the said company and the said Ralph A. Russell, and as competent and conclusive evidence as to the extent of my liability, and without requiring any demand or notice of defaultj and I agree that any extension may he granted him, or any security taken, or security taken surrendered, and any surety hereto released at any time without notice, or affecting my liability. My liability, however, is limited hereby to two thousand dollars ($2,000.00), and all costs, attorney’s fees, and expenses, together with interest at7 per cent, per annum until paid, and for such amounts this is intended as a continuing guarantee until revoked by notice in writing to me. Any amount which shall become due from me upon this contract of guarantee I agree to pay at the office of John A. Tolman Company, in Chicago, Ill., without relief from valuation or appraisement laws.”</p> <p>The defendant Russell made no answer to the complaint. The appellants answered by way of admissions, denials, and counter allegations to the effect that for some years prior to giving the bond Russell had been employed by the plaintiff in the same capacity, and during that time he embezzled $1,600; that the plaintiff, knowing the fact, exacted the bond or agreement of guaranty to cheat and wrong the appellants, who were at the time ignorant of such embezzlement; and by way of counterclaim the answer alleged that, after Russell quit the services of the plaintiff, many collections were made of goods sold by him, on which he was entitled to commissions, according to such contract, to the amount of $250, which they claimed should be deducted from the amount claimed by the plaintiff. The appellants were allowed to amend such answer, but not to materially change the nature of the defense, except to allege, in effect, that Russell was so employed by the plaintiff under the contract from May 1, 1897, to July 26, 1897, when the bond or guaranty was executed, and that tbe same was so given without any consideration therefor. The plaintiff, by way of reply, denied each and every allegation of the counterclaim, and alleged that Russell had, in the complaint, received all the credits from the plaintiff to which he was entitled. At the close of the testimony the court directed a verdict in favor of the plaintiff for $1,249.80, being the amount demanded in the complaint, with interest to that date. From the judgment entered thereon accordingly, the defendants Butt and Bclchart bring this appeal.</p>

<p>Appeal from an order of tbe circuit court for Vernon county: J. J. Feuit, Circuit Judge.</p> <p>Tbis is an action to recover tbe reasonable value of tbe use and occupation of certain farm lands. Tbe complaint alleges-tbe making of a contract in writing by tbe parties July 1,. 1893, by wbieb tbe plaintiff agreed to sell, and tbe defendant to purchase, tbe lands in question, for tbe sum of $500, to be paid in five equal annual instalments, beginning January 1, 1896. Tbe contract also provided that tbe defendant should mortgage tbe crop each year to tbe plaintiff as security for payment of tbe interest, and tbe first payment of principal until sucb first payment of principal was made. Tbe contract further provided that defendant should pay tbe taxes-levied on tbe lands, keep tbe improvements and fences in repair, and “bold the said premises from tbe date hereof as-tenant of sufferance of tbe party of tbe first part, subject to-be removed as a tenant holding over by process, under the statute in sucb case made and provided, whenever default shall be made in tbe payment of any of tbe instalments of' purchase money above specified.” Tbe complaint further-alleged that at tbe time of tbe execution of tbe contract the-defendant was in possession of tbe land as plaintiff’s tenant,, and bad planted thereon tbe crop for tbe year; that defendant continued to occupy tbe land until tbe fall of tbe year 1900, but refused to make any payments of principal or interest on tbe contract after January 1, 1895, whereupon be became tbe tenant of sufferance of tbe plaintiff under the terms of the contract; and that tbe use and occupation of tbe land was worth $50 a year for tbe entire time, no part of which sum has been paid, nor has any part of the amount due •on the contract been paid since the payment of the interest due January 1, 1895. Judgment for $350 and costs is demanded. A general demurrer to this complaint was overruled, and the defendant appeals.</p>

<p>Appeal from a judgment of tbe circuit court for La Orosse county: J. J. Fbuit, Circuit Judge.</p> <p>Tbe city of La Crosse owns and operates a system of waterworks for tbe purpose of supplying water witbin tbe municipality for public and private use. Its charter, prior to 1887, vested power in tbe common council, by subd. 11, sec. 3, subcb., IY, cb. 135, Laws of 1876, as amended by sec. 6, cb. 183, Laws of 1881:</p> <p>“To provide for tbe erection of waterworks for tbe supply ■of water to tbe inhabitants of tbe city; to lay down water pipes; to establish water rates to be paid by persons using the water therefrom, and to prevent unnecessary waste of tbe water by any person or persons; to pass from time to time such ordinances as may be deemed necessary or expedient for tbe construction, regulation or protection of such waterworks and pipes and to enforce the same by suitable penalties.”</p> <p>That was amended in 1887 by cb. 162 of tbe laws of that year, tbe words “to establish water rates to be paid by persons using tbe water therefrom” being eliminated. Tbe charter was at tbe same time and by tbe same law further amended by establishing a new department-of city government of an executive character, to be known as the “Board of Public Works,” and to consist of members elected by the people. At the same time and by the same law the charter was further amended, adding thereto a new subchapter, numbered IX, on the subject of waterworks, in which the maintenance and everything in relation to the operation of the waterworks, so-as to effect the purposes thereof, was placed under the immediate charge of the board of public works, but subject to the direction of the common council. By sec. 1 of that sub-chapter it was provided as follows:</p> <p>“The board of public works, subject to the direction of the common council, shall assume and have exclusive charge and superintendence of the waterworks of said city, and of all property, records, contracts, transactions, reports, accounts, surveys, maps, plats, estimates, profiles, plans and documents of whatsoever nature pertaining thereto, and it shall thereafter be the duty of such board of public works to examine- and consider all matters relative to supplying the city of La Crosse with a sufficient quantity of pure and wholesome-water for the use of its inhabitants.”</p> <p>By sec. 7 the waterworks, and all the grounds, buildings,, fixtures, machinery and other things appertaining thereto-were declared to be under the control of the said board, with power to regulate and control and have general supervision of the same subject to the authority of said common council. By sec. 8 the board was given power to establish water rates, the following language .being used:</p> <p>“The said board shall have power from time to time to-make and enforce by-laws, rules' and regulations in relation to the said waterworks, and before the actual introduction of water they shall make by-laws, rules and regulations fixing-uniform water rates to be paid for use of water furnished by the said waterworks, and fixing the manner of distributing and supplying the water for use or consumption, and for withholding or shutting off the same for cause, and they shall have power, from time to time, to alter, modify or repeal such by-laws, rules and regulations now in force: provided, however, that no such by-law, rule or regulation, and no alteration, modification or repeal thereof, shall have any force until submitted to and approved by the said common council.”</p> <p>Sec. 9 gave the common council power as follows:</p> <p>“The common council shall have power by ordinance to make and enforce all needful regulations for ascertaining the amounts to be paid as water rates by persons or corporations using the water, keeping accounts thereof, and giving the notices required by this act and by ordinances. It may provide for the payment of such water rates directly to the city treasurer, or for their collection by some subordinate of the board of public works, or a collector of water rates, to be appointed by said board of public works, and may require such subordinate or officer to give bond in such sum and with such sureties as it may prescribe.”</p> <p>By sec. 12 further power was given to the common council in these words:</p> <p>“It shall be the duty of the said common council, and they are hereby empowered from time to time to pass such ordinances as may be deemed necessary or expedient to protect said waterworks and the use thereof, and to enforce the bylaws, rules and regulations of the said board of public works,” etc., and to enforce all such rules and regulations by appropriate penalties.</p> <p>Under the scheme of the charter service pipes, curb stops and all appliances for use of the consumer in taking water from the water main are required to be paid for by him.</p> <p>March 8, 1901, the common council passed an ordinance containing provisions to the following effect: (1) A complete system of rates, arranged on the usual basis where water is not measured and also where it is measured by means of a water meter. Each consumer, by this system, was given the privilege of paying for water by the meter rate upon condition of his putting a meter in at his own expense and keeping the same in repair, and not'using water for his premises otherwise than through the meter, except those using water through a service pipe larger than three-fourths of an inch in diameter, who were required to supply their premises with meters at their own expense. (2) A scheme in detail for the collection of water rents and a prohibition against any change of water rates except under certain conditions, not recognizing any authority of the board of public works in the matter. (3) Regulations of the enjoyment of the water service, to prevent misuse thereof, such as the care and management of seals on standpipes and automatic sprinklers, conditions upon which water service might be re-established after being interrupted pursuant to the ordinances of the city or rules of the board of public works. (4) Penalties for wrongful interference with hydrants or stop cocks, or improper use of water contrary to such ordinance or rules. (5) Rules relating to the care of fire hydrants. (6) A declaration of authority to make other rules relating to water rates and collection of the same. Penalties for the violation of ordinances relative to the waterworks. A requirement regarding the management by consumers of their service appliances in case of an alarm of fire and during the continuance of a fire. A general repeal of all ordinances or parts of ordinances conflicting with the new enactment.</p> <p>The ordinance was carried to the circuit court for La Crosse county for review, and was affirmed. The relator appealed.</p>

<p>Appeal from a judgment of tb© circuit court for Trempea-leau county: J. J. Eruit, Circuit Judge.</p> <p>Action to recover upon a judgment in favor of tbe plaintiff and against tbe defendant, rendered by tbe court of common pleas of Lawrence county, Obio, — a court of general •jurisdiction. Tbe record of tbe action in tbat court disclosed •a petition by tbe Blackford County Bank, as plaintiff, against Arch P. Davidson and Laura A. Davidson, as defendants, ■wbicb alleged tbat said defendants executed tbeir note for $2,000, payable to tbe order of Mattie Crist, wbicb, before judgment, and for value, bad been duly indorsed and transferred to William F. Ghrist, and by bim, in due course of trade, for consideration of $600, duly assigned and indorsed -to tbe plaintiff bank as collateral security for said sum. Tbe petition also set up tbe execution of a mortgage to secure said note; and tbe plaintiff prayed judgment against tbe defendant Arch P. Davidson, for tbe amount of said note; also for tbe foreclosure of tbe mortgage, and sale of tbe mortgaged premises, and for payment to it of $600, and of balance to William F. Ghrist. When about to .commence tbis action, tbe ■plaintiff’s attorney wrote tbe defendants of tbe fact of tbe .commencement of an action to foreclose tbat mortgage, and sent them, for signature, wbat be called a “waiver,” in order ■to avoid expense of giving notice by publication. Tbe de■fendants signed and sent to bim a paper in tbe following words: “We, and each of us, do hereby waive tbe issuing •and service of summons in tbis action, and also service by publication, and voluntarily enter our appearance herein,”— wbicb paper was filed in tbe court of common pleas, and upon wbicb tbat court recited in its judgment tbat such defendants "bad voluntarily entered tbeir appearance. After tbe commencement of tbe action, and before judgment, tbe respondent William F. Ghrist appeared as a defendant to tbe fore- ■ closure action, and filed answer in wbicb be declares tbat be “adopts as bis answer in tbis action each, every, and all tbe ■allegations of plaintiff’s petition, and tbe prayer thereof.” ..Judgment was entered by tbat court for tbe recovery of tbe whole amount of the note in favor of Ohrist, and for foreclosure and sale of the mortgaged premises, and the application of the proceeds upon the judgment; the first $600 thereof to be paid to the plaintiff bank.- Sale was had at the •amount of $1,000, and was distributed, by order of the court, for the payment of costs and taxes, and all the indebtedness of Christ, to the bank, and the balance of the judgment ascertained, of $1,410.75, for which execution was awarded against said Arch P. Davidson-. The trial court found substantially these facts, and that the defendant voluntarily entered his appearance in writing in said court of common pleas, whereby jurisdiction over his person was conferred upon'the court of common pleas, and rendered judgment in favor of the plaintiff and against the defendant for said balance of $1,410.75, ascertained by that court, together with interest thenceforward, from which judgment defendant appeals.</p>

<p>Appeal from a judgment of tbe circuit .court for Fond du Lac county: Michael KibwaN, Circuit Judge.</p> <p>Action to recover for personal injuries. Tbe claim of tbe plaintiff was that, June 24, 1900, be was a passenger on defendant’s excursion train on tbe way from tbe city of Fond du Lac to tbe city of Green Bay in tbe state of Wisconsin; tbat tbrougb gross negligence of defendant’s servants wbo controlled tbe movement of said train it collided witb one of defendant’s freight trains, by reason whereof plaintiff was severely injured; tbat bis injuries consisted of a severe shock to tbe system, both bones of bis right leg being transversely fractured from tbe knee down, tbe nerves and muscles of bis body, particularly those of bis right leg, being injured, and bis being put to great pain and permanently physically impaired, to bis damage in tbe sum of $15,000.</p> <p>The answer admitted that plaintiff was injured at the time alleged by ordinary negligence of the defendant, 'but denied that it or its servants were guilty of any greater degree of fault than mere failure to exercise ordinary care. It put in issue the extent of the physical injury and the amount of the damages alleged.</p> <p>There was no allegation in the complaint that defendant -was at fault except in that its servants failed to exercise proper care. There was no allegation that it authorized their conduct or ratified it. The allegations as to gross negligence went no further than to charge that the servants of defendant, while in pursuit of their ordinary business of managing the excursion train and the freight train, were grossly negligent. In the opening address of plaintiff’s counsel to the jury he treated the subject of gross negligence as the all-important one to be dealt with by them, and in a manner well calculated to inflame their minds with prejudice against the defendant on account of guilt in operating its trains on the occasion in -question with reckless disregard of human life. He stated clearly that the difference between the claim of plaintiff and that of defendant, as regards the mere question of liability, was respecting the degree of its fault, — whether it was merely guilty of ordinary negligence or was guilty of gross negligence. Defendant’s counsel, in his opening address to the jury, took issue with plaintiff’s counsel as to there being any ■question of gross negligence in the case. He insisted that there was on trial merely a case of accident from ordinary negligence, where the fault was freely- admitted, and the only •question for decision was the amount that should be awarded plaintiff as compensatory damages. He. suggested that there was no-disposition on his side to escape payment of any part of such, sum as in the judgment of the jury, guided by the evidence and the law applicable thereto, should be deemed necessary to fully compensate plaintiff for his loss; that defendant desired tbat plaintiff sbonld receive Ms full legal measure of damages.</p> <p>Upon tbe trial plaintiff’s counsel was permitted, against objection, to introduce evidence at great length upon tbe subject of defendant’s negligence, and particularly to establish the claim that its servants were guilty of gross negligence. Defendant’s counsel insisted from the beginning to the end of the trial that, since defendant freely admitted its liability for ordinary negligence, — the only degree of fault actionably charged in the complaint,' — evidence other than to aid the jury in coming to a correct conclusion respecting the amount of money necessary to compensate plaintiff for the injuries received was improper’. Plaintiff’s counsel, though pressed by defendant’s counsel to make his position plain before the court, in order that the court might rule intelligently upon the objections to evidence, did not distinctly claim that a recovery could be had under the complaint for gross fault. During the discussion of the various objections language was indulged, in at great length by plaintiff’s counsel to the effect that defendant was guilty of criminal negligence and that plaintiff was entitled to damages by way of punishment.</p> <p>The court, by the rulings made at all points during the trial in respect to the subject of gross negligence and permitting the conduct of plaintiff’s counsel indicated, allowed him to succeed in placing before the jury evidence to sustain his claim that the defendant’s servants, in the handling of the passenger train and in directing its movements, were guilty of gross negligence. When the case was ready to submit to the jury there was no fact in issue on the pleadings in controversy on the evidence in a way to charge defendant with legal liability. The only disputed questions were whether plaintiff was permanently injured, and the amount of money that should be paid to compensate him for his loss.</p> <p>The case was submitted to the jury for a special verdict The first two questions covered the controverted matters mentioned. Tbey were followed by six other questions covering various elements of actionable negligence, ordinary and gross. Instructions were given in respect to each of such questions. Tbe jury found for tbe defendant as to tbe claim of liability for gross negligence, answered tbe questions respecting ordinary negligence in favor of plaintiff and assessed bis damages at $12,000. Judgment was entered on tbe verdict in plaintiff’s favor. All matters referred to in tbe opinion that follows were preserved for review by proper exceptions.</p>

<p>Appeal from a judgment of the circuit court for La Crosse county: J. J. Eeuit, Circuit Judge.</p> <p>This is an action to recover damages for the alleged death of the little son of the plaintiff, four and one half years of age, who was killed by the kick of the defendant’s vicious horse while running at large in the public highway contrary to an ordinance of the city. Issue being joined and trial had, a verdict was rendered in favor of the plaintiff for $1,000, and a judgment entered thereon was reversed by this court, and the cause was remanded for a new trial. Decker v. Mc-Sorley, 111 Wis. 91 — 102, 86 N. W. 554. At the close of such new trial the jury returned a special verdict to the effect (1) that the defendant’s horse was running at large in the •streets of the city of La Crosse, contrary to the ordinance in evidence, at the time of the alleged injury to Blair Decker; (2) that tlie parents of the deceased child were not, either of them, guilty of any want of ordinary care which in any way contributed to the injury; (3) that the plaintiff’s deceased son was kicked by the defendant’s horse September. 23, 1899 ; (4) that the defendant’s horse had no propensity to kick or bite; (6) that such wrongful act of allowing the horse to run at large was the proximate cause of the death of Blair' Decker; (7) that they assessed the plaintiff’s damages at $560. Erom the judgment entered thereon in favor of the plaintiff for the amount last stated the defendant brings this-appeal.</p>

<p>Bills and notes: Bona fide purchasers: Fraud: Evidence: Practice: Negligence.</p> <p>1. Where plaintiff’s assignor purchased a negotiable promissory note in good faith, and for value, before maturity, plaintiff is entitled to the rights of a bona fide purchaser for value before maturity, although he may have had notice of defects.</p> <p>2. The owner of a stallion proposing to sell him for $2,000 to a contemplated corporation, procured signatures to contracts binding the signers to take stock in the corporation, and, on organization, to give three notes for the purchase price. After all such agreements had been carried out it was discovered that the signers had signed another note for the full amount, printed on the same paper as the contracts. This note had been assigned to V., a bona fide purchaser for value, and by V. assigned to plaintiff for value, both transactions having taken place before maturity. Held, that evidence that the signers of the note on which action was brought had paid the other notes was admissible as part of the same negotiation, and as showing extinguishment of their liability arising therefrom.</p> <p>S. Where the answer to a question is objected to, but no motion is made to strike it out as nonresponsive to the question, it is not error to allow the answer to stand..</p> <p>4. In an action against several signers of a promissory note alleged to have been procured to be signed- by fraud, there was' testimony tending to show that the note in question had been torn from a hook- which purported to contain a contract to take stock in a corporation organized to purchase a horse, that the book was so bound that the part containing the note was invisible, and that the description of the book as given by all the signers was substantially identical. Held, that it was not error for the court, in framing questions for, a special verdict, to assume that the note was in the same condition when all the defendants signed it.</p> <p>5. In such case, evidence of a witness that he signed a note, contained in the same book, about the same time, and that the entire note was visible, corroborated to some extent by plaintiff’s attorneys, is held to be insufficient to overcome a verdict that the signers were not guilty of negligence in not more closely examining the paper, and discovering that they were signing a note.</p>

<p> Fire insurance: Forfeiture: Incumbrance of property: hand contract: Surrender by vendee: Statute of frauds, </p> <p>1. Sec. 2302, Stats. 1898, provides that an interest in land cannot he surrendered otherwise than hy act or operation of law, or hy deed or conveyance in writing, subscribed hy the party creating, granting, assigning, surrendering or declaring the same, or hy his lawful agent thereunto authorized hy writing. Held, that a surrender of a land contract hy the vendee to the vendor, and acceptance thereof, coupled with an intention hy both parties to extinguish the vendee’s equity, satisfies the statute.</p> <p>2. A vendee under a land contract was insured against fire hy a policy providing that all the rights of the insured under it should he forfeited if the insured incumbered the property involved, subsequent to the application for the policy, without notice thereof to the insurance company. Thereafter the fee was conveyed hy the vendor, and a new contract made between the vendee and the new owner of the fee, which called for the payment of the unpaid purchase money, hack taxes, and unpaid interest. Subsequently, hy agreement between the vendee, the new owner of the fee, and plaintiff, the second land contract was surrendered, and a new land contract was made whereby tbe land was contracted to be conveyed and tbe insurance policy assigned to tbe plaintiff. Tbe court found that tbis was done to secure a debt owing from vendee to tbe plaintiff. Held, that tbe transactions amounted to an incum-brance of tbe property, and rendered tbe policy void.</p>

J. Ebuit, Circuit Judge. Tbis action was to recover tbe alleged contract price for plaintiff’s crop of tobacco, of 2,485 pounds, at tbe price of three cents a pound for one-quarter thereof, and eight cents for tbe remainder.

<p> Ejectment: Wills: Construction: Condition subsequent. </p> <p>A testator devised the residue of his estate, consisting of land, to his son (who had disappeared) on condition that if he was-not heard from within ten years from the date of the will the land should go to nephews and nieces. Before the expiration of the ten years the son’s wife, on the ground of desertion, obtained a divorce a mensa et thoro, and the judgment therein adjudged to her whatever right, title and interest the son had in the testator’s lands. Afterwards, on ejectment being brought against the son’s wife, judgment was rendered adjudging that under the will a present estate in fee was vested in the son, but not deciding whether such estate was a base fee by reason of the condition, or whether such condition was void because too indefinite to be enforced. After the ten years had elapsed, the son not having been heard from, the nephews and nieces-brought ejectment against the son’s wife. Held, that the conditions annexed to the devise, with the limitation over to the-plaintiffs, was binding, and, the ten years having expired, the-title to the land vested in plaintiffs, as tenants in common.</p>