Volume 123 — Wisconsin Reports

C. Silvertiiorit, Circuit Judge. Action to recover for a car of potatoes sold by plaintiff to defendant free on board cars at Tomahawk, Wisconsin, shipment to be made from a point elsewhere. The complaint was in the usual form of a declaration on contract to recover for property sold and' delivered at an agreed price. As it was amended on the trial, the amount claimed was $186, the price of 600 bushels of potatoes at 31 cents per bushel, less $41.80, paid thereon.

<p>Appeals from orders of tbe circuit court for Oneida county: W. O. SilvertiiorN, Circuit Judge.</p> <p>Action for personal injuries from a bole in a country highway, left by the town authorities in original construction by merely covering the same with poles. Special verdict of twenty questions returned by jury, finding all material facts in favor of the plaintiff, except that question No. 16, “Was plaintiff guilty of any want of ordinary care which contributed to injury he received?” was answered “Yes.” Plaintiff produced affidavits of all twelve jurors to the effect that all the jurors agreed that plaintiff was not guilty of any want of ordinary care, and that the insertion of the answer “Yes” instead of the word “No” was a mistake. The foreman,, agreeing with these facts, states that he intended to write answer to the sixteenth question so as to find that said plaintiff was not guilty of any want of ordinary care which contributed to his .injury. Upon these affidavits the plaintiff moved, first, that the answer “Yes” to the sixteenth question Re stricken out, and the answer “No” Re inserted in lien ■thereof, and for judgment upon the verdict as so amended, Rasing the request also on the contention that there was no evidence to sustain the affirmative answer to that question. That motion was denied, from which denial the plaintiff appeals.</p> <p>Thereupon plaintiff moved on minutes and said affidavits for a new trial. Defendant moved to strike out jurors’ affidavits. The court entered its order reciting that the motion was based on a mistake in the verdict and on the lack of support from evidence, whereby it denied defendant’s motion to strike out said affidavits, “excepting that said affidavits Re received and considered only as tending to show that there was a mistrial by reason of a mistake by the jury in writing the answer to question No. 16,” Rut rejecting said affidavits in as far as they “tend, generally, to impeach or contradict said special verdict.” The court entered further order granting plaintiff’s motion to set aside the verdict and awarding a new trial, no costs being imposed on either party. Erom that order •the defendant appeals.</p>

<p> 'Taxation: Collection of delinquent taxes: Cause of action: Parties: County treasurer: Judgments: Exceptions, when not necessary: Appeal and error. </p> <p>1. When a county treasurer, in his official capacity, has moneys in his hands belonging to a town, representing the proceeds of delinquent taxes returned hy the town and afterwards collected, the remedy for its collection is not against the treasurer but by action against the county as for money had and received.</p> <p>■2. The pleadings and findings in an action must show a state of facts from which the legal liability which is embodied in the judgment necessarily follows, or the judgment will be reversed notwithstanding the absence of exceptions.</p> <p>f3. Whether in a proper action by a town against a county for delinquent taxes returned by the town, and afterwards collected, the five per cent, collection fees under sec. 1112, Stats. 1898, the five per cent, interest under sec. 1129, the twenty-five cents advertising fee on each parcel under sec. 1133, the twenty-five cents for a certificate fee on each certificate of sale under see. 1196, and the fifteen per cent, interest on each certificate of sale of lands bid in by the county from the date of sale to the date of assignment or redemption under secs. 1165 and 1192, are properly allowable to the town, not determined.]</p>

<p> ‘Criminal law and, practice: Imprisonment: Escape: Recapture: Unexpired sentence: Statutes: Construction. </p> <p>1. By the common law a prisoner escaping from custody, while serving a sentence for a criminal offense, is liable to recapture and reconfinement to serve out his sentence, the term of his voluntary absence not being counted in his favor.</p> <p>2. In such case, judicial direction, other than that contained in the original judgment, is unnecessary.</p> <p>•3. In such case, for the offense of escape, or prison breach and ' escape, a trial and sentence is necessary in order to punish the offender, the same as in case of other offenses.</p> <p>•4. Secs. 4490 and 4494, Stats. 1898, and ch. 75, Laws of 1901 (providing punishment for escape, and prison breach and escape), are declaratory of the common law.</p>

0. SilveethoeN, Circuit Judge. The complaint is in tbe ordinary form, the defendants being charged as jointly withholding the land from plaintiff. In the title to the complaint Bessie W. Doolittle was named as the wife of Lelon A. Doolittle.

<p> .Railroads: Right of way: Contracts: Construction: Repugnancy: Ambiguity: Specific performance: Dismissal of complaint. </p> <p>1. In construction of contracts it is only when it is found impossible to give a meaning to one part consistent with any other that repugnancy exists, and the duty arises to choose as to which phrase shall exclude the other.</p> <p>■2,. Plaintiff and defendant entered into a contract for the construction of a spur track for the transportation of timber from defendant’s lands, to be maintained for ten years, or until such earlier date as defendant should have completed the entire cutting and transportation of its timber. The contract provided that defendant should procure the right of way, grade the track and supply all bridges and culverts, except one bridge, and all the ties, the plaintiff to build one bridge and furnish and lay the rails. The contract further provided^ that, at plaintiff’s option, the defendant should convey or procure to be conveyed to it a right of way for said spur track, and in a separate clause that at any time within the term of the contract the defendant should convey all its right, title and interest to the right of way and spur track thereon for a certain sum of money. . Held, that until the plaintiff elected to purchase and pay for the defendant’s structures on the right of way, plaintiff was entitled only to such right of way as was needed for the spur track for the ten-year term, or until completed cutting and transportation of defendant’s timber within that term.</p> <p>3. When the right sought by specific performance has never been refused, no decree is necessary, and the dismissal of the complaint is proper.</p>

This is an action in equity to quiet the title to a small piece of land, about thirty-three feet in width, in the city of Eau Claire, of which the plaintiffs claim ownership and possession and to which the defendant makes claim. The defendant, by his answer, claims title in himself, but also alleges facts which are claimed to constitute an estoppel.

C. Foster Lumber Co. Tbe facts involved in tbe litigation, so far as necessary to an understanding of tbe questions examined and decided, are sufficiently referred to in tbe opinion.

Writ of certiorari to bring up action of the board of review of the village of Fairchild, Eau Claire county, with, reference to personal property assessment upon the relator.

Plaintiff commenced an action of replevin April 28, 1903, .to recover possession of a Erencb coacb stallion, alleged to be worth $2,500. The sheriff took tbe liorse from defendant’s ■possession and delivered it to the plaintiff, and he retained it up to the time of the trial.

This is an action for personal injuries received on a defective sidewalk in the defendant city.

<p>Appeal from a judgment of the circuit court for Clark county: James O’Neill, Circuit Judge.</p> <p>Action to recover on a promissory note for $1,000. Defendant Anthony Beddan answered that, if liable at all, it was only as an accommodation maker; that the note was given to the Clark County Bank with another of the same character,, the payee knowing his status as accommodation maker; that the due date of the note was extended by the bank for a valuable consideration, without his consent, the bank releasing-to the principal debtor, J. IT. Reddan, securities for the payment thereof sufficient to discharge same; and that the plaintiff became tbe owner of tbe note after its maturity. A formal special verdict was taken, tbe court, however, directing the-answers to all of tbe questions. One, after tbe coming in of' tbe verdict, was changed to accord with what tbe court viewed to be tbe uncontroverted evidence. Tbe verdict as so corrected was to this effect. Plaintiff is tbe owner and holder of tbe note in tbe suit. He purchased tbe same after it became due. Defendant, Anthony Reddan, signed tbe note as; surety only for J. IT. Reddan. Tbe Clark County Bank, the-payee of tbe note, did not extend th? time of payment.. While it owned tbe note and another of tbe same character and! amount, both being due, it released tbe sum of $259.68, which' it should have applied to tbe payment of such note. In the-order changing tbe verdict to tbe form indicated, it was recited that J. IT. Reddan bad on deposit in tbe bank when the-two notes became due as aforesaid $519.36, which it should' have applied to tbe payment thereof. Upon tbe fact so found’ and recited tbe court held that tbe defendant, Anthony Red-dan * was entitled to tbe credit indicated. Judgment was entered upon tbe verdict so corrected, from which this appeal was taken.</p>

B. Beldeh, Circuit Judge. This is an action to recover upon contract. It appears from the complaint that plaintiff, defendant, and the Jones-Earl Shoe Company are duly organized corporations.

<p>Appeal from a judgment of the circuit court for Eacine county: E. 33. Belden, Circuit Judge.</p> <p>The relator obtained an ostensible license in July, 1903, to sell liquor in a part of the city of Eacine, -where an existing ordinance required the consent of certain neighbors as a condition precedent. In October it was represented to the council that such consents had been obtained by fraud and misrepresentation, and reversal of their action in granting the license was prayed; whereupon the council caused notice to be given to the relator to appear and show cause why his license should not be declared void for the specified reasons. Thereafter, in December, after some hearing and investigation, the council adopted a resolution that said license “be and is hereby declared void and of no effect, and that the city clerk be and hereby is ordered to notify said Leonard Schaefer of the adoption of this resolution, and, further, that the money tendered by said Leonard Schaefer will be returned to him.” The relator sued out writ of certiorari to review the validity of this -resolution, to which return was made by the respondent as city clerk, showing substantially the situation above stated. The circuit court held, as matter of law, that the council had no jurisdiction or power to declare said license void, except upon the grounds and by the procedure specified by sec. 1558, Stats. 1898, for a revocation, and'entered judgment reversing, annulling, vacating,, and setting aside tbe resolution of tbe council.</p>

<p>Appeal from a judgment of the circuit court for Eacine county: E. B. Beldbn, Circuit Judge.</p> <p>This is an action in equity to set aside certain real-estate taxes levied by the city of Eacine in the year 190'2. The parcels of land on which the taxes were levied were a number of irregularly shaped tracts of land adjoining the tracks and switchyards of the plaintiff in the city of Racine, and the plaintiff claimed them to he exempt because necessarily used in the operation of the railway for its right of way, depot grounds and terminal yards. The complaint not only claimed exemption from taxes on these grounds, hut upon the ground that the city was estopped for the reason that in two previous actions theretofore brought in the circuit court of Eacine county, and involving taxes attempted to be levied upon the same lands in the years 1899, 1900, and 1901, said lands were adjudged to he exempt, which judgments were unap-pealed from and unreversed. The answer denied that the lands in question were necessarily used as a part of the plaintiff’s right of way, depot grounds, or yards, and also denied that the previous judgments adjudged that the lands in question, as assessed in 1902, were exempt. Upon the trial the plaintiff introduced evidence generally in support of the allegations of the complaint, and introduced also the records of the previous judgments, and objected to the introduction of any evidence by the defendants, on the ground that said previous j udgments were conclusive, unless the defendants could show a change of use or situation of the lands. The defendants’ attorney stating that he had no proof of changed condition or difference of use of any parcel named in the complaint, the objection was sustained. Findings were made to the effect that the lands in question were exempt, because they constituted a part of the right of way, depot grounds, and terminal yards of the plaintiff, and also constituted a part of the entirety; that they were occupied for the same purposes and in the same manner in the years 1899, 1900, and 1901, and that the previous judgments aforesaid conclusively estopped the defendants from further litigating the question of exemption so long as the use and occupation continued the same; that a certain additional parcel of land, described in the complaint in this action, which was not described in the previous actions, constitutes a part of the same general tract, and is occupied and used in the same manner. Upon these findings judgment was rendered for the plaintiff, setting aside the taxes, and the defendant city of Hacine appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Clark ■county: James O’Neill, Circuit Judge.</p> <p>Action to recover damages for injuries for an assault and 'battery. Plaintiff charges that he was assaulted and beaten by the defendant on August 11, 1899, by being violently ¡struck in the face, seriously bruising it, and breaking his nose, which injuries caused him much pain, loss of time in attending to his affairs, and made it necessary to incur expenses for-medical attendance. Defendant denies the charge so alleged in the complaint, and avers that he was led into the alterca-■ tion by plaintiff’s refusal' to pay him the price of a cow purchased by plaintiff from defendant’s agent, and that he-slapped plaintiff in defending himself from a threatened assault. It appeared upon the trial that plaintiff had purchased a cow from defendant’s agent, for which defendant demanded payment at the time of the affray. Upon such demand by defendant, plaintiff insisted that defendant was indebted to him on account of rent. This defendant denied,, and pressed for immediate payment for the cow. The statements of the parties as to what occurred between them after-this stage of the transactions are wholly at variance; plaintiff' claiming that defendant, without cause or provocation, then, violently beat him, while defendant charges that he was threatened and assaulted by plaintiff, and was compelled to defend himself against an imminent and dangerous assault which was liable to cause him bodily injury. The case was tried before the court and jury, resulting in a verdict for-plaintiff awarding him compensatory damages at the sum off $55. Judgment was awarded in his favor accordingly, 'and from such judgment this appeal is taken.</p> <p>They contended, inter alia, that ordinarily evidence as to the-character of defendant, his general reputation or the like, being irresponsive to the issue, is inadmissible in mitigation, or augmentation of damages. Vance v. Richardson, 110 Cal. 414; Anthony v. Grand, 101 Oal. 235; Thompson v. Church,. 1 Root (Conn.), 312; Cummins v. Crawford, 88 Ill. 312;. Elliott v. Russell, 92 Ind. 526; Reddin v. Gates, 52 Iowa, 210; Reed v. Kelly, 4 Bibb (Ky.), 400; Soule v. Bruce, 6T Me. 584; Day v. Ross, 154 Mass. 13; Sowell v. McDon-aid, 58 Miss. 251; Lyddon v. Dose, 81 Mo. App. 64; Barr v. Post, 56 Neb. 698; Pulver v. Harris, 61 Barb. 78; Smiih-■wiclc v. Ward, 7 Jones (N. C.), 64, 75 Am. Dec. 453; Porter v. Seiler, 23 Pa. St. 424. Defendant may not, to reduce or ■mitigate tbe damages, attack tbe character of tbe plaintiff, or show bis reputation for turbulence, or bis propensity to com-mit or provoke breaches of tbe peace. Dimicls v. Downs, 82 Ill. 570; Gardner v. Gross, 6 Rob. (La.) 454; McCarty v. Leary, 118 Mass. 509; Hall v. Poiver, 12 Met. 482; Bilis v. .Short, 21 Pick. 142; Corning v. Corning, 6 N. Y. 97; Shook ■v. Peters, 59 Tex. 393. Neither plaintiff nor defendant can show that be is of good character or reputation. Denton v. Ordway, 108 Iowa, 487; Givens v. Bradley, 3 Bibb (Ky.), 192; Smithwiclc v. Ward, 7 Jones (N. C.), 64, 75 Am. Dec. 453 ; Sayen v. Ryan, 9 Ohio Cir. Ot. 631; McKinzie v. Allen, ’ 3 Strobh. Law, 546. In a civil action for assault and battery, ■ evidence of tbe general reputation of tbe defendant for peace and quietness is not admissible. Pokrieflca v. Mackurat, 91 Mich. 399; Zube v. Weber, 67 Mich. 52; Vance v. Richard.son, 110 Cal. 414, 42 Pac. 909; Fahey v. Grotty, 63 Mich. 383; Darwin v. Parsons, 52 Mich. 425.</p>

<p>Appeal from a judgment of the circuit court for Brown, -county: S. I). Hastings, Circuit Judge.</p> <p>Action to recover damages for difference in value of a warranted horse received in trade for a horse of the plaintiff’s; the plaintiff claiming, also, $25 special damages for expenses in transporting and caring for such horse. The jury, by special verdict, found a warranty and a breach thereof, and $65 as the difference in value between the horse in fact and as .warranted. It appeared without dispute that upon discovering the breach of warranty the plaintiff, on July 9, 1902, went to defendant and demanded rescission and return of the horse given by plaintiff, saying that defendant’s horse would arrive for surrender the following day; that demand was refused. Thereupon, on same day, plaintiff made affidavit before a justice of the peace, and obtained a warrant of replevin for the horse given by him, which warrant he delivered to the sheriff, who, however, was unable to find and take the property, and therefore made no service of the warrant, which never was returned; the proceedings being dismissed on the justice’s docket two or three days later, and all before the commencement of this action. On July 10th plaintiff again demanded return of his horse; notified defendant that the other was in town and ready for delivery, and would be left at a'certain livery stable subject to his order. The 'defendant again refused rescission, and informed plaintiff that the horse he had traded had been sold to a third person. Whereupon plaintiff left the horse he had received at a livery stable, with orders to deliver to defendant, ' and bas bad' no contact with it since. Tbe court ruled that these steps taken by tbe plaintiff constituted an election of remedies with wbicb tbe present action was inconsistent, and therefore ordered judgment dismissing tbe complaint, after having first overruled a motion for a new trial, from wbicb judgment plaintiff appeals.</p>

<p> Estates of decedents: Claims: Trial by court: Findings: Evidence: Fraud: Duress: Compounding felony: Appeal and error: Witnesses: Transactions with person since deceased: Husband and wife: Material error. </p> <p>1. In an action on a claim filed against a decedent’s estate the evidence, stated in the opinion, is held to fail to establish fraud or duress, or that consideration for the claim was the compounding of a felony.</p> <p>'2. In an action tried by the court, the improper admission of evidence is not available as error on appeal.</p> <p>3. In such case, it is sufficient that evidence properly admitted supports the findings.</p> <p>4. Where a party is called under sec. 4068, Stats. 1898, as an adverse witness and examined as to transactions and communications had with a person since deceased, in respect to such matters, the examination opens the door to the admission of the testimony of the adverse party.</p> <p>5. Where a married woman is a party in the capacity of an ex--ecutrix, it is not error to exclude the testimony of her husband, who was offered as a witness generally in the case and not as her agent.</p> <p>6. In an action tried by the court, it is not material error to refuse to strike out testimony that is without probative farce, or to sustain objection to a question calling for nothing material to the issues in the case.</p>

0. Ludwig, Judge. This is a proceeding to remove a tenant, under cb. 145, Stats. 1898.

<p>Appeal from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>Tbis is the same action considered on a former appeal (109 Wis. 182, 85 N. W. 348), where the facts are stated. After its return to the circuit court, plaintiff was allowed to amend the complaint by alleging that, by the terms of the policies of insurance and of the notice given by plaintiff after the loss, plaintiff adopted and sanctioned the contracts of insurance, and defendant was from that time bound to take such steps as might be necessary to collect from the several insurance companies her loss; that defendant refused and neglected to make proofs of her loss, or to take any steps to collect the same; that by such failure, and by accepting the sum of $13,094 and releasing the policies, defendant deprived the plaintiff of her rights and interests in the policies of insurance and the money payable thereunder, which it might have collected for her; and that, by reason of such transactions,, defendant became responsible to plaintiff for' such an amount of money as the plaintiff should have received, under the contracts and proof of loss, by reason of the damage to the vip- ' toria, as part of tbe property covered by tbe policies. Tbe amendment also expressly waived tbe tort, if any, of tbe defendant, and declared tbat plaintiff “sues herein on implied contract.” Tbe case was tried by tbe courtj without a jury, upon tbe same testimony and evidence adduced upon tbe former trial. Tbe court again found, as fact, tbat tbe value of tbe vehicle was $537; tbat tbe defendant settled with and surrendered tbe policies to tbe insurance companies, without including tbe damage to such vehicle in tbe proofs of loss; and tbat tbe plaintiff was entitled to recover such" a sum in damages as she would have been entitled to receive, bad tbe defendant included in its proofs and claims of loss tbe damage to said vehicle, which proportion was found to be $339.67. Eor this sum judgment was accordingly awarded in plaintiff’s favor, and from such judgment defendant appeals.</p>

Arread from an order of the superior court of Milwaukee county: J. C. Ludwig, Judge. At a foreclosure sale made March 7, 1904, the land was bid in by Henry J. Pauly for $8,500, which was sufficient to satisfy the judgment and the expenses of executing the same and leave a surplus of $268.02.

<p> .Default judgments: Failure of defendant to appear: Notice of application for judgment: Pleading: Admiralty: Jurisdiction of state courts: Contracts. </p> <p>1. Two days before the time for answering had expired, no notice of appearance or of retainer for defendant having been served, plaintiff’s attorneys wrote defendant: “We are willing that the time for your appearance in the suit commenced against you, which expires on the 23d, should be extended for ten days, up to and including December 3d, on the assurance of your representatives that there is a probability of the matter being settled by that time, but we cannot consent to anything longer than that, and shall proceed with the lawsuit unless settled by that time.” On December 7, plaintiff’s complaint was verified, and, on proof of the default, after hearing the case, the court entered judgment for the plaintiff on December 8. Held, that not having appeared in the case, the defendant was not entitled to notice of the application for judgment.</p> <p>2. In an action against a carrier on a contract of affreightment, for damages to goods consigned to plaintiff, the answer alleged that the goods were shipped by water under a bill of lading, wherein defendant was exempted from the perils of navigation, as well as by a general average bond, and that the damage was caused by the grounding of the vessel, and its becoming necessary to jettison and lighter the vessel, which was " done. Held, that the pleading did not state a cause of action in admiralty jurisdiction, and therefore the state court had jurisdiction.</p>

<p>. Appeal from a judgment and order of the circuit court for Milwaukee county: Laweehce W. Halsey, Circuit Judge.</p> <p>This is an action to foreclose a note and mortgage given by the defendants Mindeman and wife to one Henry Herman, the defense bejng an entire want of consideration. The note was a promissory note for $6,500, dated December 11, 1900, payable tki’ee years after date, with interest at five per cent, per annum, semiannually, and contained the following provisions inserted before the signature:</p> <p>“The payment of this note is secured by a mortgage of even date herewith on real estate. If default shall be made in the payment of interest, or in case of failure to comply with any of the conditions or. agreements of the mortgage collateral hereto, then the whole amount of the principal shall, at the option of the mortgagee,’ or his representatives or assigns (notice of such option being hereby expressly waived), become due and payable without any notice whatever.”</p> <p>The mortgage accompanying the note contained the following provisions:</p> <p>“Provided, always, and these-presents are upon this express condition, that if the said parties of the first part, their heirs, executors and administrators, shall pay or cause to be paid to the said party of the second part, his heirs, executors, administrators or assigns, the just and full sum of sixty-five hundred ($6,500) dollars three years after date with interest at five per cent, per annum, interest payable semi-annually according to the conditions of one promissory note and coupons bearing even date herewith, executed by the said George Mindeman, one of the parties of the first part, to the said party of the second part, and shall moreover pay annually to the proper officers all taxes which shall be assessed on the said premises and shall deliver or exhibit receipts therefor to said party of the second-part, his heirs, executors, administrators or assigns, on or before the first day of May next after such taxes shall have become dire and payable, and shall insure and keep insured the buildings thereon or to be hereafter erected against loss or damage by fire in the sum of eight thousand dollars or over, in insurance companies to be approved by the said party of .the second part, his heirs, executors, administrators or assigns, such insurance to be payable in case of loss to the said party of the second part, his heirs, executors, administrators or assigns, as his mortgage interest may appear, and the policy nr policies of insurance to be held by him, and in default thereof it shall be lawful for the said party of the second part, his heirs, executors, administrators or assigns, to effect such insurance, and the premiums and other legal expenses and' charges paid for effecting the same, together with interest thereon at the rate of ten per cent, per annum, shall be a lien,upon the said mortgaged premises added to the amount of the said note, and secured by these presents until the payment of said note, then these presents shall be null and void. But in case of the nonpayment of any sum of money (either principal, interest or taxes) at the time when the same shall become due, or of failure to insure said building agreeably to tbe conditions of these presents, or in case of failure to deliver or exhibit such receipt as above provided, or in case of failure on the part of said parties of" the first part to keep or perform any other agreement, stipulation or condition herein contained, then in each case or all of such cases, the whole amount of the said principal sum shall, at the option of the said party of the second part, his heirs, executors, administrators or assigns, which may be exercised at any time after any default, without any notice whatever to the mortgagors or either of them, their heirs, executors, administrators or assigns, service or giving such notice in any manner being hereby expressly waived, be deemed to have become due, and the same with interest thereon at the rate aforesaid shall thereupon be collectible in a suit at law or by foreclosure of this mortgage, in the same manner as if the whole of said principal sum had been made payable at the time when any such failure shall occur as aforesaid.”</p> <p>It appeared from the testimony of the defendant Minde-man, which was taken under objection, that the note and mortgage was given to cover advances to be made to him by Herman, but that none were ever in fact made. September 11, 1902, Herman sold the note and mortgage to the plaintiff, who was an innocent purchaser thereof, and made the following indorsement upon the note:</p> <p>“For value received, I hereby sell, transfer and assign the within note and the interest coupons thereto attached and numbered four to six inclusive (previous interest coupons having been paid and surrendered), to Josephine Thorp, without recourse.”</p> <p>Findings and judgment of foreclosure were made and signed, and the Mindemans appealed from the judgment as well as from a subsequent order appointing a receiver, j</p>

<p>Appeax from a judgment of tbe circuit court for Milwaukee county: WabbeN D. TabbaNt, Circuit Judge.</p> <p>Action to recover on a beneficiary certificate. Lizzie Preus-ser, wife' of appellant, acquired a membership with a beneficiary certificate of $1,000, in the defendant, the Supreme Hive of the Ladies of the Maccabees of the World. The mortuary benefits, by the terms of such certificate, were made payable to appellant. She delivered such certificate to her husband merely for safe keeping, so far as appears, where it remained till she died. He paid the dues necessary to keep the insurance in force, but without any special agreement with his wife to do so. Some five years after the certificate was issued, without the knowledge of her husband, she applied to the corporation to have it changed so that one half of the mortuary benefit upon the maturity thereof would go to appellant, and one half to her daughter. Lottie. The old certificate was not surrendered, nor was any demand made upon appellant therefor. The rules of the corporation permitted such changes0 to be made upon condition of the surrender of the old certificate, or in lieu thereof, proof of its loss, or that it was in the possession of another who refused to deliver it, or of some other satisfactory reason why it could not be returned. The excuse given in this instance for not surrendering the certificate was that it was inconvenient to procure it. Such excuse was embodied in the application, considered with an explanatory letter as to the nature of the inconvenience, accepted as satisfactory and the application was granted, a new certificate being issued and delivered to Mrs. Preusser. She died in a few months after such change. Thereupon a claim was made on behalf of the daughter Lottie, under the new certificate, for one half of the sum payable thereon, and a claim was made on behalf of appellant for the whole thereof. The corporation was permitted to pay such fund into court. Such proceedings were thereafter taken that an issue was formed in this action to determine tbeir rights in respect thereto. Lottie- being a minor appeared by a guardian ad litem. The result of the trial of such issue was that facts were found in harmony with the foregoing, and thereupon the court decided that it was competent for the corporation to waive strict compliance with its rule, as to the surrender of the first certificate before issuing the new one, and that plaintiff acquired no vested interest in the former by reason of the possession thereof and payment of the dues necessary to keep the insurance in force. Accordingly judgment was entered in favor of Lottie for one half of the fund deposited in court, as aforesaid, and for costs against plaintiff. Such judgment was entered and plaintiff appealed.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: ObEeN T. Williams, Circuit Judge.</p> <p>The plaintiff, according to his own statement, was driving south on Sixth street, in Milwaukee, when he came to State street, on which were double tracks of the defendant’s railway. As be reached a point where he was substantially on the north cross walk, and his horse’s head some fifteen feet north of the north railroad track, he stopped, and looked west, and saw no car; then looked ea_st, and saw one about a block (389 feet) away, coming towards him very slowly. He started his horse at a speed of about two miles an hour to cross State street, without again looking for a car. When he had progressed so that his horse was upon the track, and his front wheels close to the north track, his little daughter cried out to look out for the car. He then looked, and saw it about half a block away, coming very rapidly. He urged his horse to greater speed, reaching a velocity of about three miles an hour, but before getting across was struck and injured. Upon the trial the jury found by special verdict that the defendant was guilty of negligence proximately causing the injury, and that plaintiff was not guilty of contributory negligence, and that it was consistent with due care, after first seeing the car, to have failed to ascertain thereafter that its speed and position were such as to render dangerous an attempt to cross in front of it. Defendant made several motions, and, amongst others, one to set aside and reverse the answers to these two ■questions relating to contributory negligence, and for judgment in its favor upon the verdict so amended. Its motion was denied, and judgment rendered for the plaintiff, from which the defendant appeals.</p>

<p> Municipal corporations: Liability for negligence of member of fire department. </p> <p>A city was empowered by its charter to organize a fire department, to be composed of such officers and men as should be required and employed in the management and conduct of its fire apparatus, to establish rules and regulations for such department, to purchase material, and to equip and run such department, including the power to employ the officers and men specified, and all other necessary help. Plaintiff, in the employ of a coal dealer, was assisting in weighing coal purchased by the city for use in its fire department, and in doing so it was necessary to move a pair of scales. B., an employee in the fire department of the city, was in charge of a tug operated and controlled by the city, to which the coal was to be •delivered, and so interfered with the moving of the scales that, without the fault or neglect of plaintiff, they fell and injured plaintiff. Held:</p> <p>(1) B., at the time of the injury, was acting within the •scope of his employment.</p> <p>(2) The city was engaged in the performance of a public service, from which it derived no special benefit or advantage in its corporate capacity, but which it was bound to see performed in pursuance of a duty imposed by law for the general welfare of its inhabitants, and was not liable for the personal injury occasioned by the negligence of B...</p>

<p>Appeal from an order of tbe circuit court for Milwaukee county: ObbeN T. Williams, Circuit Judge.</p> <p>This is an action for partition of real estate. Tbe complaint alleges that tbe ’plaintiff is tbe widow of one Ignatz Ullrich, deceased, who died January 29, 1903, leaving a homestead and about twenty other parcels of real estate in Milwaukee county; that the plaintiff is in possession of the homestead, and has a dower interest in the other lands; that three of the defendants are children and five are grandchildren of the deceased, all constituting the heirs at law of the deceased; that the said children and grandchildren own the said real estate subject to the homestead and dower rights of the plaintiff. Certain of the defendants are named as having some interest in the property, and the administrator was also joined as a defendant, and partition of the property is demanded. The defendants demurred generally to the complaint, and, the demurrer being overruled, the defendants appeal.</p>

<p>Appeal from a-judgment of the superior court of Milwaukee county: J. 0. Ludwig, Judge.</p> <p>An action to enforce a lien for material furnished by plaintiff in the construction and erection of houses for the defendant Louis Auer. The cause was referred, and the referee found the following facts:</p> <p>The defendant D. K. Jeffris Lumber Company is a duly •organized corporation of this state, dealing in lumber. The defendant Louis Auer was at the time of these transactions the owner of the real estate described in the pleadings, and ■situated in the city of Milwaukee. On or about March 1, 1897, he entered into a contract with one John Eyan, a contractor and builder, for the erection and construction of the houses described in the referee’s report. The D. K. Jeffris Lumber Company sold and delivered to John Eyan lumber and shingles of the value of $212.45. This lumber was sold Ly the D. K. Jeffris Lumber Company to be used and it was used by the defendant John Eyan for, in, and about the erection and construction of the buildings for the defendant Louis Auer on the real estate above referred to. The last •charge for this material was April 15, 1897. On June 12, 1897, the D. K. Jeffris Lumber Company gave notice to Louis Auer and the United States Fidelity & Guaranty Comp>any, claiming a subcontractor’s lien, by serving on them the following notice:</p> <p>■“To Mr. Louis Auer and the United States Fidelity •& Guaranty Company — ■</p> <p>“GeNtlemeN: You will please take notice that the undersigned, the D. K. Jeffris Lumber Company, a corporation duly organized and existing under and by virtue of the laws of the state of Wisconsin, was employed by John Eyan, doing business under the name of the John Eyan Lumber Company at the city of Milwaukee, Wisconsin, to furnish lumber and materials as set forth in the annexed statement of account marked ‘Exhibit A’ at the prices therein set forth; that no part thereof has been paid, but’ there is still due thereon from said John Eyan to the D. K. Jeffris Lumber Company tbe sum of Two Hundred and Forty-Four Dollars and twenty-five cents ($244.25) ; tbat said lumber and materials were purchased by said Ryan on tbe 15tb day of April, 1897, were intended by bim to be used and were actually used in and about tbe erection and construction of your five dwelling bouses and two flats situated in the city of Milwaukee, county of Milwaukee and state of Wisconsin, in tbe Sixteenth Ward, on land, in tbe Southwest Quarter of Section thirty (30) in Block bounded on tbe North by Grand avenue, on tbe east by Tw'enty-fiftb street, on tbe South by Sycamore street, and on tbe West by Twenty-sixth street, more particularly described as follows, to wit: In Block One (1) Cross and Ludington’s Addition tbe South Sixty-seven (67) feet of tbe North Two Hundred Seventeen (217) feet of the East One Hundred Eifty-one and sixty-six hundredths (151.66) feet and tbe East One Hundred Twenty (120) feet of tbe South One Hundred Thirty (130) feet, being part of tbe present Lots Eleven, (11) Twelve (12) and Fourteen (14), and all of Lots Thirteen (13), Twenty-one (21)', Twenty-two (22), Twenty-three (23), and Twenty-four (24), in said Block One (1).</p> <p>“Please take further notice that the said D. K. Jeffris Lumber Company, tbe undersigned, hereby claims a lien upon said dwelling bouses and flats and tbe lots upon which the same are situated for tbe lumber and materials furnished, in accordance with chapter 143 of tbe Revised Statutes of tbe State of Wisconsin and tbe acts amendatory thei’eof, and upon all tbe right, title and interest which you bad in said lands upon which said bouses are situated at tbe time said lumber and materials were furnished and delivered to tbe amount of Two Hundred and Forty-four Dollars and Twenty-five cents ($244.25) as aforesaid.</p> <p>“Dated Milwaukee, June 12th, A. D. 1897.</p> <p>“Tours respectfully,</p> <p>“D. K. Jeeeeis LuMbee OoMpahy,</p> <p>“By Stake & ITaNseN, Its Attorneys.”</p> <p>Giving amount due therefor, with attached statement, properly signed.</p> <p>The D. I{. Jeffris Lumber Company filed its claim for lien July 16, 1897, on the property, and brought this action within due time to recover tbe amount due and to establish tbeir lieu.</p> <p>Upon the confirmation of the referee’s report by the court, judgment was- awarded for the amount due, and a foreclosure and sale of all of defendant’s interest in so much of the property as might be found necessary to satisfy the judgment. This is an appeal from the judgment by the defendant Louis Auer, owner of the property, and.by the defendant the United States Fidelity ■& Guaranty Company, the surety of the principal- contractor to protect the owner against mechanics’ liens.</p>

<p> Wills: Construction: “Residue": Lapsed legacies: Distribution. </p> <p>1. A testator devised certain of his estate to Ms wife, and, after-certain annuities, all the “residue” to his wife, two brothers and an adopted son, share and share alike, to each an undivided one-fourth share thereof. He further provided that in case his adopted son should not attain twenty-one years his share should he equally divided between the wife and two-brothers. The annuitants and the wife predeceased the testator, who afterwards remarried, the second wife surviving' him. Held, that it could not be said that the testator used the word “residue” in his will in other than its usual and' legal meaning, from which is excluded the dominant widow’s-right, and that the residue was properly ascertained by deducting from the general estate the debts and the amount necessary to satisfy the widow.</p> <p>2. In such case, the lower court properly distributed such “residue,” one-fourth each to the brothers and adopted son as lega- . cies under the will. The remaining fourth, by lapse of the bequest thereof to the first wife, beeamb intestate property and was properly assigned to the adopted son under the laws of' descent.</p>

<p>A pptüat. from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>On August 19, 1898, John Eremder, husband of tbe respondent, borrowed of Henry Herman $4,000 for use in bis business of a boot and sboe dealer, of wbicb no part came to tbe private use of tbe respondent or was for tbe benefit of ber separate property. On tbe same date tbe husband and wife ■executed a note in tbe same form as that described in Thorp v. Mindeman, mite, p. 149, 101 N. W. 417, payable in three years, with six per cent, semiannual interest, and also executed a single mortgage upon two parcels of real estate, one of wbicb belonged to tbe respondent and tbe other to ber bus-band ; said mortgage being in substantially tbe same form as that described in tbe above-mentioned case, wbicb was duly recorded. On September 6, 1898, tbe note and mortgage were transferred to this plaintiff under ber then name of San-derson, and to ber sister, Sarah Sanderson, who, on April 16, 1903, assigned ber interest to tbe plaintiff. Neither of said assignments was recorded until about April, 1903. Continuously subsequent to tbe first transfer of said note and mortgage tbe papers remained in tbe possession of tbe assignees, and were never in tbe possession of Henry Herman. Tbe mortgagors paid interest regularly to Henry Herman, receiving from him the interest coupons which bad been attached to tbe note. On August 19, 1901 — being the original maturity of the note — the mortgagors signed an extension agreement for an additional throe years, wbicb recited tbe extension as a consideration, and made no reference to tbe ownership, except it declared that tbe mortgagors, John and Augusta Frem-der, agreed “to and with Herman to pay interest thereon at tbe rate of five per cent, thenceforth.” Additional interest coupons were affixed to this extension agreement, which was, shortly after its execution, delivered to the plaintiff, and retained by ber. Interest continued to be paid as before until February 18, 1902, when tbe defendant, ber husband having died, paid to Herman $2,200 to apply upon the principal, and ■on tbe 11th day of April, 1902, made an additional payment of $900. These payments were made with no knowledge of any facts warranting the belief that the note had been transferred, and upon the supposition that Herman still owned them. They were receipted for by Herman, but, unlike the previous interest, were not paid over to the owners of the mortgage, to whom thereafter he periodically remitted interest on the whole amount of the mortgage, receiving from the defendant merely the interest on the remaining balance of $900., Later — but at what date is not disclosed — the defendant desired to pay the remaining $900, and demanded delivery of the note and mortgage, whereupon she was informed by Herman that he would have to get them from a man in New York. She thereupon refused to pay until the papers were ready for delivery. Some time early in 1903, at a date not definitely disclosed, Herman absconded, insolvent, whereupon plaintiff placed her assignment of this mortgage on record,, and notified defendant to pay only to her. In August, 1903,. upon the maturity of an instalment of interest, defendant tendered $22.50, the interest on $900, which plaintiff refused to accept, demanding $100 as the semiannual interest on $4,000. Thereupon suit was commenced to foreclose-the mortgage; also praying for deficiency judgment against defendant, claiming full amount of $4,000 to be due. The findings are substantially in accord with the facts above stated, from which the superior court concluded, as appears by an opinion filed, that the note in question -was nonnegotiable; that the defendant was without fault or negligence in paying to Herman on the supposition that he was the owner,, and that plaintiff had estopped herself from denying Herman’s ownership, and hence that no more than $900 was due; and that no default in payment of interest had occurred;’ whereupon he rendered judgment dismissing complaint, from which the plaintiff appeals.</p>

<p>Appeal from a judgment of -tbe circuit court for Milwaukee county: ObeeN T. Williams, Circuit Judge.</p> <p>This action wás commenced June 4, 1903, to foreclose a mote and mortgage purporting to have been executed by the defendant Hof November 19, 1897, to the defendant Henry 'Herman, for $6,500, to become due three years from that •date, with interest at six per cent, payable semi-annually, and ■secured by mortgage upqn the lands described, which mortgage was recorded November 22, 1897. The complaint alleges that May 3, 1902, Henry Herman assigned the note .and mortgage to the plaintiff as collateral security to a note given on that date by Henry Herman to the plaintiff for $3,050, payable on demand, and that no part thereof had been paid, and that such assignment was recorded April 17, 1903. The complaint further alleges that the defendant Farwell Investment Company has a lien by way of mortgage on one of the lots described prior to the plaintiff’s mortgage, the amount of which should be determined so as to enable the plaintiff to redeem therefrom; but the complaint asks no personal judgment against the company. ' The defendant J. J-Ilof, by way of verified answer denied that he executed the-note and mortgage set out in the complaint, or either of them, and alleges that, after having seen such pretended note and mortgage, he avers that the signatures “J. J. Ilof” to tile said note and mortgage are forgeries; that he never signed them, or either of them; and that he never saw either of them-until the same wore exhibited to him June 8, 1903; and that' he had no knowledge of the existence of either of them, or any information concerning the same, until in May, 1903, when-he first learned thereof from inquiries made by the plaintiff’s-attorneys. A trial being had, the court found at the close-thereof: (1) That February 2, 1897, Herman caused a sheriff’s deed of all the lands described in the complaint to be-given to said J. J. Ilof, and that the same was duly recorded j that Herman also caused all of said premises to be apparently conveyed to J. J. Ilof by warranty deed from Markey and wife, July 17, 1897, which deed was recorded January 3, 1898. (2) That such conveyances -were so made to J. J. Ilof for the sole use and benefit of Herman, and Ilof had no interest therein Avhatover. (3) That May 3, 1902, Herman-borrowed of the plaintiff $3,050, and gave to the plaintiff therefor Iris note for that amount, due in sixty days from-.that date, with interest at six per cent., and to secure such loan of $3,050, Herman having the $6,500 note and mortgage in his possession at the time, did on the date named assign the same to the plaintiff as collateral security for the-paymcnt of the note of $3,050 mentioned, and such assignment was recorded as stated, and that no part of the $6,500-note had been paid, and that there was due on the note of $3,050 the sum of $3,337.25. (4) That by the terms of the-$6,500 note it became due as stated. (5) That J. J. Hof' upon the trial disclaimed any ownership in any of the-premises. (6) That the Farwell Investment Company ha<h a first mortgage lien upon one of the lots described for $7,348.49, with interest from December 3, 1903, for which, it was entitled to judgment of foreclosure and sale against all of the other parties. (7) That the plaintiff had a first lien by way of mortgage upon the other premises described.. (8) That $350 was a reasonable solicitor’s fee therein, and should be allowed to the plaintiff upon the foreclosure of his: mortgage; that lis pendens tvas duly filed June 26, 1903. (9) That the signature of J. J. Hof affixed to the note and’ mortgage of $6,500 was not the genuine signature of J. J.. Hof, but was a forgery; that J. J. Hof never executed that note and mortgage, or either of them; that he never authorized any person to execute the same, or either of them, for him, and he had no knowledge of the existence of the Markey deed, mentioned, or the note and mortgage, or either of them,, until April, 1903; that Hof never received any consideration-for such note and mortgage, and never ratified the execution, of said deed or note or mortgage, and promptly disavowed the same as soon as he learned of their existence. As conclusions-of law the court found, in effect: (1) That J. J. IIof was entitled to judgment dismissing the complaint as to him, and to have and recover his costs and disbursements, to be-taxed and allowed and entered in the judgment; (2) that the note and mortgage of $6,500 created a mortgage lien upon the premises described, of which Henry Herman was^ the-equitable owner (subject to the rights and lien of the Far-well Investment Company, as found), for $3,050, with interest at six per cent, from May 3, 1902; (3) that the plaintiff was entitled to judgment of foreclosure and sale (except' as against J. J. Hof) unless the $3,337.35, with interest, should be paid before the expiration of the year, as therein stated. Judgment was thereupon entered therein according to such findings. The plaintiff appeals from so much of the judgment as ordered and adjudged that the complaint be dismissed 'as to the defendant J. J. Ilof, and that J. J. Hof Rave and recover judgment against the plaintiff for $100.56, the amount of his costs and disbursements in the action.</p>

Williams, Circuit Judge. This is an action to recover for personal injuries. The plaintiff is a common laborer, and the defendant the owner of an establishment* for cleaning hides and dyeing furs in the city of Milwaukee.

Williams, Circuit Judge. Action on an administrator’s bond. The issues raised by tire pleadings sufficiently appear by inference from the findings of fact, of which the following is a bri'ef summary: (1) November 25, 1897, Charles W. Stolla, residing in Milwaukee county, died testate. Such proceedings were duly taken that Arthur M..Kuehn March 8, 1898, was appointed administrator of his estate with the will annexed.

Williams, Circuit Judge. By tbe will of Harrison Ludington, so far as material to tbe present case, be vested in bis executors, as trustees, a large' estate, of something over a million dollars, consisting about equally of real and personal property; tbe bulk to be bold in trust and managed during tbe life of bis widow, and from; tlie proceeds certain sums to be paid lier, and tbe rest of the-income to be paid annually to bis several children, and at the-end of tbe…

Appbal from a judgment of the circuit court for Milwaukee county: OekeN T. Williams, Circuit Judge.

Appeals from judgments of tbe superior court of Milwaukee county: OeeeN T. Williams, Judge. This action was commenced August 24, 1900, by tbe testator of tbe plaintiffs to foreclose a note secured by mortgage ■on tbe real estate described, both executed by Sarab Leiser to Erancisca Strobel, June 1, 1894, for $500, payable three years after tbe date thereof, with interest thereon at 6 per ■cent, from tbe date thereof. Tbe mortgage was recorded June 15, 1894.

TakRAht, Circuit Judge. This is an action in equity to remove a cloud from the title of two parcels of land in the city of Milwaukee. The plaintiff is the widow, and the defendant the mother, of one George B. Owen, who died January 21, 1890, leaving no heirs at law except his widow, the plaintiff. At his death he owned an undivided one-half of three parcels of land in Milwaukee, his brother David G. Owen owning the other half thereof.

Ludwig, Judge. • Mandamus action to compel defendant to appoint a physician to examine tbe petitioner as to bis eligibility for the retired list of policemen of tbe city of Milwaukee, with tbe right to participate in tbe policemen’s pension fund, under ch. 265, Laws of 1899, and to report bis conclusions to tbe board of trustees of such fund.

Williams, Circuit Judge. Plaintiff on November 5, 1892, entered into a land contract to purchase certain vacant lots from tbe defendant for $1,200, payable in installments, with six per cent, interest.

Williams, Circuit Judge. This is an action to recover damages for personal injuries suffered by the infant plaintiff by accidentally coming in contact with a telephone wire charged with a heavy current of electricity. There is very little dispute as to the facts.

Neported from tbe municipal court of Milwaukee county: A. 0. Brazee, Judge.

This action was commenced June 15, 1901, to recover some $20,000 claimed to be due on two notes, one dated November 18, 1899, for $6,000, and the other June 30, 1900, for $8,701.23, and for a balance on account of $11,442.70. Such claims grew out of four logging contracts between the plaintiff and the defendants, dated, respectively, May 2, 1898, February 6, 1899, December 1, 1899, and August 2, 1900.

Williams, Circuit Judge. Action to recover on a guaranty wlierein defendant Charles ■ J. L. Buelow and others in due form jointly and severally agreed to pay or cause to be paid to plaintiff all loans, drafts, notes, interest, demands and liabilities of every kind and de- ■ scription, which, when such guaranty was made, were, or thereafter might be due or owing by the Suhm Leather Oom-•pany to plaintiff upon the same or any part thereof becoming ■due, waiving all proceedings…

0. Lubwig, Judge. This is an action wherein plaintiff seeks to recover a part of the money raised by taxation for school purposes before the territory of plaintiff district was set off from the territory of defendant district in 1901. The case was before this court on appeal, and is reported in 118 Wis. 233, 95 N. W. 148, where the facts constituting the grounds of complaint are fully stated.

<p>Appeal from a judgment of the county court of Winnebago county: C. D. ClevelaND, Judge.</p>

<p>Appeal from a judgment of the circuit court for Oalumet county: Geo. W. BueNell, Circuit Judge.</p> <p>This was a claim made by a father against the estate of his deceased son, upon a promissory note 'for_ $1,000, alleged to have been executed by the son January -30, 1900, payable to the order of the plaintiff ten years after date, with interest. The claim was filed in the county court; setting forth a copy of the note, and alleging that the money was loaned to be used, and in fact was used, by the deceased in purchasing a certain eighty-acre tract of land, the description of which was set out at length. The claim was disallowed in the county court May 21, 1902, and the plaintiff appealed to the circuit court, after which appeal the defendant answered, denying the execution of the note, and alleging that at the time of the pretended execution of the note the plaintiff gave to his deceased son and other of his children $1,000 each as advancements out of his estate, and that, if the note in question was ever signed, it was not intended as an evidence of indebtedness, but only as evidence of a gift or advancement. The case was tried before the court, trial by jury being waived. The note itself was not produced, but evidence was introduced showing that it was offered in evidence in the county court and had not been since seen. Parol evidence was received, against objection, tending to show that the transaction was an advancement only, and not a loan of money, and the court found that it was an advancement, and that the note was executed only as evidence of an advancement, and should be canceled. Thereupon judgment was entered dismissing the complaint, and the plaintiff appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Winnebago county: Geo. W. BubNell, Circuit Judge.</p> <p>Action for damages for the alleged wrongful killing of plaintiff's intestate. The circumstances stated as a ground for a recovery are substantially these: From June 22, 1897,. up to and inclusive of the event complained of defendant was a corporation duly organized under the laws of this state, and authorized to operate an electric street railway on various streets, including Merritt street, in .the city of Oshkosh, Wisconsin. August 24, 1903, the Uniformed Bank, Knights of Pythias in such city, some being on foot and some being in carriages, — one of the former being Christian Sarau,— marched in parade formation along the street specially mentioned, escorted by a military band of twenty-four pieces discoursing music. Some of the marchers, including Sarau, in the exercise of ordinary care walked between the'rails of defendant’s track located on such street, and others walked on. either side thereof. "While so doing defendant’s servant with one of its cars approached the procession from the rear at a dangerous rate of speed, without giving any sufficient warning to the marchers to yield the right of way before reaching them. The car going at such dangerous rate of speed, without sufficient warning being given as ■ aforesaid, was carelessly, negligently, recklessly and wantonly propelled into the space occupied by the marchers and on to and-over said Sarau,. causing injuries from which he on the same day died.</p> <p>Sarau suffered great mental and physical pain from the' instant, he was injured till death occurred, and plaintiffs as his personal representatives were put to great expense by reason of such wrongful conduct for medical and surgical care-of and attendance upon Sarau, and for nursing and hospital, bills.</p> <p>Several times in the complaint the conduct of the defendant’s servant, who controlled the car, was characterized as" careless, negligent, reckless, wilful and wanton, or by words of similar import. Allegations were made appropriate to a cause of action for damages to Sarau, which survived to his personal representatives, and also a cánse of action for damages to his surviving relatives, the whole amount claimed being $10,000.</p> <p>Defendant answered putting in issue the allegations of the-complaint as to its servant having negligently operated the car on the occasion in question, and pleaded as the proximate cause of the injury and death of Sarau, — want of ordinary-cafe on his part.</p> <p>It fairly appears from tbe record, in barmony witb tbe ■claim of respondents’ attorneys upon tbe argument of tbe ■case in tbis court, tbat respondents’ right to recover was intended to be grounded on gross negligence. Tbe court, nevertheless, refused to construe tbe complaint in harmony therewith, and submitted tbe cause to tbe jury for specific findings •covering the subject of liability for ordinary negligence, and for gross negligence as well. Tbe result was tbe following verdict:</p> <p>(1) Sarau came to bis death by injuries received at tbe "time and place alleged in tbe complaint. (2) Defendant’s ■employees were guilty of want of ordinary care and prudence in operating tbe car at tbe time of tbe accident. (3) Such want of ordinary care and prudence was tbe proximate cause of the injury to Sarau. (4) Tbe motorman was .•guilty of gross negligence; bis conduct was malicious, wanton and reckless, evincing a disregard of consequences to others. ■(5) The car was going at a speed of fifteen miles an hour when it ran through tbe band, before it reached Sarau. (6) He could not have seen tbe car approaching him in time to have avoided tbe collision. (7) The motorman did not "try to stop the car upon its becoming apparent to him tbat 'it would strike Sarau. (8) When tbe accident ■ occurred tbe car was running at tbe rate of fifteen miles an hour. (9) Want of ordinary care on Sarau’s part did not contribute to produce tbe injury. (10) Damages were caused by the occurrence, for doctors’ bills and hospital bill, $75, funeral expense $421, physical pain and mental suffering of Sarau '$500, loss to bis surviving relatives by bis death $4,500.</p> <p>After tbe coming in of tbe verdict tbe court changed finding 6 so as to decide tbat Sarau could have seen tbe approaching car in time to have avoided tbe collision.</p> <p>Exceptions were duly taken to preserve for review numerous questions, including those discussed in tbe opinion, so Tar as exceptions were necessary in tbat regard. Judgment was rendered in plaintiff’s favor on tbe verdict, from which this appeal was taken.</p>

<p>Appeal from a judgment of tlie circuit court for Winnebago county: Geo. W. Burnell, Circuit Judge.</p> <p>An action upon two policies, issued by the defendant insurance company to plaintiff, upon shingles of plaintiff at Menasha, Wisconsin. One policy bears date January 31, 1903, for $2,500, and the other, February Y, 1903, for $1,000. It appears that the insurance was effected by Furlong & Leedom, who were engaged in the insurance business in the city of Milwaukee at the time these policies were issued, and bad conducted a business as insurance brokers for a considerable period prior to tbis time. At the time of this transaction and for some time prior thereto, Tbos. IT. Grill bad been the general attorney of plaintiff, and bad had general charge of plaintiff’s insurance business. He requested Eurlong & Leedom, on the 31st of January, 1903,, to place insurance on shingles in plaintiff’s possession for transit at Menasha, Wisconsin, to the amount of $64,000. A part of the insurance was placed by Eurlong & Leedom in-companies they represented, but the greater portion of it they requested Eieweger & Oo., who did a local insnrance-business at Menasha, to place in companies represented by them. Among the policies they issued were the two policies sued on — one for the amount of'$2,500, under date of January 31,' 1903; and another for the amount of $1,000, under-date of February 7, 1903. These policies were in the form of' the Wisconsin standard fire insurance policy, insuring plaintiff against loss on these shingles for a year. The policies were-sent to' Eurlong & Leedom by Eieweger & Co., and were delivered to Mr. Gill for plaintiff, and he had possession of them-at the time of the fire, which occurred at the hour of 10:45 a. m. of February 19, 1903. After the policies were reported as issued by Eieweger & Co., some of the companies directed' Fieweger & Go. to cancel policies, because they did not wish to carry this risk. In carrying out these instructions for cancellation, Eieweger & Go. made the usual entries in their office' books of policies issued, noting the direction to cancel, and they then substituted policies of other companies for the-amount canceled, and they then communicated by letter with Eurlong & Leedom, informing them that they were directed to cancel the policies designated, and inclosing the substituted policies. Upon receipt of such letters and policies, Eurlong & Leedom made entries upon their office record to the effect that letters with substituted policies had been received, and that the original policies were ordered canceled, and thereafter they called upon. Mr. Gill to apprise him of the substitution, and to demand an exchange, delivering the substituted policies, and receiving the original policies from him. On February 17, 1903, Eieweger & Oo. wrote Eurlong & Leedom, inclosing several policies, as substitutes for the two policies in suit and others which they had been directed to cancel. This letter, with inclosures, reached Furlong & Leedom on the morning of February 18th, and they immediately made the usual entries of receipt and cancellation in their office books, sought telephone communication with Mr. Gill concerning the transaction on the 19th of February, but could not reach him on account of his absence from the city of Milwaukee. On the 20th of February, Mr. Leedom called at Mr. Gill’s office, informed him of the communication from Fieweger & Co. received by his firm on the 18th of February, tendered him the substituted policies, and demanded return of those for which the substitutes were offered. Mr. Gill refused to receive the policies then tendered him, and' refused to deliver those demanded of him, stating that he knew of no policies covering the loss aside from those in his-possession. No formal notice of cancellation under the provisions of the policies is claimed to have been given. The court found that Furlong & Leedom had no express authority from plaintiff to cancel any of its policies, and that no substitution of any of its policies was effected, and that the-usual course of conducting the business of insurance conferred no authority on Furlong & Leedom to cancel policies.. To effect a substitution, policies had to be delivered to Mr. Gill, be approved and accepted by him, and those for which-the substitutes were offered had to be surrendered by him. It appeared that Furlong & Leedom received separate orders-from Mr. Gill when plaintiff wished 'to place any insurance-through their agency, and that they received their compensation by way of commissions on policies issued by companies they represented and by division of the commissions on the policies written by the local agent. Mr. Gill testifies that '.he gaye no express orders to Furlong & Leedom to keep the .line of insurance so ordered by him up to the full amount, ■ either in the case of these shingles or at any other time, and that he at no time, gave them express authority to cancel or •substitute policies. This statement is corroborated by the agent’s testimony. Proof'of loss was made by plaintiff to defendant under the policies in suit. Defendant denied liability. The court found defendant liable under the policies, and awarded judgment for the amount due thereon in plaintiff’s favor. Defendant appeals from the judgment.</p>

<p>Railroads: Negligence: Personal injuries: Res adjudicata: Damages.</p> <p>1. A decision of the supreme court as to the quantum of damages recoverable on a given state of facts is res adjudícala, where there is no material difference between the evidence in the second trial and that on the first, as to the loss plaintiff has suffered, or will suffer, resulting from his injury.</p> <p>•2. Plaintiff, forty-five years of age, whose business was mainly office work, suffered a compound fracture of the tibia about two and one-half inches below the knee, accompanied by a simple fracture of the fibula. He was skilfully treated, and progressed, without any unusual complications, to a substantial recovery in the time usual in such cases. He was prevented from attending to his ordinary business about six months, and suffered such pain as is ordinarily incident to such fractures. On recovery the ligaments of the knee joint were impaired so that they were more than normally mobile, and troubled him some in moving about. Held, that a verdict for more than $5,000 damages was excessive.</p>

<p> Railroads: Negligence: Fires: Dilapidated buildings: Carelessness: Court and jury: Instructions to jury: Special verdict. </p> <p>1. Defendant railway company maintained upon its right of way a very old and dilapidated warehouse, the roof never having been repaired or reshingled in about thirty years. The shingles' and roof boards were rotted, the former being loose and curled up and in many places missing entirely, so as to expose the roof boards. There was no charge of defective apparatus or of negligent operation thereof. Defendant’s locomotive communicated fire, by sparks, to such warehouse, which fire, aided by a high wind, was communicated to plaintiff’s premises. Held, that the jury were warranted in finding defendant’s conduct negligent, if the other element of reasonable anticipation of injury were also found.</p> <p>2. One may be as careless as lie pleases with reference to his own property and not be charged with negligence in law, unless an ordinarily prudent person might reasonably anticipate that such carelessness might probably result in injury to others.</p> <p>3. In an action for negligently permitting fire to escape from defendant’s premises and communicate to plaintiff’s building whereby it was destroyed, in connection with a question of the special verdict as to whether defendant’s acts were the proximate cause of plaintiff’s loss, the court instructed the jury, that it might be such proximate cause when such injury was the natural and probable consequence of the negligence, and “when in the light of all the attending circumstances, the party chargeable with such negligence should reasonably have foreseen that it might cause some similar injury.” The court .also charged that they might answer the question in the affirmative if they found “that the defendant company, acting through its proper representatives and servants, should reasonably have foreseen, before the fire occurred, that such negligence might result in communicating fire to other property.” Held, that such instruction was erroneous in that it permitted the jury to use as a standard their ideal of what the defendant ought to have anticipated,'instead of that which an ordinarily prudent person, under like circumstances, would have anticipated.</p> <p>4. Such error is, however, cured by the submission of another question of the special verdict, in which the jury were given the correct standard and under which they found the element of anticipation.</p> <p>5. In framing a special verdict, it is not to be expected that the •court will attempt to embody all the facts and circumstances as in a hypothetical question to an expert; hence, where fire had originated by sparks from defendant’s locomotive, in submitting to a jury a question of a special verdict, it is not error to refuse to incorporate in such question after the word “locomotive,” the. words “properly equipped with proper spark-arresting machinery in good condition.”</p>

<p>Appeal from a judgment of the circuit court for Fond du Lac county: Michael Kiewah, Circuit Judge.</p> <p>An action to restrain tbe defendant, its officers, agents, and servants, from excavating and grading tbe street adjacent to plaintiff’s property to tbe grade line adopted by defendant, and from building a sidewalk thereon, under the direction of tbe village* board. Tbe court found as facts that defendant is a duly incorporated village; that plaintiff is one of tbe owners in foe of tbe lots described in tbe complaint and abutting on Main street of tbe village; that tbe village board, on October 6, 1902, by resolution, adopted a grade line for laying and constructing sidewalks on Main street, fronting plaintiff’s property and that of other abutting owners; that tbe village officers were instructed to grade Main street to Ibis established grade line, and lay a sidewalk thereon, passing in front of plaintiff’s property; and that tbe grading and tbe sidewalk so to be built by tbe village officers and servants was within tbe limits of Main street. It was also found that, if tbe grading and excavating were done to tbe established .grade line, it would lower tbe natural surface of Main street in front of plaintiff’s premises to a point about eleven inches lower than tbe present grade of Main street, making access to plaintiff’s store inconvenient and difficult, and impairing tbe use of it for the usual purposes of a store. Plaintiff alleges that tbe proceedings of tbe village board authorizing tbe improvement were irregular and void, and that tbe improvement would cause him irreparable damage and loss, and be therefore prayed that tbe village and its representatives be restrained from carrying out tbe improvement. Many other facts were found, which are not material to a decision of the case, and need not be adverted to upon this appeal. Tbe court granted tbe relief prayed for, and awarded damages in a nominal sum. This is an appeal from tbe judgment in plaintiff’s favor perpetually restraining tbe village authorities from carrying out tbe contemplated improvements, and awarding him nominal damages, with costs of tbe action.</p>

<p>Appeal from a judgment of the circuit court for Fond du Lac county: Michael Kirwan, Circuit Judge</p> <p>This is an action.to recover for personal injuries received by tbe plaintiff, November 23, 1901, while operating a machine called a “sticker,” in the planing mill of the defendant at Oshkosh, resulting in the amputation of his right hand. The plaintiff claimed negligence on the part of the defendant (1) in failure to instruct, (2) in furnishing insufficient light, (3) in defective adjustment of the machine, and (4) in absence of spouts to carry the shavings from the knives. It appeared by the eyidence that the plaintiff was twenty-six years of age at the time of the accident; that his home as a boy was at Winneconne, in this state; that he went to school from the time he was seven until he was fourteen years of age, when he began to work .at the barber’s trade with his father, and continued at that occupation in various cities of the state, including Marshfield and Marinette, until the fall of 1899, when he cut wood all winter; that he continued at the barbering trade during the following summer, cut wood again during the winter of 1900-01, went to Milwaukee and resumed the barbering trade during the following summer, and in November, 1901, went to Oshkosh, and obtained employment as a common laborer at the defendant’s planing mill on the 8th of November; that he at first piled lumber, tied pickets, and did other miscellaneous labor of this kind about the mill, and that about a week before the accident he operated a molding sticker like the one in question, except that it was furnished with shaving spouts, during one afternoon, turning out what is called “electric light molding;” that he had no other experience operating such machines; that on the day in question he was set at work-putting strips, one inch square, through the molding sticker in question, and turning out moldings callad “quarter round;” that after he had been at work about twenty minutes one of the strips stopped in its progress through the machine, and that he pushed or pulled a lever which he testified that he supposed stopped the machinery, and went around on the side of the machine and attempted to push, the strip away from the guide by which he supposed it had been, stopped, and his hand was caught and mutilated by knives revolving on what is called the “under head” of the machine.</p> <p>The jury returned the following special verdict:</p> <p>“(1) Excepting that plaintiff had operated a molding machine during half a day in the previous week, was he without any experience in doing that work up to the day of his injury ? A. Yes. (2) Before the injury occurred, did defendant receive information from plaintiff to the effect that he did not know how to operate the machine ? A. Yes, through Batbbun. (3) Did defendant fail to properly instruct plaintiff how to stop the motion of the heads which contained the knives in the machine? ' A. Yes. (4) Was the stopping of the quarter-round in the machine caused by defective adjustment of its parts? A. Yes. (5) Were all the incandescent lights extinguished in the mill when plaintiff was injured?' A. ISTo. (6) Was the light which was supplied for operating the machine at the time of plaintiff’s injury insufficient to have enabled him to discover, by the exercise of ordinary care on his part, that there was in the machine an underhead which contained knives? A. Yes. (7) At the time of the injury, was the machine without any shaving spouts? A. By the court, by consent of counsel: Yes. (8) (Withdrawn by the court," and not submitted). (9) If the third, fourth, sixth, and seventh questions, or any one or more of them, be answered ‘yes,’ then, did the defendant fail to exercise ordinary care in relation to any one or more of the matters specified in those four questions and the answers thereto ? A. Yes, 3, 4, 6, 7. (10) If your answer to the ninth question be ‘yes,’ then, in what matters referred to in the ninth question did defendant fail to exercise ordinary care? (See 3d, 4th, 6th, and 7th questions, and answers thereto.) A. In those matters or particulars which are specified in the third, did fail to properly instruct; fourth, by defective adjustment; sixth, light was insufficient; seventh, machine was without shaving spouts; questions and answers thereto. (11) If your answer to the tenth question finds that defendant did fail to exercisfe ordinary care in relation to any of the matters specified in that question, then, was such failure the proximate cause of plaintiff’s injury? A. Yes. (12) Before plaintiff was injured, did be know bow to stop tbe motion of tbe knives in tbe machine? A. No. (12^) Did tbe plaintiff know, or would the exercise of ordinary care on bis part, witb sucb experience as be possessed, bave enabled bim to know, tbat tbe so-called nnderbead witb its knives was a part of tbe machine? Answer, (a) Plaintiff did not know, (b) Tbe exercise of ordinary care would not bave enabled bim to know. (13) Was plaintiff guilty of any want of ordinary care which contributed to produce bis injury? A. No. (14) If tbe court shall be of tbe opinion tbat plaintiff is entitled to judgment in bis favor, at what sum do you. assess bis damages ? A. 1,000.00 dollars.”</p> <p>Judgment was entered on this verdict for tbe plaintiff, and tbe defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Eichland county: Geo. Clemektson, Circuit Judge.</p> <p>Action by one of two adjoining landowners to recover of tbe other some cattle belonging to tbe former, wbicb the latter had distrained while trespassing 'on his land, they having escaped from the land of súch other to that of his at a point where there was no division fence.</p> <p>Plaintiff’s right to recover turned on whether the statutes on the subject of division fences applied to such a situation as the division line in question.</p> <p>The case was tried by the court. It was admitted, or the evidence established these facts: Plaintiff’s land is described as “all the south half of the southwest quarter of section three lying on the west bank of Pine river, and all of the southwest quarter of the southeast quarter of section three which lies west of Pine river. Also commencing at the northwest corner of section ten, thence east to Pine river, thence down the west bank of said river to the south line of the north half of the northwest quarter of said section, township eleven, range one, east, in Eichland county.'” Defendant’s land is situated opposite plaintiff’s and is described thus: “Commencing on the southwest corner of lot one in fractional block three in the village of Eockbridge, thence running west to the channel of Pine river, thence up said channel north to the Austin branch; thence up said branch to the centre of Pine river road; thence southeast in the center of said road, etc., subject to flowage of said lands by reason of the milldam at such height as was established when the mill at Eockbridge was running at full head, not exceeding eight feet at the dam at an ordinary stage of water.” The mill was practically in ruins and the dam ceased to exist some years before the date of the alleged trespass. The lands were used by the respective parties for farming purposes. Do proceedings were ever taken by either for the establishment of the line for a division fence between their holdings, and a partition of such line. Each, holding was inclosed on all sides, except along the river. The owners had used their lands in that condition for some years. The plaintiffs cattle' escaped from his pasture to that of the defendant on the opposite side of the river, where they were taken up by the latter. Cattle had been accustomed to pass hack 'and forth from one pasture to the other in the same manner. In case of a restoration of the dam the back water therefrom would cover a considerable part of defendant’s land. The maintenance of the fence along the bank of the river would be a matter of considerable difficulty because of the banks being so low that the fence would be at times submerged and destroyed.</p> <p>The decision was to this effect: The lands of the parties are adjoining lands within the meaning of sec. 1393, Stats. 1898. The word “river” in sec. 1395 of such statutes includes Pine river. No proceedings were taken under such statutes and no decision of fence viewers obtained as to where the partition fence should be built between the holdings of the parties, or that such a fence was impracticable, therefore the escape of cattle belonging to one owner across the division line between his land and his neighbor’s to the land of the latter, gave to such neighbor no right of action for trespass. Pursuant thereto judgment was rendered for the plaintiff and defendant appealed.</p>

<p> Highways: Injuries from defects: Contributory negligence: Evidence: Instructions to jury: Carelessness. </p> <p>1. In an action for injuries from a defect .in a highway, under the. evidence, stated in the opinion, it is held that a situation was presented which warranted the jury in acquitting plaintiff of contributory negligence.</p> <p>2. In an action for personal injuries caused by the negligence of defendant town in failing to keep its highways in repair, no error can be predicated upon refusing a requested instruction: “If the plaintiff placed himself in a position of known danger, when he might have avoided it, and while there received the injury of which he complains, he was guilty of negligence, although the danger may have been caused by the negligence of the town authorities,” the court having instructed the jury that ii plaintiff failed to exercise such care as the great mass of mankind ordinarily exercise under the same or similar circumstances, he could not recover.</p> <p>3. Such requested instruction is incomplete and inaccurate in that it lacks two important qualifications essential to its accuracy: First, that the injury did actually result from the conduct of plaintiff, and, secondly, that an ordinarily prudent man should, under all the circumstances, have reasonably anticipated some injury as the result of such conduct.</p> <p>4. Mere carelessness does not prevent recovery for the negligent acts of another, unless an ordinarily prudent man would have anticipated probability of some injury, nor can it defeat the action unless it did in fact contribute to the injury.</p>

<p>Appeal from a judgment of the circuit court for Grant -county: Geo. ClbmeNtsoN, Circuit Judge.</p> <p>Plaintiff was a real-estate dealer, doing business in tbe city of Lancaster, Wisconsin. Defendant was tbe owner of •certain hotel property known as tbe “Lancaster House.” May 9, 1903, be entered into negotiations with plaintiff with a view to disposing of tbe hotel. Plaintiff bad various conversations with him, and claims to have made an agreement with him to tbe effect that defendant was to pay him $500 for securing a customer for a sale, or for an exchange of this property for other property, which would be satisfactory to defendant. Defendant claims that tbe agreement for tbe payment of $500 related only to a cash sale, while plaintiff claims that it covered a sale or a satisfactory exchange. Plaintiff testified that defendant agreed with him that if plaintiff would bring a customer who bad property to exchange for tbe hotel, and if tbe terms of exchange could be satisfactorily arranged, he would have the money ready for plaintiff as soon as the deal was closed. Plaintiff specified several instances wherein he had attempted to arrange an exchange, and, as to the particular exchange which was consummated, stated that he knew a Mr. Horton, who lived on a farm about a mile from Fennimore, wbo bad some lots and Ironses in Lancaster which be desired to exchange; that he knew the prices at which these properties were held; and that he suggested an exchange-thereof to defendant for the hotel. The prices and the properties were satisfactory to defendant. Plaintiff and defendant thereafter went to plaintiff’s office to get into communication, and plaintiff suggested that it would facilitate an exchange to obtain the assistance of one of the real-estate agents-at Fennimore, and in defendant’s presence sought to reach a Mr. Armfield, such an agent, by telephone. Failing to reach-Mr. Armfield, he communicated with Armfield’s partner, Mr. Parker. An arrangement was made whereby plaintiff and defendant went to Fennimore that afternoon, met Mr. Parker, of the firm of Armfield & Parker, and the three together drove to the Horton farm to see what could be done toward making an exchange. Plaintiff testified that while on the way to the Horton farm he informed Mr. Parker of the-agreement he had made with defendant, whereby he was to receive $500 for procuring a satisfactory exchange, and he-told him that he would divide the commission with his firm— Armfield & Parker — if they would assist him in consummating the exchange; that Parker assented thereto, and, when defendant heard plaintiff promise Parker to share the commission equally Avith Armfield & Parker, defendant said, “Yes, boys, the money is ready for you as soon as the matter is closed.” Plaintiff claims that this whole transaction was an employment of Armfield & Parker as his subagents, while defendant contends that, if plaintiff is entitled to recover at all, it must be upon a new agreement then made, whereby plaintiff and Armfield & Parker were to share equally in the-commission. Defendant denies that any such conversation was had between plaintiff and Parker in his presence, and denies making the statement that the money would be ready if they carried the deal through. Parker testified that he had such a conversation with plaintiff on the way to the Horton.. farm, while riding with defendant, and in this conversation plaintiff promised to divide the $500 commission, and that defendant stated in effect that, if they would put the deal through, the money would be ready for them. At the Horton farm all three participated in- the conversation wherein the exchange was discussed. Horton promised to come to Lancaster as soon as possible to look over the hotel with a view to completing the exchange. Plaintiff testified that he made two or three trips to Eennimore to urge 'Horton to come to Lancaster, and that he was constantly engaged in further*-ing the consummation of the deal. On May 29th Horton came to Lancaster with Armfield, then the partner of Parker, and on the 30th plaintiff went to defendant and notified him ■of the presence of Horton, and he testifies -that defendant at that time said: “Now, Teesdale, you-have the man; you have done your .duty, and I will go ahead and complete the terms.” At this time the arrangements for the exchange were made between Bennett and Horton in the presence of Armfield, and the transfers were duly made on the following 10th of 'June. Defendant denies the making of any arrangement for procuring an exchange, and claimed that, if plaintiff was entitled to recover, it must be on a contract made while on the way to the Horton farm. Instructions based upon this claim were refused, and the case was submitted to the jury upon the plaintiff’s right to recover on his complaint, and a verdict was returned by the jury for the amount claimed. The court refused to set aside the verdict, and also refused a new trial, and judgment was entered in accordance with the verdict. This is an appeal from such a judgment.</p>

<p> Contract, sale or bailment? Evidence: Prior transactions: Cross-examination: Admissions: Instructions to jury. </p> <p>1. While evidence of previous independent transactions is inadmissible unless it tends to prove motive, intent, or custom, yet where it appears that in making a contract, reference was distinctly made to a previous transaction of a similar character, and that it was then agreed that plaintiff might deliver grain, ,and take the price later on, as was done on the former occasion, the terms of the former transaction are, in effect, imported into the bargain, and evidence as to its terms is made, competent.</p> <p>2. Where, in an action for the price of grain, the defense was that ■ the grain had been stored instead of purchased, and the defendant’s manager had testified that it was in the habit of storing grain for others, it is proper to cross-examine such manager as to former transactions with the plaintiff and others.</p> <p>3. Where there was evidence tending to prove admissions by both plaintiff and defendant, and plaintiff admitted making only part of the alleged admissions, a general instruction on the subject of admissions, stated in the opinion, is held not to have misled the jury as to the admission which plaintiff acknowledged he made.</p> <p>4. Instructions to the jury, commenting on the items of testimony, considered, and held not to violate the rule that in so doing all the essential facts on both sides should be covered.</p>

<p> Contracts: Bond securing notes: Construction: Renewals. </p> <p>In an action against the surety on a bond securing certain promissory notes of the principal, a provision of the bond, that “said notes may be from time to time renewed during” the term of the bond, is construed to mean that the obligee may take renewals without affecting the liability of the surety, and not as securing to the principal the privilege to renew from time to time as notes fell due during the term of the bond.</p>

J. Ekuit, Circuit Judge. Plaintiff and defendant owned, respectively, lots 2 and 3 in block 6, in Viroqua, fronting easterly bn Main street and divided' by an east and west line. Plaintiff owned a store located something less than sis feet south of the lot line, with platform and outside stairway extending some three and one-half feet further toward that line.

<p>Appeal from a judgment of tlie circuit court for La 'Crosse county: J. J. Bbuit, Circuit Judge.</p> <p>This action was brought to recover on several promissory notes, which were executed by the defendant to the Clark County Bank, and assigned by it to the plaintiff, who now claims to own them. Upon the trial the plaintiff claimed the right to recover on these two notes. The court awarded judgment in his favor because the testimony showed without dispute that he was entitled to recover thereon. Uo complaint is made of this ruling. The defendant alleged a number of counterclaims as offsets to any amount of the plaintiff’s claim. The case has been before this court on two former appeals, and the decisions of this court are reported in 106 Wis. 647, :82 R. -\Y. 571, and 115 Wis. 575, 92 1ST. w. 238. The pleadings and material facts of the case are set forth in the report -of these former appeals, and need not be repeated in detail. Upon this trial, which resulted in a judgment in defendant’s favor, the jury found that plaintiff was entitled to recover under his complaint the amount due him on the two notes, with interest, in all $3,563.30, and that defendant was entitled to recover on his counterclaims the following amounts: Bor attorney’s services in collecting the Kirkland note, $225 ; for like services in the Christie case, before the dissolution of the partnership with Youmans, $878, and after such dissolution, $67; in the Frank W. Archer case, $135; in the case of Mrs. S. B. Hewell, $195.60; as administrator of the estate of Levi Archer, $530 (reduced by the court to $300); in the case of Hill and Kinsey vs. Archer, $149 ; and compensation by way of salary as president of the bank, $1,675. The jury also found that any of these amounts which were originally due the firm of Ring & Youmans had been assigned to the defendant, and that he was the sole owner. Each finding,, in answer to the questions of the special verdict pertaining to the foregoing counterclaims, is the amount due for services, with interest added. It was claimed that all of these amounts were due defendant from the bank after the notes matured, and before it assigned them to plaintiff, and that they constituted set-offs against any amount due on them. The issues on these counterclaims were submitted to the jury by special verdict, requesting them to find upon each claim whether there was a contract, “express or implied,n between the bank and defendant or Ring & Youmans, his assigns, which provided that he (or they) should receive compensation from the bank for the services rendered in the matters covered by the various counterclaims. The plaintiff requested certain instructions, which were refused, except in so far as covered by the instructions given by the court. There was a motion by plaintiff to strike out the affirmative answers of the jury to questions Nos. 13, 14, and 15, and that the court answer them in the negative, and to set aside the verdict, and for a new trial, upon the ground that the verdict was contrary to the law and the evidence, and for errors committed in the instructions given. These motions were denied. Judgment was entered dismissing the complaint. This is an appeal from such judgment.</p>

J. Fbuit, Circuit Judge. Action upon a judgment of the circuit court for Cook county, Illinois, entered July 24, 1899, without service of process, upon cognovit, based upon a certain writing in following words: “$2,500.00. La Crosse, Wisconsin, Sept. 2, ’97.

<p>Appeal from a judgment of tbe circuit court for La Crosse county: J. J. Eeuit, Circuit Judge.</p> <p>This is an action to recover on nine separate accounts for merchandise sold by the John James Company, a manufacturing corporation of La Crosse, to the defendant between March, 1902, and January, 1903, which accounts were severally assigned to tbe plaintiff with, the knowledge and written consent of the defendant; said accounts amounting in the aggregate to $5,529.53. The defendant admits the sale of the goods, but seeks to set-off against the accounts certain sums due it for scrap brass sold by it to the John James Company, amounting in all to $1,871.61, with interest, and offers to allow judgment to be taken for the balance. The action was tried by the court, and the facts were not seriously in dispute. The evidence showed that the John James Company, at the time the accounts accrued, was operating a foundry at La Crosse, and had been in that business for many years prior; that since 1890 the John James Company had been manufacturing and selling to the defendant brass castings and other articles, rendering monthly bills therefor, which bills were delayed in payment for several months; that, in order to obtain credit at the plaintiff’s bank, the John James Company from about the year 1890 was in the habit of making a written assignment of each monthly bill to the bank, and sending the bill so assigned to the purchasing agent of the railroad company, with a written instrument attached, in the following form (blanks being properly filled) :</p> <p>“Please Sign and Eeturn.</p> <p>“Keceived . (date) . of John James Company their invoice and account against the Minn. St. Paul & Sault Ste. Marie E. E. Company, for . Dollars, dated.and assigned to Batavian Bank of La Crosse, Wis. The net amount thereof, after deducting cost of transportation and other reasonable charges, to be paid to said bank when adjusted and due.</p> <p> U n </p> <p>“(Signature of Purchasing Agent) ;”</p> <p>—that the purchasing agent in each case signed and returned the said instrument, with the invoice, to the John James Company, and that said company regularly took the same to the plaintiff bank, gave its note to the bank for the amount of the invoice, and received credit therefor, and delivered tlie invoice, with, the accompanying instrument, to the bank, as collateral for such loan; that the defendant company in due time sent a draft to the John James Company for the amount of each invoice, payable to the order of the bank, which draft the James Company delivered to the bank in payment of the loan, and thereupon received back the note which it had given therefor; that this course of dealing took place regularly nearly every month until the failure of the John James Company, in February, 1903; that the John James Company during all this time purchased scrap brass of the railroad company, their bills for such scrap brass amounting to about one half of the bills for castings, and that the James Company generally paid for such scrap brass by drafts purchased of the bank when the railroad company sent a draft in payment for an invoice of castings; that in February, 1902, the plaintiff had in its possession eight of such invoices, with accompanying assignments, amounting to over $3,000, and wrote to the defendant, asking when they might expect to be paid therefor, and whether there was any claim or set-off against them, and defendant’s auditor replied, recognizing the correctness of invoices amounting to $2,539.53, and charging up against them three bills for scrap, and inclosing a draft for a balance of $494.50; that the bank reftised to receive said draft, and returned the same to'the John James Company, and that John James, president of the company, thereafter saw some of the officers of the defendant with regard to the matter, and some time afterwards the defendant paid the assigned accounts to the bank in regular course as before; that when the John James Company made an assignment for the benefit of its creditors in February, 1903, the bank owned the invoices and assignments in question, -with accompanying written instruments attached, and had acquired the same in the usual course of business, as before stated; that it filed no claim in the assignment proceedings for the amounts represented by said invoices.</p> <p>The trial court, upon these facts, concluded that the plaintiff was entitled to recover the full amount of the invoices, with interest, and that the setoffs claimed by tbe defendant should not be allowed, and from judgment upon these findings the defendant appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Trem-pealeau county: J. J. Eeuit, Circuit Judge.</p> <p>Action to remove a cloud on title to real estate. Tbe issues-made by tbe pleadings are sufficiently indicated by tbe findings, wbicb are to this effect: September 18, 1900, and for some time prior thereto, plaintiff owned tbe land described in tbe complaint, on wbicb date be contracted to sell and convey tbe same to Mary Bangs. Tbe contract was duly recorded September 22, 1900. Mary Bangs took possession of the-property and continued in such possession until May 1, 1903. May 20, 1902, she quitclaimed tbe property to plaintiff reserving possession, however, till November 1, 1902. Tbe deed was duly recorded. November 24, 1902, plaintiff by warranty deed conveyed tbe land of John Arneson. The deed was duly recorded.</p> <p>May 7, 1901, defendants contracted with Mary Bangs to deepen a well on tbe premises and repair tbe pump used in such well and equip tbe pump with a frost-proof cock. Defendants commenced performance of such contract May 4, 1901, and finished their work, except that of equipping the pump as stated, by May 20, 1901. Tbe final act was omitted for tbe customary time, and was performed about May 27, 1902. On that date a petition in due form was duly filed to preserve defendants’ right of lien on tbe premises for the amount due them under said contract, wbicb is tbe cloud complained of. Upon such facts tbe court decided that defendants were entitled to a lien on the land in accordance with their petition, and that such petition did not constitute a cloud on plaintiff’s title, wbicb equity, at bis suit, would remove.</p> <p>Accordingly judgment was rendered dismissing tbe complaint with costs.</p>

<p>Master and servant: Personal injuries: Negligence: Assumption of rislc: Contributory negligence: Direction of verdict: Tice-prin-cipal.</p> <p>1. In an action for personal injuries received by a fifteen-year-old boy from the rapidly revolving knives of a planing machine, under the facts stated in the opinion, held:</p> <p>(1) The plaintiff’s evidence, that he was ignorant of the danger, was not wholly incredible.</p> <p>(2) A reasonable mind could absolve him from negligence in attempting to do that which he had seen others do in safety.</p> <p>(3) It was error to direct a verdict for defendant.</p> <p>2. In such case, it appeared, among other things, that plaintiff, who had been employed in defendant’s factory about three w.eeks, and with no previous experience of any sort with machinery, while assisting defendant’s superintendent to operate a planing machine, was directed by the superintendent to move a device whereby the power was disconnected from the machine, and to empty a hopper underneath rapidly revolving knives. These knives were ^so hung that they would, by momentum, continue their revolutions for some time after the power was disconnected, and were obscured from ordinary view. Plaintiff immediately went to the hopper and attempted to empty it, when he was injured. Held, sufficient proof of negligence, since the superintendent had no reason to suppose that plaintiff, with his youth and inexperience, had any knowledge of the occult and hidden devices and conditions which made an immediate attempt to empty the hopper dangerous, an act which he had imperatively commanded plaintiff to do.</p> <p>3. Whether an act is that of a fellow-servant or a vice-principal, depends not on the grade or the position of the person doing it, but on the character of the act.</p>

<p>Appeal from a judgment of tbe circuit court for Oneida county: W. C. SilveethobN, Circuit Judge.</p> <p>This is an action to recover the amount due for services rendered by the plaintiff and his assignors for the defendants E. W. Burr, Theodore Kloss, and Fred Kloss, who were doing business as the Pelican Manufacturing Company in sawing and manufacturing lumber out of logs at the town of Pelican, Oneida county. It appears that the Pelican Manufacturing Company received logs from the defendants W. G. Hardell, Henry Iieyn, Beth Kimball, John Lyons, Frank Koch, Moses Reno, and G. Gonro & Go., and that these logs were sawed and manufactured into lumber between the 7 th day of May, 1903, and the 19th day of June, 1903, within which period all of the services were performed for which recovery is sought, except the services in preparing and repairing the mill, which covered several days prior to May 7th. It is admitted that two of the employees — Fred Hack and Earl Lago — who kept the mill boarding house, were to board the mill employees at the rate of $3.50 per week; the Pelican Manufacturing Company to furnish the boarding house, wood and water. It was arranged that the company was to retain sufficient money out of each employee’s earnings to pay Flack and Lago the amount of their board bill. The court found that at the commencement of this action there was due plaintiff for his personal services from the Pelican Manufacturing Company the sum of $11.46, and that there was due on claims for services rendered to the company before June 19, 1900, which claims the plaintiff acquired by purchase and assignment of claims for liens before this action was commenced, the following amounts: Richard Lund-berg, $5.47; Robert Winquist, $34.57; Henry Winquist, $20.11; Peter Koestler, $9.57; George Koestler, $10.42; Gust. Serquist, $72.90; James Fricart, $5; Frank Meyer, $26.21; Fred Hack, $56; Earl Lago, $50.87. Each of the ■employees duly filed claims for liens on or before tbe 8th of ■July, 1903,-on the lumber sawed and manufactured for the ■defendants, as above stated, excepting James Ericart, Ered Hack, and Richard Lundberg, whose claims were assigned to plaintiff, and were included in his claim for a lien. On May 1st the Pelican Manufacturing Company had made a chattel mortgage of their sawmill property to the Rhinelander Iron 'Company and the Lewis Hardware Company. It is without ■dispute that B. R. Lewis acted as the trustee for the Pelican Manufacturing Company, the Lewis Hardware Company, the Rhinelander Iron Company, and one Emmerling, a former owner, whose interest the Pelican Manufacturing Company had purchased under an arrangement between it and these parties. He was to receive the money due the company for sawing and manufacturing lumber, and disburse it for them. He received money so due, and paid a portion of the amounts due the laborers for services rendered in manufacturing the lumber for defendants. All sums so received were applied in payment of services, except $9.40, which was paid out by him as expense of the trusteeship. He received nothing of the amounts due the Pelican Manufacturing Company for sawing and manufacturing the lumber of some of the defendants. C. Conro & Co. paid the amount of its sawing and manufacturing bill directly to the laborers on time checks issued to them by the Pelican Manufacturing Company for work performed at the mill. When payment was made of these time checks by C. Conro & Co., the claimants signed an indorsement to the effect that the amount paid was received of •C. Conro & Co. in full of all labor performed on logs marked “Conro.” The evidence of the laborers is that they did not understand that they were receiving payment in full for all ■services, nor was it understood or intended to release any ■claim for a lien on the material so manufactured; that they •could not read the indorsements; and that, they were told that at was a receipt-for the amount paid them for their services. The court found, that the total amount due for services to* plaintiff and his assignors was the sum of $302.76, and that $284.26 of this amount was for services rendered by the claimants in the manufacture of the lumber described in the-complaint, and awarded judgment against the members of the Pelican Manufacturing Company for the whole amount due, and for a laborers’ lien for $284.26 on the lumber described' in the complaint. This is an appeal from that part of the’ judgment awarding a lien for the amount of $284.26, with' interest and costs, upon the lumber described in the complaint and owned by the defendants.</p>

<p>Appeal from a judgment of the superior court of Milwaukee county: J. C. Ludwig, Judge.</p> <p>Plaintiffs bring this action to recover damages alleged to have been caused by the city in failing to provide street culverts of adequate size and capacity for the flow of water across defendant’s street, situated in close proximity to plaintiffs’ brickyard property, and allege that such insufficient and inadequate culverts caused tlie waters naturally flowing through them at times of rainfall and melting snow and ice to back up and inundate plaintiffs’ brickyard, and to damage It and the personal property thereon, and to interrupt them in the .conduct of their business. The defendant city denied that it caused plaintiffs the alleged damages, and claimed-that any damage was due to the acts of private parties in damming up the natural course of the water, thereby flooding plaintiffs’ brickyard and the property thereon. A jury was waived, and the action was tried by the court. The court ■found that Deer creek had a constant flow of water, with bed and banks extending along the easterly line of plaintiffs’ premises, and across the northwest corner thereof, and thence •across other lands, Pryor and Russell avenues, and Bay street, into Lake Michigan; that the streets were graded; that the defendant constructed culverts under and through said street .grades at the points of intersection with the stream for the purpose of conducting the water of the stream under and through the embankment and street grades. ' In addition, the court found as follows:</p> <p>“These culverts, however, as constructed by said city of Milwaukee, were far too small, and were inadequate and insufficient to permit a ready and reasonable escape of the water that naturally, usually, and frequently flowed in said stream during its ordinary stages of high water, and in times of ordinary rains and in ordinary times of melting snows.”</p> <p>“That the defendant, city of Milwaukee, was negligent in constructing the said culverts of very inadequate size, and, in the exercise of ordinary care, ought to have known that -said culverts would be and were very inadequate, and ought to have foreseen all the damages hereinafter mentioned as a natural, probable, and proximate result of such negligence.”</p> <p>The court found specific amounts for certain items of damage to plaintiffs’ property on account of the floods, and ■awarded judgment for the recovery of these amounts, but refused to allow plaintiffs’ claim for the loss of 3,911 yards of ■dry clay, which, according to the evidence, .cost plaintiffs twenty cents per yard to put in condition for brickmaking. It also rejected an item of $600, costs incurred in restoring the brickyard property to a proper condition for conducting the business, and allowed no damges for the interruption to the business. Plaintiffs requested the court to find these damages, and, upon refusal, exceptions were taken. Judgment for the amount allowed by the court, namely $2',587, with interest and costs, was awarded against the city. Plaintiffs appeal from this judgment.</p>

<p> Appeal and error: Assignments of error: "Waiver: Ejectment: Adverse possession: Construction of statutes: Cross-examination: Material and immaterial error. </p> <p>1. Where no attention is paid in the argument to an assignment of error except to refer to the record and suggest: “While we submit that in portions of the charge of the court, to which exceptions were taken, as shown in the record, there was qrror, we will not trouble the court with further discussion of them,” the supreme court will not search the record, carefully, to determine whether the instructions were, or were not, strictly accurate.</p> <p>2. In an action of ejectment, the evidence on the subject of adverse possession, is held sufficient to carry that question to the jury.</p> <p>3. In the determination of the question of adverse possession, possession dependent upon marked boundaries under subd. 1, see. 4214, Stats. 1898, must not be confused with that accompanied by actual improvement of the premises under subd. 2 of said sec. 4214.</p> <p>4. The physical taking and enjoyment by acts sufficient, reasonably, to suggest to the true owner that his dominion is thereby defied and the extent thereof, satisfies all the essentials of certainty as to the boundaries of adverse possession, dependent on cultivation or usual improvement, and is sufficient to dis-seize the true owner, not only of the particular spot where the first visible disturbance of the surface occurred, but of surrounding land, the hostile possession of which is plainly thereby suggested.</p> <p>5. Whether the essentials of adverse possession are satisfied or not by a given state of circumstances must be determined by the verdict of the jury, under proper instructions.</p> <p>6. The use of cross-examination is not a mere privilege subject to discretionary judicial authority, — it is a right.</p> <p>7. It is not prejudicial error to rule out a question asked for the purpose of laying the foundation for impeachment, when it refers to immaterial matter.</p> <p>8. Rulings of the trial court, sustaining objections, to questions asked on cross-examination, which are not clearly prejudicially wrong, will not be condemned on appeal.</p> <p>9. In an action of ejectment, where the defense was twenty years' adverse possession, dependent on actual improvement of the premises, it is not error to sustain objections to a question calling for the precise boundaries of such possession, since it is only necessary that the premises should be put to use by acts of dominion, such as to suggest, reasonably, the extent of the-hostile invasion.</p> <p>10.It is not prejudicial error to refuse to permit a witness to answer a question, where, in answer to several other questions, he has given the information sought.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Oreest T. Williams, Circuit Judg’e.</p> <p>An action in equity wherein plaintiff seeks to redeem from defendant’s interest in certain real estate. Sbe asks for an accounting, and tbe right to discharge the defendant’s lien by payment of such sums as may be found due from her, and to be adjudged the owner of the premises. Defendant admitted most of the facts as alleged in the complaint, but averred that he was the owner in fee of the premises, free from any claim,, right, or interest, and denied that plaintiff had any right to. or interest in the premises to entitle her to the relief demanded.</p> <p>The material facts of the case, covered by the pleadings and findings of the court, are clearly and concisely set forth in the statement of appellant’s brief, which we will adopt, and is as. follows:</p> <p>“Prior to March 15, 1894, one Caroline Laabs was the owner in fee simple of a certain lot in. the Thirteenth Ward of the city of Milwaukee, particularly described. In December, 1890, she and her huband had incumbered this lot by a mortgage in the amount of $800, securing a note in such' amount; and such mortgage was duly recorded in the office of the register of deeds of Milwaukee county the day after its execution. On March 15, 1894, Caroline Laabs and her husband conveyed the lot by warranty deed to one Frederick William Fenske, subject to the incumbrance of $800, which was assumed by the grantee. Frederick William Fenske and Louise, his wife, entered into possession of the premises; and on March 24, 1896, they executed and delivered to the plaintiff the deed. . . . The plaintiff, Louise Keller, was at the time of beginning the action a married woman; but in 1896 and until 1902 she was unmarried, and bore the name of Louise Sood, and is the grantee in remainder named in such deed. In snob deed Frederick William Fenske and bis wife conveyed tbe real estate in question to tbe plaintiff, reserving to Louise Fenske an estate therein for tbe period of ber natural life. Tbis deed was duly recorded in tbe office of tbe register of deeds of Milwaukee county on March 31, 1896, and Louise Fenske entered into possession of the premises, and became seised of a life estate therein, and tbe plaintiff became seised of tbe estate in remainder.’ Tbe principal sum of tbe mortgage incumbrance on tbe premises remained unpaid, and there was no interest paid upon tbe incumbrance after tbe period ending June 15, 1897. By reason of tbe default in the payment of principal and interest, tbe mortgagee instituted a suit for tbe foreclosure of tbe mortgage, making both Louise Fenske and tbe plaintiff parties defendant, and serving them with process, and filing notice of lis pendens in proper form. In such foreclosure action on December 18, 1897, judgment of foreclosure and sale in tbe usual form was entered, in tbe amount of $824.40, for tbe amount due upon tbe note and mortgage for principal and interest since June 15,1897, and for $171.96, solicitor’s fees, costs, and disbursements. Tbe judgment of foreclosure remained wholly unpaid, and after tbe expiration of tbe year for redemption tbe premises were advertised for sale pursuant to tbe judgment, and sold by tbe sheriff on February 13, 1899, h> W. II. Tim-lin, for tbe sum of $1,092.86, which sum was sufficient to pay tbe costs and expenses of tbe sale and tbe amount due upon the judgment and interest in full, leaving neither surplus nor deficiency. A sheriff’s deed was executed and delivered pursuant 'to tbe sale, and recorded, and report of sale filed, and sale confirmed. Three months thereafter and on May 11, 1899, Louise Fenske . . . procured ... a warranty deed of tbe same to be executed to her by W. H. Timlin and wife, and she paid therefor tbe sum that bad theretofore been paid upon tbe sheriff’s sale, and this deed was duly recorded. Tbis deed was executed to Louise Fenske alone as grantee, and continuously from March 24, 1896, and until ber death, she remained in possession of tbe premises, enjoying tbe use, income, profits and benefits thereof; and tbe rents, income, profits, and use of tbe real estate at all times exceeded in amount and value tbe amount of tbe interest on tbe mortgage indebtedness, together with tbe taxes and all other expenses of maintaining tbe property. . . . On February 2, 1903, the defendant, Willimt F. F&nslce, obtained from Louise Fenske a warranty deed of the premises, which he-caused to be recorded. Louise Fenske died on April 5, 1903. . . All the conveyances referred to in the complaint, were executed, witnessed, and acknowledged so as to be entitled to record. Before the commencement of the action, and after the death of Louise Fenske, the plaintiff offered to the defendant to redeem the premises from such incumbrance as may have existed in favor of Louise Fenske by her subrogation to the mortgage in the amount advanced by her for the-discharge of the principal thereof and the costs of foreclosure,, and not repaid to her, which incumbrance had become vested in the defendant by conveyance to him from Louise Fenske; and the plaintiff demanded of the defendant a statement of' such amount, that she might pay the same, and that tire defendant release and quitclaim to her the premises on payment of such amount; and the defendant refused to release or quitclaim. the premises to the plaintiff upon any terms whatsoever, and denied her interest therein.”</p> <p>The court, in its findings, stated:</p> <p>“That the plaintiff was the niece of Frederick William Fenske, one of the grantors in the deed of March 24, 1890,. and the plaintiff was at such time and until the year 1902, a minor; that the amount paid by the purchaser at the foreclosure sale on February 13th, 1899, for the sheriff’s deed was $1,092.86, which was sufficient to pay the costs and expenses of such sale, the amount due upon the judgment, and interest, in full, leaving neither surplus nor deficiency, and that, of such amount, $81.53 represented interest accrued and unpaid upon $800, the principal sum of the mortgage, leaving $1,011.33, representing the principal of the mortgage indebtedness (without interest thereon), and costs, solicitor’s fees, and expenses of sale; and that no interest on the mortgage-incumbrance was paid after June 15, 1897. The findings further show that the defendant paid, as consideration for the-execution and delivery to him of his deed from Louise Fenske of February 2, 1903, an amount not in excess of $400, and that there was no other or further consideration for such deed, and that on May 8, 1903, and before the commencement of the action, the plaintiff demanded of the defendant the right of redemption, and offered to redeem tbe premises from defendant’s claim, wbicb demand and offer were refused, substantially as alleged in tbe complaint; that tbe defendant, after going into possession of tbe premises, expended upon tbe same for necessary repairs tbe sum of $150, and bad up to tbe time of tbe trial of tbe action, namely, January 27, 1904, collected as rents of tbe premises tbe sum of $94, and tbat tbe rental value of tbe premises was in excess of tbe taxes thereon and interest upon tbe sum of $1,161.33; and tbat tbe plaintiff bad on May 9, 1903, filed notice of Us pendens in tbe office of tbe register of deeds of Milwaukee county, and filed ber complaint in this action.”</p> <p>Upon these facts tbe court ordered judgment in favor of tbe defendant, dismissing tbe complaint, and judgment Was entered accordingly. This is an appeal from tbe judgment.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: LawbeNCE W. Halsey, Circuit Judge.</p> <p>This is an action of quo warranto brought by the relator to remove from the office of assessor of the village of’West Allis the respondent, August Rosenthal. The complaint, after alleging the corporate existence of the village of West Allis, and the fact that the relator was a resident and elector of said village on the 7th of April, 1903, alleges that an election for village officers was held on the last-named date, and that prior to said election the relator was duly nominated for ,the office of assessor of the village on the Republican ticket, and that the defendant was the nominee for said office on the People’s ticket, and that no other candidates were voted for at said election; that at said election 456 ballots were found to have been cast by the canvassers, of which eight were defective and not counted; that the relator received 218 legal votes; that there were cast for the respondent at said election a large number of void and fraudulent votes, the total number of which “the relator is unable to state, hut that the same exceeds thirty;” that twenty-nine persons (whose names are given) voted at said election for the defendant and the People’s ticket who were, for various reasons, not qualified electors of said village; that various persons fraudulently attempted to, and did, colonize men in said village for the purpose of voting at said election, who were not qualified electors of said village, and succeeded in procuring said persons to vote the People’s ticket; that the total number of votes cast for assessor was 436, including those cast by persons not qualified electors of the village; that the 218 votes lawfully cast for the relator was a majority of all the legal votes cast for the office of assessor, and that the relator was thereby duly elected; that on April 15, 1903, relator was requested by the inspectors of election to draw lots for the office, the said inspectors having returned 218 votes cast for the defendant, and having declared the election to be a tie; that the relator refused to draw lots for the reason that he had been legally elected, and that thereupon a person was appointed by the inspectors to draw lots in his place, and that the defendant was declared elected; that the relator duly filed his oath of office and qualified as assessor on the 15th of April, and on the 16th of April made demand upon the defendant for said office, which was refused, and the said defendant still retains the same. The complaint further alleges that he petitioned the attorney general to bring this action, and that he refused, and demands judgment declaring that the defendant is not entitled to said office, and that he he ousted therefrom, and that the relator he admitted thereto. The defendant, by answer, alleged that the whole number of ballots counted by the inspectors for the office of assessor of the village was 436, of which the relator received 218, and the defendant 218, whereupon the inspectors of election ordered lots to be drawn for the office, upon which drawing the defendant was duly declared elected to said office. The defendant further alleges that he received the greatest number of votes cast by duly qualified electors for the office, •and was legally elected thereto, and duly qualified therefor, .■and is now legally holding the said office.</p> <p>The action was tried before a jury, and a special verdict rendered as follows:</p> <p>“(1) What was the total number of legal votes cast by the duly qualified electors of the village of West Allis at the village election holden on the 'Tth of April, 1903, for the office of assessor? A. (426) four hundred and twenty-six. (2) What was the total number of legal votes cast by the duly qualified •electors of said village of West Allis at said election for the relator, George M. Leonard, for the office of assessor ? A. (214) two hundred and fourteen. (3) What was the total number of legal votes cast by the duly qualified electors of said village of West Allis at said election for the respondent, August Rosenthal, for the office of assessor? A. (212) two hundred and twelve. (4) Were any illegal votes cast at said election for the office of assessor? A. (10) ten. (5) If you answer the preceding question in the affirmative, how many, if any, of such illegal votes were cast for the relator, George M. Leonard? A. (4) four. (6) If you answer the fourth question in the affirmative, how many, if any, of such illegal votes were cast for the respondent, August Rosenthal? A. (6) six.”</p> <p>Upon this verdict, judgment of ouster, with costs, was rendered in favor of the relator, and the defendant appeals.</p>

TabeaNt, Circuit Judge. Appeal from order sustaining demurrer to complaint, which alleged that the plaintiff was the son and heir of his mother, who died in hospital in Milwaukee, and was by her, before her death, instructed and requested to take charge of her body for purposes of burial, and was the only person interested; that he did so, removing the body to his residence, and proceeding to have the same prepared for burial; that the defendant requested permission to…

<p> Garnishment: Assignment in trust for creditors: Statutes: Right of general creditor to garnish trustee for creditor. </p> <p>A corporation, being indebted to a large number of persons, delivered to F., who happened to be its secretary, its check for $5,000, accompanied by a communication addressed to F., as follows: “Pursuant to authority duly conferred by the board of stockholders, as well as the board of directors, there is hereby assigned to you in trust for the several parties and creditors mentioned in the annexed schedule, the aggregate sum of $5,000, to be distributed and paid forthwith to the several parties named in detail statement.” There was annexed a list of creditors, specifying against each the amount of his entire debt, and the amount to he paid to him out of the $5,000. F. deposited the money in his own hank account, and drew checks payable to each creditor named for their respective amounts. Most of the creditors accepted their checks, others notified F. that they would accept and others made no response. Plaintiff, who was one of the creditors named in the list, and who had not received its dividend, commenced action against the corporation, and garnished F. Sec. 1694, Stats. 1898, provides that all voluntary assignments for the benefit of or in trust for creditors shall be void unless accompanied by the various formalities therein prescribed (which were wholly absent from the above transaction), and sec. 2, ch. 334, Laws of 1897 (incorporated in said sec. 1694), provides .that no creditor shall in any case, where a debtor has made or attempted to make an assignment for the benefit of creditors, by attachment, garnishment or otherwise, obtain priority over •other creditors upon such assignment being for any reason ■adjudged void. Held, that upon no theory as to the relations arising from the transfer of said $5,000 to F., was the money subject to garnishment.</p>

<p>Appeal from a judgment of tbe circuit court for Winnebago county: Geo. W. BubNell, Circuit Judge.</p> <p>This is an action to recover damages for personal injury sustained by tbe plaintiff about 3 o’clock' in tbe afternoon of September 23, 1902, while riding in a single carriage, drawn by one horse, driven by her companion, by reason of coming in collision with one of tbe defendant’s street cars. It appears and is undisputed that Main street runs north and south in Oshkosh; that the defendant’s track is in that street at the place of collision, and for at least one block north and one block south of the same; that Washington street intersects with, and runs east from, Main street, and at right angles with it; that Algoma street intersects with, and runs northwest from, Main street; that the center of Algoma street is twenty-five or thirty feet north of the center of Washington street, at their respective intersections; that the particular locality of such intersections was the most traveled of any in the city, and was paved with vitrified brick, which caused much noise as vehicles passed over the same; that Main street north of such intersections was narrower than south of it; that at the time in question the plaintiff, with her companion, was driving north on the east side of Main street, toward such, intersections; that, upon reaching a point at or near the northwest comer of. Washington street, they .started west across the defendant’s track toward Algoma street; that while in the act of crossing the defendant’s track they were struck by one of the defendant’s cars coming from the north, and1 the plaintiff was badly injured. The answer was a general denial, and allegations of contributory negligence on the part, of the plaintiff and the driver. There is evidence on the', part of the plaintiff tending to prove that at the time they started to go across the track the streets at such intersections-, were full of teams, and that there was a wagon loaded with wood ahead of them, so high as to obstruct their view of the coming car. Issue being joined, and trial had, the jury, at tbe close of tbe trial, returned a special verdict wherein it was found (1) tbat tbe plaintiff was injured at tbe time and place alleged in tbe complaint; (2) tbat tbe defendant, through its employees, was guilty of a want of ordinary care and prudence in tbe operation of said car at tbe time of tbe accident; (3) tbat sucb want of ordinary care and prudence on tbe part of tbe defendant was not tbe proximate cause of tbe plaintiff’s injury; (4) tbat tbe gong was sounded on approaching tbe intersection of Main and Washington streets; (5) tbat tbe motorman tried to stop tbe car as soon as it became apparent to him tbat there would be a collision; (6) tbat tbe car was running, when it struck tbe buggy, eight and one-half miles per hour; (7) tbat tbe want of ordinary care and prudence on tbe part of tbe plaintiff, or the driver of tbe wagon in which tbe plaintiff was riding, contributed to produce tbe injury; (8) tbat they assessed the plaintiff’s damages at $2,000. From tbe judgment entered upon sucb verdict for $106.55 costs and disbursements as taxed, tbe plaintiff brings this appeal.</p>

<p> Appeal and error: Party aggrieved: Mortgages: Foreclosure: Findings: Pleading: Gross-complaint: Waiver: Contracts: Uncertainty as to purchase price: Specific performance: Equity: 'Vendor and purchaser: Equitable lien: Judgment on foreclosure: Provisions. </p> <p>1. In an action to foreclose a mortgage, a defendant, who had before the commencement of the action conveyed his entire interest in the lands in question to his codefendant, and against whom no personal judgment is rendered, is not aggrieved in any way by the judgment, and under sec. 3048, Stats. 1898 (limiting the right of appeal to a party aggrieved), is not entitled to appeal from the judgment.</p> <p>2. When 'lands are conveyed as mere security for a loan, the grantor having no interest in the premises at the time except a bare possession, the transaction is nevertheless a mortgage.</p> <p>3. In an action to foreclose a mortgage, where, on an issue r,aised by one who has rights other than as mere mortgagee, all the interested parties being before the court, the court finds that a defendant has some interest in the premises, or claim thereon, which the court can recognize, the court should proceed to determine what that interest is,( and by what means it is to be protected in the action.</p> <p>4. The orderly way of presenting a controversy between defendants is by way of answer containing the essential allegations of a cross-complaint as provided in see. 2883, Stats. 1898. While it is better pleading to denominate such part of the answer a “cross-complaint,” in analogy to the requirements in case of a counterclaim, failure to so denominate the allegations of the answer is effectually waived by voluntarily answering the same.</p> <p>5. Where the only arrangement as to the price of lands was tlxat the purchaser should pay what the land was worth, and that if the parties could not agree, the price was to be settled by arbitration, one essential of the contract is left wholly uncertain, and it will not be specifically enforced.</p> <p>6. An agreement to arbitrate will not be specifically enforced.</p> <p>7. Where a purchaser goes into possession of lands, and, in good faith, makes extensive improvements under an unenforcible arrangement with the vendor, and the vendor refuses to complete the agreement, the purchaser is entitled, in equity, to compensation for the amount which his improvements have added to the value of the land, less the rents and profits properly chargeable against him while in possession.</p> <p>■S. In such case, it should he determined how much the improvements have enhanced the value of the land, and the reasonable rental value, irrespective of buildings during the vendee’s possession, and the balance, in favor of the vendee, if any, adjudged an equitable lien on the premises.</p> <p>'9. In such case, the vendor should be allowed to redeem from such equitable lien, by payment of the amount thereof within a reasonable time, to be fixed by the judgment, with interest from the date of the judgment, but with no deduction for rents and profits accruing after the entry of 'the judgment.</p> <p>10. In such a case, where the issue was raised in an action to foreclose a mortgage lien existing on the premises prior to such purchase, the judgment of foreclosure should provide that, in case it becomes necessary to sell the purchased parcel, the same should be sold free from such lien, the equitable lien to be a lien on the surplus, if any, arising from the sale, which surplus should be brought into court for disposition by its order.</p> <p>11. Where one of two co-mortgagees is a defendant, the judgment of foreclosure and sale should provide that the sale may be moved by either.</p> <p>12. Where a purchaser of land under an unenforcible agreement in good faith makes valuable improvements, and thereby acquires an equitable lien, such land being subject to a prior mortgage, and in an action to foreclose such mortgage, issues raised between such purchaser and the owner of the equity of redemption are adjudicated, whereby the amount of such equitable lien is fixed, the judgment of foreclosure should provide for some short period within which such equitable lien may be redeemed, and, in case of failure to redeem, or on failure to cause a foreclosure sale jwithin such period, that the owner of the equitable lien may bring an action for strict foreclosure of such lien, subject, however, to the prior mortgage lien.</p> <p>13. Previous to a loan, the mortgagors agreed that S., one of them, should have a one-third interest on paying his co-mortgagor a certain sum out of the sales of the land. In an action to foreclose such mortgage, it appeared, among other things, that the co-mortgagor conveyed his interest to K., and that S. had never paid such sum. Held, that the judgment of foreclosure should definitely declare the title to the equity, of redemption to be in K. as to two thirds and in S.-as to one third, in undivided shares, and impose a lien for such sum upon S.’s one third in favor of K., to be paid out of the first sales of the land after the mortgage is discharged, and also provide for the working, out of such lien by appropriate directions.</p>

J. Fettit, Circuit Judge. This is an action to recover damages for personal injuries sustained by the plaintiff by reason of an alleged defective highway June 2, 1902. The complaint is in the usual form in such cases. The answer consists of admissions, denials and counter allegations of contributory negligence. At the close of the trial the jury returned a verdict in favor of plaintiff, and assessed his damages at $400.

<p>Appeal from a judgment of tbe circuit court for Portage county: Chas. M. Webb, Circuit Judge.</p> <p>Action for equitable relief. Plaintiff sold one Groodrick 470 shares of tbe capital stock of tbe Yalley Iron Works Manufacturing Company, and A. L. Smith, since deceased,. 1J0 shares of such stock under an agreement that tbe purchase price to the former amounting to $5,000, should be paid in accordance with five $1,000 notes due in two, three, four, five and six years, the first three thereof to be guarantied by said Smith. Pursuant to the verbal agreement in that regard plaintiff delivered the 'stock, Goodrich signed the five notes and Smith placed on the back of the first three to. fall due the words:</p> <p>“I hereby guarantee the payment of the within note.</p> <p>“A. L. Smith.”1</p> <p>omitting by mistake, as is alleged, the words “for value received” from the body of the guaranty, the notes were delivered in the form indicated to the plaintiff, and the Goodrich stock was placed in Smith’s possession to secure him against loss on account of the guaranty. Smith and Goodrich were jointly interested in purchasing the stock to the end that they might control the policy of the corporation. Before the maturity of the two-year note plaintiff transferred it to a bona fide holder for value, and thereafter before such maturity Smith recognized his'agreement to guaranty the payment thereof by duly waiving demand for payment of the same and protest for nonpayment, and placing thereon, in due form, a guaranty for such payment, expressing a sufficient consideration to satisfy the statute of frauds. Plaintiff at the time of the commencement of this action was the owner of the notes and Goodrich was insolvent.</p> <p>The foregoing circumstances were pleaded by the plaintiff in the form of four separate causes .of action against the personal representatives of Smith, followed by a prayer for relief as follows:</p> <p>(1) Specific performance of the agreement to guaranty the second and third notes. (2) For reformation of such notes. (3) Judgment upon the note validly guarantied. (4) Judgment for $2,000, on account of the purchase price for the stock represented by the second and third notes. (5) Such other relief as to the court might seem just.</p> <p>The defendant demurred to each of the pretended causes of action upon four grounds: Want of equity, insufficiency of facts, defect of parties plaintiff and misjoinder of causes of action.</p> <p>The demurrer was overruled. Defendant then answered to this effect: The alleged guaranty was without consideration and void under the statute of frauds. Before the commencement of this action and on the 6th day of September, 1898, suit was commenced on the notes in question which was thereafter, without trial, discontinued. The Commercial National Bank of Appleton, indorsee from plaintiff on the four-year note, commenced an action against the decedent and Goodrich in the circuit court setting forth in the complaint the circumstances alleged in the complaint herein characterizing the making of the guaranty. The action was tried resulting in a judgment dismissing the same as to Smith, and on appeal to the supreme court the judgment was affirmed. [Commercial Nat. Banlc v. Smith, 107 Wis. 574.] Lawrence University, a corporation, indorsee of the plaintiff, April 12, 1899, commenced an action against Smith and Goodrich in the circuit court on two of the notes mentioned in the complaint, being the one payable in two years, and the one payable in three years. The decedent appeared and answered and thereafter, before the cause was reached for trial, it was discontinued.</p> <p>Upon the issues joined the cause was tried resulting in findings of fact as to the circumstances under which the alleged .guaranty was made in harmony with the complaint. Among ■other things the court found specifically, thus:</p> <p>When the transaction between plaintiff, Goodrich and Smith in regard to the stock was closed up, Smith and the plaintiff were represented by their respective attorneys. The guaranty, as signed, was submitted to such attorneys and approved by them. They and all of the parties interested then believed the guaranty to be sufficient to satisfy the statute of frauds. Plaintiff agreed to sell the 470 shares of stock to Goodrich upon the express condition that three of the $1,000 notes should be satisfactorily guarantied. The stock was transferred to Goodrich upon the faith of Smith’s promise to ■guaranty the payment of such three notes. It was agreed in writing between Smith and Goodrich that the stock should be assigned in trust to secure Smith against liability on account of his guaranty. He demanded that as a condition of becoming guarantor on the notes. In the year 1896, without any new consideration, Smith signed upon the back of the two-year note a guaranty good in form and duly waived demand for payment of such note, and protest for nonpayment.</p> <p>There were findings in harmony with the allegations of the answer as to the commencement of and termination of three actions in regard to the notes prior to the commencement of this action, and findings to the effect that before the commencement of this action plaintiff requested decedent to place.a valid guaranty upon the back of the notes, which he refused to do; that decedent died after the commencement of the action, and that the same was duly revived against his personal representative.</p> <p>As conclusions of law the court held that plaintiff was entitled to recover against decedent’s personal representative upon the note that was reguaranteed, but not upon the others.</p> <p>• Judgment was rendered accordingly from which plaintiff appealed.</p>

<p> Fire insurance: Standard policy: Additions to terms of policy: Electricity. </p> <p>The Wisconsin standard fire policy, which is also a statute, provides in sec. 1941 — 43, Stats. 1898, that the insurance company “does insure . . . against all direct loss or damage hy fire except as hereinafter provided.” Such policy and statute, in secs. 1941 — 47, 1941 — 49, contain certain exceptions to the liability of the insurer, including lightning, hut provide that liability for direct damage by lightning may be assumed “by specific agreement hereon.” Such policy and statute prohibit (sec. 1941 — 64) the making or attaching of any additional provision, agreement, condition, or clause as part of the policy, except, among other things, “printed or written forms of description and specification or schedules of the property covered by any particular policy, and any other matter necessary to clearly express all the facts and conditions of insurance on any particular risk (which facts and conditions shall in no case be inconsistent with or a waiver of any of the provisions or conditions of the standard policy herein provided for).” Held, that a clause, in addition to the clauses of the standard policy: “This insurance does not cover any loss or damage to property caused by electric current, whether artificial or natural,” cannot be added to such policy.</p>

<p>Appeal from an order of tbe circuit court for Waupaca •county: Chas. M. Webb, Circuit Judge.</p> <p>Tbe substance of tbe complaint was as follows:</p> <p>July 21, 1903, defendant William Meyer, as principal, .-and Andrew as surety, executed and delivered to tbe plaintiff ■an instrument in tbe following form:</p> <p>“Whereas, William Meyer, of tbe county of Waupaca, ’State of Wisconsin, has been arrested and charged with seduction and bastardy upon one Gertrude Meyer, of tbe county of Waupaca, State of Wisconsin, committed on tbe 27th day of November, A. D. 1902.</p> <p>“And whereas, in consideration of tbe withdrawal and abandonment of said proceedings, said William Meyer, for Eimself, bis heirs, executors and assigns, hereby consents and •agrees to marry said Gertrude Meyer, and support her, and any family they may have, for a period of four years, commencing from tbe date hereof;</p> <p>“And said William Meyer, bis heirs, executors and assigns, ■as principal, and Andrew Meyer for himself, bis heirs, executors and assigns, as surety, do, jointly and severally agree to ■support and care of said Gertrude Meyer during tbe said period of four years from date;</p> <p>“And in case of tbe failure of said William Meyer, as principal, and Andrew Meyer, surety, to support said Gertrude Meyer, and tbe said family, they, each and severally, hereby agree to pay to tbe county judge of Waupaca County, aforesaid, tbe sum of Five Hundred Dollars, or so much thereof as may be necessary to be used for tbe support of said Gertrude Meyer and said family, during tbe balance of said period of four years.</p> <p>“Tbe support of tbe said Gertrude Meyer, and tbe amount to be paid her, if tbe same cannot be agreed upon by tbe parties hereto, shall he determined hy the aforesaid county judge, mid shall he furnished and paid in the manner and way he may designate, but not to exceed tbe sum of One Hundred and Twenty-five Dollars in any one year, except the first, which shall be determined by said county judge, if need be, said payments to be made in cash installments, monthly, unless said Gertrude Meyer and William Meyer shall live together as husband and wife.</p> <p>“In witness •whereof, the said William Meyer, principal,, and A ndrew Meyer, surety, have hereunto' set their hands and seals this 21st day of Jnly, A. D. 1903.</p> <p>“William Meyer, Principal.</p> <p>“Andrew Meyer, Surety.</p> <p>“Gertrude Meyer. ■</p> <p>“In presence of</p> <p>“Llewellyn Cole,</p> <p>“Conrad Meyer.”</p> <p>The defendant William Meyer has failed to comply with the provisions of such instrument, in that he has refused to support plaintiff Gertrude Meyer and her child, otherwise-than hy payment to her of $10 July 28, 1903, on which date said defendant abandoned the plaintiff and since which time he has not visited her nor in any manner contributed to her support or the support of her child. Said defendant Andrew Meyer has failed to comply with the conditions of such instrument and refused to do so, otherwise than hy the payment to plaintiff of $15 October 1, 1903, and $10 November 20,. 1903.</p> <p>August 19, 1903, a child was horn to plaintiff and said William Meyer. She has incurred expenses necessary to the support of herself and child since the making of the said instrument, to the amount of $100. She has exhausted all her means in earing for herself and child and is now unable to work and support either herself or the child. She has repeatedly requested defendants to comply with the conditions-of the aforesaid agreement, but they have neglected and refused to do so, except as aforesaid. By reason of the breach of said agreement on the part of defendants, plaintiff has sustained damages to the amount of $500. She demands judgment requiring defendants to pay to the county judge of Waupaca county, Wisconsin, $500, to be used for the support of herself and her child, according to the terms of said agree1 ment, and judgment for costs and disbursements in this action, and such other and further relief as may be just.</p> <p>Defendant demurred on three grounds, viz.: 1. Want of legal capacity to sue. 2. A defect of parties plaintiff, in that if there be a cause of action npon the instrument described in the complaint, it is in 'favor of the county judge of Waupaca county, Wisconsin. 3. For failure to state facts sufficient to ■constitute cause of action.</p> <p>1 The demurrer was overruled generally with leave to answer within thirty days on payment of $10 costs. Defendant Andrew Meyer appealed.</p>

<p>Railroads: Underground farm crossings: Statutes: Mandamus.</p> <p>1. Under sec. 1810, Stats. 1898, requiring railroads to “erect and maintain . . . suitable and convenient farm crossings of the road for the use of the occupants of the lands adjoining,” the suitability and convenience is to he considered with due reference to the inconvenience and expense to the railroad company, including the possible ’ interruption of trains, the weakening of its tracks, and the increase of the hazard of accidents.</p> <p>2. Under said section, under-crossings may, in some cases, be required of a railroad as essential to the convenience of the occupants of the land.</p> <p>3. Under mandamus to compel a railroad company to maintain and keep open an already existing farm crossing for cattle under its tracks, the evidence, stated in the opinion, is held to sustain findings that the maintenance of such under-crossing, adequate for relator’s cattle, was essential to his occupancy and operation of his farm; that the existing under-crossing was suitable and convenient in the sense of the statute, giving all due regard to the inconvenience and expense thereby imposed on the railroad company, and that it was located in the proper place, whether the owner’s interest or the company’s be considered.</p> <p>4. The duty of a railroad company to construct and maintain such crossings as the court shall determine to be suitable and convenient is a clear legal duty, imposed by express statute, and may be enforced by mandamus.</p>

<p>Appeal from a judgment of tlie circuit court for Sauk county: R. G. Siebkckeb, Circuit Judge.</p> <p>This is an action in equity to compel the removal of obstructions upon an alleged public highway in the village of Morrimac, and to enjoin any future obstruction thereof. The-answer'denies-tho existence of the'alleged highway, and claims title by adverse possession. River street, in tho village of Merrimac, runs nearly north and south, and the disputed parcel of land is a strip fifty feet wide, running at right angles with River street, and extending west therefrom to Second street, which runs parallel with River street. The-plaintiff .admittedly owns the land adjoining this strip upon the south and fronting upon River street, and has a bam upon, her property fronting on the strip. The defendant admittedly owns the parcel of land adjoining the strip upon the-north, and. fronting on River street, and claims also to own the strip itself. The evidence showed that in 1858 one Flan-ders owned a large tract of land, including the lands of plaintiff and defendant as well as the strip in question, and on the 25th of June of that year deeded a large parcel thereof, including the properties of the plaintiff and defendant, to' one Butterfield, the deed containing the following clause:</p> <p>“Reserving fifty feet in width commencing at the center of ■said land on River street, and running south seventy-two and -one half (72-g) degrees west to the westerly line of said land; also reserving fifty feet in width commencing near the center ■of the northern line of said land -and running south eighteen and one half (18¿) degrees west through said land, -and extending and continuing to Main street, so-called, said reserved land to be and is hereby appropriated for a public highway, and to be used for no other public purposes whatsoever.”</p> <p>It appears further that a mistake was made in said clause 'by using the word “south” instead of “north” where the word '“south” first occurs in the clause, and that in the year 1876 an action in equity was brought by Flanders against Butter-field and another to correct the description of said reservation, which action resulted in a judgment, in the same year, correcting said description by inserting the word “north” instead of the word “south,” so that it correctly describes the strip in question, and further adjudging that the defendants loe enjoined from obstructing the strip; that subsequently the ■plaintiff acquired title to her present premises on the south side of the strip, and built her barn; that title to the land on the north side of the strip was subsequently conveyed to the defendant; that in 1880 Flanders quitclaimed to one Qpiinby “the lands reserved for streets” in the deed from Flanders to Butterfield; and that by subsequent deeds, containing the same description, said strip was conveyed from Quimby to 'Shepard in 1885, from Shepard to Barrow in 1891, and, that in 1901 Barrow and wife conveyed by warranty deed to the defendant and wife the parcel upon the north side of the strip, as well as the strip itself.- The principal question of fact in the case was as to whether the alleged street had been accepted by the public as a highway, either by general user or by the expenditure of public moneys thereon, or both; and upon this question the testimony was very conflicting, there being testimony tending to show both user and working,, and also testimony tending to show that it had never been opened to the public for any considerable length of time, and that any user by the public was permissive, and very slight. The court found, among other things, as follows:</p> <p>“That said street so dedicated has been used by the public to some extent, particularly for foot travel, although for a large portion of the time the west .end was fenced across, and such travel was through a gate or bars. That the plaintiff has made-use of said strip or street as and for an approach to her bam, and as a means and way of gaining access to her said bam and her premises. That said strip or street was at times fenced in in part, and used for garden and agricultural purposes by one Shepard, who claimed to be «the owner thereof; and that said Shepard built or dug a well several years ago upon said strip or street under the same claim of ownership. That the right and interest of the plaintiff in the public easement in said street and in having the same opened and kept open as a street and as a way and approach to her bam and premises is different from and in addition to the right of the general public, and is special and peculiar to her as the owner of the property described in her complaint, adjacent thereto. That all the material facts stated and set forth in the complaint are proven and true, and that the allegations of the answer inconsistent therewith are unproven and are not true.. And as conclusions of law the court finds: That there is nothing in-the fact that said Shepard constructed said well upon or in said street, or in the fact that said street had been fenced in and used for garden or agricultural purposes, and nothing in the proofs or the facts shown upon the trial which estops the public or said plaintiff from asserting the public right to said strip of land as so dedicated to public use as a street. That the rights of the public and of said plaintiff in and to said street, and to have the same opened and cleared of obstructions, have not been lost by abandonment, nonuser, or in any other manner. That the plaintiff is entitled to judgment, and to tire relief demanded in the complaint.”</p> <p>Judgment was rendered for the plaintiff on these findings, and the defendant. appeals.</p>

Rat Stevehs, Circuit Judge. Action to recover damages for false imprisonment and malicious prosecution. The evidence tended to show these circumstances : Appellant for some time prior to the occurrence complained of had been accustomed to put out traps along the Wisconsin river for the purpose of catching fur-bearing animals. Occasionally he lost one or more traps in a manner indicating that the taker had appropriated the same with whatever animals were therein.

Atteal from a judgment of the circuit court' for Sauk county: E. Rat Stevens, Circuit Judge.: Some time prior to April, 1903, plaintiff witbdirew from, partnership with the defendant in a newspaper and printing, business, leaving in the latter’s hands a considerable amount ■of current ledger accounts, subject to offset and uncertainty .■as to collectibility, and also about $228 of so-called directory ■accounts, due for advertisements to be inserted in a directory which the…

Rat Stevens, Circuit Judge. This is an action to recover damages for cutting wood from an island in the Wisconsin river. The plaintiff is the owner of the fractional northeast quarter of the southwest quarter of section 24, township 8 north, range 3 east, which is designated as lot 3. This land lies adjoining and borders on .the Wisconsin river. On the bed of the river, bordering on plaintiff’s land, is an island, which extends to the west.

<p>Appeal from a judgment 'of tbe circuit court for Columbia county: E. Ray SteveNs, Circuit Judge.</p> <p>This is an action to recover damages for an assault and battery by wbicb tbe plaintiff’s arm was broken. Tbe answer alleged tbat at tbe time of tbe alleged assault tbe defendant was commissioner of highways, and tbat while engaged in bis official duties the plaintiff assaulted him, and while lawfully defending himself -from such assault be bad a personal encounter with tbe plaintiff, but tbat tbe defendant acted only in lawful self-defense, and used no more force than, under the circumstances, was necessary, and that, if the plaintiff’s arm was broken, it was not through any wrongful act of the defendant, hut by the wrongful acts of the plaintiff himself. The evidence shows that on the 3d of July, 1903, the parties were working on the highway (the defendant being superintendent of highways, and the plaintiff working under him), and that the plaintiff was handling an ordinary scraper, the horses attached to the scraper being driven by a third person; that the defendant was not satisfied with the manner in which the plaintiff handled the scraper, and an altercation arose between them, which resulted in a personal encounter. The plaintiff’s testimony tended to show that he retained possession of the scraper, and the defendant attempted to take the scraper away from him, and struck his arm in the attempt, by which the arm was broken. The defendant’s testimony tended to show that during the altercation the scraper came to a standstill, and that he then discharged the plaintiff from the work, and the plaintiff stood up and let go of the scraper; that thereupon the defendant took hold of both handles of the scraper, and the plaintiff then tried to take it away from him, and he (defendant) struck the plaintiff’s arm in defending his possession of the scraper. There was a verdict and judgment for the defendant, and the plaintiff appeals.</p>

<p>Life insurance: Assessment associations: Statutes: Impairment of contract obligations: Glassification of members: Change to stipulated premium: Rights of assessment members: Findings:. Proof of loss: M.aturity of policy: Equity: Interest.</p> <p>1. An assessment insurance association, assignor of defendant, entered into an agreement with plaintiff that, if he paid the specified assessments as called for up to January, 1902, it would pay him the amount of $2,000, provided eighty per cent, of an assessment, at the specified rates, on all its members, would produce that amount. Oh. 270, Laws of 1899, empowered corporations, like defendant’s assignor, to exercise an election to thereafter make contracts to accept from their members, as the price-of their insurance, a stipulated sum at fixed periods instead of' fixed sums at indefinite periods, as assessments might become-necessary. Sec. 4, of said ch. 270, declared that the adoption of the privileges offered should in -no way annul, modify or change any existing contracts or liabilities of such existing corporations, and that any and all such existing contracts and' liabilities should continue in full force and effect the same as though such corporation had not reincorporated or qualified under that act. Defendant’s assignor took the steps necessary .to authorize it to do business under the provisions of ch. 270, and thereafter received no new members upon an agreement to-pay assessments, hut solely upon an agreement to pay a stipulated premium. Thereupon it induced a large number of its old' members, holding assessment certificates, to surrender them and take out membership upon a basis of a stipulated premium, giving them as an advantage the rate of premium based upon their age at the .time of originally becoming members. After-wards defendant, by contract with its assignor, reinsured all of its insurance outstanding, took over all its assets and members- and assumed its liabilities. Plaintiff never surrendered his original assessment certificate but performed all his part of that contract. Held:</p> <p>(1) No impairment of plaintiff’s contract was intended by ch. 270. ' ’</p> <p>(2) Under ch. 270, as applied to pre-existing assessment contracts, there was no authority to make a classification of members, so that the moneys derived from those existing before the act were alone' applicable to the insurance contracts held by them, while the moneys collected from members entering afterward must be exclusively devoted to their insurance.</p> <p>(3) By taking the stipulated premium from its new members, the corporation must he held to have commuted and collected from them in advance their assessments to meet plaintiff’s policy.</p> <p>2. A finding of fact on any question is conclusive where no exception is reserved thereto.</p> <p>3. Plaintiff’s certificate in an assessment insurance association was not payable until sixty days after proof of loss. Within twenty days after maturity of the certificate, plaintiff commenced an action in equity to compel reinstatement of plaintiff’s insurance notwithstanding a forfeiture declared, by defendant, and such reinstatement was adjudged. Held, that it was entirely proper for a court of equity, having obtained jurisdiction over the parties and the controversy, to proceed to enter a money judgment on the reinstated insurance, it having matured before trial.</p> <p>4. In such case, it not appearing when the proofs of loss would have been made but for defendant’s repudiation of plaintiff’s rights, the court adopts the date of service of the complaint as the time from which the sixty days should he computed, and allows interest from the later date.</p>

<p> Sales: When title passes: Instructions to jwy: Evidence. </p> <p>1. Whether or not title to a stock of goods sold has vested in the vendees must he ascertained from the terms of the agreement, if the phraseology employed clearly expresses it; hut if it cannot be so ascertained, then resort must be had to the conduct of the parties as explained by commonly accepted usages in dealing with the subject-matter.</p> <p>2. On the exchange of a stock of goods for lands, the written contract was not sufficiently explicit in its terms to declare the intention of the parties as to when title to the goods was to pass. In submitting this question to the jury, the court instructed them: “When anything is to be done by one who sells, or by the-mutual concurrence of both parties, for ascertaining the price of goods, as by weighing, testing, or measuring them, or there is something indicating an intention to postpone the transfer of the property until the fulfillment of any specific conditions, the performance of such conditions is presumed to be a condition precedent to the transfer of the title to the property, and in such case the title does not pass until such conditions have been performed.” Held, that such instruction was erroneous in that it amounted to a direction that, if any of the conditions enumerated in the instruction were found to exist, then it was conclusively presumed that title did not pass until the conditions had been performed.</p> <p>3. In such case, proof of such condition is received and submitted to ascertain whether the parties intended that title should pass when the agreement to sell was made, or at some subsequent stage of the transaction. Language in Smith v. Wisconsin T. Go. 114 Wis. 151, explained. *</p> <p>4. An instruction to the jury, in effect, that they must weigh and consider much, if not most, of the testimony that has been introduced, criticised, though field not so indefinite as to constitute grounds for reversal.</p>

<p>Appeal from a judgment of tbe circuit court for Dane •county: E. Ray SteveNS, Circuit Judge.</p> <p>Robert Sandon died April 7, 1902, leaving a will executed .May 14, 1894, which, was duly probated September 3, 1902. He left surviving his widow and two married daughters; ■also an adopted daugher named Hilen Victoria, who had been adopted by due legal procedure May 23, 1894. By his will, after making sundry 'special bequests to his wife and daughters, his grandchildren, and certain religious societies, he left the residue of his property to his wife, whom he appointed his executrix. The will made no mention of the adopted child, Mien. On application by said adopted child to the county court for her distributive share of the estate, the county court ruled that she was entitled to the same share of the estate as if the testator had died intestate. This judgment was confirmed by the circuit court, and the executrix appeals.</p> <p>To the point that under sec. 4024, Stats. 1898, adoption was equivalent to birth, within the meaning of the rule that marriage and birth of a child revokes a will, respondent cited Flannigan v. Howard, 200 Ill. 396, 65-N. E. 782; Butterfield v. Sawyer, 187 Ill. 598, 58 N. E. 602; Hilpire v. Glaude, 109 Iowa, 159, 80 N. W. 332; Bewail v. Roberts, 115 Mass. 262, 267; Buckley v. Frasier, 153 Mass. 525, 527; Warren v. Prescott, 84 Me. 483, 24 Atl. 948; Virgin v. Mar-wick, 97 Me. 578, 55 Atl. 520; Helms v. Elliott, 89 Tenn. 446, 14 S. W. 930; Bray v. Miles, 23 Ind. App. 432, 54 N. E. 446; Eckford v. Knox, 67 Tex. 200, 2 S. W. 372; Hart-well v. Tefft, 19 R. I. 644, 35 Atl. 882; In re Newman, 75 Oal. 213; Estate of Wardell, 57 Oal. 484, 491; Van Beck v. Thomsen, 60 N. Y. Supp. 1094, S. 0.167 N. Y. 601; Gray v. Holmes, 57 Kan. 217, 45 Pac. 596; Johnsons Appeal, 88 Pa. St. 346; Tirrell v. Bacon, 3 Ped. 62; Gofer v. Scroggins, 98 Ala. 342, 13 So. 115, 117; Power v. Hafley, 85 Ky. 671, 4 S. W. 683.</p>

<p>Appeals from judgments of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>Action to recover on five insurance policies. In March, 1902, Franlc W. Jacobs and Garrie J. Kitchell hy will of William Jacobs, deceased, became possessed of the title in fee of certain real estate in tbe city of, Milwaukee including • the building thereon. Joseph W. Robbins was the executor of such will. May 1, 1902, he procured of the defendant insurance companies policies of insurance on such building against loss by fire. Each of such policies ran to Joseph W. Robbins, executor of the estate of William Jacobs, deceased, and was in the statutory form of this state. September 26, 1902, Game J. Kitchell, by an instrument duly witnessed and acknowledged so as to entitle the same to be recorded conveyed the undivided one half of such property to Franlc W. Jacobs and said Joseph W. Robbins, as trustees. This language was used in such instrument as to the title conveyed and the nature of the trust:</p> <p>“Grant, bargain and sell to' the parties of the second part as joint tenants, and not as tenants in common, and to their heirs, assigns and successors in trust, for the term of two years from this date,” etc.; “to have and to hold the same as such joint tenants with all the privileges and appurtenances to the same building for the space of two years from this date, but in trust, nevertheless, for the following purpose only, that is to say: such trustees shall take possession of and hold, use and manage and control all my real estate herein described and any into which the same may be converted^ and shall rent, lease and let the same, pay for all repairs, assessments, and taxes and insurance, and all lawful charges, and pay over to me all net rents and profits therefrom monthly. They may also use any money and securities or means of'mine in their hands, for the purpose of improving my real property, . . . when so authorized in writing by both of us. Upon the joint authority and request in writing of the party of the first part, and Frank W. Jacobs duly signed by both . . . ‘ to sell and convey as well as to mortgage . . . said real estate. At the expiration of the said term of two years, or at my death prior to that time, or the death of either trustee, said trustee, or the survivor shall release and reconvey to me, or to such person or persons as I may by last will and testament designate and appoint, all their right, title and interest in such real estate, .... and in any event the right, title and interest and claim of such trustees, shall, either upon the expiration of said term of two years, or my death, or the death of either of them, absolutely cease and determine.”</p> <p>January 21, 1903, while the title to the property remained as indicated by such trust deed, the building thereon, insured as aforesaid, was wholly or partially destroyed by fire. Thereupon it was claimed that the interests of Frank W. Jacobs and Game J. Kitchell, whether that of the latter was held by herself or by the trustees under said trust deed, were covered by said policies. The total amount of the face of the insurance policies was $15,000. Such proceedings were duly taken as were necessary to1 fix the liability of said insurance companies under said policies, if they were liable in any event under the circumstances. There being a disagreement between the parties interested as to- the amount of the loss by due proceedings it was determined by arbitration to be $7,834.32. Plaintiff in due time commenced an action against each company to recover on the policy issued by it, the aggregate loss claimed being $9,949.47. The five actions were subsequently consolidated into one under sec. 2609a, Stats. 1898. The defendants answered severally alleging, among other things, the following: The policy1 insured against loss .by fire Joseph W. Ilobbins, as executor. He was not, either as executor or otherwise^ at the time of the issuance of the policy or thereafter, up to and inclusive of the happening of the fire, the unconditional sole owner of the building insured, and the ground upon which it stood, by reason whereof the condition of the policy was breached and it was rendered invalid under this condition thereof :</p> <p>“This entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void . . . if the interest of the insured be other than the unconditional and sole ownership, or if the subject of the insurance be a building on ground not owned by the insured in fee simple.”</p> <p>. The policy was als'o fatally breached as to1 such condition because the building was not on ground owned by the insured in fee simple, and because a material part thereof, to wit, the north twenty inches, as to the undivided one half, was owned in fee simple by parties other than those insured under tire policy. The making of the trust deed heretofore mentioned fatally breached this condition of the policy:</p> <p>“This entire policy, unless provided by agreement endorsed hereon or added hereto, shall be void, if any change other than by the death of the insured, takes place in the interest, title or possession of the subject of the insurance, except change of occupants, without increase of hazardj whether by legal process, or judgment, or. voluntary act of the insured, or otherwise.”</p> <p>January 6, 1903, the policy was duly assigned and title thereto transferred by the Dane county court to jFrank W. ■Jacobs and Carrie J. Kitchell, and was also assigned by said Carrie J. Kitchell, fatally breaching this condition of the policy:</p> <p>“This entire policy, unless otherwise "provided by agreement endorsed hereon, or added hereto, shall be void . . . if this policy be assigned before the loss.”</p> <p>The answer further pleaded the arbitration clause of the policy and appropriate proceedings thereunder whereby the loss upon the building was in due form, as alleged, determined by the arbitrators to be $'1,834.32.</p> <p>The trial resulted in a special verdict, as follows:</p> <p>(1) Under the designation “Joseph W. Eobbins, Executor,” the defendants, through their agents, at the time the policies were issued, understood that the interests of plaintiffs Kitchell and Jacobs in the property, were insured thereby.</p> <p>(2) The building was not wholly destroyed by fire.</p> <p>(3) The direct damage and loss to the building by fire was ■$Y,818.45.</p> <p>(4) The award by the arbitrators is valid.</p> <p>Thereupon sucia proceedings were duly taken tliat a separate judgment was rendered in plaintiffs favor against eacli defendant for its due proportion of such loss. The necessary-motions and objections were made, rulings taken thereon, and exceptions saved thereto to preserve for review the tidal . court’s decision adverted to in the opinion. Each defendant appealed. Plaintiffs appealed from the judgment in their favor against the New Hampshire Fire Insurance Company..</p>

This is an action to recover a balance due on a sale of cedar timber to the defendant corporation. It is alleged by the plaintiff that he sold and delivered to defendant forty-nine car loads of cedar timber at an agreed price of $3,556.51, and that there is due him the sum of $2,785.44, which defendant refuses to pay.

It appears from tbe record tbat December 15, 1903, the-plaintiff commenced tbis action against tbe defendant Richard Stern, and at tbe same time garnished tbe defendant Bates; tbat Bates, as sucb garnishee, answered to tbe effect tbat be, as sucb garnishee, was indebted to tbe defendant.

This is an action to foreclose a mechanic’s lien for building a dwelling bouse.

The plaintiff, for a cause of action, pleaded the following,, in effect: January 12, 1903, plaintiff owned lands in Outagamie county, Wisconsin (specifying the same) of the value of' $3,000, incumbered to the amount of $1,000. Defendant John M. Phillips then owned lands in the same county (specifying the same).

Action for trespass in wrongfully cutting timber on certain vacant and unoccupied land in Outagamie county. The answer and counterclaim set up, and the court finds, that plaintiff^ title is based on a tax deed issued in 1896 upon the sale •of 1893 for unpaid taxes of 1892. The property belonged to Adolph Johnson in his lifetime, who died in 1887, leaving Albert Johnson, a minor, his sole heir at law.

ArPEAT, from a judgment of tlie circuit court for Outa-gamie county: Johw Goodlabtd, Circuit Judge. Plaintiff, a corporation, brings this action to recover the •sum of $-170, rent due under a lease, and the sum of $125 for waste and injury to the premises held by the defendant Brill, as lessee.

This case was before this court on a former appeal, which is reported in 118 Wis. 614, 95 N. W. 957. The action is brought to recover damages for a personal injury which plaintiff claims to have sustained through, defendant’s negligence. It appears that plaintiff at the time in question was. riding on one of defendant’s street cars in the city of Mcn-asha, and that he fell off the ear while it was passing around a curve in the tracks, receiving some injuries.

0. Ludwig-, Judge. Action by stockholders of a corporation to enforce an alleged promoter’s liability. Held: no one being present but the said interested parties, when that which had theretofore been done as to acquiring the land was approved, and 562 shares of stock unsubscribed for was ordered set apart, to be known as “treasury stock” and sold at $34 cash per share, $2 per share to be allowed as a commission to persons placing the same.