Volume 128 — Wisconsin Reports

This action was brought to recover $1,000, loss under a Wisconsin standard fire insurance policy contract issued by defendant to plaintiff O. W. Woodard on a store building. There was attached to the policy a clause providing for payment to plaintiff Anna Ulwelling as her interest might appear. The insured, Woodard, and mortgagee, Ulwellvtvg, brought suit to recover on the policy, claiming a total loss.

<p>Appeal from a jiidgment of tbe circuit court for Milwaukee county: OeeeN T. Williams, Circuit Judge.</p> <p>Tbis is an appeal from a judgment of tbe circuit court for Milwaukee county awarding a peremptory writ of 'mandamus commanding tbe appellant to issue to respondent a diploma of graduation from tbe dental department of tbe Milwaukee Medical College. Tbe facts set up on petition for writ, so far as material, are substantially to tbe effect that tbe appellant Milwaukee Medical College is a corporation organized and existing under tbe laws of tbe state of Wisconsin and particularly cb. 86, Stats. 1898, and tbe acts amendatory thereto; that said corporation was organized, among other things, to conduct and maintain a medical college for the purpose of teaching medicine, surgery, and dentistry, with power to issue diplomas and confer degrees upon graduates of said college, and that said corporation has maintained and conducted a dental college; that the defendants Earles and Tlill are and were president and secretary during tbe times mentioned; that in 1902 tbe appellant MilwcmJcee Medical College represented and advertised that all persons received as students, who should complete tbe course prescribed for its dental department, should be entitled to and should receive a degree of doctor of dental surgery, and receive a diploma certifying that such attainments bad been achieved as entitled persons bolding such diplomas to enter upon tbe practice of dentistry in tbe state of Wisconsin, or elsewhere according to law, and that, upon receiving such diploma, students would thereupon be entitled to receive a license without further examination; that said appellant college gave out and advertised in tbe summer of 1902 that it was a member of tbe National Association of Dental Faculties and regulated in accordance with its rules, which rules provided for preliminary educational requirements beginning with tbe sessions of 1902 and 1903, which should be a certificate of entrance into tbe third year of a high school or its equivalent; that said appellant Milwau-hee Medical College gave out and advertised during the summer of 1902 that it subscribed to the rules governing the conduct of dental colleges in the state of Wisconsin adopted by the board of dental colleges, and that entrance requirements might be completed during the first year; that the diploma of appellant is of great pecuniary value and entitles the possessor 'to a license from the Wisconsin state board of dental examiners, and to the right to a lawful practice of a lucrative profession; that on October 3, 1902, in accordance with the re•quirements of admission, the petitioner matriculated as a regular student of the dental department and paid the matriculation fees required; that he expended time and money, paid his fees with the agreement and understanding that, upon completion of the full college course in compliance with 'the rules of the college and passing final examinations at the ■close of the college course, the appellant would give petitioner, and petitioner would receive from said corporation, a diploma ■conferring the degree of doctor of dental surgery; that since October 3, 1902, and up to and including the time of final examinations in May, 1905, petitioner was and continued to be a regular student and performed all the work for the full three years’ course and regularly and successfully passed all final examinations required and is legally entitled to receive a diploma from appellant, and has demanded the same, and •said appellant has refused and does, without reason or excuse, refuse to issue such diploma; that prior to October 4, 1902, one Hesse was special dental examiner, duly appointed by the board of dental examiners of the state of Wisconsin, and that between October 4 and 11, 1902, petitioner attended ex•aminations conducted by said Hesse, but subsequent thereto was informed that he had failed to pass said examinations, ■but, relying upon the representations made by the appellant, proceeded to complete his entrance requirements, and did thereafter during the first year of his attendance complete «aid requirements, and in December, 1902, January and April, 1903, made application to the college and to said Hesse for re-examination as to his qualifications, which requests were refused, and thereafter petitioner applied to the county superintendent of Green Lahe county, Wisconsin, and duly and satisfactorily passed examinations and on April 8, 1903, received from said superintendent a teacher’s second-grade certificate, which is equivalent to' the preliminary educational requirements of entrance under his contract at the time he matriculated; that said certificate was accepted by appellant as satisfactory evidence that he had duly completed his entrance requirements during the first year; that said petitioner was directed by appellant to present said certificate to said ITesse as state dental examiner, but said Hesse refused to consider or examine it; that before petitioner matriculated the appellant was a member of the National Association of Dental Faculties and conducted in accordance with its rules, and that under such rules it was the custom to allow students who might be deficient in entrance requirements to complete the same during the first year of attendance; that advertisements and representations made and contained in the catalogue of appellant college in the year 1902 and prior thereto were made and published with the knowledge, notice, and acquiescence of the board of dental examiners, and that with such knowledge said board licensed to the practice of dentistry in the state of Wisconsin students graduated from said Milwcm-hee Medical College who had, to the knowledge of said board and said college, completed their entrance examinations during the first year of attendance, and that said board of examiners at various times prior to October, 1902, and on the 15th of June, 1903, with knoAvledge of such facts recognized and declared said Milwcmhee Medical College a reputable dental college; that said appellant is a reputable dental college in the judgment of the board of dental examiners, and, upon presentation of diplomas and payment of fees, the regular graduates are duly licensed to practice dentistry in the state of Wisconsin, and that npon the issuance of a diploma of graduation and presentation thereof, together with the required fee, to the bo-ard of dental examiners, a license will he duly issued to petitioner; that all matters requiring the exercise of discretion upon the part of the appellant relative to granting such diploma have been passed upon and decided in favor of petitioner; that the relief sought does not call for the exercise of discretion, hut for the performance of a ministerial act.</p> <p>The return substantially admits the allegations of the petition, hut avers that on October 1, 1902, the defendants received notice from the state hoard of dental examiners that the rule or custom theretofore existing permitting students to make up any deficiencies in entrance qualifications during the succeeding twelve months was abrogated, and would no longer he recognized, and that at or about the time of the matriculation of said petitioner in the dental department of appellant college, or very soon thereafter, he was notified of such change of rule, and that he, nevertheless, insisted upon continuing in-said college and in pursuing said college course; that in March, 1905, defendants received notice from the state hoard of dental examiners that the petitioner, on account of his failure to comply with the rule relative to entrance qualifications,, should not he graduated and should not he granted a diploma, and that he should receive no credit for his first year’s work in said dental department of appellant college; that in refusing said diploma defendants have complied with and followed the requirements of the state hoard of dental examiners for the state of Wisconsin.</p> <p>The case was tried by the court and the facts found substantially as alleged in the petition and return, and judgment ordered against the appellant awarding a peremptory writ of mandamus, which was issued.</p>

<p>Municipal corporations: Vacation of streets and alleys: Title of abutting owners: Cul-de-sac: Compensation to protesting owners: Statutes: Milwaukee city charter.</p> <p>1 The owner of a lot bounded by a public street or alley within a recorded city or village plat takes title to the center of such street or alley, subject to the public easement.</p> <p>2. The mere fact that a portion of an alley is a cul-de-sac does not preclude it from being a public alley.</p> <p>3. Where a public street or alley has been legally established it can be vacated only by compliance with statutory requirements; and where a city charter gives the council power to vacate, but does not prescribe how that power shall be exercised, the provisions of secs. 904, 927, Stats. 1898, are to be followed.</p> <p>4. The Milwaukee city charter (authorizing the common council to vacate streets and alleys upon petition- of a specified number of freeholders and residents of the ward and upon the necessity therefor being established by the verdict of a jury, but not expressly requiring the consent of, or compensation to, abutting owners) does not give the common council power to vacate a public alley without compensation to the protesting owners of lots abutting thereon.</p>

<p> Divorce: Discontinuance: Terms: Payment of attorney’s fees, etc.: Amount: Excessive allowance: Referee’s report advisory only. </p> <p>1. Upon a motion by the plaintiff husband for discontinuance of a divorce action the court was not bound to discontinue it unconditionally, but might, as a condition, require plaintiff to pay the reasonable attorney’s fees and other expenses incurred by the wife in defense of the action, and also an unpaid balance of temporary alimony theretofore due to the wife under a previous order of the court.</p> <p>'2. The attorney’s fees which the husband should be required to pay for his wife in a divorce action are such only as will reasonably compensate the services performed in carrying on the litigation, in view of all the circumstances of the case, regardless of the number of attorneys employed; and in a case where numerous attorneys were unnecessarily employed and discharged by the wife without reason or excuse, an allowance of $474.50 is held excessive and is reduced to $250.</p> <p>'•3. The report of a referee as to the value of attorneys’ services for the wife in an action for divoi’ce was merely advisory, and, though there was no exception to such report, the court had full power to modify it and determine for itself the amount to be allowed.</p>

<p> Master and servant: Injury to servant: Failure to give warning of danger: Fellow-servants. </p> <p>1. The rule that the master’s duty to provide a reasonably safe • place for his servants to work in cannot be delegated to another has no application to a case where the place is not in- ■ hefently dangerous but is liable to be rendered unsafe, as by the sudden approach of a street car over which the master has no control.</p> <p>2. The foreman of laborers digging a trench in the street for a gas main is a fellow-servant with such laborers, so that the employer is not liable for an injury to one of the men caused by the foreman’s neglect to inform him that street cars were liable to pass or failure to station a watchman to give warning of their approach.</p>

W. BubNell, Circuit Judge. Tbe complaint alleges, in effect, tbat tbis action is brought against tbe city to recover damages sustained by tbe plaintiff wbile a resident of tbe city and in tbe employ of Kimberly & •Clark Company as a workman at tbe Badger Mills, so called, in said city, on tbe morning of July 5, 1904, at said city, by being set upon by a riotous mob, consisting of tbe six persons therein named and other persons unknown to tbe plaintiff; ■that such persons…

This is an action to recover damages for tbe death of tbe plaintiff’s intestate, wbieb occurred June 11, 1903, while be was in tbe employ of tbe defendant, by falling down an open mining shaft 100 feet deep.

<p>MaNdamus to JohN GoodlaNd, Judge of tbe Tenth Judicial Circuit.</p>

<p> Sales: Setting aside for fraud: Intention not to pay: Evidence: Question of law or of fact? Bills and notes: Action, tort or contract? </p> <p>1. A sale of property cannot be set aside as fraudulent because of tbe mere fact that the buyer, not being asked, did not disclose his insolvency. There must also have been an intention on his part not to pay.</p> <p>2. The situation and circumstances of the buyer may he shown and may justify an inference that he could have had no reasonable hope of ever being able to pay, but had, rather, a definite-purpose not to pay; but this inference is one of fact, not of' law, and a finding of the trial court thereon will not be disturbed unless clearly against the preponderance of the evidence.</p> <p>3. One who had applied to a bank for a loan, upon being informed that there were no available funds, suggested an exchange of paper and received from the bank the note of a third person,, giving in return his own note for a like amount. Held, that this was in effect a purchase of the third person’s note and a giving of his own note for the price, and was not a sale of his-own note to the bank so as to be within the reason of the rule-that when one selling a promissory note conceals the fact of' the maker’s insolvency the sale may be avoided.</p> <p>4. The complaint in an action by one bank against another alleged' that one L. had procured a note from plaintiff by fraud; that defendant had acquired the note without consideration and' with knowledge of the fraud, and had collected it and converted the proceeds to its own use; and that because of the-“fraud and conversion” plaintiff had suffered damage in the-amount of the note with interest. There having been no original contract relation between the parties, the action is held to-be one in tort.</p>

M. Webb, Circuit Judge, j \ Plaintiffs’ claim was this: Pebruary 13, 1904, defendants Keller and Klunt induced plaintiffs and defendants Heide-man and Pryse to purchase of the former a horse, agreeing to pay therefor $3,000, according to the terms of a joint and several nonnegotiable, sis per cent, interest, promissory note, dated Pebruary 12, 1904, which all of said persons, so induced, on the first mentioned day signed and delivered to said Keller and Klunt, in exchange…

M. Webb, Circuit Judge. Appeal from order overruling demurrer to complaint by the state of Wisconsin and Oharles F. Orane as plaintiffs, which alleges that defendant operates its railroad through the village of Weyauwega and’across a traveled street at grade, and that no gates are maintained; that defendant is indebted to the plaintiffs in the sum of $5,500 according to the provisions of secs. 1809,1819, Stats. 1898, by reason of having on eleven specified occasions, by its…

M. Webb, Circuit Judge. Action to recover damages upon the ground that defendant’s agents and servants cut and removed timber from the plaintiffs’ land, the northwest quarter of the northeast quarter of section 2, township 24, range 12, Waupaca county.

M. Webb, Circuit Judge. Plaintiff was a passenger on defendant’s train leaving Min-ocqua for the south between 4 and 4:15 p. m. January 13, 1902. At or near Hixon, a flag station with no buildings or platform, plaintiff was put off the train as result of a controversy as to nonpayment of fare, about three miles and a half from Minocqua.

<p>Arpead from an order of the circuit court for Wood county: Cha.s. M. Webb, Circuit Judge.</p> <p>This is a special proceeding under sections 1379 — 11 to 1379 — 39, Stats. 1898, and acts amendatory thereof. A petition for the organization and establishment of a drainage district was filed, and an order made by the court fixing' the time of Rearing. Thereafter and on August 8, 1904, three •commissioners were appointed, two of whom, it is admitted, were owners of lands within the boundaries of the proposed district. After due notice given, the commissioners presented their report to the court for approval and confirmation. The appellant appeared and remonstrated against the confirmation •of this report, and moved that the court order the proceedings for the confirmation of said report quashed and the report stricken from the files, for the reason that two of the commissioners were owners of land within the proposed district, and were, therefore, prejudiced. This motion was denied and an appeal taken from the order.</p> <p>To the point that the interested commissioners are disqualified under the •common law, they cited Gage v. Grajfam, 11 Mass. 181; Edwards v. Estell, 48 Oal. 194; Stevenson v. Bay Gity, 26 Mich. 44; Glute v. Barron, 2 Mich. 192; Dwight v. Blaclcmar, 2 Mich. 830, 57 Am. Dec. 130; Wills v. Abbey, 27 Tex. 202; In re Southern Boulevard, 3 Abb. Er. w. s. 447; Singletary v. Garter, 1 Bailey, 467, 21 Am. Dec. 480; Hunt v. Chicago, 60 Ill. 183; Welty, Assessments, sec. 297; Oconto Go. v. Hall, 47 Wis. 208; 19 Am. & Eng. Ency. of Law (1st ed.) 470, 471; 25 Am. & Eng. Ency. of Law (1st ed.) 555.</p>

<p> Fraud inducing contract: Election of remedies: Pleading: Opinions as to value: Evidence: Knowledge of falsity of representations. </p> <p>1. Where plaintiff was induced by fraud to accept a worthless note in payment for horses, his action upon such note, prosecuted to judgment and execution, was not the election of a remedy inconsistent with or barring a subsequent action against the wrongdoers for damages on account of^the fraud.</p> <p>2. A prayer for relief, in the later action, asking judgment for the value of the horses does not show an inconsistency with the former action, since, the note being worthless, the value of the horses is the measure of the loss caused by the fraud.</p> <p>'3. Ordinarily a farmer is competent to- give opinion evidence as to the value of such, horses as he owns.</p> <p>4. Findings by the jury, to the effect that defendants combined to defraud plaintiff and that representations by which he was induced to part with his property were made pursuant to such combination and were false, are held to be sustained by the evidence.</p> <p>1>. One who makes false representations of fact to induce another to enter into a contract whereby injury to the latter may result because of such falsity, is liable for the damages caused by his conduct, regardless of whether he knew, or in the exercise of ordinary care might have known, the truth of the matter.</p>

<p> Wills: Language not understood by testator: Formal execution: Presumption from certificate: Presence of testator: Undue influence: Presumption: Findings: Review: Costs on appeal. </p> <p>1. The fact that a will was written in a language which the testator did not understand does not render it invalid where, before executing it, he was accurately informed of its contents and meaning in a language which he did understand.</p> <p>2. When it is established that testator affixed his signature to the instrument and that the persons whose names appear as subscribing witnesses signed a certificate which declares all the steps required for due execution, there arises a strong presumption that such steps were taken; and such presumption need not be supported by affirmative memory of witnesses, but, to defeat the will, must be overcome by evidence to the , contrary.</p> <p>3. Such presumption is not overcome by evidence that, after the testator had expressed his desire to execute the instrument and he and the first witness had signed, the latter, within hearing of the testator, directed the second witness to sign, which she did in the same room, although the testator’s eyesight was so dim that he did not actually see the act of writing.</p> <p>4. Where the trial court found as a fact that the evidence did not show such a situation as would give rise to a presumption of undue influence so as to throw the burden upon the proponent to show that none was exerted, and there is nothing to indicate that the rule of law in respect thereto was ignored or misapplied, such finding will not be disturbed unless contrary to the clear preponderance of the evidence.</p> <p>5. Upon affirmance of a judgment of the circuit court which affirmed a decision of the county court admitting a will to probate, the respondent is awarded costs, it being held that the guardian ad litem of appellants should have been convinced by the concurring decisions of the lower courts that there was no such doubtful question or probability of a different result in this court as to make it his duty to appeal.</p>

<p> Real-estate brokers: Commissions: Evidence: Revocation of agreement: Delay: Abandonment of contract: Identity of purchaser. </p> <p>1. Evidence that, at the request of one who acted as agent between the seller and buyer of a farm, defendant had pointed out the-place to the buyer and that he afterwards drew the deed for the transfer, is not sufficient to warrant recovery of a commission on such sale by plaintiff under an agreement by which he was to receive a commission on sales made through defendant’s agency.</p> <p>2. An agreement by plaintiff to pay defendant a certain sum for furnishing a buyer for a certain farm was not revoked, after plaintiff had furnished the name of a probable buyer, by der fendant’s informing plaintiff that he would pay no commission unless the farm should sell for a certain price, — plaintiff not having assented to such modification of the agreement.</p> <p>3. The fact that, after plaintiff had furnished the name of a probable buyer, negotiations for the sale were protracted and delayed for some four months before it was consummated, did not show an abandonment of the agreement to pay a commission.</p> <p>4. Although the formal conveyance was to a third person, yet the evidence is held to show that the sale of a farm, negotiated by defendant, was to the person whose name, as a prohable buyer, was furnished by plaintiff.</p>

<p> insurance against fire: Oral contract: Evidence: Time for commencement of risk. </p> <p>1. A written application to an insurance company for a policy o‘f fire insurance, and a promise by the agent of the company to attend to the matter for the applicants, do not constitute a valid contract of insurance in prmsenti.</p> <p>'2. It is essential to a valid contract of insurance that the time of the commencement of the risk he agreed upon.</p> <p>3. A valid contract of insurance against fire may he made orally.</p>

<p>(1) Stare decisis. (2-8) Elections: “School matters:” Bight of women to vole: Who are “electors:” Bonding city for school house: Territory attached to city for school purposes: Bight of its electors to vote: Limitation of amount to he borrowed: Be-peal of statute.</p> <p>1. To overcome the rule of stare decisis and justify the overturning of a carefully considered decision of this court because of the discovery of a new argument not suggested when the decision was made, that argument should he of such convincing cogency as to compel belief not only that the decision was legally indefensible but that it would be palpably wrong to permit it to stand.</p> <p>2. The question whether women might (under ch. 211, Laws of 1885) vote at an election not involving the selection of officers but involving merely the decision of a question pertaining to school matters, was not decided in Brown v. Phillips, 71 Wis. 239, or Gilltey v. McKinley, 75 Wis. 543.</p> <p>3. An “election,” within the meaning of the statutes of this state, includes a referendum vote to decide a question of policy, as well as an ordinary election to choose between candidates for public office.</p> <p>4. An election to determine whether a city shall issue bonds for the purpose of building a school house is an "election pertaining to school matters” within the meaning of ch. 211, Laws of 1885.</p> <p>5. The word “electors” in sec. 943 (providing for submission to the electors of the question of issuing bonds) means the electors qualified by law to vote on any given proposition and therefore, in respect to an election pertaining to school matters, includes women, they being fully qualified constitutional electors at such an election.</p> <p>6. Ch. 288, Laws of 1893 (subd. 6, sec. 12, Stats. 1898), not having been submitted to the people, could not add to or subtract from the right of suffrage upon school matters given to women by ch. 211, Laws of 1885. All that the legislature could do, without such submission, was to provide the machinery for executing the law of 1885, as was done by ch. 285, Laws of 1901.</p> <p>7. Contiguous portions of a town having by statutes been attached to a city for school purposes in. order, merely, that the inhabitants of such territory might send their children to the city schools upon payment of their share of the expense of operating such schools, such inhabitants have no right to vote upon the question of bonding the city to build a school house.</p> <p>8. Sec. 926 — 11, Stats. 1898, giving to all cities operating under special charters the power to issue bonds for the erection of school buildings, operated to repeal ch. 295, P. & L. Laws of 1861, so far as that act limited the power of the city of Madison to borrow money and issue bonds for a high school.</p> <p>Mabshael and KeewiN, JJ., dissent.</p>

<p> Evidence: Mental conclusion: Appeal: Exceptions: Contracts: Meeting of minds. </p> <p>1. The question being whether defendant had agreed to pay plaintiff a commission for procuring a purchaser for certain land, it was error to permit the purchaser, as a witness, to give his mental conclusion as to plaintiff’s relation to the sale.</p> <p>2. A general exception to the refusal to give several requested instructions is not available if any of such instructions were incorrect.</p> <p>3. To warrant a jury in finding the existence of an oral contract the evidence must show that the minds of the parties met on the same proposition, but it is not necessary that they should have met “on express words clearly expressed.”</p>

Action to recover on a guaranty. Plaintiff sold a heating plant to Ed. LaLonde & Son, to be placed in a building belonging to the defendant, who in writing guaranteed payment therefor to the extent of $475, in this form: “United States Heater Company, Chicago, Ill.: “I hereby guaranty to you payment for the No. 626 Capital steam boiler, also radiators and other heating supplies to be placed in my building at Antigo, Wis., by Ed. LaLonde & Son, of Antigo, Wis., and in…

<p>Appeax from an order of the circuit court for Shawano county: John Goodxasto, Circuit Jndge.</p> <p>Appellant having purchased certain real estate from one Euller in 1901, the plaintiff in May, 1905, caused to be issued and levied thereon an execution under a judgment of a justice of the peace entered March 3, 1900, transcript whereof was docketed in circuit court May 29, 1900, but of which appellant had no actual knowledge at the time of purchasing the land. Appellant thereupon moved, upon notice, for an order striking said transcript and all entries relating thereto from the files of the circuit court, and for such other relief as might be equitable, and procured temporary restraint of proceedings under the execution until further order. The motion was based upon alleged want of jurisdiction in the justice of the peace to render the judgment appearing by the justice’s docket, which stated the issue of the summons Eebruary 13, 1900; “summons duly served, returned, and filed February 24, 1900; case called, and on motion of defendant adjourned until March 3, 1900, at 2 o’clock,” at the justice’s office in Shawano. March 3d: “Case called. Plaintiff present by H. 0. Drier, his attorney, who filed written complaint showing an indebtedness of $90, besides the interest to the amount of $6.30, of which no part has been paid. Court waited one hour. Defendant did not appear. It is therefore ordered and adjudged that the plaintiff shall have and recover of the defendant the sum of $96.30, principal and interest, besides the costs,” etc.</p> <p>After hearing, and upon further affidavits, order was entered denying such motion, from which said Bedford appeals..</p>

Appeals from a judgment o-f the circuit court for Sha-wano county: John Goodland, Circuit Judge. This action was brought by the plaintiff to restrain the defendant from passing over and removing barriers from lands owned by plaintiff and described as follows: The northwest quarter of the southwest quarter of section 1, township 28 north, of range 12 east, Shawano county, Wisconsin.

Action in equity to quiet plaintiff’s-title to the southeast quarter of section 10, township 83, range 13. The land, now in Langlade county, was formerly included in Oconto, and thereafter in Shawano, county.

Eesoe to review a judgment of tbe circuit court for Monroe county: J. J. Fruit, Circuit Judge. Tbe plaintiff in error, hereafter called tbe defendant, was convicted before tbe circuit court for Monroe county of having murdered his wife, Blanche Montgomery, on the 30th day of May, 1903, and prosecutes this writ of error to reverse the judgment.

Repoeted from tbe circuit court for Milwaukee county:: OeeeN T. Williams, Circuit Judge.

Ereob to review a judgment of the circuit court for Milwaukee county: Warbek D. TaeeaNt, Circuit Judge. The plaintiff in' error, hereinafter referred to as the defendant, was indicted, being charged with the offense of having solicited a bribe, tried before a jury in circuit court, and found guilty.

TaeeaNt, Circuit Judge. This action is brought to recover the value of property destroyed by fire and which is claimed to have been covered by and included in the policies of insurance issued by the appellant and other instance companies. Between March 29 and' May 20, 1895, these insurance companies, pursuant to agreement, delivered to the Erie & Western Transportation Company their policies of insurance.

Appeals from a judgment of the circuit court for Milwaukee county: Warreh D. Tarrant, Circuit Judge. This is an action brought in the circuit court to- construe the will of Daniel Wells, Jr., who died March 18, 1902. The action is brought by the executors and trustees named in the will against all the legatees, many of whom are minors.

J. Eeuit, Circuit Judge. Action to recover damages for a personal injury which plaintiff alleges was caused by defendant’s negligence. It is-alleged that plaintiff was injured on November 14, 1888, on a street crossing in the city of La Crosse over which defendant maintained several railroad tracks on its right of way. Plaintiff was about five years and eight months of age when he was injured. He commenced this action in March, 1904.

Bat Stevens, Circuit Judge. Since 1892 or 1893 the defendant Marshfield Water, Electric Light & Power Company, hereinafter called the “Company,” has maintained in the city of Marshfield waterworks- and lighting plant under an ordinance, contract, or franchise which provided, among other things, for the payment of hydrant rental in the sum of at least $4,000 per annum, which,, at the date of the transactions hereinafter referred to, had. been increased by additions to $5,080.

J. Yihje, Circuit Judge. Action to recover on a claimed statutory liability. The complaint is to this effect: Plaintiff, during the occurrences giving rise to its claim, was a village corporation,, located within the boundary of the defendant, a duly organized town.

J. ViNJE, Circuit Judge. Action to recover upon the official bond of defendant Lee as treasurer of the town of Washburn for the year April, 1902, to April, 1903, the other defendants being sureties upon' that bond.

order of the circuit court for Chippewa coupty: A. J. Viwje, Circuit Judge.

J. Viwje, Circuit Judge. This action was brought by a taxpayer of the village of Fairchild in Eau Claire county, on behalf of himself and other taxpayers, to restrain the clerk from carrying out upon the roll for 1901 two sums of money which he had been directed. to levy upon the property of the village in pursuance of two certificates filed with the county clerk by the commissioners of equalization acting under secs. 1077a¡ and 10776, Stats'. 1898. • .

This is an appeal from a judgment in favor of the plaintiff for the sum of $34.30. The claim set up in the complaint is for money had and received on account of money paid to the defendants for goods which were returned. The defendants answered denying generally the allegations of the complaint, and feet up three several counterclaims amounting in the aggregate to $139.64.

J. .Vinje, Oircuit Judge. This is an action to recover the balance of the purchase price of a quantity of hardwood logs sold by the plaintiff to the defendant. The complaint alleges.the delivery of 255,017 feet of logs at the agreed price of $12 per -thousand; admits the payment of $2,057.31; and prays judgment for a balance of $1,002.89.

J. ViNje, Circuit Judge. Action to recover on a policy of life insurance. The complaint contained a statement of facts necessary to recover on a $1,000 policy issued by the defendant on the life of Thomas Bertram Leonard, for the benefit of the plaintiff. These facts, among others, were alleged: The policy was issued July 8, 1902. The annual agreed payment was $26.55. It was required to be paid on the 8th day of July in each year till the contract matured.

J. Vinje, Circuit Judge. Action by plaintiff to recover for tlie death, of her husband, caused by alleged negligence of the defendant. Decedent was a section band employed by defendant and bad bad several months’ experience in that employment.

circuit court for Nock ■county: B. E. DuNwiddie, Circuit Judge. This is an appeal from a judgment of tbe Nock county circuit court affirming tbe judgment of tbe county court, wbicb denied probate to tbe writing propounded as tbe will of Herman Muellenschlader, deceased. It appears tbat tbe deceased resided in Nock county at tbe time of bis death and left an ■estate. Tbe writing now propounded as bis last will was submitted for probate to tbe county court.

This action 'was brought by tbe plaintiff, a corporation, against tbe defendants, Adolph Stallmann and Louis Stall-mann, copartners, to recover tbe price of goods alleged to have been sold under a contract made on or about tbe 15th day of June, 1902. Tbe complaint alleges tbe performance of conditions on tbe part of tbe plaintiff and failure to perform on tbe part of tbe defendants, and asks damages on account of such breach.

E. Dunwiddie, Circuit Judge. This action was commenced in justice’s court, and from the judgment in favor of the plaintiffs therein the defendant appealed to the circuit court.

This is an action to recover for personal injuries. The plaintiff’s evidence tended to show that on September 30, 1904, at a little after 6 o’clock p. m., he was riding south on Third street in the city of Watertown in a milk wagon drawn by one horse driven by himself; that two other men sat on the same seat with him; and that as he arrived near the intersection of Milwaukee street an automobile, driven by the defendant, approached, going north at a speed of about ten miles…

F. DuNwiddie, Circuit Judge. Action for a partition.of certain real estate beld by title referable to tbe will of P. M. Pierce, deceased. Mr. Pierce died testate. Plis will was duly admitted to probate, defendant Edward F. Hansen being appointed executor. In due course tbe administration of tbe estate, except settlement of tbe executor’s account and tbe entry of a final order, was completed.

E. Durtwiddie, Circuit Judge. The complaint alleges leasing by plaintiff to defendant of a certain stone crusher on November 4, 1902, upon an agreement by the latter to pay for its use $4 per day and to keep same in good repair, and that defendant used said machine until a certain date in May, when, on examination, it was found to be in very serious disrepair, dangerous to its existence if used, and protest was made against its further use, whereupon defendant agreed that,…

<p> Railroads: negligence: Injury to passenger while alighting: Sudden jerking of train: Pleading: Variance: Amendment to conform to proof: Verdict for plaintiff contrary to his evidence. </p> <p>1. In an action against a railway company for injuries sustained by a passenger the complaint alleged that after defendant’s servants had announced the arrival of the train at her station, and after - it had come to a standstill, plaintiff arose from her seat and proceeded forward for the purpose of alighting, but before she had had a reasonable time to get off the train it was negligently and violently started and jerked, whereby plaintiff was thrown •to the floor and injured. Held, that this allegation was broad enough to cover negligent management of the train in suddenly and violently starting it up while plaintiff was in the course of alighting, whether such starting was immediately before or immediately after the train came to a stop; and defendant having fully litigated such issue, and the jury having found that though the train, was not started and jei’ked after it came to a stop, yet defendant’s negligence in bringing the train to a stop was the proximate cause of the injury, plaintiff was entitled to judgment on the verdict.</p> <p>2. If an amendment of the complaint were necessary, in such case, to' make it conform to the proof and finding, it should have been permitted, all material questions having been fully tried and defendant not having been misled by the allegation of the complaint.</p> <p>3. The fact that a verdict is contrary to a part of the evidence of plaintiff and his witnesses does not preclude a recovery by him thereon if it is supported by the evidence in the case.</p>

<p> Wills: Election by mdow: Bight to share in residue. </p> <p>Under secs. 2171, 2172, and suhd. 6, sec. 3935, Stats. 1898, unless a widow renounces the provision made for her in her husband’s will she is not entitled to share in any residue of his estate not disposed of by the will. Hardy v. Scales, 54 Wis. 452, followed.</p>

<p>Appeal from a judgment of the county court of Dodge county: J. A. BaeNet, Judge.</p> <p>This is an action to recover $200 and interest from June 28, 1903, alleged to be due from the defendants to the plaintiff upon a promissory note executed by the defendants June 28, 1902, wherein and whereby they, for value received, promised to pay to the plaintiff or bearer, one-year after date, $200 with interest, no part of which note has been paid except the interest to June 28, 1903. The defendant KvJeuk answered and admitted the making of the note and its contents as alleged in the complaint, and that nothing was paid thereon except the interest to June 28, 1903, and alleged as a defense, in effect, that he signed the note without consideration and for the accommodation of Marcus Sterr, all of which the plaintiff then and there well knew; that before the maturity of the note the plaintiff, for a valuable consideration and without his knowledge or consent, made a valid and binding agreement with Sterr extending the time for the payment of said note for one year from the date of its maturity and to June 28, 1904, whereby he was released from liability.</p> <p>A jury having been waived, the court at the close of the trial found as matters of fact, in effect, that the note was executed at the time and for the amount stated in the complaint and was owned by the plaintiff, and that nothing had been paid thereon except the interest to June 28, 1903, and the balance of said 'findings of fact are as follows:</p> <p>“That while said defendant, Fred Kulculc, in form signed said note as one of the makers thereof, he signed the same, as a matter of fact, without any consideration whatever and for the accommodation of and as surety for said defendant, Marcus Sterr, all of which said plaintiff then and there well knew. That before the time of the maturity of said note and on the 20th day of June, 1903, said plaintiff, for a valuable consideration and without the knowledge or assent of said defendant, Fred Kulculc, made a valid and binding agreement with said defendant, Marcus Sterr, whereby they agreed to and did extend the time for the payment of said note for one year from the date it by its terms matured and to the 28th day of June, 1904.”</p> <p>As conclusions of law the court found, in effect, that the defendant Kulculc is entitled to have judgment dismissing the complaint herein and for his costs and disbursements in this action, and ordered judgment to be entered accordingly. From the judgment so entered the plaintiff appeals.</p> <p>They argued, among other things, that the mere fact that the interest was paid at the time that the promise was made to extend the time of the note is not sufficient to constitute it the consideration for the .promise. It must be shown, that, such payment in advance was actually the consideration for the promise of the creditor to extend the time. English v. Landon, 181 Ill. 614, 54 1ST. E. 911; Farming’v. Murphy,,>126 Wis. 538, 105 1ST. W. 1056.</p>

<p> Mortgages: Deed absolute in form: Wrongful conveyance to third person: Equity: Adequate remedy at law. </p> <p>1. The fact that a deed absolute in form is in legal effect a mortgage may he shown in an action at law.</p> <p>2. Where the grantee in a deed absolute in form but in legal effect a mortgage wrongfully conveyed the land to a third person for a sum greater than the mortgage debt, the mortgagor, ac- ' quiescing in such sale, may recover the excess from the mortgagee in an action for money had and received. No accounting is necessary and, the remedy at law being adequate and complete, an equitable action will not lie.</p>

<p> Justices’ courts: Pleading: Amendment: Variance: Judgment. </p> <p>At the close of the trial of an action on contract in justice’s court the justice properly refused to permit the complaint to he amended so as to allege a different contract, evidence of which had been received against objection; hut it was error for him afterwards to render judgment for plaintiff, the evidence having, wholly failed to prove the contract as alleged.</p>

<p>"Wills: Construction: “Death without issue:” Nature of estate devised: Conditions: Legacy as a lien or charge: Guardians ad litem: Compensation.</p> <p>1. The rule that a devise to one with, limitation to others in case of his death, or death without issue, is ordinarily to be construed as referring to death during the lifetime of the testator, is one which yields readily to anything in words or context to indicate a different intention of the testator.</p> <p>■2. A will giving to the widow a life estate in all testator’s land gave after her death his farm (constituting nearly half his estate) to a son “upon the express condition” that he pay to a daughter of the testator $5,000 within one year after the death of the widow, said $5,000 being devised and bequeathed to the daughter as her share of the estate. It then provided that in case of the ■ death of said son. without issue all of the real estate should ga to the grandchildren of the testator who might he living at the time of the death of the said son, — it being stated to he the tes'tator’s desire that said real 'estate he kept and retained by persons of his own blood. Meld, that in speaking of the death, of the son without issue the testator referred to a death after his own as well as to one before; and that when the son took the farm after the .death of the widow he did not take an absolute fee therein. ■</p> <p>3. The provision of the will as to the payment of $5,000 to the testator’s daughter did not make the son’s estate in the farm an estate upon condition; but it gave to the daughter the right to a lien or charge for that amount upon the whole title to the farm, which she could enforce or transfer to any one other than the son.</p> <p>4. Under see. 2046, Stats. 1898, the death of .the son “without issue” must be construed to mean his death without issue then living.</p> <p>5. The compensation of a guardian ad litem for minors in an action for the construction of a will must be paid by his wards and not out of the estate of the testator generally, though it may be made a charge upon their interest in such estate.</p> <p>6. Where on appeal in such an action the guardian ad litem did not appear further than to join by signature in the brief for the respondents, including the executor, the amount of his compensa- ' tion will be left to the determination-of the court appointing him.</p>

Dick, Circuit Judge. After the filing, on a former appeal of the case (125 Wis. 311, 104 N. W. 94), of the remittitur from this court, the trial court permitted defendant to amend the answer, and reconsidered the evidence which was included in the bill of exceptions prepared for the former appeal, and which was offered upon the question of the amount to be deducted from plaintiff’s claim for his failure to furnish defendant a mixing table as prescribed by the specifications.

D. Hastings, Circuit Judge. It appears from the record and tbe trial court found, in effect, (1) that Thomas McLean died intestate, leaving no personal property, but leaving, among other real estate, lots 1, 8, 11, and 12 in Catherine McOole’s addition to Green Bay, subject to mortgage and tax liens for more than $2,000; that subsequently and on May 14, 1903, the appellant, John F. War iermolen, was duly appointed administrator of said estate and thereupon qualified as such;…

[Appeals from judgments of the circuit court for Dane county: E. Rat StbveNS, Circuit Judge. The purpose as to each of the four causes is to recover $10,000 as penalty under sec. 1214, Stats. 1898, for noncompliance with the law relating to payment to the state of the percentage of defendant’s gross earnings, due the state for 1903 under sec. 1213, Stats. 1898. The complaint by appropriate allegations stated a cause of action under such section.

D. Hastihu-s, Judge. Action to enjoin collection of taxes levied upon the property of the plaintiff for 1904 pursuant to ch. 315, Laws of 1903. The action was to test the validity of the law changing the method of requiring railway companies in this state to share with other property owners therein the burdens of its government from the indirect way to the ad valorem method.

TaRRANt, Circuit Judge. Appeal from an order dissolving a temporary injunction.