Volume 119 — Wisconsin Reports

<p>Appeal from a judgment of tbe circuit court for Gates county: JoiiN K. Palish, Circuit Judge.</p> <p>This action was commenced May 27, 1902, to enforce a lien for labor and materials furnished to the defendant in the excavation for, and construction of, the foundation walls and foundation for a pulp mill, between October 16, 1901, and March 1, 1902, pursuant to an express contract in writing made by tbe plaintiff and tbe secretary of tbe defendant, October 16,1901, as follows: “October 16, 1901. It is agreed between B. A. Lang and M. II. Ballou that B. A. Lang build a foundation according to plans submitted, including floors for pit, for tbe sum of $8,000. [Signed] R. A. LaNG. M. IT. Ballou” — wbicb agreement was subsequently modified by parol, whereby tbe plaintiff undertook and agreed, in consideration of an additional payment of $500, to excavate one foot deeper than shown by such plans, and to add one foot to such foundation walls. Tbe complaint alleges tbe making of such contract; that no part thereof bad been paid, except $3,500; that there was still due tbe plaintiff thereon $5,000, with interest from March 1, 1902; and that tbe plaintiff’s claim therefor bad been filed with the clerk of tbe circuit court May 23, 1902.</p> <p>Tbe defendant answered to tbe effect that tbe plaintiff ought reasonably to have completed tbe work on or before December 15, 1901; that tbe plaintiff failed and neglected to perform tbe contract with all reasonable dispatch, and did not complete it until March 1, 1902, to tbe defendant’s great damage; and alleges such failure and neglect by way of counterclaim, and alleges that its expenses and loss in consequence thereof was at least $84 per day, amounting, in all, to $5,208, and asked that tbe same be offset as a counterclaim against any sum due from the defendant to tbe plaintiff on tbe contract, and for judgment in its favor for tbe balance.</p> <p>The plaintiff replied to such counterclaim, and alleges, among other things, in effect, that there was no provision in tbe contract as to when it should be completed; that tbe plaintiff commenced the performance of the work immediately after tbe contract was made; that such work was prosecuted with all reasonable diligence, and completed within a reasonable time; that defendant made payments on such contracts from time to time with full knowledge of all the facts and the progress being made, and on completion accepted the same and bas ever since used the same for tbe purposes for which it was erected; that on or about January 1, 1902, the defendant refused to make further advances or pay for the work then completed, and then for the first time claimed that the work was not being prosecuted as rapidly as desirable, and claimed damages on account of the delay; that the plaintiff replied that such failure to make advances and payments as agreed would necessarily delay completion of the work; that the plaintiff informed' the defendant that he would only perform with the express understanding and agreement that full contract price would be paid for performance, without any deduction for pretended damages by reason of delay; that the defendant thereupon directed the plaintiff to proceed with the work, and thereafter made payments ; and the plaintiff claimed that, by reason of the facts alleged, the defendant was estopped from claiming damages by reason of such delay.</p> <p>At the close of the trial the court found, in effect, (1) that all the allegations of the complaint were true; (2) that October 16, 1901, the parties entered into the written contract mentioned: (3) that the contract was subsequently modified, as stated; (4) that the plaintiff fully performed all the,conditions of such agreements; that by reason of the peculiar conditions of the soil necessary to be handled in the excavation of such additional foot, the plaintiff was unable to complete such work within the time in which both parties expected that the work would be completed at the time of making the original contract; (5) that prior to January 1, 1902, the defendant made claim against the plaintiff for damages because of such delay; that on that day the plaintiff notified the defendant that if he proceeded further with the performance of the contract, it would be with the understanding and agreement that no claim for damages should be made; that thereafter the defendant continued to direct the plaintiff to prosecute such work as vigorously as possible, and thereafter, and on January 30, 1902, paid to tbe plaintiff on the contract $2,000; (6) that the plaintiff performed the contracts, and completed the same within a reasonable time from the making thereof; (7) that May 22, 1902, the plaintiff duly filed his claim for lien with the clerk of the circuit court; that the same was not docketed until June 21, 1902; that the fees of the clerk were paid by the plaintiff before the trial of this action; that no demand was made therefor by the clerk; (8) that the first work done and materials furnished under the terms of the contract by the plaintiff was October 23, 1901, and that the date of the last charge for such work, labor, and materials was March 5, 1902; (9) that the defendant paid to the. plaintiff on the contracts $3,500, as stated, and there still remains due and unpaid thereon $5,000, with interest thereon from March 5, 1902, and that the same is a lien on the premises mentioned; (10) that the premises described belong to the defendant, and are not within the limits of any incorporated village or city, and do not exceed forty acres of land; (11) that the allegation in the counterclaim that the plaintiff did not push and prosecute the work'in the contracts, as agreed, is untrue; (12) that the allegation in the counterclaim that the work could reasonably have been completed on or before December 15, 1901, is untrue; (13) that the allegations in the counterclaim to the-effect that the defendant sustained damage because of failure-on the part of the plaintiff to complete his contracts within a reasonable time is untrue; (14) that the allegations in the reply to the counterclaim are true.</p> <p>And as conclusions of law the court found, in effect, that, the defendant is not entitled to set off as against the contract price for the work and labor performed and materials furnished by the plaintiff any sum on account of any damages claimed by reason of the facts set forth in the counterclaim; that the plaintiff is entitled to recover of the defendant $5,000, with interest thereon from March 5, 1902, amounting, in the aggregate, to $5,104.17, with costs and disburse--ments to be taxed, and a judgment directing that the interest of the defendant in the premises described at the time of the commencement of said work and the furnishing of said materials, to wit, October 16, 1901, or any person claiming under it since that time, or so much thereof as should be necessary, be sold to satisfy the amount of such lien and costs. Erom the judgment entered thereon accordingly the defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Ashland county: JohN K. Pabish, Circuit Judge.</p> <p>This action is to recover damages for tbe alleged negligent killing of tbe plaintiff’s infant son June 18, 1901, at a street crossing in tbe city of Ashland. Issue being joined and trial bad, tbe court at tbe close of tbe testimony directed a verdict in favor of tbe defendant, and from tbe judgment entered thereon tbe plaintiff brings this appeal.</p> <p>Tbe negligence alleged is tbe excessive speed of the train and tbe failure to keep a lookout in tbe direction in which tbe train was going at tbe tima It appears, and is undisputed, that tbe defendant’s passenger depot is within the city limits; that tbe defendant’s line of railway from that city to Chicago at first runs directly east for seven blocks to Sixth Avenue East; that just before crossing that avenue it begins to turn to tbe southeast, and continues to do so until after crossing Seventh Avenue East; that on tbe evening in question tbe defendant’s regular passenger train for Chicago left tbe depot at 7:25 p. m., and when it reached Seventh Avenue East it ran over tbe child and injured it so that it died the next morning. There is evidence tending to prove that the plaintiff was a laboring man, thirty-nine years of age; that be lived with bis family, consisting of bis wife and three children, on the west side of Seventh Avenue East, and in the second house immediately south of the railway trade; that he came home from his work at half past six o’clock; that after he had his supper, he went back of the house to an alley, 150 feet from his front gate, to prepare some wood, ■and little Johnny, then twenty-five months of age, went with him; that while the plaintiff was engaged in splitting wood Johnny left his father and went'to the front of the house, through the front gate, out upon the avenue sidewalk, thence north on the sidewalk across the defendant’s railway track to a point some distance north of the track, when he turned around and went back south along the same sidewalk, and that as he was attempting to cross the railway track he was •struck by the train and so injured that he died the next morning; that when the plaintiff was in the act of carrying an armful of wood into the kitchen, he missed the child, and so ■dropped his wood, and looked in front, and saw the child, then twenty to twenty-five feet north of the track, running along the sidewalk toward the track, and he immediately started on the run for the child with all his speed, but the train got to the child first; that when he first discovered the child, he was 140 feet from him on the line he went, and that the train at that instant was 225 feet from the child. It is practically undisputed that the engineer kept a lookout on his side of the train all the time as it approached Seventh Avenue East, and could see the track and south of it, but could not see north of the track by reason of the curve in the track; that just before reaching Sixth Avenue East, the fireman, whose place was on the north side of the cab, got down on the deck, and pulled the door open, and reached over with his left hand for the injector, to keep the engine from blowing off, and so could not see the track as the train’approached 'Seventh Avenue East; that the roundhouse foreman, who happened to be riding in the cab to his place of business, ¡about a mile from the depot, when the engine was about at tbe alley mentioned looted tbrougb tbe front cab door, and saw the little child thirty to thirty-five feet north of the center of the track, walking north on the sidewalk, away from, the track; that he then turned around to speak to the engineer, who failed to hear him, when he again looked ahead and saw the child, then about fifteen or twenty feet from the track, running toward it; that he immediately called to the engineer, who turned his head in through the window, set the brake, and reversed the engine just as soon as he possibly could, and the train was stopped as soon as possible; that the automatic air bell was ringing all the time.</p>

<p> Contracts: Advertising in street cars: Leasing or personal services: When executed: Termination: Damages for breach: Pleading: Equitable counterclaim: Costs. </p> <p>1. Plaintiffs contracted to insert defendant’s advertising cards in a certain number of cars on certain street railways “for the term of twelve months from July 10, 1900.” Defendant was to pay therefor $470 per month — “the rent each month to be paid in advance;” and the contract provided that “nonuse of space from advertiser’s act or omission is advertiser’s loss.” The cards were to be subject to the approval of plaintiffs and of the railway companies. Prior to July 10, 1900, plaintiffs procured the insertion of the cards as agreed, but it appears that no particular space in particular cars was secured by tbem for tbe term of tbe contract. On September 27, 1900, defendant directed plaintiffs to remove tbe' 'cards from all cars, but plaintiffs refused, and continued tbe insertion of tbe cards up to July 10, 1901. Held, that tbe contract was not in the nature of a lease or subletting of certain spaces in tbe cars, but rather in tbe nature of a contract for personal services. It. was therefore not fully executed on July 10, 1900, when plaintiffs bad procured tbe insertion of tbe cards, but was still ex-ecutory at tbe time when defendant directed their removal.</p> <p>2. Tbe contract being executory, defendant bad tbe right, by giving such notice, to stop further performance by plaintiffs, and thereby limited its further liability to damages for its breach, of tbe contract.</p> <p>3. In an action upon tbe cohtraet, in which plaintiffs did not allege-such breach or damages therefrom, but sought to recover tbe full contract price on tbe theory of full performance, it is held that they cannot recover damages for such breach, but only those monthly instalments of tbe contract price which bad' been earned or partially earned before tbe contract was terminated by defendant.</p> <p>4. In an action upon contract, although defendant interposed an equitable counterclaim for reformation of tbe instrument, plaintiffs are held entitled to recover only tbe costs allowable under tbe statutes in actions at law on contract.</p>

Halsey, Circuit Judge. This is an action for the partition of the premises described, of which Fred Eoth owned the undivided one-fourth interest from April 30, 1895, to August 28, 1896.

BueNell, Circuit Judge. On August 1, 1900, George Gaviit presented to tbe county court for Green Lake copnty bis verified petition stating, in effect, that H. C. Moulton, of Berlin, in that county, died July 8, 1900, leaving an estate therein to be administered; that the deceased left no children him surviving and was never married; that he left the five persons therein named as next of kin and heirs at law of the said estate as therein mentioned; that the deceased left a…

J. ViNJE, Circuit Judge. Mandamus to compel the city clerk of the city of Superior,. Wisconsin, to place the names of relators on the official ballot as the regular Republican nominees for the various elective city offices to be filled by election thereto at the spring election of 1902.

'Appeal from a judgment of tbe circuit court for Marathon county: James O’Neill, Judge.

Taxpayer’s action to enjoin the collection of a judgment •against Joint School District No. 1 of the towns of Melrose and Irving. The facts were these: The assessed valuation of the taxable property of the district for 1899 was $71,564, and for 1900, $76,748. The number of inhabitants for said years was 37.6.

TaeeaNT, Circuit Judge. This is an action against tbe principal and sureties upon a bond given in guardianship proceedings. One of tbe sureties, Jobn Mitchell, having died after judgment in the circuit court, the defendant Kwntz, as- executor of his last will and testament, has been substituted in his place as defendant.

Williams, Judge. Action to recover tbe balance due upon a lease. Tbe cause was tried by tbe court. Facts were found in effect as follows: October 25, 1892, under a written lease, tbe relation of landlord and tenant was in form created between plaintiff and defendants in respect to certain real estate in tbe city of Milwaukee. Plaintiff’s son assumed authority to represent bim in the matter. Tbe father was in a sanitarium and the son bad charge of bis business.

Taebant, Circuit Judge. This is an action of ejectment, commenced July 1, 1897,. to recover possession of a small lot — being a part of government lot No. 2, fractional section 33, town 7, range 22 east — ■ situated in the Eifth ward of the city of Milwaukee.

M. Webb, Circuit Judge. On September 26, 1891, Bray and Choate claimed to be •owners in fee of certain lands in Oneida county, of which, 'however, one Coleman was in fact owner of an undivided one-quarter by the same title which was involved in the case of Grunert v. Spalding, 104 Wis. 193, 80 1ST. W. 589.

Dick, Judge. It appears from the record and the findings of the court that John W. Cole died February 17, 1894, leaving a last ■will and testament, which was admitted to probate April 4, 1894, wherein, among other things, he devised to his executors and trustees, therein named, certain real and personal property in trust, with directions as to the management thereof, and to pay the net balance of rents and interest to his wife, Eliza C. Cole, and his son, Oscar A. Cole, as…

E. .DuNwiddie, Circuit Judge. This is an action by a broker to recover commissions for 'the sale of land. The plaintiff claims that he procured purchasers for sixteen quarter sections of land in South Dakota under a contract with the defendant by which he was to be paid $50 per quarter section for his services, and that the ■defendant has paid only $211 thereon, leaving a balance of ■$589 due.

F. Dunwiddie, Circuit Judge. Action to recover damages alleged to have been sustained by breach of duty on the part of defendant in failing to deliver a telegram with reasonable diligence.

B. Beldeh, Judge. This action was upon a complaint alleging that the plaintiff, being owner of an undivided one-eighth of certain real estate in Green county, consented to a sale of the entire property at $900; but his one-eighth being incumbered by judgments largely exceeding his share of the purchase price,, which he could not presently satisfy, he executed, with the other owners, a warranty deed, which was placed in the custody of the defendant Sherron, upon an agreement…

Dick, Circuit Judge. An action to recover damages from respondents for removing a pier, which appellant had erected on the lied of Eox Lake, Dodge county. The respondents were lessees of a tract of land on Eox Lake, a navigable body of water. The land was owned by one Elias Kennedy, who leased it to respondents April 23, 1902, for one year, with the privilege of extension at the option of the lessees.

Dick, Circuit Judge. The nature of the action and the relation of the parties sufficiently appear in the report of this case when here upon the former appeal. Bloor v. Smith, 112 Wis. 340, 354, 87 EL W. 870.

S. Gbiswold, Judge. This is an action to recover for services and materials furnished in drilling a well.

S. Gbiswold, Judge. ■ Action to restrain defendants from removing a spur railway track, constructed by plaintiff, from certain lands where it was connected with the railway system of the defendant railway company to permit the moving of cars from such system to and from plaintiff’s icehouse situated some distance from the terminal grounds of such railway company, and to establish his right to have such connection maintained, and to enjoy, by means thereof, the benefits of…

<p> Railroads: Fences: Killing of horse on trade: Open gate: Negligence: Court and jury: Contributory negligence: Proximate-cause. </p> <p>1. Defendant’s section foreman, charged -with the duty of keeping the railroad fence in repair and gates closed, saw a gate open on Saturday afternoon, and people haying in the adjoining field who,' to his knowledge, had been accustomed to leave the gate open on their departure. He did not tlien close tire gate, nor did lie return on the following day, during which plaintiff’s horse passed through the open gate upon the right of way and was killed. Held, that the Question of defendant’s negligence was one for the jury.</p> <p>2. Plaintiff, who had left the horse in his pasture at some distance from the gate in question and inclosed by a good and sufficient fence, was not guilty of contributory negligence merely because, a week before the accident, while taking the horse to the pasture, he had passed through said gate over the premises of another person, and had left the gate open as he found it; nor was there any causal connection between his so leaving the gate open and the accident, it appearing that the gate had been closed several times in the interval.</p> <p>3. The statute (sec. 1810, Stats. 1898) does not limit the liability of railway companies, for failure to maintain fences, to cases where an ordinarily prudent person might have anticipated that animals would probably enter upon the right of way, but imposes an absolute liability for any which do so enter and are injured by reason of such failure, subject only to the defense of contributory negligence.</p>

<p> Street railways: Crossing steam railways: Contract to pay flagman, upon whom binding: “Successors": Sale of equipment: Use of crossing by purchaser: Covenants running toith .land. </p> <p>1. The purchase hy a street railway company of the personal property constituting the equipment of an existing street railway, in place, “not including the franchises, leases, contracts, or powerhouse machinery,” did not carry with it any obligation to perform a contract by the terms of which the original builder of the street railway had obtained the right to cross the tracks of a steam railway and had agreed to pay the expense of keeping a flagman at such crossing.</p> <p>2. It appearing that, the original builder of the street railway had no valid franchise and no right to the possession of the street, and that no franchises, leases, or contracts were included in the sale of the equipment to the street railway company, the fact that the latter, in operating its street railway system under its own franchise, used the crossing in question with the equipment purchased there in place, did not render it the successor of the original builder so as to be bound by his contract.</p> <p>3. Since the agreements in the contract were in their nature personal obligations relating to the operation of the respective railways at the crossing, and it did not grant to the original builder of the street railway any rights to the use of the real estate which were nót an incident to a valid franchise for operating a street railway, it cannot be held that the contract was binding upon the street railway company upon the ground that its benefits attach to the fee of the street at the crossing, which, subject to the public easement, was in the steam railway company.</p>

D. HASTINGS, Jr., Circuit Judge. This is an action at law to recover $600 damages for unlawfully and wrongfully filling up an alleged watercourse, with bed and banks and a well-defined channel through which water flowed during the greater part of the year, immediately below and north of the north line of the plaintiff’s premises, described, and thus causing the water to set back upon and overflow the plaintiff’s premises.

<p>Appeal from an order of the circuit court for Brown county: S. D. HASTINGS, Je., Circuit Judge.</p> <p>This is an action to recover for personal injuries. The complaint alleges that the plaintiff was an express messenger in the employ of the American Express Company, and that in the course of his employment, and on the 27th day of March, 1901, he was riding in the express car of the defendant’s passenger train running from Milwaukee to Green Bay, and that said train, by the negligence of defendant, ran into a freight train, by reason of which collision the plaintiff suffered severe personal injuries.</p> <p>The answer alleged, in substance, that at the time of said collision there was existing and in force between the defendant and the American Express Company a written contract providing, for the transportation of express matter and the necessary employees of the express company over the defendant’s lines, which contract contained the following provision, among others:</p> <p>"Seventh. As one of the express conditions of this contract the express company hereby binds and obligates itself to save harmless and fully indemnify the railway company and its officers and employees from and against all actions and liabilities for loss or damage resulting in any manner whatever to the property of, or freight and express matter in charge of tbe express company, or to any of its employees, agents, messengers, or officers while traveling as aforesaid upon any line covered by this agreement, it being distinctly understood and agreed that all damages resulting to express matter or to the property of the express company or to persons engaged in the service of the express company while engaged in such service, shall be bomé by the express company.”</p> <p>That at the same time there was a contract in force between the plaintiff and the American Express Company which contained the following provisions:</p> <p>“Now, therefore, in consideration of the premises and of my said employment, I do hereby assume all risk of accidents and injuries which I shall meet with or sustain in the course of my employment, whether occasioned or resulting hy or from the gross or other negligence of any corporation or person engaged in any manner in operating any railroad or vessel, or vehicle, or of any employee of any such corporation or person or otherwise, and whether resulting in my death or otherwise. And I hereby agree to indemnify and save harmless the American Express Company of and from any and all claims which may be made against it at any time by any corporation or person under any agreement which it has made or may hereafter make, arising out of any claim or recovery upon my part, or on the part of my representatives, for damages sustained by reason of my injury or death, whether such injury or death result from the gross negligence of any person or corporation or of any employee of any person or corporation, or otherwise. And I hereby bind myself, my heirs, executors and administrators with the payment to such express company, upon demand, of any sum which it may be compelled to pay in consequence of any such claims, or in defending the same, including all counsel fees and expenses of litigation connected therewith. I do further agree that in case I shall c.t any time suffer any such injury, I will at once, without demand, and at my own expense, execute and deliver to the corporation or persons owning or operating such railroad, stage or steamboat line upon which I shall be injured, a good and sufficient release under my hand and seal of all claims, demands and causes of action arising out of such injury or connected with or resulting therefrom. And I do hereby ratify all agreements heretofore made by said express company with any corporation or persons operating any railroad, stage or steamboat line in which said express company has agreed in substance that its employees shall have no cause of action for injuries sustained in the course of their employment upon the line of such contracting party, and I agree to be bound by each and every of such agreements in so far as the provisions thereof relative to injuries sustained by employees of the company are concerned, as fully as if I were a party thereto. And I do hereby authorize and empower said express company at, any time while I shall remain in its service, to contract for me and on my behalf in its own name or in mine with any corporations or persons operating any railroad, stage or steamboat line, for my transportation as messenger or employee free of charge upon the condition and consideration that neither I nor my personal representatives, nor any person claiming under me, will make any claim for compensation because of any injury sustained by me, whether resulting from the gross negligence of such corporations or persons or of any employee of such corporations or persons or otherwise, and the contract so made shall be as binding and obligatory upon me as if signed and delivered by me. And I do hereby further agree that the provisions of this agreement shall be held to inure to the benefit of any and every corporation and to all persons upon whose railroad, stage or steamboat line the American Express Company shall forward merchandise, as fully and completely as if made directly with such corporations or persons.”</p> <p>The plaintiff demurred generally to the. answer, which demurrer was overruled, and the plaintiff appeals.</p> <p>They argued, inter alia, that the contract between the express company and the plaintiff in this action is void as against public policy so far as it purports to absolve the express or railway companies from liability for their negligence. IBailey, Pers. Inj. §§ 1054, 1060; Little Bock & Ft. 8. B. Go. v. Eubanks, 48 Ark. 460, 3 S. W. 808; Purdy v. B. W. & O. B. Go. 125 N. T. 209, 26 N. E. 255; Lake Shore & M. 8. B. Go. v. Spangler, 44 Ohio St. 471, 8 N. E. 467; Starr v. G. N. B. Co. 67 Minn. 18, 69 N. W. 632; Johnson’s Adm’x v. B. & D. B. Go. 86 Ya. 975, 11 S. E. 829; Louisville & N. B. Oo. v. Orr, 91 Ala. 548, 8 South. 360; Kansas P. B. Oo. v. Peavey, 29 Kan. 169; Bich-mond & D. B. Go. v. Jones, 92 Ala. 218, 9 South. 276; Boes-ner v. Hermann, 8 Fed. 782, 34 Cent. Dig. col. 643; Bunt v. Herring, 2 Mise. Eep. 105, 21 N. Y. Supp. 244; Simpson v. N. Y. Bubber Go. 30 N. Y. Supp. 339; Chicago, IF. & V. O. Oo. v. Peterson, 39 Ill. App. 114. The express company and the railway company cannot do together what neither can do alone in depriving an employee of remedy for the negligence of either. The plaintiff was a passenger for hire upon the road of the defendant. It is admitted that a railway owes the same degree of care to mail agents riding in postal cars as to those who are passengers ort the train, -and there is no reason why the same rule should not apply to express messengers; and they are held to be passengers and entitled to relief for negligence in many cases. Chamberlain v. M. & M. B. Go. 11 Wis. 238; Yeomans v. Gontra Gosta S. N. Go. 44 Cal. 71; Fordyce v. Jackson, 56 Ark. 594, 20 S. W. 528; San Antonio & A. P. B. Go. v. Adams, 6 Tex. Civ. App. 102, 24 S. W. 839; Hutchinson, Carriers, §§ 564, 565 and cases; Brewer v. N. Y., L. F. & IF. B. Go. 124 N. Y. 59, 11 L. E. A. 483; Kenney v. N. Y. G. & H. B. B. Oo. 125 N. Y. 422, 26 N. E. 626; Jennings v. G. T. B. Go. 15 Out. App. 477; Jones v. St. L. S. IF. B. Go. 125 Mo. 666, 26 L. E. A. 718.</p> <p>To the point that plaintiff was not a passenger, and neither his contract nor that between the' express company and defendant contravenes public policy, they cited Baltimore &' O. S. IF. B. Go. v. Voigt, 176 U. S. 498; Louisville, N. A. & G. B. Go. v. Keefer, 146 Ind. 21, 44 N. E. 796; Pittsburg, G., G. & .St. L. B. Oo. v. Mahoney, 148 Ind. T96, 46 N. E. 917; Blank v. I. 0. B. Go. 182 Ill. 332, 55 N. E. 332; Hosmer v. O. C. B. Go. 156 Mass. 506, 31 N. E. 652; Bates v. O. G. B. Go. 147 Mass. 255, 17 N. E. 633. .</p>

This is a companion suit to that presented in Ashland v. Chicago & Northwestern 11. Co. 105 Wis. 398, 80 N. W. 1101. To the statement of facts there made we now refer. A clear understanding of the situation, however, requires a little more amplification of the facts.

EbeoR to review a judgment of tbe circuit court for Taylor county: John K. Parish, Circuit Judge. Action of replevin for a cash register sold by plaintiff to •defendant at an agreed price of $200, upon which credit was allowed for the price of a former cash register, shipped to the defendant by the plaintiff at the request of one William Wer-der, the price whereof was supposed to have been sent by Werder to the plaintiff.

<p> Garnishment: Release: Undertaking to pay judgment: Pleading: Payment: Fraud: Estoppel to deny indebtedness of garnishee. </p> <p>1. In an action upon an undertaking to pay a judgment an answer alleging that defendant had no knowledge or information sufficient to form a belief as to whether the judgment or any part thereof has been paid or not, did not entitle defendant to the benefits of a plea of payment; and plaintiff was not bound to prove that the judgment had not' been paid.</p> <p>2. In an action upon an undertaking to pay a judgment it is no defense that the undertaking was procured by fraud of the judgment debtor, if the plaintiff had no knowledge and was not chargeable with notice of the fraud.</p> <p>3. Where the principal defendant procures the release of a garnishment by the giving of an undertaking, under sec. 2771, Stats. 1898, to pay the judgment which may be recovered, both such defendant and his sureties are estopped, in an action on the undertaking, to deny that the garnishee was indebted to him.</p>

Paeish, Circuit Judge. This is an action to recover damages sustained by tbe plaintiff while in tbe employ of tbe defendant as bead sawyer in running a circular saw and by being struck by a board thrown against him by an edger situated fifty-seven feet from where be stood at tbe time he was injured. Issue being joined and trial bad, tbe court, at tbe close of the trial, directed a verdict in favor of tbe defendant. From tbe judgment entered thereon tbe plaintiff ajipeals.

<p> Tax titles: Void deed: Failure to name purchaser: Ejectment by original owner: Limitations: Possession of land: Pleading. </p> <p>1. A tax deed reciting in one place that the lands were sold to the grantee, and in another that the certificates were assigned to him, fails to state the name of the purchaser at the tax sale, ■ and is void on its face.</p> <p>2. Under sec. 1189a, Stats. 1898, as amended by sec. 21, ch. 351, Laws of 1899, the limitation therein prescribed for actions of ejectment as to lands conveyed by tax deed void on its face, is not applicable unless the original owner or those claiming under him has failed to pay or redeem all the taxes levied upon such lands after those for the nonpayment of which the deed was issued, up to the time of the recording of the deed.</p> <p>■8. Where'in ejectment for land sold for taxes the complaint alleges that defendant is in possession of the premises and the answer states that defendant has been in undisputed and continuous possession since the recording of his tax deed, evidence that the lands were at all times vacant and unoccupied was inadmissible against objection.</p> <p>■i. Ejectment may be maintained by the original owner against one claiming under a void tax deed, although the land is vacant and the claimant has not had actual possession. Cutler v. Eurlbut, 29 Wis. 152, explained.</p>

C. SilvebthoRN, Circuit Judge. Action to recover $125 said to be due from defendant under an ordinance, by reason of defendant, as a transient merchant, trader or dealer, not intending to permanently locate in the plaintiff city, coming into the same and exposing therein for sale by sample, goods, wares and merchandise, notions’and articles of trade, soliciting and taking orders therefor, traveling, in so doing, from house to house and from place to place during a period of…

Appeae from a judgment of the circuit court for Lincoln' county: W. C. Silveethoekt, Circuit Judge. . The plaintiff company was the owner of and engaged in: operating a street railway and electric lighting business in the city of Merrill.

.Appeal from an order of the circuit court for Oneida county: W. C. Silvebthoeh', Circuit Judge. Previous to April 29, 1897, townships 35 and 36 north, of range' 11 east, were parts of different towns in Forest ■county. The town boards of said towns had laid out and apportioned a joint town road, which was constructed and maintained as apportioned.

W. Bubkell, Circuit Judge. Appeal from judgment of tbe circuit court affirming tbe final order of distribution entered by tbe county court in tbe matter of tbe will of Abby S. Harris.

This action was commenced to recover $950 life insurance under a certificate issued by the Independent Scandinavian Workingmen’s Association to one Elias Sklet, payable to his estate.

Action upon a contract worded as follows: “This agreement, made and entered into this 14th day of August, 1901, by and between the Wisconsin Farm Land Go., of Neillsville, Wisconsin, and Andrew Bullard, Town of Weston of Clark Co., Wisconsin. “Witnesseth : The said Andrew Bullcurd for and in consideration of the agreements hereinafter made, does hereby appoint the said Wisconsin Farm Land Company his exclu? sive agents for the period of until the first of March from the date…

Action for damages for an assault. Plaintiff charged tbat on an occasion when sbe went to defendant’s office to collect an order on him be seized ber in bis arms, kissed ber, and solicited sexual intercourse, wbicb was refused, and tbat, after obtaining tbe money for wbicb she wfent, sbe departed. Defendant denied everything of tbe transaction except ber coming to bis office and collecting tbe money. There were no other witnesses of tbe transaction.

B. BeldeN, Circuit Judge. Tbis is an action upon promissory notes, which was commenced by the service of summons July 5, 1897, the complaint-being duly verified. The defendant Grant appeared and answered October 2, 1897, setting up various defenses, which are not necessary to be stated.

order of the circuit court for Eaciue 0ounty: E. B. BeldeN, Circuit Judge. Action to recover for injuries received by plaintiff by tbe derailment of one of defendant’s cars while she was a passenger thereon.

B. BeldeN, Circuit'Judge. Action to recover for personal injuries claimed to bave been caused by tbe insufficiency of a sidewalk in tbe defendant city upon tbe east side of Villa street between Fourteenth and Eifteentb streets, about eighty feet north of the latter.

Williams, Judge. An action by respondents’ testator, commenced on August 24, 1900, to foreclose a real estate mortgage executed by Sarah Leiser, deceased, on or about the 15th day of April, 1892. The debt secured was evidenced by a note of the same date, due three years, thereafter. The plaintiff became the owner of the note and mortgage, for a valuable consideration, on the 30th day of June, 1900.

C. Ludwig, Judge. Tbis is an appeal from tbe judgment of tbe superior court of Milwaukee county reversing a judgment of tbe county court refusing to admit tbe will of James Hanley to probate, and remitting tbe cause to tbe county court with directions to admit the will to probate.

Tarrant, Circuit Judge. This is an action by the plaintiff, as widow of one James IT. Barry, deceased, upon a mutual benefit certificate issued by the defendant to said James H. Barry in his lifetime. The action was tried by the court, and the facts necessary to be stated are undisputed. The defendant is a mutual benefit association incorporated under the laws of Wisconsin for the benefit of practical Homan Catholics only, and providing the death benefit of $2,000.

TaRRastt, Circuit Judge. The appeal is from an order dissolving a temporary injunction. The action of the court was based upon the pleadings and supporting affidavits. The substance of the complaint is-as follows: The defendant is a corporation duly organized under the laws of Wisconsin. It possesses power to make and enforce by-laws not inconsistent with its charter or the law of' the land. Its governing board consists of nine directors.

0. Ludwig, Judge. Action for personal injuries, in which, the jury found plaintiff guilty of contributory negligence.

Williams, Judge. Action by respondent, as receiver of the Blue Mound Investment Company, to recover balance due upon a stock subscription. The corporation was organized for “the buying and selling of real estate and improving the same and the loaning of money upon securities.” The articles of incorpo- ' ration were recorded August 25, 1892.

Appeal -from an order of the circuit court for Milwaukee •county: Lawrence W. Halsey, Circuit Judge.

0. Ludwig^ Judge. This is an appeal from an order vacating a judgment of an acting justice of the peace.

TabeaNT, Circuit Judge. Action on an assignee’s bond, in tbe name of tbe clerk of tbe circuit court for Milwaukee county, for tbe benefit of tbe creditors of tbe assignee and tbe assignor. May 10, 1897, George Scbweickhart made an assignment of bis property in due form for tbe benefit of bis creditors to Paul C. Biersacb. Tbe bondsmen of tbe assignee were Charles O. Manegold and Charles Abresch.

<p>Appeal from a judgment of the superior court of Milwaukee county: James O’Hbill, Judge.</p> <p>This action is between the same parties and arises out of the same facts as did that reported in 114 Wis. 279, 90 1ST. W. 191; this, however, being brought under sec. 4255, Stats. 1898, to recover for the benefit of the widow and children of the deceased, Simon Hupfer. The plaintiff offered evidence of a custom on the part'of the defendant to sell distillery slops to the public generally from a large slop vat about sixteen feet in diameter, constructed of pine staves about three and one half inches thick, and surrounded by five iron bands or hoops three sixteenths of an inch in thickness; that customers were permitted, because they would not purchase otherwise, to themselves go upon a platform adjoining the tank in order to stir up the contents while drawing it off'into their •own receptacles; that Hupfer, a frequent customer through a series of years, was, on September 13, 1899, upon this platform, drawing off slops, when the hoops parted, the tank collapsed, and the contents washed him from the platform and down a hill a considerable distance, until stopped by a fence, whereby he was terribly scalded, and as a result died in a few hours after removal to a hospital. The breaking of the hoops was alleged to have been caused by defendant’s negligence in failing to take proper care and precautions and in omitting proper inspection, whereby they had become so weakened as to be unsafe. At the close of thei plaintiff’s evidence the court made an order and later entered judgment of nonsuit, from which the plaintiff appeals.</p>

<p> Master and servant: Entire contract of employment: “Working days,” when include Sundays: Wrongful discharge: Election of remedies: Single recovery. </p> <p>1. A contract by which plaintiff agreed to act as traveling salesman for defendant from April 1, 1900, to December 31, 1900, at a salary of $1,000 per year and expenses, and providing that a failure by either party to faithfully carry out his part of the agreement should be sufficient cause for termination of the contract by giving thirty days’ notice, is held to have been an entire contract, although prior to his discharge plaintiff had been paid in monthly pro rata instalments.</p> <p>2. Under a contract for the employment of a traveling salesman, providing that he should be paid his expenses, .“not to exceed an average of $7 per working day,” all Sundays actually spent in the service should be included as working days, in calculating such average.</p> <p>3. After the wrongful discharge of one employed under an entire contract, he may elect to treat the contract as rescinded and recover on a quantum meruit for services actually rendered, or may sue, either before or after the expiration of the agreed term of service, for damages actually resulting from the breach; but an election of either remedy will be a waiver of the other, and one recovery of damages for the breach, though it be only of the pro rata amount for one month’s service, will be a bar to any subsequent recovery.</p>

C. Ludwig, Judge. This is an appeal from an order refusing to quash an alternative writ of mandamus. It appears from the relation, in effect, that the relator was a married man, forty-four years of age; that he entered the service of the city of Milwaukee ¿s a patrolman January 2, 1890, and continued in such employment until injured, May 27, 1901.

Takbant,-Circuit Judge. This is an action to recover damages for personal injuries. In August, 1900, and for some time prior thereto, the defendants, as partners, were manufacturers of hats in the city of Milwaukee, and at the time of the accident occupied a four-story building, and had occupied the same for about two weeks.

J. ViNje, Circuit Judge. Mandamus action to compel tbe treasurer of tbe city of Superior, Douglas county, Wisconsin, to set aside, for tbe use of tbe board of education of sucb city, of tbe moneys in bis bands, a certain sum on account of tbe county levy of taxes for school purposes for 1902.

B. BeldeN, Circuit Judge. This is an action to set aside and have adjudged void the special assessment proceedings and the specif! assessment certificate issued thereon as a lien upon the plaintiff’s premises, described, and to restrain the county treasurer from selling or offering to sell such premises, or any part thereof, to satisfy such assessment. Issue being joined and trial had, the court found, as matters of fact, in effect-: (1) The city is a municipal corporation.

TaeeaNT, Circuit Judge. Tn May, 1901, tbe plaintiff building and loan association beld a mortgage upon certain real estate of tbe defendant Webster, wbicb bad been defaulted, and upon wbicb foreclosure action bad been instituted and gone to judgment on July 7, 1900.

Aepeal from a judgment of the circuit court for Milwaukee county: LawbeNCe W. Halsey, Circuit Judge. Action by Johann Meier against Sophie Bell and others to reform certain notes and mortgages, and for judgment declaring him to be the owner thereof. One note and mortgage was executed by Erank Banholzer and wife, and was for $1,700, and the other, for $900, was executed by Martin Orlikowski and wife.

Appeals from a judgment of tbe circuit court for Milwaukee county: LaweeNoe W. Halsey, Circuit Judge.

<p> Mechanics’ liens: Knowledge and consent of landowner: Evidence: Waiver by acceptance of order for amount due: Claim: Amendment: Notice to owner: Service of copy: Taxation of costs. </p> <p>1. Testimony of defendant that she knew, soon after the excavation was begun, that a house was being built by her husband on a lot owned by her, and that shortly thereafter she executed a mortgage thereon and turned the money over to her husband to use in building the house, sufficiently proves her knowledge and consent, so that, under sec. 3314, Stats. 1898, a lien for materials furnished and used in the building might attach to the land.</p> <p>2. Under sec. 3317, Stats. 1898, the lien of a subcontractor was not waived or discharged by his taking an order for the amount due him, drawn by the principal contractor upon the person building the house, even though the latter accepted the order conditionally and made partial payments thereon, where such order was not expressly received as payment.</p> <p>3. Under sec. 3320, Stats. 1898, the court may permit the claim for a lien to he amended at the trial so as to show with whom the original contract was made.</p> <p>4. “Notice in writing” of a subcontractor’s claim for a lien may properly he given to the owner, under sec. 3315, Stats. 1898, hy service upon him of a copy of the notice.</p> <p>5. The taxing officer cannot refuse to tax costs for findings drawn under the direction of the trial judge, on the ground that they are voluminous.</p>

0. Ludwig, Judge. Action to recover damages alleged to bave been caused to^ the heirs at law of Genevieye Forrestal, deceased, by the act of defendant in negligently causing her death.

Appeai, from a judgment of tide superior court of Milwaukee county: J. C. Ludwig, Judge. Action of garnishment Summons served on Northwestern Mutual Life Insurance Company, as garnishee, September 19, 1900. Answer by garnishee, and issue thereon, and trial. Defendant Alonzo W. Straw insured his life in the garnishee company on September 19, 1885, $15,000, by policy payable to his wife, Amelia N. Straw.

Pabish, Judge. The appeal is by defendants from a judgment annulling a deed of conveyance made by plaintiff, Clinton Burnham, to Ms wife, Anna Burnham, and canceling a mortgage on the property described in the deed, given by Anna Burnham to ]D. Gr. Rogers and Charles D. Mann. On and before February 6, 1901, ‘the plaintiff, Clinton Burnham, was the owner of an estate of considerable value an the city of Milwaukee.

<p>Appeal from an order of the circuit court for Milwaukee county: Oeken T. Williams, Circuit Judge.</p>

Tarrant, Circuit Judge. This is a controversy over a mutual benefit certificate of insurance. The controversy was submitted to the court without action on an agreed statement of facts. The material facts appearing from this statement are as follows: Prior to July 29, 1888, the appellant was a society organized tinder sec. 2002, R. S. 1878, having a charter theretofore granted to it by the Rational Grand Lodge of the Order of Hermann’s Sons.

Tarrant, Circuit Judge. These facts were pleaded for a cause of action: Plaintiffs ■are taxpayers of the city of Milwaulcee, a duly organized municipal corporation of this state. Held: so far as authority upon the proposition has been found, that the principal officer is not liable for the acts of such subordinate clerks. Murphy v. Gommfrs, 28 N. Y. 134; Wiggins v. Hathaway, 6 Barb. 632; Bailey v. Mayor, 3 Hill, 531.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Wabbeet D. TabRant, Circuit Judge.</p> <p>It appears from the record, and is undisputed, that April 11, 1900, the defendant issued its policy of insurance on the life of Delia ..Speiser, of Milwaukee, for the amount of $3,000, payable to her minor children, the plaintiffs in this action; that August 19, 1900, the assured, Delia Speiser, died in Milwaukee; that August 31, 1900, notice and proofs of her death were given to and received by the defendant; that February 9, 1901, Morris Speiser was appointed guardian ad litem of the plaintiffs, and that March 4, 1901, this action was commenced to recover such insurance; and the complaint alleges the facts stated, and that the assured had performed all the conditions of the insurance contract on her part.</p> <p>The defendant answered by way of admissions, denials, and counter allegations to the effect that in her application for such insurance the insured stated (1) that she did not then have any disease or disorder; (2) that during the past seven years she had no medical advice, except in respect toiler confinement; (11) that she had never had difficulty in breathing, nor any disease of the heart, nor palpitation of the heart, nor dropsy, nor swelling of the feet or face; (12) that her mother died at the age of fifty-five by reason of change of life, which lasted two years, after previous good health; that she had one sister living in good health at the age of forty-four, and.one who died at the age of forty-five of change of life, which continued for two years, after previous good health; that none of her uncles, aunts, or grandparents had any disease of the heart or kidneys; that she had never applied to the defendant, nor any other company or association, for any insurance which had not been granted, nor which had been delayed or modified in kind or rate. The answer further alleges, in effect, that each and all of such answers were warranted in the application to be full, complete, and true, but that each and all were false and untrue to the knowledge of the assured; that October 21, 1899, she applied to the Home Life Insurance Company of Hew Tork for insurance,, and the same was refused October 28, 1899; that at the time of the application of the assured to the defendant for the insurance in question she was afflicted with fatty degeneration of the heart, and knew of such disease, and had previously consulted several ’ physicians in relation thereto; that the mother of the assured died of dropsy; that her sister, mentioned, died of Bright’s disease; that the living sister mentioned was in poor health, and suffered from diabetes; and that in issuing the policy the defendant relied upon the truthfulness of the statements contained in the application.</p> <p>For a second defense the answer alleges, in effect, that by the contract of insurance the policy was not to take effect until the first premium should be paid to the defendant or its- agent while the assured was in good health, and that when it was paid, August 17, 1900, the assured was suffering from organic disease of the heart, to her knowledge.</p> <p>The third defense alleges, in effect, that by the contract of' insurance the defendant was at liberty, in case any of such answers should be untrue, to cancel the policy as therein specifically set forth, upon repaying the cash premium paid, and that Rovember 6, 1900, the defendant tendered back the premium of $99.66 paid, and demanded a cancellation of the policy, and that the same was deposited in court to make such tender good.</p> <p>At the close of the trial the court directed a verdict in favor of the defendant, and from the judgment entered thereon accordingly the plaintiffs appeal.</p>

<p> Payment: Burden of proof: Instructions to jury: Evidence: Transactions with agent since deceased: Cross-examination. </p> <p>1. An instruction that it was incumbent upon defendant to estab- . lisb bis defense of payment “by clear and satisfactory evidence” was erroneous and presumably prejudicial, although the court had already correctly .charged that the burden was upon him to show payment “by a fair preponderance of the evidence.”</p> <p>2. Under sec. 4070, Stats. 1898, defendant was not competent to testify as to transactions between himself and plaintiff’s attorney, since deceased, Where plaintiff had offered no evidence concerning such transaction^.</p> <p>3. The question being whether a certain mortgage had been received by plaintiff in full payment and satisfaction of defendant’s liability on a judgment against him and others, defendant should have been allowed to elicit from plaintiff, on cross-examination, the negotiations and conversations actually had with him concerning the payment and satisfaction of said judgment, and what took place when securities and property were deposited and conveyed by him to apply on the liability.</p>

<p> Unfair competition in trade: Imitation of trade symbol: Injunction. </p> <p>1. Defendant’s trade symbol or device is held to be an imitation, calculated to deceive, of that which plaintiff had previously used upon its cars, sacks, cards, billheads, and advertising matter, and under which plaintiff had built up a profitable business in the manufacture and sale of malt made by the so-called “eight-day process” — the striking features of both devices being their circular shape, a large figure 8, and encircling heads of barley, although there were differences in coloring and in the words attached; and the use of such device by- defendant constitutes unfair competition in trade, against which equity will protect the plaintiff.</p> <p>2. The facts th.at such malt is not retailed to the public, but sold only to brewers and distillers, and that the defendant has not used its device upon cars or sacks, but only upon sample cans, cards, letterheads, etc., go only to the degree of deception and consequent injury, but do not affect plaintiff’s right to protection.</p> <p>3. In an action to restrain the use of such trade device, if the fact is established of an imitation well calculated to deceive, it is not necessary to show by specific proof that purchasers have actually been deceived.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: J. 0. Ludwig, Judge.</p> <p>Action on contract to recover a balance alleged to be due thpreon. The claim of plaintiff was that he was employed by defendant as its agent to promote the settlement upon by, and sale of its lands to, immigTants from Europe, the agreed compensation for his services being a salary of $100 per month commencing February 1, 1899, payment of his expenses incurred in the course of his employment, including those incident to his journey from Milwaukee to the place selected for his headquarters in Europe, and allowance of a reasonable commission upon receipts for lands sold; that he continued in defendant’s employ under such agreement from February 1, 1899, to August 18, 1901, during which time he incurred expenses chargeable to defendant under the agreement aforesaid to the amount of $1,315.85, and sold lands upon which he was entitled to a commission of $200; that the entire amount of indebtedness which accrued to him, including salary, expenses and commission, was $4,575.85; that the amount received thereon from defendant was $2,540, leaving $2,035.85 due, for which judgment was asked.</p> <p>The employment of plaintiff by defendant was admitted by the answer, but it was alleged that the agreed compensation for his services was expenses not exceeding $2,000 and a commission of two per cent, upon lands sold by or through his instrumentality. It was denied that any commission was earned under such agreement, and alleged by way of defense, and also by way of counterclaim, that plaintiff had been paid the sum of $577.40 in excess of the $2,000 agreed upon. Judgment was asked upon the counterclaim for the excess payment. The allegations of the counterclaim were duly put in issue.</p> <p>The case was tried before a referee, who found the facts as to the agreement in plaintiff’s favor. The balance found due by the referee was $1,835.85. The referee’s conclusions were affirmed by the circuit court and judgment was accordingly rendered, from which this appeal was taken.</p>

<p> Contracts: Consideration: Procuring insurance policies: Invalidity:Other insurance: Breach of warranty: Pleading: Estoppel. </p> <p>1. Defendant requested plaintiff, an insurance agent, to procure fire insurance to a certain amount. Plaintiff procured and delivered two policies, in different companies, aggregating that amount, and defendant promised to pay plaintiff the premiums. Each policy (in the Wisconsin standard form) provided that it should he void in case of other insurance. Held, that if such policies when delivered were void as insurance contracts, each because of the other, they were binding agreements to pay to defendant the amount of the premiums on proper demand (sec. 1941 — 52, Stats. 1898), and hence were a sufficient consideration to support defendant’s promise.</p> <p>2. In an action upon such promise defendant could take advantage of the invalidity of the policies as a breach of warranty, only by pleading such breach affirmatively by way of setoff or counterclaim.</p> <p>[3. Whether, where two insurance companies issue policies upon the same property, at the same time, and through the same agent, each policy providing that it shall be void in case of other insurance, the companies, by accepting the premiums •with knowledge, through said agent, of the facts, estop themselves to deny the validity of the policies, not determined.]</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: James O’Neill, Judge.</p> <p>Louis Saxe executed Ms last will and testament January 6, 1894. He died September 9, 1900. On September 12, 1900, Leo E. Saxe and Thomas J. Pereles, named as executors in the will, petitioned the county court for' the probate of the will and for letters testamentary to be granted thereon according to law. On November 5, 1900, the widow and ten of the children of the deceased (being all except one and Leo E. Saxe) appeared and objected in writing to the appointment of Leo E. Saxe as such executor for the reasons that he was incompetent and irresponsible; that he would be obnoxious, and would not act for the benefit and interest of the persons interested in the estate; and that he was hot of such a character in whom confidence and trust could be imposed. Afterwards, on November 13, 1900, the will was admitted to probate. On May 28, 1901, the county court entered an order overruling and setting aside such objections and appointed Leo E. Saxe as one of such executors, and thereupon, on the same day, Leo E. Saxe accepted such trust and qualified as such executor and duly filed the bond required of him by law and the order of the county court, and letters testamentary were thereupon issued to him.</p> <p>Thereupon an appeal was taken from such order and judgment of the county court so appointing Leo E. Saxe as such executor to the circuit court, wherein, after due notice, the cause was retried, and at the close of the trial that court found, in addition to the facts stated, in effect, that at the time of the probate of the will and issuing of letters testamentary thereon to Leo E. Sa<xe he was legally competent to act as such executor; that some years before Leo E. Saxe ■gambled at .times, but the nature of such gambling was not disclosed by the evidence, and it was not proved that he was ever an habitual or professional gambler; that the- evidence tended to throw suspicion upon the good faith of some of the business transactions of Leo E. Saxe in previous years, but was not sufficient to prove actual fraud and dishonesty on his part; that the evidence failed to sustain the objections filed to his appointment as such executor, except in the particular that he was obnoxious to the heirs who filed such objections. And as conclusions of law the court found, in effect, that Leo E. Saxe, at the time of the death -of the testator and the probate of the will, was, and still is at the present time, legally competent to act as such executor of said last will and testament, and was entitled to the issuance of letters testamentary to him as such executor; that Leo E. Saxe was entitled to judgment affirming the order of the county court in said matter, and therein directed the case to be remitted to the county -court for further proceedings as provided by law; that Leo E. Saxe was and is entitled to recover his costs and disbursements on such appeal from the appellants, and ordered judgment to be entered accordingly. From the judgment so entered the plaintiffs appeal.</p>

Halsey, Circuit Judge. This is an action of certiorari brought to reverse the judgment of a justice of the peace.

Ajppeai from a judgment of the circuit court for Milwaukee county: E. B. Beldejt, Judge. The appeal is from a judgment in proceedings for the appointment of a guardian. The cause was tried in the circuit court on appeal from the decision of the county court granting the prayer of the petitioner.

TaebaNt, Circuit Judge. On September 20, 1897, one D. J. Lawrie, the husband of respondent, MerUe Lawrie, was a tailor in Milwaukee, and had for some time before been purchasing cloths of the plaintiffs. He desired to so continue, and they declined to allow such line of credit as he had theretofore enjoyed unless some security were given. It was proposed and arranged that he and his wife should give a note and mortgage for $3,000 as security for prospective indebtedness.

<p> Adverse possession of land: Claim of title: Court and jury. </p> <p>Upon evidence tending to show open, exclusive, continuous, uninterrupted, and hostile use and occupation of land for the statutory period hy defendant and his grantors and predecessors,, it is held that it was a question for the jury whether such occupation was under claim of title exclusive of any other right so as to constitute adverse possession.</p>

<p> Husband and wife: Joint tenancy: Conveyance by wife. </p> <p>Since the enactment of the Revised Statutes of 1878, a conveyance of land running to husband and wife makes them joint tenants, and the wife may convey her interest as if she were unmarried.</p>

<p>1 Appeal from a judgment of the circuit court for Milwaukee county: OeRew T. Williams, Circuit Judge.</p> <p>This is an action for assault and false imprisonment. The facts were not seriously in dispute. June 18, 1900, the defendant was the proprietor of a large department store in Milwaukee, in which there were employed four floorwalkers- and more than 300 clerks. On the last-named day the plaintiff, a married woman living in Sheboygan county, entered the defendant’s store with her daughter Jennie Buscher, who lived in Milwaukee, to do some shopping. They went first, to the lace counter and bought some lace,. and then bought some dimity at another counter, after which they inquired of one Julius Saxe, one of the defendant’s floorwalkers, for the muslin department. Saxe went with them to the muslin counter, where they bought muslin, and afterwards some soap at another counter; Saxe receiving the money for a part, at least, of the purchases. Erom the soap counter they passed out of one of the outer doors of the store onto the side>walk, and Saxe followed them. The daughter thus describes what then took place:</p> <p>“We were three feet away from the outer door of the vestibule on the sidewalk, when Saxe stopped us — tapped me on the shoulder. I looked around to see what he wanted and who he was. He asked me for the lace. I handed him the package of lace I had purchased. He said: ‘That is not the lace I want. It is the lace you stole.’ I said I did not steal any lace. Then he stepped around sort of back of me and my mother, who stood at my left, almost directly in front of me, and then he apparently took a bolt of lace of about twelve yards from under her aim, made such a movement, and said, ‘Here it is.’ That is the first I had noticed or seen anything of it. After he spoke about this, he asked us to come back into the store with him. I turned around and faced him — he was standing almost next to the door, just outside, so people could go in and out — and he said, ‘Come back into the store,’ and we went.”</p> <p>It further appears by the daughter’s testimony that the plaintiff and her daughter followed Saxe back into the store and downstairs into a small room, where Saxe shut and locked the door, and tore open the front of the plaintiff’s dress to see if he could find stolen goods, accusing them at the same time of stealing lace, and saying that he would send them to a police station unless they paid him $50; that they were kept there nearly half an hour; that plaintiff denied stealing the lace, and finally they gave Saxe all the money they had, amounting to $15, and he let them out. The plaintiff herself did not attempt to describe the arrest and subsequent transactions, -except to say that Saxe stopped them and took them down cellar, and that she sat on a bench, and was unable to walk without help when released. It appeared that Saxe died July 24, 1902, and that his testimony was never taken. There was testimony tending to show that the plaintiff’s health was good before the assault, and that since that time she has had palpitation of the heart and nervous weakness.</p> <p>The jury returned the following special verdict:</p> <p>“(1) Did the plaintiff sustain an injury on the 18th day of June, 1900, at the defendant’s store, known as the ‘Boston Store,’ in the city and county of Milwaidcee, at the hands of one J. II. Saxe? A. (by consent of all parties) Yes. (2) Was the said J. H. Saxe on the 18th day of June, 1900, ih ,the employ of the defendant, Julius Simon, as floorwalker? A. (by consent of parties) Yes. (3) Were the acts causing the plaintiff’s injury done by said J. II. Saxe when acting within the scope of his employment by the defendant? A. Yes. (4) Did the defendant ratify the acts ■of said J. H. Saxe toward the plaintiff, after having learned the fact? A. Yes. (5) If the court should be of the opinion-that the plaintiff is entitled to recover compensatory damages, at what snm do yon assess the plaintiff’s compensatory damages herein? A. $2,500. (6) If the court should be of the opinion that the plaintiff is entitled. to recover, in addition to compensatory damages, punitory or exemplary •damages, at what sum do yon assess the plaintiff’s exemplary ■or punitory damages? A. FTone.”</p> <p>The defendant 'moved to set aside the verdict and for a new trial, but the motion was overruled and judgment for the plaintiff entered, from which the defendant appeals.</p>

<p> Municipal corporations: Ordinance, when void for unreasonableness: ZAghting contract. </p> <p>1. Though broad scope and great deference will be accorded to the discretion of municipal corporations in the exercise of the legislative powers granted to them, yet such powers, being delegated solely for public purposes, must be exercised with reference to such purposes, and acts which in that aspect are wholly unreasonable will be held invalid.</p> <p>2. A village ordinance conferring franchises upon and making a contract with a corporation bound the village and its municipal successors for a term of thirty years (and practically for fifty years) to take all its lights from the corporation and pay for them during the whole period at rates definitely fixed therein, which considerably exceeded prices paid elsewhere under similar circumstances. The greatest excess was in the. prices for gasoline and oil lamps, which were practically the only lights which the corporation was bound to furnish, there being no provision under which the village could compel the laying of gas pipes or stretching of electric wires. The only reservation of any power of control in the village was of “such rights as it cannot waive” to make ordinances and regulations. There were other provisions significant of a purpose merely to benefit the corporation, without consideration for the public welfare. The village had a population sufficient to make it a city ipso facto when the fact should be ascertained by a census. It almost immediately adjoined the city of Milwaukee, and the speedy extension to it of the gas and electrical facilities of that city was beyond reasonable doubt. Held, that the ordinance was invalid.</p> <p>3. The fact that the ordinance had been submitted to and approved by a vote of the electors of the village, so that it was the duty of the village board, under sec. 959 — 52, Stats. 1898, to grant the franchise, does not prevent the ordinance from being held void for unreasonableness.</p> <p>4. The unreasonable features of such ordinance and the other portions thereof are so interdependent that the whole must be held void.</p>

<p>Eeboe to review a judgment of the circuit court for Florence county: JohN GoodlaNd, Circuit Judge.</p> <p>The plaintiff in error was convicted of the charge of assault with a dangerous weapon upon one Morrisino and one Batiste with intent to rob, upon evidence tending to show that, as Batiste and Morrisino came to the door of the former’s saloon at about midnight, the plaintiff in error and one Nice attacked them, demanding that they deliver np their money, the plaintiff in error exhibiting a pistol and threatening to shoot unless they surrendered their property. An encounter took place, in the course of which plaintiff in error’s pistol was discharged, considerable personal injury was done both Batisto and hlorrisino, and after t'he fracas Batisto’s watch and some money were missing. _ To a judgment sentencing plaintiff in error to- the state reformatory for an indeterminate term of not less than two nor more than Eve years, this writ of error was brought.</p>

<p> Malicious prosecution: Evidence: Conclusiveness of decision on former appeal: Instructions to jury: Probable cause: Malice: Court and jury: Punitory damages: Excessive damages. </p> <p>1. In an action for malicious prosecution of plaintiff on charges of obtaining money under false pretenses and of embezzlement, plaintiff claimed that the prosecutions were instituted for the sole purpose of collecting the money due under a contract for the sale of land to him by defendant, and hence were malicious. Held, that evidence that after the prosecutions a man placed upon the land by defendant forbade plaintiff to go thereon, was admissible as throwing light upon defendant’s motives in the prosecution.</p> <p>2. A decision of this court upon a former appeal, upon substantially the same record, that the exclusion of certain evidence, if erroneous, was not prejudicial, is the law of the case on the second appeal.</p> <p>3. In an action for malicious prosecution the reception in evidence of the justice’s minutes of testimony taken on such prosecu-’ ' tion was error, but not prejudicial where substantially all the facts contained in such minutes were either admitted or testified to without contradiction in the action.</p> <p>4. Instructions that “probable cause is such a state of facts in the mind of the prosecutor as would lead a man of ordinary caution and prudence to believe or entertain an honest or strong suspicion that the person arrested is guilty,” and that “mere belief of guilt, however strong, sincere, and honest, will not constitute probable cause, unless founded on circumstances sufficient to warrant it,” are approved.</p> <p>5. Whether a prosecution is malicious or not is a mixed question of fact and law. If the jury'find that the prosecution was begun, for a vindictive, ulterior, or unlawful purpose, the law then says that there was legal malice, and if the jury also find lack of probable cause the cause of action is complete.</p> <p>6. The discharge of defendant in a criminal prosecution because of a lack of evidence to convict is prima facie evidence of want of probable cause for the prosecution, even though the magistrate did not certify to that effect in his docket, nor render judgment against the complainant for costs, as permitted by sec. 4791, Stats. 1898, in such cases.</p> <p>7. The court instructed the jury that though the signature to the criminal complaint might not he defendant’s, yet if he counseled with his attorney and authorized the prosecution and took part in maintaining it he is liable; hut that they might ■ consider the question whether he signed the complaint, and whether he supposed the proceedings were tort or criminal in their nature, as hearing on the question of malice. Held, that any inaccuracy in limiting the effect of defendant’s supposition as to the nature of the proceeding to its hearing on the question of malice, whereas it might also have a hearing on the question of prohahle cause, was cured hy a subsequent instruction that the jury might consider what transpired between the defendant and his attorney, in deciding whether he acted maliciously and without prohahle cause,</p> <p>i. Where the jury were charged, in effect, that there could he no recovery if the criminal prosecution was the unauthorized act of an agent of defendant, it was not error, in a subsequent instruction as to punitory damages, to omit to state that, if the prosecution was such unauthorized act, ratification thereof by defendant must he shown in order to charge him with punitory damages.</p> <p>S. An instruction that under certain circumstances the jury were “authorized” to award punitory damages was strictly correct and did not carry the implication that such damages must be awarded; but it whuld have been better had the jury been more clearly informed that the matter was in their discretion.</p> <p>■*10. Wantonness or an aggravated degree of malice is not necessary to justify an award of punitory damages for a malicious prosecution; but such damages may be given where plaintiff recovers at all, at least where the prosecution was begun or actively carried on hy the defendant himself and was not the unau'thorized or unratified act of an agent.</p> <p>11. An award of $1,000 damages for malicious prosecutions upon charges of embezzlement and of obtaining money under false pretenses, is held, not excessive.</p>

<p> Contracts: Construction: Extrinsic evidence of intention: Excusing■ nonperformance: Destruction of crop by frosts: Entire contract: Tender of part: Liquidated damages. </p> <p>1. -Where a written contract is plain and definite in its terms and without ambiguity, evidence as to the contents of letters which passed between the parties prior to its making is not admissible to show the intention of the parties or add to the agreement a condition not embraced within its terms. Thus, in an aetion upon written contract for the sale of tomatoes to be packed by the vendor, such evidence is held inadmissible to. show that the parties contemplated, as a condition of the agreement, that the tomatoes were to he raised on the vendor’s-fields or in the neighborhood of its cannery.</p> <p>2. In a contract for the sale of tomatoes to be canned by the vendor, a provision that “if by the destruction of the cannery by fire, or if on account of strikes, or from any other cause over which the seller has no control, he is prevented from performing this contract, he shall not be liable for any damages for such failure,” does net include the destruction by frost of the tomato crop on the vendor’s fields or in the neighborhood of its cannery; but leaves it the duty of the vendor, notwithstanding such destruction, to make all reasonable effort to secure the necessary fruit and pack it at its cannery.</p> <p>3. Two ineffectual inquiries in the market, — one at a point eleven miles from the cannery, and one at a place forty-six miles therefrom, — without other efforts to procure fruit, did not constitute a performance of the vendor’s duty in that behalf, or excuse nondelivery of the tomatoes according to the contract.</p> <p>4. A contract for the delivery of '2,000 cases of tomatoes to be canned by the vendor, with certain specific provisions by which either party might decrease such quantity to seventy-five per cent, thereof without paying damages, and might further reduce the quantity upon giving notice by a certain date and upon payment of certain stipulated damages, is held to be an entire contract, so that the vendee was not obliged to receive a part of the goods, when tendered with the understanding that the vendor did not intend to deliver the whole.</p> <p>5. Where no notice was given as provided of intention to reduce the quantity to he delivered below seventy-five per cent, of that named in the contract, the vendor cannot avail himself of the stipulation as to liquidated damages.</p>

<p> Negligence: Injury to person switching cars: Court and, jury: Evidence: Custom: Obviously dangerous act: Special verdict: Instructions: Proximate cause. </p> <p>1. Plaintiff, a railroad yardmaster, while switching cars in the nighttime, was riding upon the ladder on the side of a freight car and was knocked therefrom by a car upon an adjoining switch track, which, after being placed upon such track, had been moved by the defendant lumber company to a point nearer where the two tracks came together. The evidence being conflicting as to the width of the cars and whether the two tracks were at any place far enough apart so that a person riding as plaintiff was could pass the other ear without injury, it is held that the lumber company was not entitled to the direction of a verdict on the ground that it did not, by moving the car, increase the danger.</p> <p>2. As a general rule, evidence to show the usual or ordinary methods of others in the same business is admissible upon the question of negligence; but this rule is subject to exceptions, among which are that such evidence cannot be allowed to contradict common knowledge, nor is it admissible to prove a custom which is so obviously dangerous to life and limb as to be at once recognized as such by all intelligent persons. Coif v. C., St. P., M. & 0. B. Co. 87 Wis. 273, so far as it conflicts herewith, overruled.</p> <p>3. The act of a brakeman or yardmaster in riding upon the ladder on the side of a freight car In the course of switching operations is not so obviously dangerous as to preclude proof that it is customary.</p> <p>4. Where the questions submitted for a special verdict covered all the material issues of fact, the refusal to submit other questions was not error.</p> <p>5. Upon the question whether plaintiff was guilty of negligence which contributed proximately to the injury, it was error to charge the jury that “proximately” in that connection means materially or efficiently.</p>

<p>(1-3) Appeal: “Party aggrieved,:” Executors and administrators: Extending time: Discretion. (4-10) Estates of decedents: Title to personalty: Presumptions: Pleading: Demurrer: Capacity to sue: Defect of parties.</p> <p>1. As to any order or judgment of the county court made in proceedings for the settlement of the estate of a deceased person , adverse to such estate, and from which an appeal may he taken under sec. 4031, Stats. 1898, or the time fpr taking an appeal therefrom may he extended under sec. 4035, Id., the legal representative, -whether administrator or executor, is a party aggrieved by force of the statute alone.</p> <p>2. Upon principle, as to any judgment or order of a court adverse to one in a suit or proceeding, who is the proper representative therein, of the interests of others prejudiced hy the result, that one is a party aggrieved, within the meaning of such term as used in appeal statutes.</p> <p>3. An application to extend the time for taking an appeal under sec. 4035, Stats. 1898, is addressed to the sound discretion of the appellate court, and its decision in respect thereto cannot he reviewed except for clear abuse of discretion.</p> <p>4. Upon the death of a person the title to his personal property becomes at once suspended and so remains till the appointment and qualification of a proper legal representative, whereupon it devolves upon him and can only pass on to another by some act referring to him as a necessary link in the chain of title.</p> <p>5. A demurrer upon the ground of want of legal capacity to sue reaches only personal disability, as infancy, coverture, idiocy and the like, or want of title to the character in which the plaintiff sues; as in case of an executor or administrator not having complied with the statutory requisites to his qualification, or an assignee not having fully qualified as such, and the like. It does not deal with the sufficiency of the complaint as to stating a cause of action in favor of the plaintiff.</p> <p>6. A demurrer for defect of parties plaintiff goes only to the subject of whether other persons should be brought in as such, not to the right of the one already in court.</p> <p>7. When an heir at law seeks to recover personal property belonging to his ancestor at the time of the latter’s death, it is essential to Ms right to recover, to show that title to the res was duly transferred to him hy the legal representative of such ancestor.</p> <p>8. Failure to plead the facts in regard to the transmission of property as last spoken of is not a matter to he reached either by demurrer for want of legal capacity to sue or for defect of parties plaintiff. The defect goes to the cause of action itself and can he raised at any time.</p> <p>9. Want of evidence to show transmission of the title as above is not supplied hy the doctrine that “all things are presumed to have been rightly and regularly done until the contrary is shown.” The proper application of such maxim is as shown in the opinion.</p> <p>10.In the trial of a cause between a claimant against an estate and the legal representative of the deceased, the fact that the latter does not defend upon all the grounds he has does not entitle the former to judgment in the absence of satisfactory proof of his claim.</p> <p>[Syllabus by Maeshalu, J.]</p>