Volume 120 — Wisconsin Reports

<p>Entire contracts: Exceptions: Measure of damages: Sales: Substantial performance: Acceptance: Prima facie evidence: "Values: Pleading: Amendment to conform to proofs: Appeal and error: Reversal.</p> <p>1. In applying the recognized exceptions to the rule, that he who makes an entire contract can recover no compensation unless he performs it entirely and according to its terms, the question is never what will reasonably compensate the contractor, hut what can the purchaser pay without being put in worse position than if the contract had been performed.</p> <p>2. Where plaintiff contracted to manufacture and place in defend-^ ant’s factory a boiler that should be 150 per cent, of the capacity of the boiler then in use, and the increase of capacity was the vital and essential part of the contract, furnishing a boiler found by the court to be about eighty-two per cent, of the capacity of the old one is in no sense substantial performance of the contract.</p> <p>3. In an action for the price of a boiler furnished under a contract for a boiler of greater capacity than that actually installed, the evidence reviewed, and held insufficient to sustain a finding of acceptance of the boiler furnished.</p> <p>4. In an action for the price of a boiler furnished under a contract for a boiler of a greater capacity than that actually installed, evidence of mere use of the boiler in connection with defendant’s premises, with which it had been connected, is not enough to overcome evidence, in effect, that defendant, upon protesting its insufficiency, conveyed to plaintiff its wish and expectation that it be removed, and that plaintiff fully understood! such election, and allowed the hoiler to remain in breach of an agreement to remove it, because of an erroneous construction of the contract.</p> <p>5. In an action for the price of a hoiler furnished under a contract for a boiler of greater capacity than that actually installed, the contract price is not prima, facie proof of its value.</p> <p>,6. In such case, testimony by defendant’s manager, in effect, that if a hoiler, such as contracted for, was worth $2,035, the value of such a one as delivered was proportionally less as the capacity, hut said, “I can’t state the market value of that hoiler at the time I received it any more than what Mr. H. (plaintiff’s witness) valued it at,” cannot he construed into an admission that the market price was as much as H.’s valuation.</p> <p>7. On the trial of an action for the price of a boiler, the real eon-.troversy had been as to the capacity of the hoiler. At the close of the trial there was no evidence to support a recovery on the contract, or to support a cause of action quantum meruit, but the court nevertheless entered an order that plaintiff might amend its complaint by adding a count quantum meruit, and that defendant might answer thereto simply by general denial, and could introduce no other defense. Held, error, to be corrected by reversing the judgment and directing a judgment •dismissing the complaint.</p>

<p> Contracts: Receipts: Parol evidence. </p> <p>A writing — “Received $200 from S. to balance boiler account in-full”- — is a mere receipt, and parol evidence of a contemporaneous agreement that the boiler installed should remain in place for the purpose of giving the contractor an opportunity to remedy any defects and the purchaser to ascertain whether it satisfied the contract of purchase, is admissible.</p>

<p> •Constitutional law: Local laws: Title of act: Legislative grant of corporate poioers: Schools and school districts: Apportionment of school fund: Retrospective statutes: Necessary parties. </p> <p>1. Ch. 160, Laws of 1903, entitled “An act to legalize the organization of joint school district No. 4, of the towns of R. and L. in K. county, and to legalize the subsequent acts and proceedings of the officers and voters of said'district,” and providing in the body of the act that the designated organization “is hereby in all things legalized,” and its acts and those of its officers and electors are legalized, only embraces one subject, and that subject is sufficiently expressed in the title, within the calls of sec. 18, art. IV, Const., declaring 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>2. Said act is not repugnant to subd. 7, sec. 31, art. IV, Const., prohibiting the legislature, by special or private law, to grant corporate powers or privileges, except to cities; nor to subd. 8, sec. 31, art. IV, Const., prohibiting the legislature from enacting any special or private laws for authorizing the apportionment of any part of the school fund.</p> <p>■3. Ch. 160, Laws of 1903, legalizing an attempted organization of a school district, was enacted during the pendency of an appeal from an order overruling a demurrer to a complaint demanding judgment that such school district had no existence, and is held to be a valid enactment, and that effect must be given to its retrospective provisions.</p> <p>■4. In an action to obtain judgment that a school district has no existence, and to exclude defendants from acting as school officers therein, the school district itself should be joined as a party defendant.</p>

<p>Appeal from a judgment of tbe circuit court for Eond du Lac county: Michael KjewaN, Circuit Judge.</p> <p>This is an appeal from a judgment of the circuit court of Eond du Lac county dismissing an appeal from a justice’s court. It appears from the record: That Allard brought an action of unlawful detainer against Smith before one Bissell, a justice of the peace, and obtained judgment of restitution therein January 14, 1891. That the defendant filed a proper notice and undertaking upon appeal to the county court of Eond du Lac county upon the following day. That at the same time he tendered to the justice $1.50, which sum was intended to cover the various sums necessary to be paid upon appeal, to wit: $1, state tax; $1 for return; $2 for clerk’s fees; and $3.50 for justice’s fees. That the justice refused to accept the sum tendered, claiming that the justice’s fees amounted to $5.50, and hence that the tender made was insufficient. That a few days later the defendant made a motion in the county court for an order compelling the justice to make a return, which motion was denied, and the order of denial was affirmed in this court on the ground that the time had not expired within which the return might be made. Allard v. Smith, 97 Wis. 534, 73 N. W. 50. That on July 16, 1898, Bissell’s term of office having expired, his successor in office, Thomas Watson, filed a certified copy of the docket entries in the case in the county court, but returned no papers, the same having been lost. That on November 30, 1897, the defendant obtained an order requiring Bissell to show cause why he should not make return, but that this order was vacated before hearing, upon the defendant’s own motion. That September 13, 1898, the plaintiff moved to dismiss the appeal for nonpayment of the justice’s fees and failure to bririg the case to trial for two terms, but that this motion was denied December 5, 1898, and the case stricken from the <M-endar for the term, and the defendant given leave to perféíft the record before the January term of said court on penalty of dismissal of tbe appeal if he did not do so, and the case was placed on said January calendar. That December 10, 1898. the plaintiff made, and filed an affidavit of prejudice, but that no order of change was actually made until July, 1899. That in January, 1899, the defendant, assuming the change of venue to have been made, made a motion in the circuit court for an order compelling Bissell to make a return, which motion was denied in March, 1899, because the records were still in the county court. That November 14, 1899, the plaintiff moved the circuit court that the appeal be dismissed for failure to bring the action to trial, and for failure to perfect the appeal, which motion was denied April 14, 1900. That the case then rested without further proceedings until November 11, 1900, when the plaintiff moved to dismiss the action, which motion seems to have been orally granted, but, before the order of dismissal was reduced to writing, both the motion and order were, on plaintiff’s motion, amended so as to make them a motion and order dismissing the appeal. Judgment of dismissal of the appeal in pursuance to this order was rendered, and the defendant appeals to this court.</p>

<p> Contracts for services: Ambiguity: Statute of frauds: Void contract-as evidence: Presumptions: Limitation of actions. </p> <p>1. Where the literal sense of the words of a contract shows no serious ambiguity, and may be taken either of two ways, one of' which will render it void, and the other not, the latter is to be preferred.</p> <p>2. Ambiguity requiring judicial construction may as well arise-from applying the contract to the subject matter thereof as. from the literal sense of the word.</p> <p>3. In such case, in aid of determining the intention of the parties,. the agreement may be considered from the precise standpoint, as regards surrounding circumstances, of the parties at the-time of entering into the same, and the meaning which they subsequently, by their conduct, ascribe thereto.</p> <p>4. Plaintiff alleged an oral contract whereby she was to remain and serve decedent and his wife faithfully as a daughter, during-their lives, or until she should arive at the age of twenty-one-years, or be married, and in consideration thereof she should be rewarded by maintenance and education during such time, and a provision out of decedent’s property, such as he would bestow on an own faithful daughter. When the contract was made-decedent’s property consisted largely of real estate, and all parties had in view, in a general way, such or similar property. Held, that the agreement clearly contemplated that the property which was to be subject of bestowal upon plaintiff would be, in part, realty, and the contract was therefore within. the condemnation of sec. 2304, Stats. 1898, requiring all contracts for the sale of any lands or interests therein to he in. writing.</p> <p>5. In such case, while the contract cannot he used as the basis for-computing the amount plaintiff is entitled to recover quantum meruit, it is effective to rehut the legal presumption that her. services were gratuitously rendered.</p> <p>6. In such case, plaintiff’s right to recover being limited to a cause-of action upon implied contract, such right matured and was enforceable the instant the services were completed, no demand was necessary to set the statute of limitations in motion, and it began to run from that time.</p>

<p> Negligence: Furnishing firearms to minor child: Liability of parent for negligence of child: Construction of statutes: “Pistol": “Revolver": “Toy firearm”: Appeal and error: Instructions to jury: Failure to request: Waiver. </p> <p>1. Defendant pure-hased a 22-caliber Stevens rifle for the use of his. seventeen-year-old -son Nicholas, who was accustomed to hunt, and was frequently accompanied by a seven-year-old brother^ Jesse, who, on such occasions, usually carried the gun. Defendant knew of these facts but had given positive instructions, that Jesse should never be allowed to have the rifle in his hands while loaded, and had no- knowledge that such instructions were ever disobeyed. In an action to recover for the negligent killing of plaintiff’s intestate, while the rifle was in the possession of Jesse, held, that it was not error to refuse to direct the jury to find defendant negligent, or refuse to set aside a verdict finding the contrary.</p> <p>2. A 22-caliber Stevens rifle is not a pistol or revolver, within the calls of sec. 4397, Stats. 1898, prohibiting any dealer or other person from selling, loaning or giving any pistol or revolver to any minor.</p> <p>3. A 22-caliber Stevens rifle, used for hunting and killing game, is not a toy pistol, toy revolver or toy firearm, within sec. 4397a, Stats. 1898, denouncing a punishment on the use or possession of such.</p> <p>4. An appellant waives any mere omission to instruct the jury upon any given subject by failure to present, in writing, request for such instruction.</p>

On March 28, 1900, John L. Dornbrook gave a written order to the M. Rumely Company for a threshing outfit, consisting of a traction engine, grain separator, and all necessary machinery and attachments, at a price of '$2,325. The order was given at La Porte, Indiana. Under tbe order the-machinery was to be shipped in the following month, of June.

<p>Appeal from a judgment of tbe circuit court for Ke-waunee county: Michael KikwaN, Circuit Judge.</p> <p>Tbis action was commenced in justice’s court to recover $20 damages for the wrongful conversion on September 26, 1901, of certain vegetables raised on certain premises described. After the venue had been changed, the plaintiff was-ordered to give security for costs. On his failure to do so the justice dismissed the case with costs, and entered judgment accordingly. Thereupon the plaintiff appealed therefrom to-the circuit court. The defendant then renewed his motion to require the plaintiff to give security for costs, which was-denied by the circuit court October 22, 1901, and in the same-order the defendant, who was in default, was allowed to answer, and the defendant was ordered to pay to the plaintiff’s-attorney $10 costs of motion. The defendant then answered the complaint, and, in addition to a general denial, justified under a warranty deed with full covenants, and without reservation, from the plaintiff and wife to the defendant’s son, executed and delivered June 26, 1901, of certain lands, including the land on which the vegetables were raised, and that in taking possession of the vegetables the defendant acted as the agent of his son, the grantee in such deed. The-cause was thereupon refered to a referee to hear, try, and determine. A trial being had before the referee, he reported his findings of fact and conclusions of law August 26, 1902, to the effect that April 13, 1901, the plaintiff was the owner of the house and one acre of land described, and in consideration of $20 rent, then paid to him, leased the house and the ■east half of the acre of land to one Skala for the term of six months, and that Skala took immediate possession; that June 36, 1901, the plaintiff and wife, by warranty deed, conveyed the whole of the acre to the defendant’s son, who received such deed with full knowledge of Skala’s lease and interest; that from April 13, 1901, to July 2, 1901, Skala planted, •sowed, and cultivated the half acre of land and raised vegetables thereon, and then assigned to the plaintiff his lease and interest therein, and the plaintiff thereupon continued to cultivate the land until September 26, 1901, when the defendant, under authority from his son, entered upon the premises, ■and converted to his own use the vegetables so raised thereon, to the damage of the plaintiff in the sum of $20. October 20, 1902, the defendant moved the court to set aside all of the ■findings of the referee except as to the execution and delivery of the deed, which motion was denied by the court November 29, .1902, whereupon the referee’s report was •amended by finding that th’e plaintiff made due demand for the vegetables before the commencement of the suit; and the findings of the referee, so amended, were in all things confirmed by the court. Eronr the judgment entered thereon the ■defendant brings this appeal.</p>

OleMENtsoN, Circuit Judge. This is an action in equity to cancel a deed and subsequent mortgage on certain real estate.

<p> Equity: Cause of action: Vendor’s Hen: Consideration: Parol evidence. </p> <p>1. An action in equity to enforce the equitable right to a lien for unpaid purchase money on realty conveyed in consideration of support and maintenance of the grantors in old age, is not a suit to enforce a parol trust in land, nor is it an action for a forfeiture of the title for breach of condition subsequent.</p> <p>2. The true consideration for a conveyance of land can always be inquired into by parol.</p> <p>3. A vendor of realty has an equitable right to have the unpaid consideration therefor, by the action of a court of equity, made a lien thereon, and to have the use of its jurisdiction to enforce the same as justice may require.</p> <p>4. The-equitable right to a vendor’s lien is not an interest in land in advance of the judgment of the court creating it. It is a right merely to demand the use of equity jurisdiction to enable the vendor to acquire an interest.</p>

<p>Appeal from a judgment of tbe circuit court for La Crosse-county: J. J. Fruit, Circuit Judge.</p> <p>Appellant was tbe original patentee of a body of land wbicb included tbe lots in controversy. Tbe patent was-issued November 1, 1849, and recorded May 25, 1859. From tbe time of tbe issuance of tbe patent, and until 1858, tbe land was platted, tbe plat recorded, and there were various transfers of undivided parts of tbe land and some transfers of particular parts. In some of tbe deeds there were reservations wbicb were not in others, and some of tbe descriptions of tbe lines were faulty and indefinite. This involved state of tbe title resulting from these descriptions was remedied' by tbe decree of court in a partition suit rendered on November 22, 1858. Tbe land was then allotted among tbe various; owners, and among the lots received by appellant were tbe lots in controversy. Thereafter several tax certificates and tax deeds were issued on these lots to B. E. Edwards before 1885. On August 24, 1885, Edwards and his wife, then-the holder of tax deeds to certain of these lots and of a tax certificate upon lots 21 and 22 in block 4, deeded their interest to appellant. The following was a provision of the-deed:</p> <p>“To have and to hold the aforesaid premises with all the privileges and appurtenances thereunto belonging or in any way appertaining unto the said Nathan Myrick, heirs and assigns, and to his and their sole use forever so that neither-I the said B. E. Edwards nor my heirs nor any person or persons claiming by through or under us or them shall at any time hereafter by any way or means have claim or demand any right, title, interest or estate by in or to the aforesaid premises or appurtenances or to any part or parcel thereof, forever.”</p> <p>In 1891 Edwards obtained a tax deed, to lots 21 and 22, block 4, on the tax certificate issued in 1885, which he held1' when he made the deed. May 28, 1898, a tax deed was issued to Charles E. Servis of all the lots in dispute. Servis conveyed ^to Charles Smith, Jr., by whom the lots were conveyed to respondent John H. Kahle, who, with co-respondents, claims under this tax deed. The affidavit, of the city treasurer of the posting of the notice of sale upon which this • deed was issued is dated April 22, 1895, and does not state that the notices were posted in the county and city of La Crosse, and it also fails to state that the places of posting were “public places.” 1 The affidavit states:</p> <p>“Said notices were posted in a conspicuous place on the following places, to-wit: One in the office of city clerk; one-in the office of city treasurer; one on tbe southeast corner of Fourth and Jay streets; one on the southwest corner of Fifth and Market streets; one on the southwest corner of West avenue and Pine street; one on the southwest corner of ■George and Nublee streets; one on the southeast corner of Oar and Mill streets.”</p> <p>The treasurer, after his term of office had expired, made a new affidavit, in which these omissions were supplied. This affidavit was made on the 7th day of May, 1901, and was filed on the day before the trial of this action. The judgment of the lower court was in defendants’ favor, upholding the validity of the tax deed. From that judgment this appeal is taken.</p>

<p> Master and servant: Personal injuries: Negligence: Improper re-marles by court: Court and jury: Instructions to jury: Appeal and error: Exceptions: Material error. </p> <p>1. In an action for personal injuries against a father and his son, for negligence of the son, alleged to he the servant of the father, the court in denying a motion for a non-suit, and in the presence of the jury, made remarks from which- the jury and bystanders would naturally infer that, in the opinion of the court, the testimony of defendants was unworthy of credit, and that no one in the court room would believe them. The court at the time, and later in the instructions to the jury, cautioned the jury not to be influenced by such remarks, as they were intended merely for counsel, and not for the jury. Held, that , while such remarks were objectionable, they would not work a reversal for want of exception thereto.-</p> <p>2. In such case, the court in its instruction to the jury on the question as to whether plaintiff had used ordinary care, used language from which the jury might infer that, in the opinion of the court, the plaintiff had done everything that the law required him to do, and that his statement as to what he did was a verity in the case, and must be accepted as true by the jury. Held, when considered in connection with the court’s remarks on the motion for a nonsuit, that the court invaded the province of the jury, and thereby defendants were prejudiced.</p>

J. Eeuit, Circuit Judge. This is an action in equity brought to enjoin the supervisors and highway officers of the town of Barre, La Crosse county, from removing a fence which they claimed to be an encroachment upon the common highway.

J. Feuit, Circuit Judge. Action for damages to real estate caused by cutting and removing therefrom small timber. It was commenced in justice court, and on a plea that the title to real estate would come in question was duly removed to the circuit court. Plaintiff’s title to the land involved was put in issue, and was the only matter of consequence controverted upon the trial.

<p> Contracts: Breach: Measure of damages:' “Lost use of factory:"' Trial: Evidence: Pleading: Direction of verdict. </p> <p>1. Where plaintiff contracted-to deliver to defendant at a specified" , date certain vehicle springs, but failed to deliver any except a very small quantity until months after the contract date, if defendant, upon ascertaining the breach, with ordinary diligence could have promptly obtained springs such as those specified in the contract in the open market, he can recover, as general damages, the difference between the price at which he could have so obtained them and the contract price, together with such special damages as he must nevertheless have suffered, including necessary expenses in finding and procuring other springs, or in his efforts, consistent with reasonable-prudence and diligence,’ to expedite delivery of the contract springs.</p> <p>2. Where plaintiff contracted to deliver to defendant by an agreed date eertain vehicle springs which had to be manufactured before they could be furnished, and defendant relied on plaintiffs frequent assurances that the springs would be shipped' • soon, and probably earlier than the springs could be manufactured elsewhere, plaintiff- cannot complain because defendant omitted efforts to buy springs which had to be manufactured before furnished, if such would be the conduct of ordinarily prudent persons under those circumstances.</p> <p>3. In -such .case, if it appeared -that springs, such as defendant contracted for,, were not purchasable in the open market, or. were-of designs specially adapted for defendant’s vehicles and obtainable only by special order, and that, by plaintiff’s failure to deliver at the agreed time, defendant was prevented from producing the number of vehicles which, but for plaintiff’s-delay, defendant’s factory would, with, reasonable certainty, have produced; that defendant, with reasonable certainty, would have been able to have sold such output during the then current season, and that plaintiff had knowledge of such facts with reference to defendant’s business, or of the vehicle manufacturing business generally, that plaintiff as a reasonable man should have contemplated such injury might probably result from such breach, — then defendant would be entitled to recover the value of the lost use of defendant’s whole establishment as measured by comparison of its output according to its capacity under usual circumstances and its output as impaired by plaintiff’s default, and in addition the expenses of reasonable efforts to expedite shipments under the contract, after plaintiff’s default became apparent, and also the reasonable expenses of efforts to find and purchase springs from others to supply the place of those plaintiff failed to deliver on time, together with the increased cost of springs so purchased.</p> <p>-4. The rule that one who breaks a contract is liable to compensate the other party for all damages occasioned by the breach which might reasonably be expected to flow therefrom, does not require that the party breaking the contract should know in detail just what constitutes the loss, provided it be reasonable and within usual experience.</p> <p>:5. Plaintiff contracted with defendant, who had an established business as manufacturer of vehicles, to deliver at an agreed date certain vehicle springs for use in the manufacture of defendant’s vehicles, but failed to do so until long after the agreed date, and long after the then current season of defendant’s business closed... In an action for the contract price, defendant counterclaimed for damages to its business through such nondelivery. Held, that it was error to exclude evidence offered by defendant on its counterclaim on the following subjects:</p> <p>(a) Evidence tending to prove even general knowledge on plaintiff’s part of how the vehicle business was carried on, either in manufacturing, selling or obtaining the necessary ■supplies of material, and whether such knowledge was derivable from plaintiff's general familiarity with the vehicle business, or from facts communicated to plaintiff at or prior to the time of making the contract.</p> <p>(b) Evidence of the custom of operating defendant’s factory, tending to show the manner in which, and extent to which, non-supply of springs interrupted its operation and diminished its efficacy.</p> <p>(c) Evidence of tlie actual effect of absence of springs after the time at which the plaintiff was hound by contract to make delivery.</p> <p>(d) Evidence of the capacity of the factory during the period of complete or partial interruption after the springs were due, but confined, however, to that which was ordinary and usual.</p> <p>(e) Evidence tending to show that defendant had sufficient supply of material and parts of vehicles — other than springs— and of labor to keep its factory running to an extent not exceeding that which was usual and customary.</p> <p>(f) Evidence to prove the fact of sales in excess of what the factory was able to produce with the shortage of springs, and for that purpose the orders received, either before or after the contract, were relevant, provided they did not exceed such as should have been within the reasonable contemplation of the parties.</p> <p>(g) Evidence as to whether a market existed from which the defendant, with reasonable diligence, could have supplied itself promptly enough to have avoided other damage by merely paying some enhanced price for springs. In this is involved testimony that springs in quantity for factories, such as defendant’s, were ordinarily obtainable only by contract long enough in advance to enable manufacture; also description of springs contracted for, to the extent of showing whether they were peculiar in any of their details, so as to be especially adapted to the types of vehicles manufactured by defendant.</p> <p>(h) Evidence to show the diligence exercised by defendant, after it had reasonable ground to believe plaintiff would default in seasonable delivery, in the way of attempting to obtain springs elsewhere or to expedite the shipments from plaintiff’s place of manufacture, and therein to show representations and promises on the part of plaintiff which might have induced defendant- to forego efforts which it might otherwise have made.</p> <p>(i) Evidence as to the expenses incurred by defendant in reasonably diligent efforts to obtain springs after it had ascertained plaintiff’s default to furnish the springs within the time limit of the contract.</p> <p>6. Plaintiff contracted with defendant, who had an established business as manufacturer of vehicles, to deliver, at an agreed date, certain vehicle springs for use in the manufacture of defendant’s vehicles, but failed to do so. In an action for the contract price defendant counterclaimed for damages through such nondelivery. Held,, that it was error to admit evidence offered by defendant on the following subjects:</p> <p>(a) Evidence of the money value of the time of defendant’s employees lost by reason of nondelivery of such springs. It is not a proper specific element of recovery.</p> <p>(b) Evidence of profits on the specific vehicles included in orders received by defendant wbicb it was unable to fill by. reason of plaintiff’s failure to furnish such springs.</p> <p>(c) Letters between defendant and the company at whose factory plaintiff was having the contract springs manufactured, except as bearing on defendant’s diligence.</p> <p>(d) Evidence tending to show wilfulness of the plaintiff in its breach of the contract.</p> <p>7. Where evidence had been given of the receipt by defendant of a letter from plaintiff, referred to in another letter received in evidence, that it was lost, and that after diligent search it could not be found, it is competent for defendant to prove its contents by a witness who had seen it.</p> <p>8. In such case, nothing appearing to show that such letter was in plaintiff’s custody, notice to plaintiff to produce it is not essential.</p> <p>9. In an action founded upon breach of contract motive cannot create or increase liability for damages,</p> <p>10. Defendant counterclaimed for damages for breach of a contract, confessedly made at a certain date, in failure to supply the contracted articles at the contract date. There was no allegation of a contract later than or different from the one admitted to have been made. Held, that evidence that at a later date the parties entered into a new agreement, upon consideration that defendant would refrain from supplying itself elsewhere, and at that time there was communicated to plaintiff additional and specific information of 'the injury to defendant which would follow a breach of the contract, was irrelevant.</p> <p>11. It is error to direct a verdict where, on the evidence actually admitted, the jury might have found facts to warrant some recovery.</p>

<p>Appeal from a judgment of the circuit court for La Crosse county: J. J. Feuit, Circuit Judge.</p> <p>This is an action for an alleged trespass for the cutting down of fences on the premises of appellants. Respondents entered appellants’ premises and caused the fences to be removed upon the ground that they closed up the public highway, established by twenty years of adverse public user, and by having been traveled and worked for a period of ten consecutive years before this action was commenced. Appellants áre the owners of the premises through which the alleged highway runs. Their land consists of two forties. On the division line between the forties is a fence, beside which the road runs. On the opposite side of the road is appellants’ pasture land. The road runs north and south. The south end of the road runs into a public highway known as the “JB'ostwick Yalley Road.” The north end continues through lands lying in what is known as “Irish Cooley.” The evidence shows that years ago there were gates at the ends of the road on respondents’ land. Some of the witnesses testified that the road had been open and used by the public for more than twenty years, and there was other evidence tending to show that the road had been so used and worked by the town authorities for ten years and over. The land lying next north of appellants’ is occupied by one Filter, who during the last four or five years at times maintained a fence and gate over the road at or near the line between himself and appellants. He testifies that he erected the gate, and closed it for a few weeks in the spring and fall season, to keep his cattle from straying, but not intending to prevent the public from using the road. The jury found that the road had been used adversely by the public for the period of twenty years before this action was commenced, and that it had been used and worked by the town as a public highway for ten years or more. From the judgment on the verdict in respondents’ favor, this appeal is taken.</p>

M. Webb, Circuit Judge. This is an action of ejectment to recover an undivided half of a milldam, water power, and flowage rights which the plaintiff claims to own as tenant in common with the defendants.

<p> 'Trial: Rules of court: Setting aside: Discretion: Appeal and error: Criminal law and practice: Remarks of court: Separation and exclusion of witnesses: Violation of order by witness: Exclusion of evidence: Contempt: Competency of witnesses: Age: Birth: Family records: Memoranda: Best evidence: Rape: Consent: Assault with intent to commit rape: Statutes: Instructions to jury. </p> <p>1. A trial judge may at pleasure set aside a rule of his own making, designed to regulate the continuance of causes after being once set down for hearing, without committing reversible error, or error at all, if the rights of no one are not thereby clearly and substantially prejudiced.</p> <p>:2. In a criminal case it is not error to say in the presence of the jury, in effect: A cause for arrest does not indicate any cause for conviction. When a person is duly charged in such a cause and placed upon his trial it is presumed to have been regularly done, but does not furnish any reason to be considered by the jury as regards the fact of guilt.</p> <p>3. The placing of witnesses in a judicial trial under a rule as regards their presence in court other than when giving their testimony, until that shall have been given, and as regards communicating with each other till they shall have testified, is wholly a matter of judicial discretion.</p> <p>4. If a witness put under a rule, as stated in the last paragraph, violates the same, it does not furnish any legitimate ground for the exclusion of his evidence if the party calling him is. an innocent party in the matter.</p> <p>5. In case of a violation of a rule as mentioned in the preceding paragraph, the person calling the witness being innocent in the matter, punishment for the transgression should be confined to-the witness himself, as for a contempt of court.</p> <p>6. A person having arrived at an age rendering him competent to-testify as a witness in court, may give evidence respecting his own age, although his knowledge thereof be based -wholly upon hearsay.</p> <p>7. A family record is not the best evidence of a birth noted therein, nor original evidence in respect thereto, the person who made-the record being alive, competent to testify, and within reach of the court. In such a case such record is of no higher dignity than any other memorandum.</p> <p>8. The maker of a memorandum, or person who knew at some time that it was made correctly, may use the writing in or out of court to refresh his memory preparatory to testifying' in respect to the matter therein referred to, and after doing so may so testify though having no present knowledge as to the truth of such matter independently of the writing.</p> <p>9. The fact that the witness, in the circumstances above stated,. fails to produce the memorandum in court, gives no ground' for rejecting his testimony, unless he unreasonably refuses to produce it pursuant to the court’s order. Absence of the writing can be considered as bearing on the credibility of the witness to such extent as the jury think proper under all the circumstances.</p> <p>10. Under sec. 4382, Stats. 1898, disabling females under the age of fourteen years from consenting to sexual intercourse, one committing such an act upon such a .female, regardless of the means used to accomplish it, and of the female’s consent, and co-operation, is guilty of the crime of rape.</p> <p>11. An attempt to do the act mentioned in sec. 4382, Stats. 1898, regardless of the means reported to and of whether the female consents of not, is an assault with intent to commit the crime-of rape under sec. 4383, Id.</p> <p>12. The fact that a person charged with the crime of rape under-sec. 4382, Stats. 1898, may instead be charged under sec. 4580 with the offense of fornication, or be charged under appropriate-statutes' with the crime of seduction, or incest, according to the facts,. does not militate against the validity of such statutes nor the wisdom thereof, since the manifest purpose o£ the same is to insure adequate punishment, so far as practicable, of persons guilty of unlawful commerce with female children, avoiding the danger of their going entirely unpunished in some cases because of the severity of the penalty, or the law being endangered by the prohibition against cruel and unusual punishments, — in view of the change in the legal age of consent to fourteen years. Criticisms of the legislative policy, above indicated, made in State v. Wentler, 76 Wis. 89, withdrawn.</p> <p>13. The rule as regards the evidentiary effect of disclosure or failure to make disclosure by a female, to those in her confidence, as regards a crime of rape perpetrated or attempted to be perpetrated upon her, does not apply where the element of non-consent in respect to the offense is supplied by the statute and there is consent in fact.</p> <p>14. Neither does such rule apply to a person to whom disclosure is made, who delays in reporting her knowledge to others or causing legal proceedings to be instituted.</p> <p>15. It is not the duty of the court, nor is it proper as a general rule, upon request or otherwise, to point out to the jury the evidence of any particular witness upon a disputed matter, giving particular significance thereto and stating how it should or should not be viewed as regards the truthfulness thereof.</p> <p>16. The suggestion customarily made to juries in prosecutions for rape, that they should view the evidence of the prosecuting witness with great care, having regard for her state of mind as an injured person, and be on their guard against being moved by sympathy for her to give undue weight to the state’s evidence, does not apply to a case where, though there was . nonconsent by force of the statute, there was consent in fact.</p> <p>17. The court having instructed the jury in a criminal case that they should acquit the accused unless satisfied of his guilt from the evidence beyond every reasonable doubt, is not required, whether requested or not, to give further instructions on the same subject.</p> <p>.[Syllabus by Mabshall, J.]</p>

<p>TEeboe to review a ¡judgment of the circuit court for St. Croix county: E. W. Helms, Circuit Judge.</p> <p>Plaintiff in error was convicted upon an information 'which alleged that she had feloniously, unlawfully, knowingly, designedly, and with intent to defraud one Alex. ’Turner, pretended to him that she was a representative and -agent of an orphan asylum located at the city of Duluth, •known as the “Baker Orphanagethat Mrs. Phipps was the local representative at Hudson, Wisconsin, of said asylum ¡known as the “Baker Orphanagethat the same was an in.•stitution of the same kind and character as the Dysart Orphanage, located at Ripon, Wisconsin; that it was an institution operated for the care and maintenance of orphaned children, of whom there were then a large number therein being cared for and supported by said asylum; that the management of said orphanage and she (the plaintiff in error) were engaged in finding homes for orphan children, and that she was then collecting money for the support and maintenance of said orphanage, and for the support and maintenance- of the orphan children located therein. The information then proceeds to allege that Mrs. Baker was not then and there a representative of said orphan asylum,- and in that form proceeds to negative tl*e existence of each of the facts alleged to have been represented, closing such negation with the words “all of which she, the said Mrs. J. 8. Baker, then and there well knew.” Tt also alleges Turner’s belief in the representations, and inducement thereby to give to the plaintiff in error twenty-five cents. To review such conviction, and sentence to pay a fine of $300, and be committed to the county jail until the same be paid, not exceeding five months, the defendant brings this writ of error.</p>

<p> Constitutional law: Police power: Health officers: Summary destruction of property: Liability: Quasi-judicial officers: Court and jury. </p> <p>1. The legislature may, under the police power, grant to hoards of health authority to employ all necessary means to protect the public health, and may even authorize such bodies immediately and summarily to destroy private property which is in fact a nuisance or source of danger to public health, without a preliminary formal legal proceeding and a judicial trial.</p> <p>2. The appearance of a malignant and contagious disease, such as anthrax in cattle, is in its nature such a menace to the public health as to bring it clearly within the class of cases which can only be effectually dealt with by the destruction of the animals afflicted.</p> <p>3. Where giicm-judicial officers, such as a health officer or board of health, have summarily destroyed private property on the ground that it constituted a menace or cause of sickness dangerous to public health, the owner thereof may recover its value from the person responsible for its destruction, if such property was not in fact such a menace or source of danger, the judgment or discretion vested in such officers being no protection to him, in such a case, for an invasion of the private property rights of others if they have no redress except an action against the officers. Path v. Koeppel, 72 Wis. 289, so far as it conflicts, overruled.</p> <p>4. Uncontradicted evidence that the defendant, a health officer, made a written order directing the destruction of certain property of the plaintiff, that he gave personal directions to the deputy health officer and others who actually destroyed the property, and that such persons acted and proceeded under his order and directions, is helé sufficient to warrant the court in answering in the affirmative a question of the special verdict as to whether the defendant caused' the destruction of said property.</p>

<p> Wills: Bequest to charity: Class of beneficiaries: Charitable use. </p> <p>A testator, after reciting that “having in mind the many catas-trophies resulting from the action of the elements and, the ■ great suffering, distress, famine and want caused by the destruction of life and property by storms, floods, fires, and other accidental and natural causes, and having a desire to do what I can to relieve the same,” bequeathed to trustees a certain part of his estate to he invested and the income annually expended for the charitable purpose of “relieving the wants, distress, and suffering arising from such causes, and for the purpose of aiding and assisting . . . the victims of such accidents and catastrophies.” The testator further recited that he placed no restriction upon the trustees as to the locality where said moneys should be expended, but enjoined them “to select subjects worthy of assistance” and to use their best judgment andi prudence in so handling and disbursing said moneys that the same “may be oí the greatest possible benefit to suffering humanity.” Held:</p> <p>(1)' That the bequest was not to charity generally, but defined a class of beneficiaries with such definiteness as would enable the court to determine whether any concrete expenditure was within the scheme of the testator.</p> <p>(2) That the terms of the bequest did not vest in the trustees discretion to disburse the income to individuals subjected merely to some property loss from some of the defined causes, who were not in pecuniary need and not subjects of public charity, but their discretion was restricted to those subjects fairly entitled to relief in effectuating the testator’s general motive and purpose as declared in the bequest.</p>

<p> Trials: Election between counts: Immaterial error: Corporations: Sales: Telephone companies: Statute of frauds: Estoppel: Authority of officer. </p> <p>1. In an action by one telephone company against another to recover the value of the plant of the former alleged to have been sold to the latter, it is not error to refuse to require the plaintiff to elect whether it will go to trial upon a count based upon .quantum meruit, or upon a count alleging that defendant agreed to make payment therefor in a certain number of shares, of its capital stock, and that it had failed and refused to deliver such stock, or pay the value thereof in cash.</p> <p>2. Where a verdict is properly directed in favor of the plaintiff upon evidence properly in the case> the defendant is not prejudiced hy the admission or retention of improper evidence.</p> <p>3. Where property, for the. purchase price of which action is brought, has been delivered to the defendant hy the plaintiff more than two years before the commencement of the action, and the defendant has received the same and appropriated it to its own use, the defense that the contract of sale was void under the statute of frauds cannot be maintained.</p> <p>4. Under secs. 1775 and 1775a, Stats. 1898, on© telephone company may take, own, hold and enjoy any right, privilege, or franchise theretofore owned by another such company.</p> <p>5. Where possession of the property of one corporation had been fully delivered to and received and accepted by another, which retained the property and had the use thereof for years, the latter, in an action against it to recover the value of such property, is estopped from claiming any want of authority in the board of directors of the former to make the transfer through-one of its officers.</p>

<p> Sale of chattels: Opportunity for test: U,se of unnecessary quantity. </p> <p>Where goods are sold under an agreement that they may' he returned if, upon fair test, they do not prove satisfactory, the-purchaser, in making the test, can use such quantity only as is fairly and reasonably necessary to determine their quality, and if he uses more than such quantity he makes the goods his own and loses the right of rejection.</p>

Tae-baitt, Circuit Judge. Tbe complaint alleges, in effect, tbat June 21, 1900, tbe plaintiff, an architect, agreed witb tbe defendant (1) to make, prepare, and furnish to and for defendant plans and specifications for tbe proposed construction of two'flat buildings; (2) to superintend tbe construction of same; and (3) to superintend tbe removal and remodeling of two other dwelling bouses belonging to the defendant, for all of which, and tbe labor and services in tbat…

M. Webb, Circuit Judge. Prior to November 17, 1884, John A. Walker was tbe owner of tbe west balf of lot 6, and all of lots 7, 8, and 9 of block 29 of Strong, Ellis & Others’ addition to tbe city of ■Stevens Point.

M. Webb, Circuit Judge. Action to recover damages for breaches of contract. The plaintiff was a corporation engaged at Milwaukee in the business of contracting for the sale of stone. Defendants were partners owning a granite quarry of limited capacity at Berlin, in this state. During the year 1898 plaintiff had been selling agent for all the product of the defendants’ quarry upon an agreed commission.

hi. Webb, Circuit Judge. Defendants conducted a general store, including a drug-department, in the village of Hancock. Plaintiff is a farmer residing near- by.

M. Webb, Circuit Judge. This is an action of quo warranto brought to determine the right to the office of sheriff of Adams county, under ch. 149, Stats. 1898, commenced January 7, 1903.

<p> •Equity: Quieting title: Evidence: Setting aside sheriff’s sale on execution. </p> <p>Upon sufficient evidence showing that the plaintiff was unahle to read or write the English language; that the land in question was bought with plaintiff’s money exclusively; that, though the title was in her husband’s name for a considerable time, plaintiff did not know of or consent to such holding; and that as soon as she learned of the fact the title wás transferred to her, a judgment removing an apparent cloud upon her title, caused by a judgment obtained against her husband when the record title was in his name, and setting aside a sheriff’s certificate of sale upon such judgment, is plainly right.</p>

Croix county: E. W. Helks, Circuit Judge. Action for damages said to have been caused by insufficiency of a highway in the defendant town.

<p>Appeal from a judgment of tbe circuit court for Dane-county: K. Gr. SiebecKEe, Circuit Judge.</p> <p>Action for damages from deceit inducing plaintiff to purchase a stock of boots and shoes at an agreed value of $7,000. The jury found by 'special verdict that the defendant falsely represented to the plaintiff that such stock inventoried at the-amount of $8,500 by the inventory made by one Klug, with the intent and object to induce plaintiff to rely upon it as true anff to purchase; that the plaintiff understood and believed such to be the fact, and was thereby induced to buy the stock. The inventory in fact footed $6,531. The difference in value between the goods in fact and if they had' been as represented was $1,846.15. But they also found, in answer to the fourth question, that “the plaintiff, under all of the facts and circumstances of the case, as an ordinarily prudent man, [did not] have the right to rely upon such a representation as true.” The charge on this subject was as-follows — excepted portion in parentheses:</p> <p>“(In passing upon this question, you are to keep in mind that, in law, the plaintiff is required to exercise ordinary care and prudence in the matter at issue. He must exercise-such care and prudence, and give such attention to the particulars of the transaction pending, as ordinarily careful and' prudent persons exercise under like circumstances. Under this rule, he is not permitted to willfully disregard or negligently omit to avail himself of information at hand, and accessible to him, giving the true state -of facts complained of as false and fraudulent.) As to the defendant, the seller, the law imposes the duty that he do not employ any art or-practice any artifice to conceal or misrepresent the facts, or do any act to throw the-plaintiff off his guard, or prevent him.! from using any means at hand to give him the correct information pertaining to the alleged false representation.”</p> <p>The plaintiff moved to set aside the answer to question 4, and also moved for a new trial, which motions were overruled; and a motion for judgment for defendant on the ver■dict was granted, and judgment entered, from which the plaintiff appeals.</p>

<p>Appeal from a judgment of the circuit court for Saule county: R. G. Siebeckeb, Circuit Judge.</p> <p>This is an action for trespass quare clausum fregit, commenced before a justice of the peace June 14, 1902. The defendant answered by way of admissions, denials, and counter allegations to the effect that the locus in quo was at the-time in question a public highway; that the plaintiff willfully and without authority placed obstructions in the same, and the defendant, as overseer of the highways of the town, and as his duty required of him, removed such obstructions. The defendant thereupon gave the requisite bond, and the cause-was removed to the circuit court. The cause having been reached for trial in the circuit court, and before any testimony was introduced, the following stipulation was entered into:</p> <p>“It is admitted by both parties that up to the time of the attempted discontinuance the locus in quo was a highway. It is also admitted that the title and right of possession to the land at that point is in the plaintiff, and that the fences that were on the premises were removed by the defendant at a certain time.”</p> <p>The evidence is undisputed, and to the effect that December 2, 1901, the chairman of the town board of supervisors received the following petition:</p> <p>“To the Supervisors of the Town of Westfield in Sauk County, Wisconsin:</p> <p>“We, the undersigned, freeholders and residents of said town, hereby make application to you to discontinue a highway in said town as follows: All that portion of road lying east of the residence, of Oarl Schroeder to the intersection of a road running northwest past the residence of George A. Meyer, all of said road asked to be discontinued is on the section line between sections three and ten.</p> <p>“Dated at Westfield this 28th of November, 1901.”</p> <p>There were thirteen subscribers to that petition, including the plaintiff. According to the oral testimony, the town board held .a meeting December 2, 1901, at the house of the town clerk, Ered Jiles. The board then agreed to meet at two o’clock in the afternoon of December 14, 1901, at the house of the plaintiff, to decide upon the petition. The town board met at the house of the plaintiff December 14, 1901, pursuant to notice prepared by the town clerk, as directed by the board, and posted in three or four public places, describing the lands through which the portion of the highway proposed to be discontinued passed, as stated in the petition. In addition to the board, there were present at that meeting the plaintiff and George Meyer, both of whom signed the petition, but no one else. At that meeting the board looked over the grounds of the road, and decided unanimously to discontinue the portion of the road according to the petition, and directed the clerk to draw an order to that effect, according to a prescribed form, and thereupon adjourned to December 16, 1901, at the clerk’s office. The clerk thereupon drew such, order, and on December 16, 1901, the respective members of the board, to wit, Henry Steckelberg, William Schroeder, and William Kohlmeyer, separately from each other, signed the order, and the same was marked “Filed” by the clerk. The clerk, Fred Jiles, was an invalid at thp time, and died two weeks afterwards. Thereupon a new clerk was appointed, and diligent search was made for such order, bút no such order was ever found; and the only evidence of the existence and contents of such order is the oral testimony of the three several members of the board, who separately, and in the absence of each other, signed the same. In May, 1901, the plaintiff fenced off the portion of the road so claimed to be discontinued, and notified the defendant, as the overseer of highways, of such discontinuance. May 28, 1901, the defendant removed such fences. Thereupon the plaintiff again fenced up such road, and the defendant again removed the fences June 13, 1902. The removal of such fences by the defendant is the ground upon which the plaintiff seeks to maintain this action. At the close of all the testimony the court granted a nonsuit, and from the judgment entered thereon the plaintiff brings this appeal.</p>

<p>Appeal from a judgment of the circuit court for Sauk county: R. G. Siebeckee, Circuit Judge.</p> <p>This is an action to recover damages for personal injuries. The action was tried before a jury. Tbe evidence showed that in and prior to June, 1902, the defendants were partners operating a grocery store at Reedsburg, Sauk county; that the store faced eastward on Walnut street, and that there was an alley running east and west along the south side thereof; that the main entrance to the store was on Walnut street, and that there was a rear entrance near the west end of the store opening on to the alley, and that along the north side of the alley, and next to the store, was a plank platform six feet in width and about twenty-seven inches in height, extending from Walnut street past the rear door aforesaid; that this platform was used for receiving farmers’ produce and delivering goods to wagons, and sometimes for customers to pass in and out at their convenience; that the rear door aforesaid opening upon this platform swings inward, and that on husy days during the summer it was frequently removed from its hinges by the defendants’ employees, and placed on the aforesaid platform just outside of and west of the doorway, ■and leaned up against the building; that the door was a pine door three and one half feet by seven feet in size, weighing sixty-eight pounds, and that the reason of the removal of the door from its hinges was that when open or swinging to and Tro it hindered access to the elevator inside of the store; that on June 14, 1902, this door was taken from its hinges by one ■of the defendants’ clerks and placed outside upon the platform leaning against the building at about ten o’clock a. m., the day being an ordinary summer day, with, no unusual wind; that the plaintiff was a woman about seventy-seven years of age, and that on the last-named day, at about two o’clock p. m., she brought a box of eggs to the store to trade; that the eggs were unloaded in the alley upon the platform, and that she took them into the store through the rear door; that she sold the eggs, and purchased some groceries and other articles, and remained in the store until about five o’clock p. m., when she took the egg box and her umbrella and went out of the rear door and stood upon the platform, waiting for her son to come for her with the team and wagon; that while standing on the platform the door fell over on her, knocking her off from the platform, and inflicting personal injuries, for which this action is brought. The plaintiff denied having touched the door. A special verdict was returned as follows:</p> <p>“(1) Did the defendants’ employees place the door on the platform in such a position that the platform was a reasonably safe place for the plaintiff and other persons to be used by them as customers at defendants’ store, as she did on the day in question? Answer. No. (2) Did the plaintiff, Mrs. Klilzlce, take hold of the door with her hand, and thereby contribute to cause the door to tip over and cause the door to fall over on her? A. No. (3) If your answer to question number 1 is ‘No,’ was the injury to the plaintiff the natural and probable result of placing the door in the position in which you find it was on the day in question ? A. Yes. (4) Ought the defendants, as men of ordinary intelligence and prudence, to. have reasonably expected that an injury like the one the plaintiff suffered would probably result from their conduct in having the door placed as it was ? A. Yes. (5) What sum do you find will compensate the plaintiff for the injuries she sustained? A. $400.00.”</p> <p>Upon this verdict judgment for the plaintiff was rendered, and the defendants appeal.</p>

G. Siebeckee, Circuit Judge. Omitting formal allegations the complaint states this: Between J anuary 26, 1896, and April 2, 1902, tlie T. Gr. Mandt Vehicle Company sold and delivered to defendant goods, wares and merchandise-of the value-of $16,654.18. An itemized statement thereof is annexed to the complaint. There has been paid thereon $16,370.33. The1 balance, $283.85, became due April 2, 1902, and has not been paid.

G. Siebeckee, Circuit Judge. The testator, Thomas Cowley, at the date of making the will in question, to wit: June 15, 1868, was a farmer owning and living upon a farm of 120 acres of land, with little personal property. He then had a tyife and eight adult children, most, if not all, of whom were married and not resident with the parents, except the eldest daughter, Maria Jobbins, a widow with children, who did reside with, and care for them.

G. Siebecker, Circuit Judge. This action was commenced before a justice of the peace December 3, 1901, by Bosina Gall against her son, Charles, to recover $52.5'0 in money and the value of certain articles which by the terms of a written agreement, executed by them November 28, 1893, he agreed to pay and deliver to her annually, but which he had failed and neglected to do, to the amount of $142.50, and that that sum included $30 for a cow belonging to the plaintiff, and was…

<p>Appeal from an order of tbe circuit court for Columbia county: B. Gr. Siebeckeb, Circuit Judge.</p> <p>The complaint is to this effect: April 3, 1902, matters of difference existed between plaintiff and defendant as follows : The latter was a judgment creditor of the former to the amount of $90.65, and $15.75 costs, the judgment having been rendered in justice court and duly transcripted to the circuit court for Columbia county, Wisconsin. There were pending in the latter court proceedings at the suit of the plaintiff, to test the validity of such judgment. There was an action pending between plaintiff and defendant’s wife in respect to a matter proper for judicial settlement. Bor the purpose of adjusting such differences and others, the parties concerned joined in a written submission of the whole to arbitrators to say what was the duty of each in the premises. The power of tbe arbitrators, and tbe words of tbe agreement in tbe submission, are as follows:</p> <p>“Said persons are hereby named and constitute a board of arbitration to bear, try and determine all matters in controversy between tbe parties hereto that shall be submitted to them, whether actually litigated or otherwise, and their decision thereon shall be final and irrevocable and so recognized and understood by the several parties hereto.”</p> <p>At a time and place designated by said board of arbitration said parties shall present their respective claims, and after due hearing had and a decision and award made by the said board its decision shall be fully and completely carried out by the parties charged thereby with the performance of any duty, whether it be for the payment of money, performing act, or otherwise.</p> <p>All actions, suits or proceedings now pending shall be withdrawn and dismissed.</p> <p>All judgments or liens of one or more of the parties against either or any of the other parties hereto shall be satisfied of record.</p> <p>A bill of costs in the different suits, actions or proceedings shall be made and submitted to said board of arbitration by the attorneys of the respective parties, and the question of what part thereof each party shall pay shall be determined by said board in like manner and effect.</p> <p>A full hearing before such arbitrators was had and they duly made their award in respect thereto. Plaintiff fully performed his obligations as to the agreement aforesaid, but defendant has failed in that regard and has refused to satisfy of record the said judgment, and has caused an execution to be issued thereon and property of the plaintiff seized thereunder.</p> <p>Plaintiff asked for relief restraining the defendant and his agents from further proceeding to collect the judgment, and requiring a return of the property seized as aforesaid, and the discharge of such judgment.</p> <p>The answer is to this effect: The allegations of the complaint are true except those in respect to plaintiff having fully performed under tbe arbitration agreement and defendant having- failed to do so. Tbe award of tbe arbitrators,' among other things, required plaintiff to pay tbe sum of $73.68 and one half of tbe costs to defendant upon tbe judgment referred to in tbe complaint, defendant thereupon to discharge tbe same. Plaintiff has refused to abide by said award in that be has not paid any part of said judgment. Tbe defendant has at all times stood ready and is now ready and willing to abide by tbe arbitrators’ award in every respect.</p> <p>Plaintiff demurred to tbe answer for insufficiency and the demurrer was overruled. Plaintiff appealed.</p>

<p>Appeal from an order of tbe circuit court for Marquette county: E. Eat Steyeits, Circuit Judge.</p> <p>By tbe complaint it appears that in 1888 and 1894 tbe defendant Ne-pee-naulc Club, an Illinois corporation, executed two trust deeds on lands in Green Lake and Marquette counties' to tbe Title, Guaranty & Trust Company, also an Illinois corporation, in Illinois, to secure certain bonds, of wbicli $8,700 were issued and by assignment bad come to be owned at time of suit, $7,200 by plaintiff Conley, and tbe balance by three other individuals joined as defendants; that those trust deeds were in substantially tbe customary form to secure such indebtedness, and empowered tbe trustees to take steps by foreclosure, etc., in case of default, also to enter and take possession and receive rents and profits; that on September 10, 1901, the Title, Guaranty & Trust Company and another corporation (tbe Chicago Title & Trust Co.) were duly consolidated, pursuant to tbe law of Illinois, under the name of "Chicago Title & Tnst Company,” whereby the consolidated company,. tbe plaintiff, succeeded to all tbe rights, powers, privileges, and properties of tbe trustee named in. said trust deeds. There was allegation of default and exercise of election to declare tbe whole principal due, and that after such default tbe plaintiff company, as trustee, had entered and taken possession of tbe premises and was at the time of tbe commencement of tbe suit in possession. The prayer was for foreclosure and sale, and for personal judgment against tbe defendant Ne-pee-nauk Club for deficiency.</p> <p>Defendants Bashford, O’Connor, and Aylward interposed an answer admitting substantially all tbe material allegations of tbe complaint, but alleging tbat they, on tbe 28tb of October, 1902, by attachment followed by judgment on December 22, 1902, acquired a lien upon tbe lands of tbe Ne-pee-nauk Club, described in tbe complaint, which they allege is prior and superior to tbe lien of tbe trust deeds, but do not allege in tbe defensive part of tbe answer tbat either the plaintiff trust company or tbe defendant club have failed to comply with sec. 1770b, Stats. 1898, requiring tbe filing with tbe secretary of state of Wisconsin of their articles of incorporation, etc.; but, admitting tbe due and legal consolidation of tbe Title, Guaranty & Trust Company and tbe Chicago Title & Trust Co. in September, 1901, and succession of tbe consolidated company to all tbe rights of its predecessors, they deny tbat tbe plaintiff trust company, as trustee or otherwise, succeeded to any title, right, or interest in tbe real estate described in the complaint. As a counterclaim, however, they set up substantially tbe same facts with reference-to acquisition of judgments, and tbat neither tbe Ne-pee-nauk Club of Chicago, nor the plaintiff trust company, has in any wise complied with such section of tbe Wisconsin statutes, and they are therefore not entitled to do business or hold' property in tbe state of Wisconsin, and tbat tbe plaintiff trust company lias acquired no right or interest in any of tbe lands described, and pray tbat tbe lien of their judgments may be declared prior to tbe trust deeds described in the complaint, and tbat said deeds be set aside and held for naught.</p> <p>Plaintiffs demurred to tbe answer as not stating facts sufficient to constitute a defense, and to the counterclaim for insufficiency of facts, and because tbe cause of action therein-stated is not pleadable as a counterclaim to tbe action.</p> <p>Tbe demurrer was sustained by order of the circuit court.,, from which tbe said answering defendants bring this appeal.</p>

<p> Building contracts: Evidence: Intention of parties: Reference to-specifications. </p> <p>Defendant took a contract to do the entire work of erecting a building according to plans and specifications and the satisfaction of designated architects. Plaintiffs had examined the plans and specifications and submitted to the owner a bid for the plastering at the same time defendant’s bid was accepted. Thereafter defendant handed the plans and specifications to’ plaintiffs and requested a bid, which was given and rejected on account of the proposed price. Thereafter plaintiffs had an interview with defendant’s agent which resulted in an agreement as to price, plaintiffs stating that their bid was “for the job” and such agent then stated, “Go ahead and do the work.” Reid, that plaintiffs were bound to do the work to the satisfaction of the superintendent designated in the specifications, and' were only entitled to payment upon doing so.</p>

<p>Appeal from a judgment of the circuit court for Langlade county: John Goodland, Circuit Judge.</p> <p>This is an action to declare illegal and void certain assessments of a sprinkling tax and to restrain its collection. Respondent resides in and owns a lot fronting on Fifth avenue in the city of Antigo. The proceedings of the common council of the city relied upon to fix the assessments were as follows: On April 19, 1901, the council by notice directed that ■the committee on streets and bridges look up the matter of ■sprinkling of streets. April 24th the committee reported that the sprinkling of Fifth avenue for the 1901 season by Aug. Brehmer would cost $500. The committee report was adopted by motion. At the same meeting a resolution was •adopted instructing the committee on streets and bridges “to enter into an agreement with Aug. Brehmer to sprinkle Fifth ave., a macadam street, and that the same be commenced tomorrow, Apr. 25, 1901, for the time being until other arrangements can be made.’’’ April 29, 1901, the following proceedings were had: “Petitions read for sprinkling Fifth ave., a macadam street. By Alderman Briggs moved and seconded that the petition be referred back to the committee and the committee be given further time to get more signatures. Motion carried.” May 6th certain petitions were presented, and by motion all petitions or motions (were) rescinded, and it was ordered that the petition be referred back for legal signatures. The council further decided by motion “that no petition be considered unless the number of feet be-given and fixed amount of said lots and number of feet to be sprinkled.” May 9, 1901, it took action by motion “that Aug. Brehmer be hired at the rate of $3.50 per day for-sprinkling streets in the petition as read pending the ten days for advertising for bids for sprinkler as provided by law, and that the said Aug. Brehmer be paid thirty-five cents per hour for sprinkling when a day’s work is not done.” Alderman Briggs was added “to the committee on streets and bridges to get signatures for sprinkling Fifth ave., a macadam street.” May 14, 1901, at a special meeting called to-act on the petition for the sprinkling of Fifth avenue, a' macadam street, petitions were read and granted upon motion. A bid was received from A. F. Brehmer offering to sprinkle-that part of Fifth avenue on which the property in this case-abuts for $500. The motion to accept the bid of Aug. Breh-mer was carried, as was a motion instructing the committee-on streets and bridges “to enter into a contract with Aug. Brehmer as to how the streets are to be sprinkled, time and place.” Upon motion it decided “that the sprinkling of streets be paid for monthly pro raía." Brehmer was paid' a total of $500 at different times by order of the common council out of the general fund for sprinkling that part of Fifth avenue in question; and on November 4th the council adopted a resolution directing that the sums be charged to-lots as specified in a statement made by the city clerk apportioning the costs of sprinkling to the lot owners. The notice-calling for bids was published on May 17th and May 24th,. and provided for sprinkling from' June 1 to November lr 1901; such bids to be received on or before May 29th.</p> <p>On the evidence submitted the court found that snbd. 40, sec. 925 — 52, Stats. 1898, providing for sprinkling of streets at the cost of the city, or of the lots or parts of lots fronting thereon, had been adopted as an amendment to the charter of the city; that no resolution charging the cost thereof to the owner of the lots fronting on the street in question had been passed by the council; that the petition signed by respondent for the sprinkling of Eifth avenue neither contained the signature of the owners of a majority of the frontage, nor did such petition provide for. or specify that the costs .of sprinkling he charged to the owners of the lots; that no notice of a hearing in the matter was ever received by the plaintiff, nor was provision made for such a hearing — and held all the proceedings taken by the council based on the petitions illegal and void.</p> <p>The portions of ch. 40a, Stats. 1898, covering the question before us, are contained in subch. XVIII, relating to “city improvements,” and are embraced in secs. 925 — 175 to 925 — 197a, inclusive.</p> <p>Upon the trial the court awarded judgment in respondent’s favor, declaring the proceedings void, and restraining-the city from any attempted enforcement of the tax. This-is an appeal from that judgment.</p>

<p>Appeal from a judgment of the circuit court for Langlade ■county: John Goodland, Circuit Judge.</p>

In January, 1900, an oral contract was made between John Meidam, tbe principal -defendant herein, and William Sha-bow, garnishee herein, for the erection of a dwelling house, complete, for the sum of $1,005, which was to include the cost of all the material and labor. The workmen and mate-rialmen were to be paid by Shabow from time to time as the work progressed, upon the consent or order of Meidam.

This is an action to recover for personal injuries and for damages to appellant’s property caused by respondent. Appellant alleges that the injuries were caused by respondent’s negligence and carelessness in managing his horses and coming into collision with him, causing his buggy to upset, and throwing him into the street; resulting in injuries to his body, which made him sick and prevented him from attending to his business. These charges respondent denies.

Tbe plaintiff filed a claim with tbe county board of Sha-wano county to recover personal property taxes for 1900, paid by it under protest. Tbe claim being disallowed by tbe county board, tbe plaintiff appealed to tbe circuit court, where tbe action was tried by tbe court, and tbe appeal dis-mised upon findings of fact, and tbe plaintiff appeals to tbis court. Many of tbe facts were stipulated, and there was no very serious dispute as to tbe other facts.

Action for damages for breach of contract. Plaintiff claimed that on February 6, 1901, defendant in writing leased to him a two-story brick building and its appurtenances in the city of Appleton for the purposes of a saloon, the term of the lease being live years from April 1, 1901, with an option for an additional term of five years, the rent charge being $75 per month payable in advance on the first: day of each month; that in and by said lease defendant agreed to put…

Action of replevin for two borses and certain other property. Plaintiff’s right to recovery, aside from the horses, was conceded, but verdict for the defendant directed as to the horses.

This is an action to recover on two promissory notes executed by tbe defendant Prosser to tbe plaintiff, one for $200 and tbe other for $245, both bearing date of August 19, 1891. Tbe notes were given as a part of .the purchase price of a lot in the city of Antigo. At tbe time of tbe execution of’ tbe notes respondent executed a land contract whereby she-agreed upon tbe payment of tbe notes to convey tbe land to J. W. Prosser, one of tbe defendants.

EeRoe to reverse a judgment of the circuit court for Chippewa county: A. J. ViNje, Circuit Judge. It appears from the record, and is undisputed, that Eeb-ruary 17, 1903, á complaint was made to the municipal judge of Chippewa county, charging the plaintiff in error with a criminal offense therein described, punishable by imprisonment in tbe state prison.

Appeals from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge. This action is brought by plaintiffs as co-partners to recover on two notes made by defendant, each of $5,000, with interest, dated January 12, 1895, payable to plaintiffs, or order, on or before eighteen months after date at their office in Boston, Massachusetts. The defendant admits the making of the notes, and that there was a manual tradition of the same.

G. Siebeciceb, Circuit Judge. This is an action upon a life insurance policy or benefit certificate originally issued by the Piqua Mutual Aid & Accident Association, a foreign corporation, insuring the life of Fred 0. Runge in the sum of $1,000, in favor of his wife. The evidence on the trial showed that the certificate was issued August 12, 1897, and that at that time Fred 0.

J. ViNJE, Circuit Judge. This is an action in equity to remove a cloud upon the title of forty acres of land, and the defendant counterclaims, and claims title in himself, and' asks to have plaintiff’s alleged title removed as a cloud. The land itself is, and has always been, vacant and unoccupied.

J. Vinje,' Circuit Judge. Plaintiff, being the owner of what on its face purported-to be a school order issued to it by the defendant through its authorized officer, payment of which had been refused, commenced this action to recover upon the alleged indebtedness forming the basis thereof.

J. ViNje, Circuit Judge. Deceased died December 5, 1902, resident in Douglas •county, in the state of Wisconsin, leaving- as her sole heir and next of kin James A. Welsh, a half-brother, resident at Kansas City, Missouri. On December 10, 1902, a petition was ■filed by the public administrator, E. B. Manwaring, for administration, alleging certain personal property to have been left by the deceased.

J. Venue, Circuit Judge. An action by respondent to recover damages for personal injuries alleged to have been sustained by reason of the insufficiency and want of repair of a sidewalk in the city of ■ Stanley. It appears that respondent was in the city of Stanley on the evening of December 5, 1901, and while walking on the east side of Willard street, in company with one Boardman, was tripped by a loose board in the walk, which ■caused him to fall and sustain injuries.

J. Vinje, Circuit Judge. This is an appeal from three orders, made under the following circumstances, and which for convenience are numbered consecutively 1, 2, and 3. May 12, 1899, the plaintiff filed a claim against the defendant county to recover hack money paid for taxes. November 1G, 1899, such claim was wholly disallowed hy the county board. Eebruary 10, 1900, the plaintiff served notice of appeal from such disallowance, with an undertaking.

This is an action to recover tbe value of certain house-bold furniture and other property shipped by tbe plaintiff over tbe defendant’s railroad from Spokane, Washington, •and consigned to tbe plaintiff at West Superior, Wisconsin, October 18, 1901, and which was destroyed by fire by tbe Fuming of tbe defendant’s warehouse at West Superior at 4:30 a. m., November 10, 1901. Tbe defense was that tbe defendant was released from liability by tbe terms of tbe •shipping contract.

J. Vlnje, Circuit Judge. Action to recover tbe purchase price of a quantity of cement claimed to have been sold by plaintiffs, as factors, to-defendants. Tbe defendants answered, among other things, that plaintiffs were not the real parties in interest. The cause was disposed of wholly on that issue. The evidence in respect to the matter was to this éffect: Plaintiffs, as-warehousemen, received the cement from the Eastern Minnesota Railway Company at West Superior, Wisconsin.

J. ViNje, Circuit Judge. Tbe defendant maintained at Dulutb a covered dock or-warehouse extending out easterly into tbe waters of tbe bay. Same was about 1,000 feet long east and west, tbe north side fronting upon a slip in wbicb vessels entered, and along tbe south side were maintained two-tracks, onto wbicb cars were run for the purpose of delivering freight into the warehouse-to be transferred to boats, or receiving freight from the warehouse.

J. Virus, Circuit Judge. Action by Douglas Gouniy to recover amounts paid to defendant. for compensation as sheriff on bills presented by him and paid by the county, for which it is alleged the county is not liable. Defendant denied all liability, and claimed that the amounts were properly allowed him, as sheriff of the county. The action was referred to Louis Iianitch, as referee, to hear, try, and' determine.

Tbe relator was elected sheriff of Douglas county in November, 1900, and be brings tbis mandamus to compel tbe county clerk to issue and deliver to him a county order for tbe sum of $500 in payment of bis salary as sheriff during-tbe last four months of bis term of office for services rendered wholly within the county. It appears from tbe relation, and is undisputed, that November 1, 1895, the county board, by resolution pursuant to sec. 694a, S. & B. Ann.

This is an action to recover damages for personal injuries ■■suffered by the plaintiff May 4, 1902, at which time she was a child of the age of about five years.

Action to recover on a fire insurance policy. The complaint was in the usual form. The policy was issued April 5, 1902, to run three years. It was in the standard form. The insurance was $500 on plaintiffs house and $200 on his personal property therein. The fire occurred August 12, 1902. Proofs of loss were furnished defendant November 11th thereafter*. The amount sought to be recovered is $500.

Dice, Circuit Judge. Appellant is a city of the fourth class under the general charter law. This action was brought to restrain the re*-spondents from forcibly interfering with and preventing the city’s officers and servants from grading and rebuilding sidewalks in front of respondents’ lots on portions of Hartwell and Arcadian avenues.

<p>Appeal from a judgment of tbe circuit court for Wau-'besba county; James J. Dice, Circuit Judge.</p> <p>Tbis action was commenced July 26, 1900, by twenty-six. ■ abutting owners on Lincoln avenue, in tbe city of Waukesba, • to abate and remove from that street in front of tbeir respective lots tbe railway tracks, ties, poles, wires, and other erections of tbe defendant therein constituting tbe nuisance complained of, and to restrain tbe further obstruction or interference therewith. Tbe case was here on demurrer, and was reversed and remanded for further proceedings according to law. 112 Wis. 15, 23, 87 N. W. 861. Thereupon tbe complaint was amended in tbe particulars wherein it was held bad in that decision. Tbe defendant answered such amended complaint, and denied that it was a commercial railway to carry baggage or freight, and justified its maintenance of the railway tracks, etc., and its right to use the ••same and operate its cars thereon, under tbe statutes of this state therein cited and tbe ordinances of tbe city of Wau-kesba. A trial being bad, the court found as matters of fact, ■In effect: (1) That tbe plaintiffs were abutting owners as stated. (2) That Lincoln avenue was one of the principal public streets in the city, with desirable lots for residences thereon. (3) That at tbe time of tbe commencement of tbis action tbe defendant was, and since has been, incorporated under tbe articles of incorporation in evidence, and has all the rights, title, and interest conferred and granted by said •ordinances and amendments. (4) That July 27, 1897, tbe city, pursuant to sec. 1862, S. & E. Ann. Stats., and acts amendatory thereof, granted a franchise to tbe defendant and its successors and assigns incorporated and organized under eb. 86 (secs. 1771 to 1791m), of tbe statutes, and secs. 1862 and 1868 of cb. 87 of tbe statutes, and acts ■amendatory thereof and supplementary thereto, for tbe purpose of purchasing, acquiring, constructing, equipping, leasing, maintaining and operating by electricity or other power street railways for tbe transportation of passengers in tbe •city of Waukesha, and of purchasing, acquiring, taking, bold-ing, and operating real and personal property, rights, privileges, ordinances, and franchises upon certain streets therein, as found by the court. (5) That the defendant holds ■such rights, franchises, and property by assignment, as it is authorized to do. (6) That the defendant is the legal owner of such rights, franchises, and property, and had before and •ever since the commencement of this action operated such railway under such franchise on such streets; that the defendant constructed such double-track electric railway on Lincoln avenue, and operated the same as an electric street railway within the city of Waukesha, and never has and never intended to use said street car line or double track for the purpose of carrying freight or baggage; and this defendant has in all its acts upon said Lincoln avenue and other streets mentioned in said franchise, within the city of Wau-kesha, kept strictly within the authority conferred upon it by said franchise and acts amendatory thereof so far as its business was concerned. (7) That the defendant has not by itself or agents entered upon the lots of any of the plaintiffs other than going upon Lincoln avenue under said rights and franchises. (8) That in doing so it has complied with all the conditions and requirements of its franchises. (9) That under such authority the defendant has constructed, equipped, maintained, and operated a first-class •street railway line on Lincoln avenue, in the city of Wau-kesha, as authorized and required by its franchises and the ■statutes. (10) That the defendant constructed an electric line of railway from the city of Milwaukee to the city of Waukesha, and connected the same with its street car line in the city of Waukesha in 1898. That the defendant purchased a line of electric railway from the city of Waukesha to a j)oint on Pewauke© Lake known as “Waukesha Beach,”' about six miles in length, from another company, and the defendant connected such line with its said street railway in the city of Waukesha, and during the summer months has run and operated cars from the city of Milwaukee over and across said electric line to the city of Waukesha, and across, said city of Waukesha and over and upon said Lincoln avenue in the city of Waukesha to the western limits of the city, doing a street car business within that city, and then on the line so purchased to Waukesha Beach; that all of said lines are of the overhead trolley system throughout its entire length, with wires strung from poles, charged with a heavy current of electricity; that up to August 1, 1900, there was only a single track on Lincoln avenue, and that was located in the center of the street, and consisted of T rails laid upon ties imbedded in the street; that about August 1, 1900, it was removed, and a double track was laid on Lincoln avenue, in accordance with the ordinance and franchise granted by the city of Waukesha to the defendant; that doing so rendered the property of the plaintiffs in some instances less easy of access than before; that in some portions of the year cars and trains ran directly over and upon said line over and upon Lincoln avenue in the city of Waukesha without change of cars, once an hour, in accordance with the franchise granted by the city of Waukesha — except on Sunday during the summer months, when cars are frequently run every half hour; that the number of passengers so carried exclusively within the city of Waukesha is not large; that the cars that are so run over and upon Lincoln avenue in the city of Waukesha do a regular street car business within that city. (11) That the defendant constructed its single 'track on Lincoln avenue, and placed its poles, wires, etc., thereon, without objection from any of the plaintiffs; that the first objection was made when the defendant began constructing its double tracks in August, 1900; that no compensation has ever been paid to any of the plaintiffs for the construction of such tracks on Lincoln avenue. As conclusions of law the court found, in effect, that the defendant is entitled to have the plaintiffs’ complaint dismissed, and judgment for its costs and disbursements in this action, and ordered judgment accordingly. Efom the judgment so entered the plaintiffs bring this appeal.</p>

Dice, Circuit Judge. This is an action in equity to enjoin the appellant company from placing an electric light pole in the street in front of the plaintiff’s premises‘in the city of Waukesha, and from cutting or trimming the branches of the plaintiff’s-shade trees in the street. The plaintiff owns and occupies as a homestead a lot in the city of Waukesha with a frontage-of 160 feet on Barstow stfeet, and with a number of large shade trees in front of said lot.

A. BaeNEy, Judge. Action for compensation for professional services rendered in an action by Charles 0. Grafton against tbe defendants. 'The amount claimed is $453.90. L. D. Hinkley and M. J. Althouse answered separately, denying that plaintiffs were employed by them or in their behalf in such action, but admitting that they were employed by tbe other defendants and alleging payment for tbe services rendered.

<p> Highways: Culverts: Diversion of surface water: Authority of municipal officers. </p> <p>1. In an action against a town for damage, alleged to have been occasioned by surface water diverted from its former course, and conducted through a culvert, insufficient in size and improperly located, the complaint considered, and helcl to state no cause of action.</p> <p>2. For the purposes of improving highways, a town has the same right to divert and obstruct the natural flow of mere surface water as private individuals.</p>

HastiNgs, Je., Circuit Judge. Tbis is an appeal from a judgment based upon an order sustaining a demurrer to tbe complaint on tbe ground tbat it appears from the face of tbe complaint tbat two causes of action have been improperly united.

<p>Certiorari: Supreme court: Original jurisdiction: "Cannot be made elsewhere:” “Peculiar and satisfactory reasons.”</p> <p>1. The business of the supreme court is confined to the exercise of its appellate jurisdiction, except in cases of applications where, “for peculiar and satisfactory reasons . . . they are not or cannot be made elsewhere.”</p> <p>2. The term “cannot be made elsewhere” refers to disability as to jurisdiction.</p> <p>4. Mere importance of obtaining ^'speedy final settlement of a controverted question, even of a public nature, short of necessity in that regard to prevent irremediable loss of valuable rights, does not satisfy the call for peculiar and satisfactory reasons.</p> <p>3. The term “peculiar and satisfactory reasons” refers to those circumstances rendering the exercise of jurisdiction elsewhere in the given case inadequate to remedy or prevent the wrong,— insufficient to afford any substantial remedy.</p> <p>5. In the foregoing sense the rule as to the exercise of original jurisdiction here to review or control the conduct of other courts, the rule is that this court will not exercise such jurisdiction “when there is another adequate remedy, by appeal or otherwise, nor unless the exigency is of such an extreme nature as obviously to justify and demand the interposition of the extraordinary superintending power of the court of last resort."</p> <p>Q. To the foregoing, in conformity to legislative policy, an excep-~ tion is made as to actions against the state involving its revenues.</p> <p>[Syllabus by Maesiiaix, J.]</p>

EekoR to review a judgment of the circuit court for Clark county: Chas. M. Webb, Judge. ' November 21, 1900, at about two o’clock a. m., Ollie-O’Dell, the keeper of a house of ill fame, located a short distance from Stanley, Clark county, Wisconsin, was there fatally shot by some one. Death occurred a few moments-after the wound was inflicted- There were no witnesses to the homicide except plaintiff in error and one Ole Gustad.

<p> Quieting title: Pleading: Sufficiency of allegation: Demurrer: Anticipated defenses. </p> <p>1. Under tie provisions of sec. 3186, Stats. 1898, that it shall he sufficient in actions to quiet title to real estate to aver in the complaint the nature and extent of plaintiff’s estate in such land, describing it as accurately as may be, that he is in possession thereof, or that the land is vacant and unoccupied, and that the defendant makes some claim thereto — a complaint alleging, in substance, that plaintiff is the owner in fee simple of the lands described, and that defendant makes claims thereto which are clouds upon that title, satisfies the calls of the statute, and is not open to the criticism that its allegations, constitute mere conclusions of law.</p> <p>2. In such case, however, if the complaint in addition to the allegations called for by the statute, proceeds to allege other facts as to defendant’s title, which from want of further allegation, are not shown to be invalid or ineffectual, the complaint shows affirmatively that plaintiff has no cause of action and is de-murrable.</p> <p>3. Under sec. 1176, Stats. 1898 (providing that a tax deed executed and acknowledged as required by law shall vest in the grantee an absolute estate in fee simple;' and that such deed shall be presumptive evidence of the regularity of all prior proceedings), a complaint in an action to quiet title, which, after formal allegations sufficient to satisfy the calls Of sec. 3186, Stats. 1898, alleges that defendants have received from the county clerk certain tax deeds, but makes no assertion as to their invalidity, must be read as asserting that the instruments, under which defendants claim, were executed, and contain the declarations and recitals required by law, which establish prima facie the regularity of all proceedings, conveying absolute title, and hence that the complaint shows upon its face that plaintiff is not entitled to the relief demanded.</p> <p>4. In such case, an assertion in the complaint that the tax deeds are clouds upon plaintiffs’ title, is held not inconsistent with their entire validity.</p>

J. ViNJE, Judge. This is an equitable action commenced by the appellant, -the city of Ashland, to compel respondents to remove obstructions from a street of the city, and to restrain them from continuing the obstructions. This ease, as well as the companion case, Ashland v. Wis. Gent.

Parish, Circuit Judge. It appears from the record, and is in effect found hy the court, that September 10, 1894, the plaintiffs, Michael J. and Bridget Hart, executed and delivered to the Jos.

Appeals from an order of the circuit conrt for Sawyer •county: John K. Parish, Circuit Judge. contended that the only •authority for joining separate causes of action must he found, if at all, in the statutes. Leidersdorf v. Second Ward Sav. Barde, 50 Wis. 406, 411; Hoffman v. Wheelock, 62 Wis. 434, 440; John B. Davis L. Go. v. Home Ins.

<p>Appeal from a judgment of tbe circuit court for Taylor county: LawbeNce W. Halsey, Judge.</p> <p>Action to recover a balance claimed to be due for goods, wares and merchandise sold and delivered to the defendant at its request. • The reasonable value of the goods so sold and delivered was alleged to be $572.30, the amount paid $14.60, and the balance due $557.70, for which latter sum, with interest from October 11, 1899, judgment was demanded. Defendant, for an answer, pleaded a general denial.</p> <p>The case was duly sent to a referee to hear, try and determine. Upon the hearing plaintiff, under objection, introduced evidence showing or tending to show that one A. E. Gates, while performing a logging and tie contract with defendant, was authorized by its agent, one W. G. Hinman, duly empowered in the matter, to purchase goods of plaintiff on its account, and that pursuant thereto the goods referred to in the complaint, less $2, were at the request of said Gates delivered either to him or to others upon his order; that no part thereof came to the actual possession of defendant; that except for $14.60 in value, of goods returned, no payment has been made to plaintiff; and that the balance of $555.70 became due and payable October 11, 1899. The referee found accordingly. The findings were confirmed by the court. Judgment was rendered pursuant thereto, and defendant appealed.</p>

<p> Jurisdiction:Residence: Service of process outside of state: Effectr Judgment for costs: Construction. </p> <p>1. In an action against a non-resident, the court has no jurisdiction of the person to enable it to render a money judgment for costs, where such defendant is served with pro'cess only outside its territorial jurisdiction.</p> <p>2. In an action on a tax deed to bar former owners, judgment was by default that defendant McC. (who was personally served in Idaho, pursuant to order for service outside the state), and O', (who was personally served in Wisconsin), be forever barred from all right in the described lands, “and that plaintiff have his costs and disbursements in this action, taxed at,” etc. Held, that reference to the record disclosed affirmatively that the judgment for costs could not be construed as personally enforceable against McC., and hence was not prejudicial as to him.</p> <p>Winslow and Maeshall, JX, dissent.</p>

<p>Appeal from a judgment of the circuit court for Ashland -county: Joi-iN K. Pabish, Circuit Judge.</p>

Paeish, Circuit Judge. Proceedings for the judicial enforcement of a personal property tax.

Aubeai, from a judgment of the circuit court for Taylor county: B. E. Duhwiddie, Judge. This is an action by the assignee of an insurance policy to recover the amount due for a loss under the policy. The facts stipulated and admitted by the pleadings, so far aá material, are: The policy was for $200, and ran from July 3, 1896, to July 3, 1901. It was issued to George M. Pulsipher, .and covered property, including his barn. On May 31, 1901, .the barn was totally destroyed.

Paeish, Circuit Judge. Action by lot owner against the city and its officers and the Barber Asphalt Paving Company to declare void claims of the latter against plaintiff’s property under either special assessment certificates or special improvement bonds for paving, and to enjoin the city from issuing either certificates or bonds.

<p> 'New trial: Discretionary orders: Costs: Appealable orders: Practice. </p> <p>1. The granting of a new trial is within the discretionary power of the court, and will not. he reviewed on appeal unless the court has abused its discretion.</p> <p>2. On the granting of a motion for a new trial costs should be imposed upon the moving party, unless it appears that the new trial is granted upon the ground that the verdict is perverse, or is entirely unsupported by the evidence, or by reason of a misdirection of the jury as to the law.</p> <p>3. An order coming within the" class denominated “discretionary orders,” there being no abuse of discretion, is not appealable, and the appeal therefrom should be dismissed.</p>

<p>Appeal from a judgment of the circuit court for Marathon county: W. C. Silvebthobn, Circuit Judge.</p>

<p> Municipal corporations: Committee of common council: Duties: Meetings: Validity of committee’s action: Direction of verdict: Presumptions: Rebuttal: Ratification: Contracts: Warranty: Evidence of breach: Remoteness: Instructions to jury: Prejudicial error. </p> <p>1. The duties of a committee of a common council appointed not only to buy a horse, but to pass upon the suitableness of the animal for the purpose for which it is intended, are more than merely ministerial in character.</p> <p>2. In such case, the action of two members of a committee of three, in contracting for the horse without notice to their associate, or opportunity for him to participate in the matter, is invalid, and, in an action against the city for the purchase price for the horse, there being no .evidence of subsequent ratification, a motion for a directed verdict should be granted.</p> <p>•3. Where the testimony was all one way, that two members of a committee of three met without previous notice or concurrence in the matter, and transacted the business of a committee without the other member knowing that any such transaction was in contemplation, a presumption of notice to the non-participating member of the committee, or consent by him to the act of his asociates, is completely rebutted.</p> <p>4. In an action for the purchase price of a horse, alleged to have been purchased from plaintiff by two members of a committee of three appointed by a common council, without previous notice to or concurrence by the non-participating member, the disallowance of the claim by the council upon the report of the comptroller that the horse was not as represented, is not a ratification of the purchase, unless the council, when such action was taken, knew the facts rendering the purchase invalid.</p> <p>5. Where the unsound condition of a horse at the time of purchase is vital to the defense of breach of warranty, it is error to exclude evidence, tending to show, that the same unsoundness existed nine months prior to the purchase and continuously thereafter down to the sale.</p> <p>■6. In such case, the evidence of the unsound condition at the early date cannot be said to be too remote.</p> <p>7. Where a decision in plaintiff’s favor depends largely on the weight to be given to his testimony, it is prejudicial error to refuse a requested instruction, in substance, that in judging of the credibility of plaintiff’s testimony, the jury may properly consider his interest in the result of the trial, the temptation under the circumstances to color his testimony favorably to himself, and everything bearing on the subject, and give such evidence such weight only as in their judgment it was entitled to, and that a like test should be applied to the evidence-of each of the witnesses who testified in the case, unless such principle is embodied in the general charge.</p> <p>8. Such instruction does not invade the province of the jury, or violate the rule that, in instructions to the jury, the evidence of one witness should not be singled out and given prominence-by special comment thereon.</p>

<p>Appeal from a judgment of tbe circuit court for Marathon •county. W. C. SilvebthobN, Circuit Judge.</p> <p>Action of replevin for team of horses alleged by the complaint to be owned by the plaintiff, and wrongfully detained by the defendant. The answer denied all of the complaint .except the detention by the defendant; alleged his possession to be by virtue of a chattel mortgage executed by John Stras-ser, son of the plaintiff, whom the answer alleged to have "been the owner; but further alleged that for many years he 'had held himself out as owner, with the knowledge of the •plaintiff, and with her permission; also that she> by direct ■statement and otherwise, had held him out as the owner before the making of the chattel mortgage; and that the defendant took the same relying on such conduct on her part. It also alleged that after the making of the chattel mortgage the property was taken to another county by John Strasser, and there conveyed by bill of sale to third parties; that plaintiff, having knowledge of that fact and of defendant’s ■claim to the property under the chattel mortgage, and that, relying upon such claim, he was about to incur expense in reclaiming the property from said grantee, and having full opportunity to notify him of her claim thereto, failed and neglected so to do, but permitted him, relying upon his chattel mortgage title, to incur necessary expense of $15 in reclaiming and bringing back the horses. By all such conduct ■defendant claimed plaintiff to be estopped to claim the property, or any part thereof. Evidence Was offered at least tending to establish all the allegations of the answer. A special verdict was taken, all of the material questions except the ■second and third being answered by the court, to the effect that plaintiff, and not John Strasser, was the owner of the horses; that she had knowledge of the giving of the chattel mortgage about two months after its delivery, and of the seizure by the grantees in the bill of sale in Gates county, and that defendant was intending to reclaim the same under his mortgage — all before he did so. The second question, answered in the negative by the jury, was whether the plaintiff knowingly permitted John Strasser to hold out or represent to the defendant, without objection on her part, that he (John) was the owner of the team. The third question, answered in the affirmative by the jury, was whether the defendant at the time of taking the chattel mortgage, believed that John was the owner, and acted thereon. Defendant moved to change the answer to the second question from “No” to “Yes,” and that upon the verdict so amended he have judgment; also that the verdict be set aside, and a new trial granted; both of which motions were refused, and judgment rendered in plaintiff’s favor for possession and nominal •damages, from which the defendant appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Clark county: Jakes O’Neill, Circuit Judge.</p> <p>It appears from tbe record, and is, iu effect, found by the-court, that Larry Drinkwine, Sr., died intestate' November 18, 1901, at tbe age of eigbty-one, leaving, bim surviving, five children, tbe youngest of wbicb was thirty years of age. Tbe three sons and tbe youngest daughter commenced this action March 3, 1902, against tbe other daughter, Villa, .and her husband, Otto Gruelle, to concel and set aside a mortgage executed by the deceased to the defendant Otto April 10, 1897, on eighty acres of land then owned by him, and upon which he and the defendants then resided, and which mortgage purported to secure the payment of $3,000, according to the terms of a promissory note for that amount, and was recorded April 12, 1897; and also to cancel and set aside a warranty deed of the same land to the defendant OttOj executed by the deceased February 18, 1901, and reciting a consideration of $1, and purporting to be given in satisfaction of the mortgage, and which deed was recorded February 19, 1901, and to have the title to said real estate adjudged to be in the four plaintiffs and the defendant Villa •share and share alike, to each an undivided one fifth interest thereof, on the ground that the mortgage and deed were respectively procured by the fraud and undue influence of the defendants on the deceased when he was weak and feeble in mind and body. The defendants answered by way of admissions, denials, and counter allegations. At the close of 'the trial the court found as matters of fact, in effect, in addition to the facts stated, that the deceased was during his whole life illiterate, and unable to read or write; that at the time of his death and for five years prior thereto he had been eccentric, childish, easily influenced, became angry at trifles^ was excitable, of strong prejudices, his faculties (eyesight and hearing) somewhat impaired, and had transacted no business except as stated; that his wife died in September, 1896; that at that time his son George, who was then unmarried, had been living with him and working the farm for eleven years after he became of age; that during that lime his father gave him a deed of the farm; which was never recorded, and which he returned to his father to keep for him, but never got it afterwards; that when his mother died, in September, 1896, George left the farm, and the defendants moved onto the place, and the deceased made his home ■with them; that thereupon the deceased became cold and unfriendly toward the plaintiffs, and ceased to counsel with them; that the mortgage and deed were each given without consideration, and by undue persuasion, importunity, and influence exercised by the defendants over the deceased; that some time between the giving of the mortgage and the deed the deceased executed to the defendant Otto a bill of sale of his personal property; that during the five years before he died the deceased drew a pension from the United States of $12 per month; that the defendants fraudulently concealed from the plaintiffs and others the real transactions in obtaining the bill of sale and deed by falsely and fraudulently claiming to have paid full value for the same in cash'; that during the five years the deceased lived with the defendants they in some manner prejudiced him against George by convincing him that George had forged his name to a note for $700, and prejudiced him against the plaintiff Viola, by convincing him that she was not lawfully married to the man with whom she was living. And as conclusions of law the court found, in effect, that the plaintiffs were entitled to the relief demanded in the complaint; that the mortgage and deed were procured by the defendants through their fraud and undue influence practiced upon the deceased during his lifetime, and should be canceled and set aside; that the defendants and all persons claiming under them since the filing of the notice of the pendency of this action be forever barred against having or claiming any right or title to the lands described adverse to the plaintiffs, except as to such interest therein as the defendant Villa may have inherited as one of the heirs of the deceased; that the plaintiffs are entitled to their costs in the action, and ordered judgment to be entered accordingly. From the judgment so entered the defendants bring this appeal.</p>

<p>Appeal from a judgment of tlie circuit court for Eau Claire county: James O’Neill, Circuit Judge.</p> <p>At 4 o’clock p.- m. on tide 14th day of December, 1901, one David Wilson, while crossing the defendant’s track in a sleigb drawn by two horses, was run down and killed by one of defendant’s electric cars, and this action is brought by his widow and administratrix to recover damages for his death. The complaint charges gross negligence, or, more accurately, such wilful and wanton acts as amount to intentional killing. A verdict for the defendant was directed at the close of the evidence, and the plaintiff appeals from judgment thereon.</p> <p>The evidence showed that the place where the accident took place was a highway crossing known as “Smith’s Crossing.” Though within the city limits of Eau Claire, it was so far on the outskirts as to be practically a country crossing. At this paint the defendant’s track runs northeast and southwest; the same being an interurban line between the cities, of Eau Claire and Chippewa Ealls, over which the defendant operated cars at stated intervals. The track was upon a fenced right of way, and both track and right of way were in all essential respects maintained like those of the ordinary railroad. Immediately adjoining and parallel to the right of way upon the southeast was the right of way and track of what is commonly called the “Omaha Railway,” and immediately adjoining this, again, was. the track and right of way of the Wisconsin Central Railway; the track of the Omaha Road being ninety-six feet from the .defendant’s track, and the track of the Central being 137. feet from the Omaha track. The highway on which the deceased was driving ran directly east- and west, crossing all three of the tracks at grade. The car which ran down the plaintiff was approaching-the crossing from the northeast, and was an interurban car, going at from twenty to twenty-five miles per hour. The deceased, with one Howard, was approaching the crossing from the east. The day was cold, and both men were well muffled up. The horses were owned by the deceased, and were young and high-spirited, and had run away at least twice before; the last time being on the day of the accident. It appears that, from the time when a traveler approaching the tracks from the east reaches a point 150 feet east from the defendant’s track up to the time when he crosses the track, he has an unobstructed view to the north, and can see a car approaching for more than a mile, and can, of course, himself be seen from the car. The plaintiff introduced evidence tending to show that the team which the deceased was driving got beyond his control and commenced to run awa'y just before reaching the Wisconsin Central track, at a point about 313 feet east of the crossing over'the defendant’s track, and that they continued running away till they crossed the defendant’s track; that at the time they commenced to run, oi* when first seen running, the defendant’s car was about 850 feet north of the crossing; that the defendant’s motorman saw "Wilson’s team approaching, and made no attempt to stop his car until after it had struck the sleigh in which the deceased was riding. On the other hand, the defendant’s evidence tended to show that the team did not commence to run until it passed the Omaha track, and that the motorman attempted to stop the car when he saw the team commence to run. It was undisputed that the car struck the sleigh, throwing one of the men a distance of thirty-seven feet, and the other a distance of fifty-three feet, killing them both, and that the car ran several hundred feet beyond the crossing before stopping.</p>

<p> Guardian and ward: Care of incompetent "by volunteer: Recovery. </p> <p>Where a guardian had contracted'for the care of his incompetent ward, a mere volunteer who assisted in the care of the ward without the authority or knowledge of the guardian cannot recover for such.services on the ground that they were.necessaries.</p>

<p>Appeal from a judgment and order of the circuit court for Racine county: E. B. BeldeN, Circuit Judge.</p> <p>Action for damages for personal injuries. The charge in the complaint is to this effect: August 29, 1902, plaintiff' was a traveler on one of defendant’s regular passenger trains due from the north at Corliss at about 8 o’clock p. m., where-she purposed changing cars for Racine. The night was dark. As the train neared the station one of defendant’s-servants announced the fact and opened the vestibule door1 of the car in which plaintiff was riding, in order to enable passengers therein to alight. When the car stopped the opening thus provided was not at the platform nor where there was a light to enable passengers to conveniently and safely alight. Blaintiff proceeded to leave the car, not appreciating the situation. It was about three feet from the lower-step of the car to the ground. The gi’ound was rough and stony. As she stepped off the car, miscalculating the distance to the ground, she lost her balance and fell upon the stony surface aforesaid, severely injuring her.</p> <p>The answer put in issue all allegations of the complaint respecting negligent conduct on the part of defendant’s servants.</p> <p>There was evidence on plaintiff’s part sustaining the allegations of her complaint as to there being no platform where-she left the train, no light to enable her to see the surroundings, no person to assist her, and the lower step of the car being so far from the ground as to be likely to cause a person circumstanced as she was to fall in trying to leave the same; and that the ground was rough and stony so that if a person fell thereon a personal injury would be likely to follow. There was evidence on defendant’s part that the car opening, when plaintiff testified she alighted, was at the platform and that she was in fact injured by leaving the car some time before it reached the stopping place.</p> <p>The jury found: (1) Defendant failed to provide a safe and convenient place for passengers to alight on the occasion in question. (2) Defendant failed to provide a suitable light to enable passengers to safely leave the cars. (3) Defendant failed to provide suitable assistance to enable passengers to safely alight from the cars on the occasion in question. (4) The forward end of the coach, in which plaintiff was a passenger was not opposite the depot platform when the train stopped. (5) Plaintiff did not alight from the car before it stopped at the station. (6) The proximate cause of the plaintiff’s injury was the negligence of the defendant as found. (7) Plaintiff was not guilty of any want of ordinary care which contributed to produce her injuries. (8) Plaintiff was damaged to the extent of $600.</p> <p>On motion of defendant’s counsel the court set aside findings 1 to 7 inclusive, and rendered judgment dismissing the complaint with costs.</p>

<p>Appeal from a judgment of the circuit court for Kenosha county: E. B. Belden, Circuit Judge:</p> <p>This is an appeal from judgment in favor of the plaintiff rendered upon a retrial of the same action considered at 116 Wis. 13, 92 N. W. 358. The jury returned a special verdict that the plaintiff Was injured by explosion of the torpedo; that such torpedo was placed on the rail not .by the fireman, but by the engineer, in the conduct or performance of defendant’s business; and'that the engine was started by the engineer, and not by the fireman, with knowledge that the torpedo was upon the rail; that the placing of the torpedo upon the track and its explosion were the proximate cause of plaintiff’s injury, and that his damages were $2,000. Dei fendant moved to change the answers to the questions so as to find that the fireman placed the torpedo, and that the engineer had no knowledge of such fact, and that it was not so placed in the conduct of defendant’s business. That motion, as also a motion for a new trial, was overruled, and judgment entered.</p>

<p>Appeal from a judgment of the circuit court for Racine •county,: E. B. BeldeN, Circuit Judge.</p> <p>This action is brought by respondent to recover a loss to her stock of groceries, tobacco, liquors, furniture, and fixtures, insured by appellant. The facts show that she was conducting a general grocery business in the city of Racine, in her own store, under the management of her sons, George and Fred Rickeman. On September 2, 1902, a fire occurred in the store, damaging the contents and parts of the building. She caused proofs of her loss to be made and served on the companies, and commenced action to recover the amount of damages claimed by her, as set out in the proofs of loss. The companies answered, denying the amount of the loss, and claimed and asserted that the loss did not exceed $1,804.81. They answered, relying on the stipulation of the policy which avoids the contract for concealing or misrepresenting any material facts or circumstances concerning the insurance, or if the interest of the insured in the property be otherwise than stated, or in case of any fraud or false swearing 'by the insured touching any matter relating to it before or after the loss; and they alleged that she fraudulently represented in her claims and proofs of loss that the loss sustained by her on the stock of goods and merchandise-amounted to the sum of $11,156.84, and that she knew, in fact, it did not exceed $1,219.15.</p> <p>The .building was built of brick, having a basement, and ground and second floors, all occupied by the insured in conducting her business. It Was about eighteen feet in width and fifty-five feet in length. The first floor was used for merchandising in retail. The second floor was divided by a wooden partition which cut off the north end, made into two-rooms, and connected with the other part of this floor, which was used for the general storage of merchandise. The floor, framework, side, roof, partition, doors, windows, and studding in the. second floor were of pine wood. There was an attic over this floor, separated by rafters, with loose boards over part of the rafters. The fire occurred on the morning-of September 2, 1902. The goods which are claimed to have been totally destroyed were on the second floor.' The principal controversy pertains to the loss on a stock of sugar, a stock of cigars, a stock of Old Crow 'whisky, and a stock of tea. The sugar is described as 100 sacks, of 100 pounds each, of granulated sugar, piled in layers about six feet bigb and about sixteen or eighteen feet in length along-the center of the storeroom; the cigars, as from fifty to sixty thousand, placed in tiers of boxes on deep shelves at the side and near the partition in the north end; the liquor, as Old Crow whisky, in quantity, 235 gallons, purchased in 1883, stored in tin cans in recent years, and placed on boards which lay on the rafters, and formed the floor of the attic; and the tea, as kept and stored in the original chests or packages.</p> <p>The special verdict found the following facts: The loss on goods not totally destroyed amounted to $1,554.87; damages to furniture and fixtures, $585.66; loss in liquors, $3,795.60; loss in sugar, $475; loss in tea, $1,135; loss in cigars, $2,740; and that the insured did not falsely and fraudulently misrepresent the amount of the loss of the property covered by the policies issued by the companies.</p> <p>After verdict, appellants moved the court to set aside the answers to the questions finding the amount of loss on sugar, tea, liquors, and cigars, as well as the answers to other questions, upon the ground that they were without evidence to support them, and because against the law and the evidence, and also moved to set aside the whole verdict and for a new trial. These motions were denied, and judgment was thereafter entered upon the special verdict in respondent’s favor for the damages found, with costs. This is an appeal from that judgment.</p>

B. Belden, Circuit Judge. This is an action in equity, brought to compel the specific performance of a contract.