Volume 131 — Wisconsin Reports

<p>Appeal from a judgment of the circuit court for Bayfield county: John K. Paeisii, Circuit Judge.</p> <p>This is an action of ejectment brought by the plaintiff as the original owner in fee simple to recover possession of three lots described, unlawfully withheld by the defendant since May 1, 1905, to the plaintiff’s damage in the sum of $500. The defendant answered by way of a general denial and by way of counterclaim, alleging in effect that he has been in possession since April 28, 1905, holding adversely to the plaintiff and its grantors by title founded upon a certain tax deed duly issued to the defendant April 28, 1905, and recorded May 2, 1905, for the nonpayment of taxes of 1900 and tax sale of May 21, 1901; and prayed judgment dismissing the action, with costs, and that, if the plaintiff’s title ' is adjudged to be paramount, then that the defendant’s claim for taxes be tried and the amount assessed and adjudged to him, less any damages that may be awarded to the plaintiff. The plaintiff, replying to the counterclaim, alleges in effect that such.tax deed is illegal and void for several reasons therein particularly alleged, which are mentioned in the findings of the court.</p> <p>A trial by jury having been expressly waived by the parties and the cause tried upon the issues joined, the court at the close of the trial found as matters of. fact, in effect, (1) that all the allegations of the complaint are proven and true; (2) that the deed mentioned and described in defendant’s counterclaim is illegal and void for the following reasons : (a) That the return of the town treasurer for the year in which said taxes were levied and assessed is illegal and void, in that he failed and neglected to subscribe his name at the end thereof or annex the affidavit thereto, as required by law; (b) that the town treasurer for said year failed and neglected to compare the stub book receipts with the tax roll of said town for the said year, and to certify on such stub receipt book that he had made the comparisons as required by law; (c)' that the tax sale upon which said deed is based is illegal and void, in that the county treasurer sold the lands described in said deed for a greater sum than was due for taxes, interest, and charges; (d) that the county treasurer failed and neglected to file affidavit of the posting of the statement and notice of tax sale as required by law; (e) that said tax deed is illegal and void, in that no affidavit of the printer or foreman printer of the publication of the statement and notice of sale was ever made and filed, as required by law, for the year in which said lots were sold.</p> <p>As conclusions of law the court found, in effect, (1) that the plaintiff is the owner in fee simple of the premises described in the complaint and that he is entitled to the possession thereof; (2) that the tax deed described in the counterclaim is illegal and void; (3) that before the entry of judgment, and within thirty days, the plaintiff pay into court for the use of the defendant the amount for which said lands were sold, together with interest thereon at the rate of fifteen per cent, per annum from the date of the transfer from Bay-field county, together with all subsequent costs and charges, subject, however, to the right of the plaintiff to offset against said sums the amount of the costs and disbursements of this action. Judgment was ordered to be entered accordingly. Thereupon judgment was entered by the clerk, wherein it was adjudged that the plaintiff have and recover of the defendant, O. P. Swanby, the possession of the premises described in the complaint, and that the plaintiff also have and recover of the defendant the sum of $34.18, costs and disbursements, less the aforesaid sum of $14.84, to wit, the sum of $19.34. Erom that judgment the defendant appeals.</p>

<p>Appeau from a judgment of the circuit court for Bayfield countyr John K. Pakish, Circuit Judge.</p>

Parish, Circuit Judge. Action to recover on contract and to enforce a lien under sec. 8329, Stats. (1898).

<p>Appeal from a judgment of the circuit court for Bayfield county: John K. Rakish, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Vilas county: W. 0. SiLVERTHORif, Circuit Judge.</p> <p>This is an action brought by the grantor in a warranty deed to remove a cloud from the title of fifteen parcels of unoccupied land in Lincoln county, of which eleven parcels are forty-acre tracts and the balance fractional lots. Both parties claimed title under John Comstock, who acquired a valid title to the lands by tax deed on the sale of 1878, dated and recorded June 4, 1881. It appears that April 7, 1882, Corn-stock and wife executed a warranty deed of the lands in question, with twenty other descriptions, to Erank D. Harding, which deed recited a consideration of $4,100 and was recorded April 10, 1882. After making this deed Comstock took three other tax deeds — one in 1882 on the sale of 1879, one in 1883 on the sale of 1880, and one in 1884 on the sale of 1881, all of which were seasonably recorded. It further appears from the record in the register’s office that Comstock deeded this land- with a large number of other parcels to the Wisconsin River Land Company for a consideration recited of $15,000 by quitclaim deed dated February 18, 1885, and recorded December 17, 1885; that the Wisconsin River Land Company deeded the lands in question to the plaintiff for a consideration averaging $236.66 a description by warranty deed dated November 3, 1892, aiid recorded November 25, 1892.</p> <p>Thus the record title stood in February, 1902, when the Home Investment Company (defendant’s grantor) contracted 'in writing to convey to the defendant about 40,000 acres of unoccupied land for the uniform price of $2.50 an acre, abstracts to be furnished and deeds delivered within ninety days thereafter. Whether the lands in question were included in this contract is not certain. No deed from Frank D. Harding >or his heirs appeared in the records at this time, nor did the Home Investment Company have actual knowledge that any deed had been made by him; but it appears as matter of fact “that Harding and wife on the 28th of June, 1886, conveyed the lands in question with others (being the same lands conveyed to him by Comstock) to the Wisconsin River Land ’Company for a consideration of $7,000 by a deed with warranty against his own acts, which deed, however, was not recorded until July 20, 1903.</p> <p>The Home Investment Company was a corporation dealing in northern Wisconsin lands and tax titles, and through its president had access to a tract index of the lands in question' and had knowledge that other parties than Harding or his 'heirs were making conveyances of the lands in question and •assuming to deal with them as owners. In March, 1902, the Flome Investment Company sent an agent to Hudson, Wisconsin, to obtain a quitclaim deed of the lands in question from the heirs of Harding (the deceased intestate). This agent succeeded in obtaining a quitclaim deed from the heirs covering all the lands deeded by* Comstock to Harding for the sum ■of $200. The court found on sufficient evidence that he obtained this deed by representing to the heirs that their father had owned these lands in his lifetime, but had not paid taxes ■on them for twenty or thirty years, and that now they had really no interest in them, and, further, that the Home Investment Company was in fact the owner and expected to sell them to some -eastern party who wanted the title cleared in this way. The court - also found that the heirs told the agent at that time that they did not think or consider that their father had any interest in the lands. In August, 1902, the-Home Investment Company deeded the lands in question to the defendant hy warranty deed as a part of the lands contracted for in February, and soon after furnished an abstract of title which was examined by the defendant’s attorney and which showed the deeds before described which were on record in February, 1902, with the addition of the deed from" the Harding heirs. No part of the consideration was paid prior to the examination of the abstract. This deed recited a consideration of $2.50 an acre, which was in fact the fair-value of the land and known to be such by both parties. It was recorded September 30, 1902. The deed from Harding’ to the Wisconsin Eiver Land Company was not recorded until the 20th day of July, 1903, having been kept prior to that time in the office of the company at Eau Claire, Wisconsin,, where it could have been found had inquiry been made for it. From 1886 up to November, 1892, the Wisconsin Eiver Land Company paid all the taxes on the lands in question, and from November, 1892, up to the time of the commencement of this action the plaintiff paid such taxes, and the fact that such payments were duly made appears in the proper town- and county offices. The plaintiff conveyed the lands by warranty deed to the Chippewa Lumber & Boom Company, prior to the commencement of this action.</p> <p>On these facts the court found that both the Home Investment Company and the defendant had notice of facts which should have put them upon inquiry as to the existence of the-unrecorded deed, which inquiry would have resulted in its discovery, and that for this reason neither of them was a purchaser in good faith, and that the Chippewa Lumber & Boom-Company was the owner in fee simple. Judgment being entered in accordance with this finding, the defendant appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Vilas county: W. 0. SilveethobN, Circuit Judge.</p> <p>The appeal is from an order confirming the report of a referee in an action for partition of real estate and directing a sale of the premises.</p> <p>The action was brought for the partition of the northeast quarter of the southeast quarter and the southwest quarter of the southeast quarter of section number twenty (20), township number forty-four (44) north, of range number five (5) east, in Vilas county, Wisconsin, the plaintiff being the owner of an undivided two-thirds interest and the defendant J. M. Oomstoch, as appeared by the pleadings, being the owner of an undivided one-third interest. The only contest was as to whether the property could be partitioned between the parties without a sale of the same, plaintiff affirming that such sale was necessary and the said defendant that it was not. Such proceedings were duly had that an order for a partition of the property was made and the controversy as to whether a sale was necessary in order to make such partition was duly referred to George Hart, in compliance with sec. 3110, Stats.' (1898). Such proceedings were duly had in execution of the reference that a report was made to the court that the premises were so situated and of such character that a partition thereof could not be made without great prejudice to the owners. The finding on the question of fact was excepted to by the defendant. The court confirmed the referee’s decision and directed a sale of the premises, and defendant appealed.</p>

Bay Stevens, Judge. It appears from the record and is undisputed that, pursuant to the requisite application made to the circuit court for Marathon icounty in 1901 for the incorporation of the village of Unity, comprising the territory therein described, the same being partly in the county of Marathon and partly in the county of Clark, proceedings were had therein, and, after hearing the matter, the circuit court for Marathon county, on March 14, 1905, found as matters of…

Action in ej ectmeut. Plaintiff’s title is derived from Jennie A. White, who May 4, 1900, received and recorded a tax deed from Eau Claire county based'on the tax certificate dated May 19, 1896, for 'the taxes of 1895. Jennie A. White is described in the tax deed from the county as “assignee of the several tax certificates, as stated below,” and below the two parcels of land making up the lands in suit are described as follows: Description. Amt.

Appeax from a judgment of the circuit court for Clark, county: James O’JSTeixx, Circuit Judge. The defendant appeals from a judgment of the circuit court for Clark county rendered against it in an action for damages alleged to have been sustained by the plaintiff resulting from a defective sidewalk.

W. Helms, Judge. This action was commenced in justice’s court to recover for personal injuries.

<p>Appeal from a judgment of the circuit court for Ean Claire county: James O’Neill, Circuit Judge.</p> <p>The action is on contract and was commenced in Eau Claire county. This in short was the plaintiff’s claim: Between November 20, 1902, and October 29, 1903, plaintiff piled 19,087,033 feet of lumber for the defendant at the agreed price of seventy cents per thousand feet, and during the same time performed other work for the latter in and about its sawmill, for which it agreed to pay $417.25, and between the 23d day of February, 1903, and the 13th day of April, 1903, expended money for it at its request to the amount of $6.14, payment of all of which was duly demanded and payment thereof refused. Judgment therefor with interest thereon from the 29th day of October, 1903, with costs and disbursements of the action, was demanded.</p> <p>The defendant answered admitting that the plaintiff during the period mentioned in the complaint performed work in piling lumber for it, alleging full payment therefor, putting in issue the other allegations of the complaint, counterclaiming to the effect that during such period plaintiff performed work, .labor, and services for it in piling 19,123,607 feet of lumber at sixty-five cents per thousand feet, which was the reasonable value of such services and the agreed price therefor, and alleging payment to plaintiff and on his account of $13,194.95, whereas the whole amount payable to him and on his account was $12,429.69 for piling the lumber and $51.25 for other labor, the aggregate being less than the amount paid to the ex-, tent of $714.01. Judgment for said sum with interest was demanded. The allegations of the counterclaim were duly put in issue by a reply.</p> <p>Within the time for making a demand for a change of venue the defendant appeared in the action by attorneys, who served • on the plaintiff’s attorneys a demand in these words:</p> <p>“Please take notice that we are retained by and appear for the defendant in the ahove-entitled action, and that defendant demands that the trial of this action be had within the county of Wood, state of Wisconsin, for the reason that the said defendant, at the time of the commencement of this action, resided, and still resides, in the city of Grand Eapids, in said •county of Wood, state of Wisconsin. That the defendant is a corporation of the state of Wisconsin, situated and having its principal office and place of business at Grand Eapids, in said Wood county.”</p> <p>The plaintiff’s attorneys having failed within five days after ■service of such demand upon them to serve on defendant’s attorneys a written consent that the place of trial be changed, the defendant by its attorneys within twenty days after service of the demand moved the court to change the place of trial, pursuant to sec. 2621, Stats. (1898). The motion was supported by affidavits to the effect that plaintiff’s work was done at Atlanta, Gates'county (now Eusk county), Wisconsin ; that he lived there during the progress of the work; that •all money earned was paid at that place; that when he was through with his work he there demanded his pay at the rate of seventy cents per thousand feet for the lumber piled, which was refused, and that defendant’s principal office and place ■of business has always been at Grand Eapids, Wood county, Wisconsin. In opposition there was an affidavit by plaintiff to tbis effect: Plaintiff’s borne for many years prior to the commencement of tbis action was at Eau Claire, Eau Claire county, Wisconsin. He was only temporarily absent therefrom while serving the defendant. He performed other work for defendant than piling lumber, 'for the recovery of which the action was brought. The balance due bad not been ascertained till after be returned from Atlanta to bis home in Eau Claire. He did not make any demand for payment of the balance due him at Atlanta, but after be returned to Eau Claire and ascertained the whole amount due bis attorney made a demand in writing for payment thereof. The $6.14 alleged in the complaint to have been expended for the defendant was paid out for certain specified articles in the city of Eau Claire, Wisconsin, a statement being sent by mail to the defendant at Atlanta, Wisconsin, and demand made for payment by including the same in the total claim for which payment was demanded as before stated, at which time he resided in the city of Eau Claire, Wisconsin.</p> <p>The motion to change the venue was denied.</p> <p>The court held that the claim for $6.14 was not established by the evidence so as to carry the same to the jury. On the other branches of the case the jury rendered a verdict in plaintiff’s favor on his claim for $729.67, and a verdict wholly disallowing the counterclaim. Judgment was rendered accordingly.</p>

<p> Vendor and purchaser of land: Contract presumed to be completer Default in payment: Option to declare contract void: Notice■ of election: Action for price: Tender of conveyance, when not necessary: Disability to convey: Assignment of contract. </p> <p>1. A bilateral land contract purporting on its face to set out the-mutual undertakings of tke parties is presumed to be a complete expression of their final contract, and this presumption-can be overcome, if at all, only by the clearest proof.</p> <p>2. A land contract providing that if the purchaser shall fail to-make any of the payments as stipulated the agreement “shall be thenceforth utterly void” and all payments thereon forfeited, “subject to be revived and renewed in writing at the option of” the vendor, gives to the vendor, after such failure, the right to declare the contract at an end or to sue for the unpaid purchase price or for specific performance.</p> <p>3. Commencement of an action for the purchase price and filing of the complaint is a sufficient declaration in writing of the vendor’s election that the' contract shall continue in force.</p> <p>4. Where by the terms of a land contract the purchaser agrees to pay the whole price absolutely and the vendor promises that after such payment and upon demand a conveyance shall be made, the liability of the purchaser is absolute and no tender of conveyance or showing of ability to convey need either precede or accompany the recovery of the purchase price.</p> <p>[5. Whether in such a ease there might be an equitable defense or counterclaim where it was shown that the vendor had. disabled himself to convey and was insolvent, not determined.]</p> <p>6. The vendor in a land contract who assigns the contract or the right to the payments thereunder holds the legal title to the land in trust for the parties to the contract or, upon completion of the payments, for the purchaser alone, and such trust follows the legal title wherever it may go, except into the hands of a tona fide holder for value.</p> <p>7. Where the vendor in a land contract, having the option to declare the contract at an end because of default in payments, assigns the contract, such assignment carries with it the right to exercise said option, and the vendor cannot thereafter exercise it.</p>

<p> Appeal and error: Review: Denial of new trial. </p> <p>The decision of the trial court denying a new trial will not be-disturbed on appeal unless it clearly appears that the verdict is not supported by the evidence.</p>

<p>Aupeal from a judgment of the circuit court for Ashland county: JohN K. Pakish, Circuit Judge.</p> <p>An action on a joint and several promissory note for $933.34, dated April 14, 1903, payable two years after date to the order of W. S. Gilmore & Co., signed by all of the defendants. Before the maturity of the note it was negotiated for value by W. S. Gilmore & Co-, to the plaintiff.</p> <p>All the defendants except two appeared and answered. They allege that their signatures were obtained by fraudulent representations of Gilmore & Co.’s agent as to the nature of the papers signed, alleging that they were deceived and fraudulently led to believe that they were signing a paper stated to. be. a guaranty instead of a note, as now claimed and asserted by plaintiff. The defendants allege that they had agreed with Gilmore & Co: to purchase from them a stallion at the agreed price of $2,800, to be paid for upon the terms and in the manner following: The horse was to be kept by Gilmore & Co. in the immediate vicinity and put into the field for service in^ the community, and the money collected for the sendees of the horse was to be applied each year in payment of the purchase price up to an amount not exceeding one third of the purchase price. In case the amounts collected for the services of the’horse in any one.year did not equal the one-third part of the purchase price, such unpaid portion was to be paid out of tbe money received for sncb services thereafter. In case the sum realized during any of the first three years exceeded one third of such purchase price and any unpaid portion due, then defendants were to receive such excess. Defendants further claim that they were to sign an “agreement,” called a “guaranty,” by which they were to obligate themselves to pay any balance due on the purchase price should the horse die, before full payment of the purchase price, on account of the neglect or fault of the defendants. They further allege that the agents of Gilmore & Oo. falsely and fraudulently represented to them that the three papers presented to them for signature were such “guaranty” contracts, whereas in truth and fact, as they now learn, such papers were three promissory notes, on one of which this action is brought, and that they each relied upon the false representations believing them to be true, and for that reason signed the notes without knowing their character and nature and without any want of ordinary care to learn their nature and character.</p> <p>The case was submitted to a jury and a special verdict was returned to the effect that the plaintiff became the owner of the note sued on for value and in good faith, and that .he had no knowledge at the time of purchase of such facts as amounted to bad faith. The jury found specifically that Gilmore & Co., payees in the note, “for the purpose of inducing defendants to sign the same, knowingly, falsely, and fraudulently represented to said defendants that it was a writing different in character and nature from a promissory note,” and further found that defendants could not by the use of ordinary care have obtained knowledge of its character and nature. Plaintiff moved for direction of a verdict and that the answer to the question, finding that defendants were not able in the exercise of ordinary care to learn the character and nature of the instruments, be changed from “no” to “yes” as to all of the defendants appearing except the defendant Gharles Zibuslci, as to whom the plaintiff admits the answer to be supported by tbe evidence. Tbis motion was denied, and upon tbe motion of tbe defendants tbe court ordered judgment in defendants’ favor. Tbis is an. appeal from tbis judgment.</p>

W. Helms, Judge. John Paulus during Ms life held a note of $1,000 against Lemont E. Brown. Paulus died December 11, 1902. Shortly after Ms death his widow, Rilen Paulus, had possession of the note, and surrendered it to Brown for a new note of $900 executed by Brown and payable to her. On the 13th day of October, 1903, Brown' paid $350 on this $900 note. On November 19, 1903, Brown died.

B. Beldek, Circuit Judge. Proceedings to determine tbe compensation to be paid on account of land taken for railway purposes.

B. BeldeN, Circuit Judge. In an action for slander tbe respondent recovered a verdict for $500 against tbe appellant in tbe circuit court for Wal- • worth county and judgment was accordingly entered, from ■which this appeal is taken.

Appeals from orders of the circuit court for Racine county: E. B. Belden, Circuit Judge. This is an action to restrain the defendant Thiesen from selling drugs or conducting a drug store in Racine, contrary to his agreement with the'plaintiffs executed June 23, 1903. It appears and is undisputed that for some time prior to February 9, 1895, Thiesen owned and operated a drug store in Racine under his own name.

Mandamus to compel appellant, as city clerk, to call a special election for the purpose of voting upon the amount of license fee for sale of liquors in Milwaukee, in accordance with sec. 1548&, Stats. (1898).

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: OeeeN T. WilliaMS, Circuit Judge.</p> <p>An action to' recover tbe amount due under tbe following written agreement:</p> <p>“Milwaukee, Wis., July 22, 1902.</p> <p>“Received of II. A. Brown and W. W. Way, proprietors of the Oream City Business College, a certificate of tuition for a 3 2 mo. course of instruction in tbe day session of tbe Oream City Business College, Milwaukee, Wis., for wbicb I agree to pay said Brown & Way, or order, tbe sum of one hundred twenty dollars ($120.00) as follows: $10.00 on tbe 1 of Sept., 1902, and $10.00 on tbe 1 day of each'succeeding month thereafter until all is paid.</p> <p>“Value received.</p> <p>“(Name) FeaNic Seaeoii,</p> <p>“Jno. J. Dalton. ■ (Address) 469 Greenbush St.”</p> <p>The certificate mentioned in tbe above instrument was as follows:</p> <p>“No.-. Certificate of Tuition. $-.</p> <p>“Cream City Business College.</p> <p>“Mack Block,</p> <p>“Milwaukee, Wis.</p> <p>“This certifies that Laura Search' is entitled to a twelve months’ comse of instruction in tbe business and shorthand departments of this institution, day session, in consideration ■of the payment of one hundred twenty ($120.00) dollars and subject to the rules and regulations of tbe college, said course to begin on or about the first day of September, 1902.</p> <p>“Given under our hands & seal this 22nd day of July, 1902.</p> <p>“II. A. BbowN, ,</p> <p>“W. W. Way,</p> <p>“Proprietors.</p> <p>“Per Jno. J. Dalton.”</p> <p>Plaintiffs conducted the Cream City Business College, and were prepared to furnish defendant’s daughter the instruction specified in the written certificate.</p> <p>Defendant admits the making and execution of the agreement, but alleges that plaintiffs’ agent, Jno. J. Dalton, induced him to make and execute it through false and fraudulent representations. He pleads sncb fraud in defense of its enforcement in tbis action.</p> <p>It appears that Jno. J. Dalton was the authorized agent of plaintiffs in the negotiations with defendant. Mr. Dalton called on defendant with a view to obtaining from him his agreement to send his daughter to this business college. During the negotiations defendant informed Dalton that he expected to have his daughter attend a business college, but that he wished to have her attend a college where some of her classmates from the school she had recently attended would attend. Thereupon Dalton informed him that he had obtained and secured contracts from parents of several of his daughter’s classmates, naming three of them specifically, and that these classmates would attend plaintiffs’ college in the succeeding September. Defendant, relying on these representations, agreed and made the contract sued on, stipulating ■orally that, if the daughter’s classmates did not so attend the college, he would not be bound by the contract. It further appears that, in truth and fact, Dalton had not obtained any contracts from the parents of such classmates of defendant’s daughter, and that none of the classmates referred to attended plaintiffs’ business college as Dalton had represented their parents had contracted, to have them attend.</p> <p>In the succeeding October, when defendant and his daughter learned that none of her classmates specified in the negotiations with Dalton were in fact attending plaintiffs’ college, defendant declined to have his daughter attend and receive the instruction agreed upon in the written contract, remailed the contract to plaintiffs’ address, and refused to pay any of the sums specified in the contract. Plaintiffs testified that they never received the written contract defendant claims to have mailed them, that they had no knowledge- of any of the alleged misrepresentations of their agent, Dalton, and that they were conducting .the business college referred to in the contract and certificate.</p> <p>The court submitted to the jury the questions whether there was.a conditional delivery of tbe contract, and whether defendant was induced to make the contract through the false and fraudulent representations of the .plaintiffs agent, Dalton. The jury found for the defendant, and judgment was awarded in his favor upon the verdict. This is an appeal from such judgment.</p> <p>To the point that no legal fraud was shown, they cited 14 Am. & Eng. Ency. of Law (2d ed.) 140; Elliott, Ev. § 2137; 1 Bigelow, Eraud, 497; Williams v. McFadden> 23 Ela. 143, 11 Am. St. Bep. 345; 3 Sutherland, Dam. 584, 585 (3d ed. § 1167); Sail v. Johnson, 41 Mich. 286, 2 N. W. 55, 57, 58; Davis v. Davis, 97 Mich. 419, 56 N. W. 774; Britton v. Supreme Council B. A. 46 N. J. Eq. 102, 19 Am. St. Bep. 376-382; Am. Bldg. & L. Asso. v. Bear, 48 Neb. 455, 67 N. W. 500; Castleman v. Griffin, 13 Wis. 535, 538; Barber v. KiTbourn, 16 Wis. 485, 489 ; Foster v. Taggart, 54 Wis. 391, 393 ; McDonald v. Daniels, 58 Wis. 426, 428, 429; Mamloclc v. Fair-baailcs, 46 Wis. 415, 416-418.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Warren D. Tarrant, Circuit Judge.</p> <p>This action was brought by the plaintiff, Connecticut Mutual Life Insurance Company, June 24, 1898, to foreclose a mortgage upon the property described in the complaint, situate in the city of Milwaukee; Wisconsin, against the appellant Alpha 0. Goldsmith, impleaded with others. The facts in the case, so far as they have any bearing upon the questions necessary to consider on these appeals, are few, simple, and undisputed.</p> <p>On November 25, 1891, prior tbereto, and thereafter the defendant Bernard Goldsmith was the owner of the premises in question. On November 25, 1891, varions mechanics’ liens attached to the premises. On June 17, 1893, defendant Bernard Goldsmith and appellant Alpha 0. Goldsmith, his wife, mortgaged the premises to the plaintiff to secure $190,000 and interest, which mortgage was duly recorded. On August 10, 1893, suits were commenced for the foreclosure of the mechanics’ liens existing against the premises. On October 21, 1893, defendant Bernard Goldsmith and appellant Alpha 0. Goldsmith mortgaged the premises to B. K. Miller, trustee, to secure $175,000. On July 31, 1896, Miller, trustee, brought suit to foreclose his mortgage above referred to, and duly joined as defendants the defendant herein Bernard Goldsmith and appellant Alpha O. Goldsmith. On September 12, 1896, judgment of foreclosure in the usual form was entered in the suit of B. E. Miller, trustee, against Bernard Goldsmith and wife, decreeing that the premises be sold to pay the claim of Miller amounting to $167,832, and that the defendants therein be barred of all their interest in the premises described in the complaint. On November 19, 1896, notice of lis pendens was filed in the mechanic’s lien suit, and on November 20, 1896, Miller, trustee, was joined as a defendant. On June 12, 1897, judgment was entered in the mechanic’s lien suit, by which it was determined that there was due the several lienholders, in the aggregate, the sum of $57,655.27, which sums were liens on the premises prior to all other claims and mortgages, and that said liens attached November 25, 1891, and the judgment provided that the premises be sold to satisfy the liens, and that on sale the rights and claims of all paidies, including Bernard Goldsmith, the Gonnecticut Mutual Life Insurance Company, and B. K. Miller, trustee, be forever barred and foreclosed. On November 1, 1897, the premises were sold under the judgment entered in the foreclosure suit brought by Miller, trustee, and bid in by Miller, and a conveyance made to bim by the sheriff, which sale was duly confirmed. On dune 25, 1900, the premises were sold under judgment ip the suit for the foreclosure of mechanics’ liens, and the premises purchased by the plaintiff, Connecticut Mutual Life Insurance Company.</p> <p>In the present action, brought to foreclose the $190,000 mortgage executed to the plaintiff, the judgment entered determined that there was due the plaintiff the sum of $228,110.73; that the plaintiff’s mortgage was not merged in the free title it' had acquired under the sale in the mechanic’s lien action, and that the inchoate dower interest of appellant Alpha O. Goldsmith still existed in the premises, but was subject to the plaintiff’s mortgage; and should be barred by the foreclosure sale. The appellant Alpha O. Goldsmith appealed from the whole of this judgment, and the plaintiff appealed from that portion thereof decreeing that appellant Alpha O. Goldsmith had an inchoate dower in the premises.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Wa&ren D. Taeeaht, Circuit Judge.</p> <p>The judgment appealed from was for $180 in favor of the plaintiff in an action on contract. The complaint sought recovery for work, labor, and materials, of the reasonable value and for the agreed price of $180, performed and furnished by respondent at request of the appellant. After a general denial the answer averred the making of a contract whereby "the respondent undertook and agreed to construct and erect -in working order a press for the use of the appellant, and guaranteed that the same would perform the work required 'by the appellant, and that the respondent was aware of the purpose for which the machine was to be used, but failed to so construct the machine that the latter was sufficient to perform the work required by the appellant. The evidence, however, established that the appellant had possession of an old press upon which it desired some punching and riveting attachments for the purpose of punching and riveting iron, that it furnished the respondent a sample or model of the riveting •device to be attached, did not furnish any model of the punching device, and the whole order was given at once by one entire •contract. The respondent was a manufacturer of machinery and knew the purpose for which the appellant required the attachments. Of the $180 compensation, the work and material on the riveting device would represent about $120 and •on the punching device about $60. The devices were constructed and attached by the respondent. The punching device failed to work, not on account of any fault in the construction or material of the device itself, but by reason of the •difficulty or impracticability of connecting it to and using it -upon the old press. The strips of iron to be punched were of ■such length and such number of holes were required to be made by a single operation of the machine that the attachments for punching could not be placed so that the punching stroke was in a direct line with the application of the power. Consequently tbe steel punches did not meet the dies squarely and broke in operation. So far the testimony is undisputed. There was, however, a considerable conflict of evidence with reference to whether or not the respondent, after having examined the press preparatory to making and connecting the-attachments for riveting and punching, had represented that the press with those attachments could be used for appellant’s-purposes; that is to say, would do- the work of punching and riveting as required by the appellant.</p> <p>A special verdict was submitted to the jury and returned by them as follows:</p> <p>“Did the plaintiff agree to manufacture and attach to defendant’s punching press certain attachments which would' enable the defendant with the use of such press when equipped' by such attachments to perform the work required by the defendant ? A. No.”</p> <p>No additional or different question was requested by appellant to be submitted to the jury. During the deliberations-of the jury a quarrel arose in the jury room between two of the jurors, blows were struck, and after the jury had returned the above verdict the matter was brought to the attention of' the court and one of the jurymen engaged in the quarrel was-fined $10 and the other $20 for contempt of court.</p>

C. Ludwig, Circuit Judge. This is an action to revoke, set aside, and annul a certain license issued to the defendant by the plaintiff and one John IT. Stouthamer October 19, 1905, for making, using, and selling pneumatic renovators.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: LaweeNoe W. Halsey, Circuit Judge.</p>

<p> Promissory notes: Extension of time: Consideration: Mortgage of wife’s separate estate to secure husband’s debt. </p> <p>1. A note executed by husband and wife as collateral to a prior note of the husband, in consideration of a definite extension of the time for payment of such prior note, is valid as against the husband.</p> <p>2. A mortgage of her separate property given by a married woman to secure payment of her husband’s obligation is valid and enforceable in equity, and, no liability at law on her part being involved, the statute of frauds relating to the promise of one person to answer for the debt of another and the law respecting a wife’s incapacity to incur a legal liability as surety for her husband have no application.</p>

<p> Appeal: Review of evidence: Real-estate brolcers: Commissions: Procuring cause of sale. </p> <p>1. The supreme court will reverse a judgment based upon the verdict of a jury only when such verdict is wholly unsupported by credible evidence or when some error of law has been committed.</p> <p>2. A broker cannot be said to he the procuring cause of a sale of real estate merely because he invites to it the attention of another who is already in active negotiation for its purchase, nor because he mentions to the owner as a possible purchaser one with whom the owner is already treating, when the final purchase results from a continuation of such pre-existing negotiations unaffected by the broker’s act.</p>

<p>(1-5) Mortgages: Unrecorded, assignment: Payment to and discharge by record owner: Possession of securities: Agency to receive payment: Evidence. (6-8) Appeal: Presumption against error: Construction of ambiguous finding: Facts not found.</p> <p>1. A person who deals with, land by taking a mortgage or deed thereof is protected by the recording act as to a prior mortgage on the property which has been improperly discharged by the record owner, but not the real owner, of the security, such person not having notice of the assignment of such prior mortgage.</p> <p>2. A debtor upon commercial paper whose obligation is secured by a mortgage on real estate owned by him is not protected by the recording act- in paying the mortgage indebtedness to the record, but not the real owner of the mortgage and taking a release thereof, such record owner not having possession of the security nor actual authority from the real owner to act as the latter’s agent in the transaction.</p> <p>3. Agency to receive payment of money due upon commercial paper secured by mortgage or otherwise can only be implied from possession, by the one assuming to have authority in the matter, of the securities and capacity to deliver the same upon payment being made.</p> <p>4. Actual authority of a person, not the owner or possessor of a note and mortgage, to receive payment of the indebtedness is essential, in order for such payment to extinguish the security.</p> <p>’5. The actual authority above mentioned need not be expressed in writing or established by direct evidence. It may be established by circumstances showing with reasonable certainty its existence.</p> <p>C. On appeal, in testing the sufficiency of a record to support a judgment, as a rule, the presumptions are against error, and such only are to be considered as appear with reasonable clearness.</p> <p>7. If a finding by a trial court which is vital to a judgment is ambiguous, that one'of two reasonable probable meanings which . will support, is to be preferred over one that will defeat, it.</p> <p>'8. If a fact, essential to a judgment rendered in an equity case, does not appear to have been found by the trial court, but it appears from the record with reasonable certainty to exist, it may be found on appeal and judgment be rendered or directed accordingly.</p> <p>[Syllabus by Marshall, J.]</p>

<p>'Appeal from a judgment of tbe circuit court for Price county: Jourr K. Paexsh, Circuit Judge.</p>

<p>(1) Construction of statutes: Use of formal rules. ■ (2-10) Criminal law and practice: Grand juries: List of jurors where deposited: Use in other courts: Oath of stenographer where filed: Immaterial errors and irregularities: Examination of jurors: Instructions to jury: Evidence as to reputation: Reasonable doubt:Corroboration of witnesses: Compromise verdict.</p> <p>1. In the construction of a statute it should he considered first from the viewpoint of good faith, common sense, and impartiality, and formal rules of interpretation should he invoked only when douhts otherwise unsolvable arise.</p> <p>2. Under sec. 2546a, Stats. (Supp. 1906; Laws of 1903, ch. 90), requiring the record hook in which the grand jury list is entered to he deposited with “the clerk of the court of such county, who shall securely keep the same so that the” list shall not become known, such hook is to he deposited with the clerk of the circuit court. ,</p> <p>3. When a grand jury is to he drawn in a municipal court or other-inferior court, the grand jury list, after being deposited with the clerk of the circuit court, is to he removed (in proper custody) to the office of the clerk of such inferior court, and is to-he returned after the drawing.</p> <p>4. The fact that a book sd removed remained in! the office of the clerk of the inferior court for some months and until after a second grand jury was drawn from tlie list, was an irregularity, but in this case not prejudicial.</p> <p>5. The oath which the stenographer employed by a grand jury is required by see. 2546f, Stats. (Supp. 1906; Laws of 1903, ch. 90), to “make and file,” should probably be filed with the' clerk of the grand jury, but an error in this respect would not make the stenographer a disqualified person or an interloper among the-grand jurors, or be prejudicial.</p> <p>6. Under secs. 4659, 4706, Stats. (1898), no exceptions are available-in a criminal case except such as relate to rulings which tlie appellate court can see, from the record returned, actually prejudiced the defendant in his defense upon the merits.</p> <p>7. A juror who testified that upon the question of the guilt or innocence of the defendant he had no preconceived opinion, no bias or prejudice, and that he understood and thought he could apply the presumption of innocence in -defendant’s favor, is held competent and qualified, although he also said he thought that, as between defendant and one against whom no indictment was found or legal charge made, there was a greater possibility or more likelihood of the defendant being guilty than there was; of such other person being guilty. Metaphysical inquiries as to the matter last mentioned were not within the proper scope of the examination into the juror’s qualifications.</p> <p>8. A requested instruction to the effect that the testimony as to the good reputation of defendant as to his honesty and integrity might, if believed, be in itself sufficient to raise a reasonable doubt as to his guilt, is held to have been properly, denied; and the charge given, to the effect that such testimony should be considered in connection with all the other evidence and that the jury should convict or acquit according as they should or should not, from all the evidence, be satisfied of defendant’s guilt beyond a reasonable doubt, is approved.</p> <p>9. A requested instruction, with reference to testimony as to the bad reputation of a witness for truth and veracity, as follows: “If from such testimony you are satisfied that the said witness has been impeached, or you have a reasonable doubt on account of such testimony as to his credibility, you should disregard his testimony given in this case, except as to those parts, if any,, in which such testimony has been corroborated by other credible witnesses,” was properly denied because it directed, not merely permitted, the jury to disregard his testimony, because-it limited the corroboration to testimony of witnesses, thereby excluding circumstances and documents, and because it required corroboration by more than one witness.</p> <p>10. The facts that a verdict of guilty was accompanied by a recommendation of mercy, and that before separating the jury handed to the judge a written request for leniency toward the defendant, do not show that the verdict was a compromise verdict which must be set aside.</p>

<p> Criminal law and, practice: Homicide: Degrees: “Involuntary hitting:” “Heat of passion:” Defendant’s declarations, when not conclusive: “Justifiable" and “excusable” homicide: Insanity: Opinion evidence: Form of questions: Instructions to jury: Summarizing contentions of counsel: Information which should not be given: Evidence: Reporter’s minutes: Conduct of trial judge. </p> <p>1. Refusal by the trial court to submit tbe question whether defendant was guilty of a lower degree of homicide than that of ■which he was convicted was prejudicial error if the evidence, in any reasonable view, could support a conviction of such lower degree.</p> <p>2. Where the killing was by a pistol discharged by the volition of the defendant, without any element of accident or inadvertence,* it was not an “involuntary” killing within the meaning of secs. 4355, 4362, Stats. (1898).</p> <p>3. The killing of defendant’s wife with a pistol, claimed by him to have been done while he was temporarily insane because of her misconduct, is held upon the evidence not to have been within sec. 4363, Stats. (1898), covering “every other killing,” etc., than those covered by other sections.</p> <p>4. Upon the evidence (stated in the opinion) it is held that the jury might have found that the killing of his wife by defendant with a pistol was in heat of passion and without a design to effect death so as to make the crime manslaughter in the third degree, as defined in sec. 4354, Stats. (1898).</p> <p>5. A defendant’s own declarations, even under oath as a witness, are not conclusive against him if other evidence justifies an inconsistent conclusion as to the fact. Thus, defendant’s testimony asserting delirium and unconsciousness of his acts at the time of killing his wife did not preclude the jury from finding from ■ other evidence that there was merely that blind anger which the law calls heat of passion.</p> <p>6. A killing not involving any element of self-defense or enforcement of a duty cannot be a justifiable homicide under sec. 4366, Stats. (1898).</p> <p>7. A killing by the use of a dangerous weapon cannot be an excusable homicide under sec. ,4367, Stats. (1898).</p> <p>8. When a nonexpert witness is to be asked his opinion as to a person’s sanity the question should be, substantially: What impression was made upon your mind by the conduct, actions, manner, expressions, and conversation which you observed?</p> <p>9. A physician was asked whether, assuming the truth of certain facts stated and of the testimony of the defendant which he heard, he saw in those facts and that testimony any indication that defendant was suffering at any time from melancholia. Held, that the question was proper and that answers thereto by the witness, “I see no signs of melancholia,” and “There is no evidence of melancholia in that testimony,” were not objectionable in form.</p> <p>10.Although upon the trial of the issue as to insanity of the defendant the presumption is in favor of sanity, the jury should not be instructed that this throws upon him the burden of proof and that to escape he must produce evidence of insanity sufficient to raise a reasonable doubt. The proper instruction is simply that if, after considering all the evidence before them, there remains in the minds of the jury any reasonable doubt of sanity, they should find the defendant insane.</p> <p>11. If, in charging the jury, the court attempts to summarize and declare the contentions made by either party he should do it with great care and only after being assured that he appreciates not only what those contentions are but their relative importance as viewed by counsel.</p> <p>12. To be a ground of reversal, an omission from such a statement by the court should have been called to the attention of the trial court by a request that the thing omitted be supplied.</p> <p>13. However sane one may have been at all other times, if he was actually insane within the legal definitions at the time he committed the criminal act he is not responsible. It was^ error, therefore, to instruct the jury, in effect, that if defendant while sane determined upon the killing of the deceased he must be found sane although thereafter he became insane and was so at the time of the homicide.</p> <p>14. One cannot be held criminally responsible for acts done while he was actually insane, even though his mental state was brought about by his own fault in yielding to anger or passion.</p> <p>15. It was improper for the trial court, in reply to a question asked by the jury while they were deliberating upon the issue of sanity, to inform them that if they found the defendant sane the same jury would afterwards pass upon the question of his guilt or innocence. The court should have told them that such information had no relevancy to their duty in respect to the issue before them.</p> <p>16. It is the duty of the trial court, especially when so requested, to instruct the jury specifically as to their duty to acquit if they entertain a reasonable doubt as to the guilt of the defendant.</p> <p>17. Upon the trial of the issue of guilty, permitting the court reporter to read his minutes of the testimony given by defendant on the trial of the issue of sanity was not error merely because there was no other reporter to take down the oral testimony so read to the jury.</p> <p>18. Conduct of the trial judge is criticised, in that he took occasion, when the jury had'returned into'court during their deliberations, to explain his course and vindicate his acts and motives, with reference, particularly, to a complaint of defendant's counsel, in his argument, that the lower degrees of homicide had not been submitted to the jury. The minds of the jury should not have been diverted from their duty by any discussion as to propriety of conduct of court or counsel.</p>

<p>Appeal from a judgment of the circuit'Court for Juneau county: J. J. Feuit, Circuit Judge.</p>

<p>Appeal from a judgment of tbe circuit court for La Crosse eounty: J. J. Ekuit, Circuit Judge.</p> <p>Tbe plaintiff’s mother, Catherine La Eleur Ereeman, is a niece of Reinard R. La Eleur. ' These parties resided in La Crosse county for many years prior to Reinard R. La Eleur’s death. A few days after plaintiff’s birtb Beinard B. La Eleur came to the borne of ber parents and requested tbat be be giren the privilege of naming ber, and asked them to bestow on ber tbe name of bis deceased wife, Martha. She bad died in Holland prior to bis removal to this country. It was thereupon agreed by plaintiff’s parents and Beinard B. La Fleur tbat be should have tbe right and privilege of bestowing upon plaintiff tbe name of Martha, and in consideration thereof Beinard B. La Fleur promised and agreed to give, leave, devise, or bequeath something to ber; tbat is, some property. Pursuant to such agreement plaintiff, with tbe consent of ber parents, was named Martha by him, and she has ever since borne and retained, and is known by, tbe Christian name of Martha. At tbe time this agreement was made and the name so given to plaintiff by Beinard B. La Fleur with tbe assent of ber parents, no specific property nor any specified amount was designated or agreed upon by tbe parties. At various times after tbe name was so adopted and given to tbe plaintiff by tbe parties, Beinard B. La Fleur stated to third parties tbat be was going to give and devise to plaintiff tbe sum of $500 for tbe privilege of having so named ber, and be inserted a provision in three wills, made by him after so naming plaintiff, whereby be bequeathed to ber $500. He revoked all these wills, and bis last will contained no bequest to plaintiff, but wholly omitted to mention ber. He died on or about October 4, 1903, without having paid or given plaintiff anything for the privilege of naming ber Martha, under the agreement with ber parents. He left an estate sufficient to pay tbe sum of $500, now demanded by plaintiff as due ber under tbe agreement under which be exercised tbe right and privilege of naming her. The circuit court awarded judgment in plaintiff’s favor and against the defendants, as executors of tbe will of Beinard B. La Fleur, deceased, for tbe sum of $500 and costs, upon tbe ground tbat such amount was due tbe plaintiff under tbe agreement to name ber Martha, so made by tbe deceased and her parents. This is an appeal from such judgment.</p>

M. Webb, Circuit Judge. This is an action to recover the balance due upon contract.

<p>Appeal from a judgment of the circuit court for Outagamie county: Johh Goodlahd, Circuit Judge.'</p> <p>It appears from the record that' Mary Becker died intestate June 18, 1905. On September 27, 1905, tbe plaintiff was duly appointed administrator of ber estate. After a demand upon tbe defendant by tbe plaintiff for tbe property herein■after mentioned, and refusal, as alleged, of tbe defendant to ■deliver the same, on January 18, 1906, tbe plaintiff commenced this action against tbe defendant to recover tbe value of certain household furniture — clothing and bedding described — the property of tbe said Mary Beclcer at tbe time of ber death and alleged to be of tbe value of $300, and also' to recover tbe value of six certificates of deposit described, tbe property of tbe said Mary Becker at tbe time of ber death, of tbe alleged aggregate value of $1,200. Tbe defendant answered by way of admissions to tbe effect that June 18, 1905, Mary Becker was and for some time prior thereto bad been in tbe possession and the owner of tbe personal property mentioned of tbe value of $1,200; that she died intestate on tbe •day named; that tbe plaintiff is tbe administrator of ber estate, and that be bad qualified as required by law; and that tbe plaintiff bad made demand of some personal property supposed to be tbe same property referred to in the complaint, but, save as thus expressly admitted, tbe answer denies each and every allegation of tbe complaint.</p> <p>It appears in the record, among other things, in effect, that tbe deceased, Mary Becker, was seventy-nine years of age at tbe time of ber death. She was tbe widow of Ered Becker, who died in 1892. She bad been bis wife for thirty-four years before be died. Ered bad been married before and bad two sons by bis first wife, and tbe defendant was one of them. About ten years after Ered married Mary Becker tbe defendant married and left borne. In 1882, at tbe request of bis father, tbe defendant with bis family went back and took charge of bis father’s farm and cared for him and bis stepmother until bis father died, and from that time on until Mary died she continued to' live as before in ber own separate pal’t of tbe same farmhouse occupied by tbe defendant. Mary’s husband bad made provision for ber comfortable support, whereby she was not only to hare such separate home and half an acre for a garden, bút the defendant and his brother were each to pay her $100 a year in cash and furnish her with a certain quantity of wood and provisions each year. Mary owned everything in her part of the house and ran the same and the garden herself and attended to her own business, except such assistance as she got from her sister and a Mr. Wolf. Mary had no blood relatives except a sister and her two daughters, Lena and Lizzie Schultz, who lived about half a mile from where Mary did.</p> <p>On Saturday, June 17, 1905, Mary was very sick and was visited by the doctor on the afternoon of that day. Her niece, Lena Schultz, and the defendant’s wife sat up with her all that Saturday night. Between 7 and 8 o’clock the next morning the doctor again attended her. About that time the defendant sent his boy for one A. L., who lived about a mile-distant. A. L. came between 8 and 9 o’clock and asked the defendant in the presence of Lena Schultz and his wife and another lady what he wanted of him. The defendant replied, some kind of a writing disposing of Mary’s property, and that he, A. L., knew best what to write. A. L. then said there was nothing he could do except to make a will — write Mary’s wishes on paper. The defendant then said Mary did not want any will, but wanted a memorandmn, which A. L. told him would be worthless and advised against it. A. L. could not understand Mary, who was German, but communicated with her throTrghjthe defendant’s wife, which finally resulted in his making the following written memoranda :</p> <p>Exhibit 1, covering a large number of items in the house to various persons.</p> <p>Exhibit 2:</p> <p>“I, Maria Becker, of the town of Greenville, county of Outagamie, state of Wisconsin, do make it known that by and with my order I give to Henry Becker, Sr., all monies now deposited in the Eirst Rational Bank of Appleton, amounting to twelve hundred ($1,200)' dollars, providing my death oc■curs at this time, and I further order that the sum of three hundred ($300) dollars shall be taken from the above amount of twelve hundred ($1,200) dollars and be used if necessary to pay the cost of the funeral and monumental expenses. It has been my expressed wish and do express it now that no will or testament be written or made. In conveying my personal property to the said Henry Becicer, Sr., I do declare and order that the above written order shall be in full force immediately after my death. In witness whereof I have set my ■hand and seal this 18th day of June, 1905.</p> <p>her</p> <p>“Maria X Becicer. [Seal.]</p> <p>mark.</p> <p>“A. Lockschmidt, Witness.</p> <p>“Lydia Sckottler, Witness.”</p> <p>Exhibit 3:</p> <p>■“$1200. > 'June llth, 1905.</p> <p>“One year after date I promise to pay to the order of Mary Becker Twelve Hundred Dollars at the Eirst National of Appleton.</p> <p>“'Value received with interest at 2^ per cent, per annum.</p> <p>“This note is of no value after the death of Mary Becker.</p> <p>his</p> <p>“Henry X Beceer.”</p> <p>mark.</p> <p>her</p> <p>■ “ERNESTINE X BECKER.”</p> <p>mark.</p> <p>Soon after, and about 1 o’clock in the afternoon of that ■same Sunday, June 18, 1905, Mary died.</p> <p>At the close of the testimony the plaintiff’s counsel moved the court for the direction of a verdict in favor of the plaintiff, and, the court having stated that such “motion to direct a verdict must be granted,” counsel for the defendant thereupon stated “that the defendant disclaims, and has always dis-•daimed, any right, title, or interest in the household goods, ■and makes his claim solely as to the certificates of deposit .amounting to $1,200, and for which the note, Exhibit 3, was •given, and the defendant asks of the court that the questions ■as to the transfer and delivery of the certificates of deposit and all other questions involved in tliat transaction be submitted to the jury.” To that request the court stated:</p> <p>“As to that point the court holds that the undisputed evidence shows that all the property involved in this action passed into the possession of the defendant and has remained in his possession down to the present time.”</p> <p>The defendant duly excepted to such ruling of the court. .The court then stated that “under'the decision of the court the gift causa mortis fails as to all of that property. The uncontradicted evidence shows that the property is, and has been ever since the death of the donor, in the possession of the defendant, and he must account for it. So far as the evidence shows/nobody has made any claim to it except the administrator; there is no disclaimer here in the pleadings or anywhere else that I know of except the mere verbal disclaimer on the trial.” Counsel for the defendant excepted to such ruling of the court as contrary to the evidence and that it was a question for the jury and not for the court. The defendant then asked the privilege of showing that the household goods did not exceed in value $100, to which the plaintiff objected on the ground that thq plaintiff’s witnesses were not present; “and thereupon the court directed the jury to find and return a verdict in favor of the plaintiff and against the defendant in the sum of $1,500 damages, and the jury accordingly found, rendered, and returned into court such verdict as so directed.” From the judgment entered upon that verdict in favor of the plaintiff and against the defendant for the amount stated with costs, the defendant appeals.</p>

<p>Appeal from a judgment of tire circuit court for Rock county: B. F. Duewiddie, Circuit Judge.</p> <p>This is an appeal from the judgment of the circuit court for Rock county upon the verdict of a jury supplemented by findings of the court authorized by stipulation of parties. The action was begun in justice’s court, and upon appeal to the circuit court the defendant pleaded a counterclaim containing eighteen items aggregating $2,715.69. Based on the verdict of the jury in his favor the plaintiff recovered $134.03, -which was reduced to $121.79 by offsetting against it the eighteenth item of defendant’s counterclaim, allowed by the court in its findings at $12.24, and judgment was rendered in favor of the plaintiff for $121.79 and costs.</p> <p>The complaint averred that on June 5, 1899, the plaintiff entered the service of the defendant as agent, for which service he was to receive $20 per week; that he performed and that he had been paid for all except the week ending January 16, 1904, for which there was due him from the defendant $25; and then averred claims for other items of commission earned and moneys paid to the use of defendant, in all aggregating $177.37.</p> <p>The amended answer admitted services by the plaintiff up to January 9, 1904, and pleaded payment of all claims of the plaintiff. The counterclaim averred that plaintiff entered the employment of defendant as general superintendent of the Janesville district, including Janesville, Beloit, Madison, Watertown, and Portage, and that on the recommendation and advice of the plaintiff Otmar W. Andres was appointed assistant superintendent of the detached section of said district in the city of Madison, and entered upon the performance of his duties; “that by virtue of the contracts, agreements, instruction books constituting the contract between the plaintiff and defendant the plaintiff became responsible for the faithful performance of all duties on the part of said assistant superintendents.” The duties are then specified to be (1) to obey all orders, carry out all instructions, etc.; (2) to see to it that each of the assistants performs his duties in a diligent, skilful, and faithful manner; (3) “that the plaintiff by virtue of his employment as general superintendent became responsible for all moneys received by himself or his assistants and clerks for said defendant-or from said defendant.” Then follow items of the counterclaim which may be classed as relating (1) to plaintiff1Vaccount in arrears; (2) to premiums collected and converted to his own nse by Andres; (3)- to moneys received from defendant npon fraudulent death claims made and presented by Andres; (4) valid death claims against the defendant, in which Andres received the money or draft for transmission to the beneficiary hut converted the same to his own use; (5) a sum due from plaintiff for rebate on a credential hook. In two of the instances arising under class 3 above it was averred also that the draft issued by the defendant in payment of the fraudulent claim was payable to the order of plaintiff and by him indorsed, and in the case of Elizabeth Smith, falling under class 4 aboye, and in items 1 and 2 of the counterclaim, falling under class 2 above, special promises of the plaintiff to make good the defendant’s loss or repay the defendant were averred. By varying forms of expression it was averred that plaintiff committed these acts of .conversion and fraud through Andres. The items of the counterclaim may be further classified as items relating to the Ordinary Department of defendant’s business, which department, with some immaterial divergence, included policies from $500 upwards; and items relating to the Industrial Department of defendant’s business, in which policies were issued in smaller amounts and premiums paid, collected, remitted, and reported on weekly. Of the items of the counterclaim consisting of premiums collected and converted by Andres three relate to the Ordinary Department of defendant’s business, and with this exception, and with the exception of the first item for general balance due from plaintiff upon account, all the other disallowed items of the counterclaim relate to transactions in the Industrial Department. The plaintiff had no authority to employ or discharge Andres, and, although he might nominate or select such assistants subject to defendant’s approval, he did not do so in the case of Andres.</p> <p>Upon the special verdict of the jury finding as aforesaid, and finding that the plaintiff was not guilty of any negligence in tbe matter of Ms supervision of the Madison district or in forwarding checks to Andres, and the findings of the court that the plaintiff had accounted for and paid over to the defendant all sums of money which came into his hands as agent or superintendent of the defendant, and that Andres was at no time the agent of the plaintiff, but was the agent of the defendant with whom the defendant corresponded, dealt, and treated directly in both the Industrial and Ordinary Departments, and that, except the claim for balance due on account above mentioned, all the shortages, defalcations, and procuring of money by forgeries occurred in the Madison office of said Andres, all the other items of the counterclaim were disallowed and judgment rendered as aforesaid.</p> <p>Error is assigned upon the ruling of the court below compelling the defendant to elect at the commencement of the trial whether it would proceed in tort or upon contract in respect to its counterclaim; in the exclusion of evidence; in submitting to the jury the right of the plaintiff to recover the item of $25 wages; in refusing to submit to the jury whether or not the defendant would have suffered loss on account of the fraudulent death claims had not the plaintiff been guilty of negligence; in submitting to the jury questions relating to the negligence of plaintiff in the matter of supervision of. the department; in refusing to give certain requested instructions to the jury; in charging the jury; in refusing to-strike out three of the questions and answers of the special: verdict; in refusing to make findings requested by defendant;: in making the findings signed by the court, except the first, and third findings; in not covering all the issues involved in the findings of fact; in submitting the question of the negligence of the plaintiff in forwarding two drafts to Andres; in not finding for the defendant on each item of the counterclaim submitted to the court, except items 4 and 18; and in not submitting to the jury, or himself finding on the proof submitted, the fact of loss to the company by forged and fraudulent death claims; and in not finding as to the truth of each item set up in the counterclaim.</p>

<p> ■County orders: Sale: Failure of consideration: Implied warranty: Action to declare void: Tender of defense: Privity between payee and his assignee: Judgment' conclusive between defendants: Contracts against public policy. </p> <p>1. When county orders are adjudged void there is a total failure of consideration for a prior contract to purchase them.</p> <p>2. In the sale of county orders there is an implied warranty that the seller has title and that they are not spurious, false, or counterfeit.</p> <p>'8. Where both the payee named in county orders and his assignee were defendants in a taxpayers’ action to have the orders declared fraudulent and void, it was not necessary for the as-signee to tender the defense of the action to the payee in order to make the judgment conclusive as between them.</p> <p>4. In such case the payee named in the orders and his assignee were in privity in the action with respect to the invalidity of the orders.</p> <p>£. Where the plaintiff makes a claim hostile to each and every defendant in the suit, asserting that an instrument for the payment of money in which each defendant has or claims an interest, either as present holder or as privy to the present holder by reason of being a transferrer of such holder, is fraudulent and void and obtains judgment to that effect, the instrument must he held fraudulent and yoid in any subsequent litigation between the same parties, however they may he arrayed therein against one another.</p> <p>'6. A judgment in a taxpayers’ action canceling and declaring void certain county orders is quasi in rem and establishes prima fa-cie, as against all persons, the status of such orders.</p> <p>7. A contract whereby the manager of a corporation, who was also chairman of the county hoard, knowing £hat an action to have certain county orders declared void was threatened, agreed on behalf of the corporation to purchase and pay for said orders and take chances on the litigation, was contra bonos mores and void.</p>

<p>Appeals from a judgment of tlie circuit court for Milwaukee county: Laweenoe W. Halsey, Circuit Judge.</p> <p>Action upon a promissory note of $375, to which, was interposed, first, a defense that the consideration of the note-was a certain mutual contract which had been breached in: certain respects by the plaintiff; and, secondly, counterclaim based upon the same contract and the alleged breaches thereof. The plaintiff is a manufacturer of drugs and pharmaceutical' preparations at Cincinnati, Ohio. The defendant, for many years, has been engaged in the drug business at Milwaukee^ both as a retailer and a jobber, and had for many years prior to 1903 been familiar with the goods manufactured by the-plaintiff, which were well-known articles in the trade. On or about June 1, 1903, the parties entered into a written contract whereby the plaintiff agreed to sell and the defendant to purchase a stock of goods of plaintiff’s manufacture to the amount of $1,500, at a discount from retail prices specified in the catalogue of forty per cent, and twelve and one-half per cent, on part, and forty per cent, and ten per cent, on part — ■ “all the stock thus furnished to be carefully selected to meet the wants of the physicians and druggists of Milwaukee, Wisconsin, and vicinity;” the defendant agreeing to give the plaintiff its active influence and co-operation in extending the sale of the latter’s preparations in the prescribed territory, and to keep up the assortment of said stock so as to meet the requirements of the drug trade and the medical profession. The term of the contract was one year. The plaintiff agreed to personally canvass by competent agents the territory tributary to Milwaukee and to turn over orders to the defendant for execution to the amount of $1,000 within a year. Also to exchange such goods as might be found least desirable for trade, for other articles of plaintiff’s manufacture, with certain limitations as to time, and also the limitation that ex^* changes should only be made in what was called part 1 of the catalogue. Part 1 of the catalogue contained all the staple drugs and preparations in the various forms of oils, elixirs, tablets, pills, powders, and the like, from which approximately five sixths of all sales were ordinarily made, while parts 2, 3, and 4 contained certain specialties and proprietary combinations. The grounds of counterclaim were: First, that the .stock of goods .shipped to the defendant was not carefully selected so as to meet the demands of the trade at and tributary to Milwaukee; and, secondly, that the plaintiff did not, in accordance with the contract, duly canvass such territory and turn over orders to the defendant, and that such orders as it did take and turn over were not at adequate prices.</p> <p>The court directed a verdict for the plaintiff upon its note, and submitted to the jury a general verdict npon defendant’s counterclaim, whereon the jury found damages in defendant’s favor to the amount of $400, which, being deducted as of the date of the verdict from the amount of the $375 note with interest from its maturity, left a balance of $29.68 in plaintiff’s favor, for which judgment was entered. Plaintiff had moved to direct a verdict in its favor on the counterclaim, and also moved to set aside the verdict and grant a new trial. Defendant moved for a judgment in its favor based upon an allowance of interest on the $400 damages from the date of the breach of the contract. Plaintiff appeals from so much of the judgment as allows any part of the counterclaim to be deducted from the amount of its note and interest. Defendant appeals from so much as disallows it interest upon its damages from the time of the alleged breach of the contract by plaintiff.</p>

<p> Contracts: Rescission: Waiver by claim for damages: Sales: Row re* scinded: Grounds: Evidence of damage. </p> <p>1. A complaint or counterclaim for damages for breach of a contract is in affirmance of the contract and inconsistent with a claim that the contract has been rescinded, and is a waiver of any right to a rescission.</p> <p>2. A contract cannot be rescinded in part and affirmed in part.</p> <p>3. Rescission of a contract of sale by the buyer' after delivery of the goods consists of a return of- the goods within a reasonable- ' time upon sufficient grounds, and refusal to pay the stipulated price therefor.</p> <p>4. Where a written contract for the sale of jewelry particularly described the articles and specified the prices in detail, it was not sufficient ground for a rescission by the buyer that, when received, the goods did not come up to expectations, were too high priced, would not sell in that locality, and did not contain certain articles not specified in. the contract.</p> <p>5. Where, under a counterclaim for damages in an action for purchase price of goods, there was .'evidence of breaches of the contract by plaintiffs but no evidence of damage, there was nothing to submit to the jury as to such breaches.</p>

<p> iReference: Long account: Principal and surety: Bond of employee: Execution induced by false representations: When bond takes effect: Defenses of surety: Pleading: Amendment: Discretion: Evidence: Books of account, etc.: Appeal: Directing judgment. </p> <p>•1. An order of compulsory reference may be based in part on statements of counsel to which no objection is made; and where such statements are not preserved in the record it will be presumed that the reference was proper.</p> <p>:2. To warrant a compulsory reference under sec. 2864, Stats. (1898), on the ground that the examination of a long account will be necessary, the action need not be strictly based on the account or be for an accounting. It is sufficient if there is a long account in the proper sense which is directly involved, so that it must, in the regular course of the trial, necessarily be examined as substantially the basis of the claim for a recovery.</p> <p>:3. If the proposed surety in a bond for the conduct of an employee makes inquiry of the proposed obligee as to the previous conduct of the employee, such obligee is bound to make full disclosure of all material facts within his knowledge bearing otl the risk, and if he fails to do so or knowingly makes, in response to the inquiry, false representations as to such facts, or does so ignorantly but under such circumstances as would naturally lead the inquirer to believe the representations to be based on an investigation, and the proposed surety is thereby induced to sign the bond, he may avoid liability thereon' on the ground of fraud.</p> <p>-4. But an innocent false representation in such a ease, such as the assertion of a mere opinion or the misstatement of a fact through mere ordinary negligence, not made under such circumstances as to suggest that it was based on an investigation, will not relieve the surety of liability.</p> <p>;5. In general a bond speaks from its date, but upon proof that it was delivered at a later time the primary presumption is displaced by one that 'it was intended to take effect from its delivery only, unless by its terms it satisfactorily appears that the parties intended it to take effect from its date or some -other time.</p> <p>6. A bond given to secure faithful performance by an employee of Ms duties under a contract of employment dated February 11, bore the same date, but was not delivered till May 6. When first presented for signature the bond provided that it should-“expire with the time of service as specified in the contract” (which time was not fixed but depended on mutual satisfaction of the parties), but before being signed it was changed so as to ■ provide that it should “expire one year from the date hereof.”’ Held, that the bond took effect as of the date of the contract and covered defalcations, if any, between such date and its delivery.</p> <p>7. In an action by an employer upon the bond of an employee, the surety must specially plead, in order to avail himself of, the defense of a release by reason of the employer having made ai contract with the employee permitting the latter to repay the money misappropriated by working a sufficient length of time-to balance the same with his wages, or by reason of the imposition upon the employee of duties not contemplated by the contract and materially increasing the risk of the surety, or by-reason of the employer having prejudicially retained the employee in the service after discovering his delinquency, concealing the situation from the surety.</p> <p>8. Refusal to permit an answer to be amended so as to set up new defenses is held not an abuse of discretion where no excuse was-given for delay in making the application.</p> <p>9. In an action upon the bond of an employee the books kept by him as a part of his duties during the period of service covered by the bond are evidence against the surety, but not so as--to unverified invoices and books kept by the employee before-said period.</p> <p>10. Thus, an inventory of stock on hand a month and a half before-the commencement of the term of service covered by the bond, together with unverified invoices and a sales book kept by the-employee, do not, as against a surety on .the bond, show the- . amount of stock on hand when said term- of service began.</p> <p>11. Where there was a failure of proof as to some fact essential to-a recovery and there is no reasonable probability that the lacking proof would be supplied on another trial, the supreme court’ will direct the judgment to be entered below without remanding the case for a further hearing.</p>

W. BueNell, Circuit Judge. Tbe appeal is from an order sustaining demurrer to a complaint setting forth a cause of action for personal injuries to' tbe plaintiff, an employee of tbe defendant, resulting from tbe incompetence and negligence of a fellow-servant.

<p> Municipal courts: Action on judgment: Limitations: Pleading'. </p> <p>1. Tlie municipal court for Langlade county, created by ch. 96, Laws' of 1891, is not a justice’s court nor a court of record, but is a. municipal court under sec. 2, art. VII, Const.; and an action! upon its judgment is barred, under subd. 1, sec. 4222, Stats. (1898), after six years from tbe rendition thereof.</p> <p>2. Where a transcript of a judgment of said municipal court has been filed and docketed with the clerk of the circuit court as authorized by said act of 1891, an action upon the judgment so docketed is, by secs. 2900, 2902, Stats. (1898), barred after ten years from the date of its rendition.</p> <p>3. In an action upon a judgment of the municipal court for Lang-lade county the answer alleged the date of the rendition of the judgment and the date of the filing of a transcript with the clerk of the circuit court. It also alleged that more than ten years had elapsed between the entering of said judgment and the commencement of the action thereon. It then alleged that the action was barred by subd. 1, sec. 4222, Stats. (1898). Held, that defendant was entitled to rely upon the ten-year limitation under secs. 2900, 2902.</p>

<p>Subrogation: Advances to pay off incumbrance: Defective security.* Laches: Limitation of actions: Mortgages: Extension of time by partial payment.</p> <p>1. One wlio advances money to pay off an incumbrance upon property under an agreement that be is to bave security tbereon will not be regarded as a mere volunteer, but will be subrogated to tbe rights of tbe original incumbrancer if bis own security turns out to be defective and there are no intervening equities.</p> <p>2. Tbe widow of a testator was given a life estate in land and became executrix of the will. Tbe personal estate was insufficient to pay debts, and in order to obtain money to pay off an overdue mortgage on tbe land she gave to another person a new mortgage which was intended and understood to cover tbe fee and not merely her life estate. No equities having intervened, the new mortgagee is held. entitled to be subrogated to the rights of the original mortgagee, Ocm-ner WeZcTi, 51 Wis. 431, and Watson v. Wilcox, 39 Wis. 643, distinguished.</p> <p>3. The right to subrogation in such a case is not barred by mere delay short of the statutory period of limitation, in the absence of an equitable estoppel, no rights of third persons being prejudiced by the delay.</p> <p>4. Payment of interest upon a past-due note secured by mortgage extends the time within which, under sec. 4220, Stats. (1898), an action may be brought to foreclose the mortgage to twenty years from the date of such payment.</p>

<p>Schools: Change from district to city system: Mandamus to compel delivery of property: Questioning validity of adoption of general charter: Notice of special district meetings: Sufficiency.</p> <p>1. Where a city in which the schools have been conducted under the district system as provided in the general statutes adopts that part of the general city charter law which is applicable to' schools, and a hoard of education is appointed accordingly, mandamus on the relation of the city is the proper remedy to compel the district officers to turn over the school property in their possession to the new hoard of education.</p> <p>2. In such, proceeding by mandamus, commenced more than three months after the attempted and assumed adoption of the general charter provisions, the defendants are precluded by ch. 165, Laws of 1899, from calling in question the validity of such assumed adoption.</p> <p>3. Notice of a special meeting of a school district, stating merely that it would be held at the schoolhouse in said district, was insufficient where there were two schoolhouses in the district.</p> <p>4. Notice of a special meeting of a school district in a city, stating that the purpose of the meeting was to determine whether or not the district wished to ratify the adoption by the city of the provisions of the general charter law relating to schools, was not sufficient to authorize an election at such meeting to change the district system for schools to the city system under the general charter law. _</p>

<p>Appeal from a judgment of tlie circuit court for Sheboy-gan county: Michael KiewaN, Circuit Judge.</p> <p>Action to recover damages caused to the surviving relatives-of Adam Wolf by his death, claimed to have been produced’ by defendant’s negligence.</p> <p>On the 26th day of October, 1905, the deceased was a passenger on defendant’s train, taking passage from Grlenbeulah: to Plymouth, Wisconsin. When the train approached his destination it was about 6:30 p. m. It was raining hard and was-very dark. The street arc lights that were customarily in-service at such time were out. The train stopped a short distance before reaching the depot at a point where the car in> which, Wolf was riding stood on a trestle or bridge and about. eighteen feet above the ground. Just before the train stopped’ the brakeman opened the front door of the car and in a loud voice called the station and then passed forward leaving the door open. When the train stopped, Wolf, supposing he had' arrived at his destination, arose from his seat, walked forward onto the car platform, turned to the right, and stepped off the-car, when he fell to- the ground below, whereby he was so injured that he died the next day. Such in substance are the-allegations of the complaint, the negligence claimed being the-conduct of the brakeman and the stoppage of the train, falsely indicating to Mr. AVolf that the time had arrived for him to-leave it. There was an answer putting in issue the allegations of the complaint as to negligence of the defendant and raising an issue of contributory negligence on the part of the-deceased.</p> <p>The evidence established, or tended to establish, all the allegations of the complaint, except as to closing the door by the-brakeman, and the following: A short distance before reaching the railroad station at Plymouth on the occasion in question it was necessary, as was customary, for the train to stop-on account of a railway crossing. The deceased was a man seventy years of age, who had resided for some twenty-nine-years in Plymouth. He Rad previously resided in Glenheu-lali, some sis miles to the west of Plymouth, had frequently traveled between the two places on the defendant’s train, and was well aware of the custom for trains to stop before reaching the crossing, as was done in the instance in question, this, however, not referring to the calling of the station Before mating the stop. The railroad crpssing had existed and the necessity for trains coming from G-lenheulah to stop therefor Before pulling down to the station for some twenty-four years. Mr. Wolf was a Business man of considerable experience, was well and active for one of his years; and was awake during the entire passage from GlenBeulah to the place where he left the train. His home was on the west side of the station, and it was not uncommon for persons who lived in the westerly part of Plymouth to leave the train when it stopped for the crossing. The depot at the station was lighted as usual, there Being electric lights inside and two incandescent lights outside. As the train stopped Mr. Wolf left his seat, went out upon the car platform, closed the door after him, turned to the left, which was the proper course in leaving the train at the státion, and stepped off into the darkness, resulting in his death as stated in the complaint. No warning was given By the brakeman after calling the station that the first stop would Be at the crossing. Other passengers destined for Plymouth supposed as Mr. Wolf did that the station had Been reached and accordingly started or prepared to alight, But were deterred from executing their purpose By the train starting. One person left the car at the rear Before the train came to a full stop in order to take a short way to his home, as was often done By persons living in the part of town where Mr. Wolf resided. There was no proof that it was customary to call the station Before the train stopped for the crossing, or that the deceased on other occasions had alighted when the train stopped for the crossing in order to take the short way to his home. There was other evidence touching questions submitted to the jury, but that already referred to is sufficient for the purposes of tbe appeal.</p> <p>At the close of the evidence defendant’s counsel moved for a directed verdict, which was denied. The cause was then submitted to the jury for a special verdict, resulting in these findings: Adam Wolf stepped from defendant’s train and met his death as alleged in the complaint. When he stepped from the train the car on which he was riding was standing still. Just before the train stopjped the defendant’s brakeman opened the door at the front of the car and called out the station. He did not warn the passengers that the train would stop or-had stopped on the bridge. Defendant’s servant failed to úse ordinary care for the safety of the passengers destined for Plymouth. Mr. Wolf understood from the calling of the station and failure to give warning to the contrary that when the train stopped it was at the station. There was then no street light burning in the vicinity. It was so dark that the exercise of ordinary bare would not have brought to his attention the fact that the car was on the bridge. The negligence of the brakeman was the proximate cause of the death of Mr. Wolf. He was not guilty of any want of ordinary care contributing to produce his death. - The damages caused to the surviving widow of Mr. Wolf are $1,250.</p> <p>The defendant moved for judgment notwithstanding the verdict and plaintiff moved for judgment on the verdict. The former was denied and the latter was granted.</p>

<p>Appeal from a judgment of the circuit court for La Eay-ette county: G-eoege Clementsoe, Circuit Judge.</p> <p>Action to foreclose subcontractors’ lien. The defendant, a mine owner, entered into a written contract with the Platte- ■ ville Eoundiy & Machine Company to build for the former a concentrating plant, furnishing all materials, according to plans and specifications attached to the contract, for the. sum of $13,'500. The specifications covered the mill, engine house, and connected building in which, by the specifications, there were to be placed certain patented tables which, it was expected, would economically serve a purpose of separating certain inconsistent portions of the ore. The contractor was in the line of business of manufacturing such plants and had had experience with such tables. Included in the proposal and specifications adopted by the contract was an express guaranty by the contractor that the mill should have a certain capacity and that the separation of the ore should he accomplished up to a specified degree of completeness. The contractor built the mill complete and exactly in accordance with the specifications, but, by reason of peculiarities in defendant’s ores, the patented tables were found ineffective, so that the ore could not be separated upon them in accordance with the guaranty. That could only be done by the substitution of roaster appliances in connection with the same buildings, which was afterwards done by the defendant at an expense of about $7,000. Pending the doing of the work defendant had made two twenty-five per cent, payments to the principal contractor in accordance with the terms of the contract, aggregating $6,750, all parties being then ignorant of the inefficiency of the patented tables.</p> <p>Plaintiffs, lumber dealers at Platteville, at about the time of the commencement of the work, were asked to figure upon a list of lumber supposed to be all that was necessary for the construction of the entire plant, and made a price thereon of $2,335, which was accepted. Such lumber was delivered from time to time between the date of the contract and about August 19,' 1904. After such bid several additional small quantities of lumber were ordered and delivered by plaintiff and used in the construction of the mill as originally designed, bringing the total up to $2,525.95, the last instalment of such subsequent orders being delivered September 23, 1904. Plaintiffs’ notice that they claimed a subcontractors’ lien was served November 19, 1904.</p> <p>After the discovery that the tables would not separate the ore as guaranteed, the principal contractor became bankrupt, and, by some arrangement between the defendant and the receiver, the former took possession of the premises, apparently upon mutual abandonment of all claim by one against the other; the defendant making no claim for damages by reason of the breach of the guaranty nor for return of any of the moneys paid, and no claim having been thereafter urged against the defendant in favor of the principal contractor’s estate.</p> <p>The defendant denying plaintiffs’ subcontractors’ lien, this action was brought and tried, and, after disclosure of substantially the foregoing facts, with perhaps some others to be mentioned in the opinion, the court denied plaintiffs’ right to lien on several grounds, and entered judgment dismissing the complaint, from which plaintiffs appeal</p>

On May 12, 1900, Thomas Williams sold the defendant Thomas H. J ones a forty-acre tract of land, and gave a deed therefor containing the following clause: “The southeast quarter of the southeast quarter of section eighteen (18), town six (6) north, of range four (4) east of the fourth principal meridian, saving, excepting and reserving for himself, the grantor herein, all the timber now growing and standing on the south half of the said premises, with the right at all times…

J. Eeuit, Circuit Judge. . This action was brought by plaintiff as executrix to recover for a sick benefit claimed to be due her testator under a policy of insurance issued by the defendant company. The action was tried by the court without a jury and resulted in findings and judgment for plaintiff for $87 and costs. Defendant appealed from the judgment.

<p> Pleading: Oonstruotion: Pacts inferable from facts alleged: Conclusions: Yoluntary payment. </p> <p>1. If tlie language of a complaint will reasonably admit of a construction that will support it, that construction should be adopted rather than one that will condemn it; and to that end all facts reasonably inferable from facts expressly alleged are to be deemed to be set forth and as forming part of the pleading.</p> <p>2. A complaint alleged in substance that defendant wished to appeal from a judgment against him for about $7,000; that the plaintiff company, which had insured him against liability on such judgment in the sum of $5,000, procured from a surety company an undertaking on appeal to pay the'judgment; and that defendant agreed in writing that if the judgment should be affirmed he would pay to plaintiff any amount which the latter might be obliged to pay in excess of $5,000. The complaint then averred that plaintiff was obliged to and did pay said judgment, includ- . ing a certain amount in excess of $5,000. Held, on demurrer, that the latter averment did not state a mere conclusion of law, and that it included, by reasonable inference, an averment that the judgment was affirmed on the appeal, so that the payment was not voluntary. - '</p>

<p> Mortgages: Foreclosure: Parties: Claimants of note and mortgage. </p> <p>In an action to foreclose a mortgage it was alleged that certain defendants claimed to have some interest in or lien upon the premises and to he the owners of the note and mortgage and had made, such claim to the defendants personally liable to pay.the note, by reason whereof the latter had refused to pay the note to plaintiff; but that such claimants had in fact no interest in the note and mortgage or the premises. Judgment was demanded, among other things, adjudging plaintiff to be the sole owner of the note and mortgage. Held, on demurrer, that under see. 2603, Stats. (1898), such claimants were properly made parties defendant.</p>

<p> Bills and notes: Bights of holder: 'Notice of infirmity: Pleading: Note given for stallion: Lack of words required by law: Invalidity: Statutes: Validity in part. </p> <p>1. In an action upon a note alleged to have been transferred to plaintiff for value before due, an answer alleging that the giving of the note was induced by certain false and fraudulent representations, by reason of which defendants were damaged in a certain sum, and that when plaintiff purchased the note he knew the fact that the representations were made and that they were false when made, is held sufficiently to charge that plaintiff had notice of the infirmity in the instrument when he purchased it and hence was not a holder in due course.</p> <p>2. Ch. 438, Laws of 1903, though void so far as it relates to patents and patent rights, is valid so far as it relates to notes or other evidences of indebtedness given for stallions. J. H. Olark Go. v. Bice, 127 Wis. 451, limited.</p> <p>3. One part of a statute may he unconstitutional and the remainder may still have effect, provided that the two parts are distinct and separable and not dependent upon each other.</p> <p>4. A note given for a stallion, hut not having on its face the words required by ch. 438, Laws of 1903, is void. [Whether, as to an innocent purchaser before due, the maker of such a note would be estopped to set up its illegality, not determined.]</p>

<p> Appeal: Questions decided on former appeal: Master and servant: Injury to servant: Contributory negligence: Court and jury: Assumption of rislc: Instructions to jury: Special verdict: Consistency of answers. </p> <p>1. The decision of a question on appeal is conclusive of the same matter when again presented in the same case upon the same or substantially the same evidence.</p> <p>2. A decision on a former appeal that plaintiff, against whom a verdict had been directed on the ground that the evidence showed his contributory negligence'as matter of law, was entitled to have that question submitted to the jury, is held to be eon- , elusive of defendant’s right to have that question so submitted on a second trial upon substantially the same evidence.</p> <p>3. Plaintiff, a boy fifteen years old, substantially a man grown, and intelligent for his years, was injured by the revolving knives of a planing machine in defendants’ mill while attempting to clean out a hopper under the knives. Meld, that the jury were properly instructed that if plaintiff knew that there was a rapidly revolving knife or knives at the edge of the hopper and that his hand was liable to come in contact therewith in attempting to take hold of the hopper, he must be held to have appreciated the danger and assumed the risk in attempting to do the work, although by express direction of the defendants; that the true test as to whether a minor has assumed the ordinary risks of his employment or is guilty of contributory negligence is not whether he in fact knew and comprehended the danger, but whether, under the circumstances, he ought to have known and comprehended such danger; and that defendants had a right to assume that the plaintiff was a person of ordinary common sense for one of his years and that he would exercise such care to avoid dangers which were visible and which he knew, or ought to have known, existed as might be reasonably expected of one of his years and capacity.</p> <p>4. Such instructions, being given with reference to a question submitted for special verdict covering the matter of plaintiff’s contributory negligence or assumption of the risk, were not objectionable as informing the jury of the effect of their answer to the question.</p> <p>5. A finding that plaintiff was guilty of contributory negligence was not inconsistent with a finding that when he attempted to clean out the hopper he did not know of the revolving knives which were liable to come in contact with his hand. Taken together, such findings indicate that the jury decided that, under the circumstances, plaintiff ought to have known and comprehended the danger.</p>

<p> & ales: Implied warranty: Goods delivered: Conformity to contract: Court and jury: Evidence: Opinions:Improper remarks/ of counsel. ’ ' </p> <p>■1. Upon an agreement to sell and deliver a quantity of “No. 2 screenings,” to fee tie future output of tie vendor’s flour mill for about two months, — suci screenings being a by-product resulting incidentally from tie manufacture of flour, — tiere was no implied warranty tiat tie screenings so sold would be of tie same quality as those being produced -at tie time tie contract was made.</p> <p>'2. Upon tie evidence in tiis case tie question wietier tie commodity delivered by the vendor was actually tie “No. 2 screenings” from tie mill during tie period specified, is held to iave beei one for tie jury.</p> <p>3. As to such question it was proper to admit evidence descriptive of tie process establisied and in operation in tie mill, and samples or description of tie commodity delivered, to siow tiat such commodity could not have resulted,from tie process described.</p> <p>4. A statement by tie vendee, in iis testimony describing tie goods delivered, that they were not No.s2 screenings, is held not so clearly an attempt to give iis nonexpert opinion upon tie question wiici tie jury were, to answer tiat its admission, not specifically objected to upon that ground, can be said to iave been an error warranting reversal.'</p> <p>5. In an action upon a contract for tie sale of screenings tiereafter to be produced in plaintiff’s flour mill, where the court had ex-i eluded samples offered in evidence as having been shown to defendant when tie contract was made,-remarks of defendant’s counsel in iis argument to tie jury, commenting on plaintiff’s efforts to exclude- suci samples -from tie observation and consideration of tie jury, are held improper; but tie trial court haring promptly suppressed suci comments, commanded counsel to confine himself to tie evidence wiici had been admitted, and ruled that tie jury had no right to infer what suci samples might be, and having thereafter decided that plaintiff was not so prejudiced that a new trial should be granted, this court does not deem such conduct of counsel a ground for reversal.</p>

J. Eeuit, Circuit Judge. On January 2,1905, Joseph L. Hayes, plaintiff’s decedent^ was killed at Sparta, Wisconsin, by being crushed between the drawbars of two freight cars. He was at the time of his death between eighteen and nineteen years of age, and head brakeman on the freight train which left La Crosse, Wisconsin, for the east about 5 o’clock and arrived at Sparta on the morning of the injury.

<p>Appeal from a judgment of the circuit court for Wood county: Chas. M. Webb, Circuit Judge.</p> <p>The appeal is from a judgment for $225, interest and costs in an action for breach of a commission contract upon sale of real estate. The appellant assigns as error: (1)- The refusal of a nonsuit; (2) the refusal to direct a verdict for defendant; (3) the refusal to grant a new trial; (4) errors in refusing and in giving instructions to the jury; (5) error in the exclusion of evidence.</p> <p>They contended, inter alia, that even if the plaintiffs had not abandoned the contract and their time had not been limited, defendant, by selling to Frost on different terms than those upon which plaintiffs were to sell, did not become liable for commission unless he knew that Frost was able, ready, and willing to buy upon the terms proposed to plaintiffs. McArthur v. Slanson, 53 Wis. 44, distinguishing Stewart v. Mather, 32 Wis. 344; Oullen v. Bell, 43 Minn. 226; Fairchild v. Cunningham, 84 Minn. 521; McGuire v. Carlson, 61 Ill. App. 297; Ryan v. Page, 123 Iowa, 246; Ames v. Lament, 107 Wis. 531. But after abandoning the contract as plaintiffs did on December 19th, the defendant selling on different terms, plaintiffs certainly were not entitled to commission. Trickey v. Orowe (Ariz.) 71 Pac. 965; Watts v. Howard, 51 Ill. App. 243; Cullen v. Bell, 43 Minn. 226; Tooker v. Duckworth, 107 Mo. App. 231. Plaintiffs were not entitled to a commission upon a subsequent sale by defendant in the .absence of fraud, even though defendant sold to one with whom plaintiffs were negotiating before their time expired. Ames v. Lamont, 107 Wis. 531; Learned v. McCoy, 4 Ind. App. 238; Antisdel, v. Canfield, 119 Mich. 229; Fultz v. Wimer, 34 Kan. 576; Castner v. Richardson, 18 Colo. 496; Watson v. Brooks, 11 Oreg. 271; Zeimer v. Antisdel, 75 Cal. 509; Farrar v. Brodt, 35 Ill. App. 617. If, after refusing to buy, Prost through his friend Bean’s recommendation and defendant’s own efforts or for any reason of his own subsequently changed his mind and became willing to' purchase, it would not entitle plaintiffs to a commission. Lipe v. Ludewick, 14 Ill. App. 372; Wylie v. Marine Nat. Bank, 61 N. Y. 415; Sibbald v. Bethlehem I. Co. 83 N. Y. 378, 383; Moses v. Bierling, 311ST. Y. 462; Moore v. Cresap, 109 Iowa, 749 ; Farp v. Cummins, 54 Pa. St. 394; Fairchild v. Cunningham, 84 Minn. 521; Francis v. Fddy, 49 Minn. 447; Willey v. Rutherford, 108 Wis. 35; Wis. F. L. Co. v. ■ Bullard, 119 Wis. 320.</p> <p>They argued, among other things, that the case was in all respects properly submitted to the jury. Schultz v. Fberle, 124 Wis. 594. It is sufficient if the agent procured a purchaser at a satisfactory price. Hubachek v. Hazzard, 83 Minn. 437, 86 PT. W. 426; Willes v. Smith, †† Wis. 81; Delaplaine v. Turnley, 44 Wis. 31, 41; *■O’Gonnor v. Semple, 57 Wis. 243; Vreeland v. Vetterleinj 33 N. J. Law, 247, 249.</p>

<p>Appeal from an order of the circuit court for Portage' county: Chas. M. Webb, Circuit Judge.</p>

<p>ERROR to review a judgment of tbe circuit court for Milwaukee county: Orreh T. Williams, Circuit Judge.</p> <p>The statement of this case given in this court, reported in 124 Wis. 635, 102 N. W. 1087, renders a restatement of the facts therein given unnecessary at'this time. The decision in this court reversing the judgment of the trial court and remanding the cause for a new trial was rendered April 5, 1905. Thereupon the defendant, being delivered into the custody of the sheriff of Milwaukee county, was produced by him before the circuit court, and upon a certified copy of the mandate of this .court was admitted to bail on April 6, 1905. The clerk of the circuit court placed the case as No. 645 on the trial calendar of the circuit court for the October, 1905, term of the court. When, oh November 20, 1905, the case was called for trial, the defendant moved for a continuance of the case until January, 1906, upon the ground that he was not then ready to proceed with the trial. This motion was overruled and the ease, ordered for trial on November'22, 1905, at 2 o’clock p. m.- On November 22 d the court directed that the trial be proceeded with, and held it in'abeyance until 10 o’clock on the following day. November 23d, at 10 o’clock a, m., the district attorney, in defendant’s presence, announced to the court that the record in the case had not been returned to the circuit court, but that on the day previous it had been called for from this court, and that it would probably arrive during the forenoon of that day. Defendant, by his counsel, then moved the court that he be discharged and go without day. This motion was denied and the court suspended further proceedings in the case until 2 o’clock p. m., at which time defendant, by his attorney, objected to being put upon his trial at that time or during the pending term, and asked that the case stand for trial in January, 1906. The record in the case had then arrived from this court and had been on file with the clerk since 10:35 o’clock in the forenoon. The court ruled that the case was properly before the court and subject to call for trial, but ordered a postponement of the trial to the 4th dav of December. 1905. at 10 o’clock a. m.</p> <p>On. December 4, 1905, the case was called for trial. At this time defendant interposed the same objections as bad theretofore been made. These were overruled, and the defendant then filed an affidavit of prejudice as to Judge Tarraitt, then presiding, and under sec. 4680, Stats. (1898), and ch. 2, Laws of 1903, asked that the venue be changed. This application was denied, and the court then of its own motion decided to postpone all proceedings until 2 o’clock of that day for the purpose of conferring with the other judges of the circuit court for Milwaukee county to determine whether the case could properly be transferred to another branch of this court. At 2 o’clock p. m. Judges Tarraitt and Williams appeared in court and announced that they, as the majority of the judges of said court, Judge Halsey being absent from the state, had determined to transfer this case to branch No. 3 of the circuit court, presided over by Judge Williams, and ordered the clerk to produce the records and minutes of the proceedings in that branch of this circuit court presided over by Judge Williams at 10 o’clock the following day, December 5, 1905.</p> <p>On December 5, 1905, the case was called for trial in branch No. 3 of the circuit court, Judge Williams presiding. The records in the case and the minutes of the proceedings which had taken place in the branch of the court presided over by Judge Tabeaitt were produced by the clerk, and the ease was moved for further proceedings and trial by the district attorney. Defendant objected, claiming this branch of the court had no power to proceed in the case. The court ordered the trial to proceed.</p> <p>The trial proceeded before a jury. The plea in bar, to the effect that defendant was entitled to immunity from prosecution because he had testified concerning the transaction covered by the information before the grand jury, was first tried, and thereafter the trial proceeded upon his plea of not guilty. The question of errors in the case pertaining to the proceed-rug upon this plea iu bar was before this court upou certified questions from the trial court, and the proceedings and the decision thereon in this court are fully reported in 128 Wis. 201,107 N. W. 4Y0. The general issues raised j>y the plea of not guilty were submitted to the jury upon the evidence and the instructions of the court. The defendant requested the court to give three instructions, which request was refused. These three instructions were also requested in the first trial, and exception to such refusal was urged on review of the case in this court. 124 Wis. 639, 640, 102 N. W. 108Y. It was there held that the instructions given by the court covered the issues and correctly informed the jury of the law applicable to the issues and the evidence adduced, and that the refusal to give the requested instructions' did not constitute error in the case.</p> <p>Plaintiff in error prosecutes this writ of error to review the' alleged errors and for a reversal of the judgment of conviction and sentence entered on the verdict by the trial court.</p>

<p>(1-4) Municipal corporations: Improvements: Invalid assessments: Reassessment: Statutes construed: Milwaukee: Constitutional law: Tested rights: Damages from grading street: Taking of land for public use. (5, 6) Appeal: Directing judgment below: ' Amendment of pleading. '</p> <p>1. In sec. 1210$, Stats. (Supp. 1906; Laws of. 1901, eh. 9) — providing that in all cases where the invalidity of a special assessment for improvements in any city is caused by reason of the work having been done “without authority of law or by the failure of the common council to pass a valid ordinance adopting” any part or parts of ch. 40a, Stats. (18S8), no new assessment shall he made until after the due passage of an ordinance adopting the essential provisions of said chapter relating to city improvements,— the word or should he construed' as if it were and; and the adoption of any part of ch. 40a is prerequisite to a reassessment only when the original. lack of authority was hy reason of a failure to adopt such provisions.</p> <p>:2. So construed the section is.applicable to all cities in the state, including Milwaukee.</p> <p>•3. The substitution (hy ch. 354, Laws of 1903) of a remedy hy reassessment in place of an action for damages for the grading of a street where such grading is illegal merely because the previous assessment of benefits and damages was invalid, was within the power of the legislature. No vested right was thereby taken away, since there is no constitutional or common-law right to recover damages for the authorized grading of a street hy a city when there is no negligence in the act; and it was competent for the legislature to provide that a valid assessment should no longer he a condition precedent to the legality of the grading.</p> <p>4. Where a substantial part of an adjoining owner’s land falls into the street hy reason of the removal of its lateral support in the course of grading there is a taking of the soil for public purposes, for which the owner is entitled to recover at least nominal damages. An assessment, in the grading proceedings, of the benefits and damages accruing from the work does not cover such a taking. ,</p> <p>■5. On reversing the judgment of the trial court, if it appear that the case was fully tried and that there is no possibility of a material change, upon a new trial, in the facts proven, the supreme court will direct the entry of judgment.</p> <p>•6. When a case is ready for final disposition after full trial, the supreme court will not remit it with leave to make application to the trial court to set up a new cause of action or new defense, unless there is, at least, a fairly persuasive showing on the merits and it is also made to appear that the failure to present the new cause of action or defense in the first instance was not due to mere negligence.</p>

<p>Appeal from a judgment of the circuit court for Price ■county: A. J. YiNje, Judge.</p> <p>Action of ejectment to recover 160 acres of land in section 4, township 37, range 1 west, in Price county. The titles claimed by the respective parties were the same as those considered in Cole v. Van Ostrand, post, p. 454, 110 N. W. 884, the parties here being reversed, the plaintiff claiming the same titles as did Van Ostrand and the defendant the same titles as did Janet Macdonald Oole in" that case. An additional issue, however, was presented by the pleadings in this case"arising as follows: The defendant, by counterclaim, alleged that the transfer of tax certificates in 1895 from Price county to Winchester was void by reason of the failure to give notice of the intention to sell for less than the face, as required by sec. 664, Stats. (1898) ; that thereby plaintiff’s grantor, in taking tax deeds, if he thus acquired legal title, became charged with a constructive trust to hold the same in favor of Price county; and that by the quitclaim deed executed in 1899 from Price county to the J. L. Gates Land Company, defendant’s grantor, the equitable title so arising in Price county was transferred to that company, and from it to the defendant. Upon those grounds she prayed judgment, among other things, establishing such trust and decreeing the title to be in her as against the plaintiff. The court refused to admit evidence in support of these allegations and held defendant’s title under her later tax deeds void on the same grounds .as was the plaintiff’s in Cole v. Van Ostrand, post, p. 454, 110 N. W. 884, and rendered judgment in the plaintiff’s favor, after be bad paid into court tbe amount of taxes,, interest, and expenses incurred by defendant in connection witb ber tax titles. From such judgment tbe defendant appeals.</p>

J. ViNJE, Judge. An action in ejectment, under tbe statute, to recover tbe possession of 160 acres of vacant and unoccupied land. Plaintiff alleged ownership in fee and right of possession and that defendant unlawfully withheld possession, and demanded judgment declaring the title and right of possession to be in him. Damages were also demanded.

<p>Tax titles: Quieting title: Trusts: Pleading: Mandatory statutes: Form of delinquent return: Inelusion of printer’s fee, when invalidates sale: Retroactive statute: Limitations: New title created: Judgment: Due process of law: Obligation of contract.</p> <p>1. In an action to quiet title to land, wherein plaintiff’s claim was-based on tax titles acquired either by the county or by plaintiff' subsequent to the tax titles claimed by defendants, or upon deeds from prior owners, and no trust chargeable upon defendants in favor of the county or plaintiff was alleged, plaintiff' was properly not permitted to show illegality' in the sale by the-county of the tax certificates upon which defendants’ tax deeds (recorded more than three years before the action was commenced) were issued, as a basis for a claim that defendants’ title was held in trust for the county and for plaintiff.</p> <p>2. Sec. 1113, Stats. (1898), providing that the town treasurer’s return of delinquent taxes shall be, “as nearly as convenient,” in the form there given, is not mandatory; and although the form given shows a blank at the end for the treasurer’s signature, the omission of such signature to the return itself does not render the tax sale based thereon void, where' there is annexed to the return the affidavit of the treasurer declaring its correctness, as required by sec. 1112.</p> <p>3. When such return shows one amount under the heading “Total tax,” and another amount under the heading “Five per cent, collection fees,” and the sum of the two amounts is made the basis of the tax sale, it will he presumed that the sum so adopted is the correct total of the true tax and the legal collection fee. Pinlcerton v. J. L. Oates L. Oo. 118 Wis. 514, distinguished.</p> <p>4. Where the printer’s affidavit of publication of the notice of 'tax sale was not transmitted to the county treasurer within six days of the last publication, under sec. 1132, Stats. (1898), the inclusion of the printer’s fee in the amount for which land was sold rendered invalid the tax certificate and the deed based thereon.</p> <p>5. The effect of the inclusion of such printer’s fee in a particular case was not changed by the subsequent enactment of ch. 35, Laws of 1905, amending sec. 1132 so as to require merely that the printer’s affidavit be transmitted on or before the date fixed for the tax sale, and validating payments of such fees theretofore made by counties.</p> <p>6. Under secs. 1186, 1187, Stats. (1898), when a tax deed, fair on its face and free from jurisdictional objections and those defined in sec. 1189, has been recorded for three years, a new legal title in fee simple is created in the grantee as against all the world. A later sale for nonpayment of subsequent taxes does not act upon any rights connected, with the title preceding the established tax deed, but acts upon arid cuts off, or fails to cut off, according to legality of the proceedings, merely the tax title created as above described.</p> <p>7. Sec. 1176, Stats. (1898), providing that a tax deed “shall vest in the grantee an absolute estate in fee simple” in the land described, refers only to valid tax deeds.</p> <p>8. When the loss of property which a party supposed he owned results from the judgment of a court having full jurisdiction to' the effect that he has no title, he is not deprived of property without due process of law.</p> <p>9. Where, before a statute of limitation has completely run so as to' vest title by excluding the possibility of attack thereon, the' period of limitation is extended, such extension does not impair the obligation of contract or deprive any one of property without due process of- law.</p>

<p>Appeal from a judgment of the circuit court for Price county: A. J. Yiuje, Judge.</p> <p>This is an action in ejectment. Plaintiff, a corporation, demanded possession ‘of the premises, damages for the unlawful detention, and for costs. Defendant in his amended answer denies the legal and due incorporation of the plaintiff, in that two of the three incorporators were hnsband and wife at the time the corporation was formed. Plaintiff submitted evidence of incorporation and evidence showing title through tax deeds recorded April 17, 1895, and on May-31, 1895. This evidence was objected to on the ground that the incorporation was invalid as above stated, and, as to the tax deeds, on the ground that the action was barred under sec. 1187, Stats. (1898). These objections were overruled.</p> <p>Defendant’s title was based on tax deeds recorded May 29, 1902) on a tax deed recorded June 1, 1904, and on a tax deed issued June 13, 1903. Evidence of title through which defendant claimed, originating more than three years before the recording of the tax deeds through which plaintiff claimed, was rejected by the court. Plaintiff introduced evidence of the tax proceedings prior- to the issuance of defendant’s deeds, from which it appeared that there were irregularities in the return of the delinquent taxes by the town treasurers. These irregularities consisted in the failure of the town treasurers to subscribe the return at the end, in the omission of a return of the delinquent personal taxes with the delinquent taxes on real estate, or a return that there were none, and in incomplete and indefinite descriptions, in not repeating town, range, and section descriptions for each parcel. The proof of publication was defective in not stating that the notices had been published “once in each week for four successive weeks” prior to the date of sale, and in a newspaper which has been published “regularly and continuously . . . once in each calendar week for at least two years before the date of sueh'notice.” Sec. 1130, Stats. (1898). The proof of publication was not transmitted to the county treasurer within six days after the last publication of the notice — sec. 1132, Stats. (1898) ; and one item in the charge included in making the sale was a printer’s fee of twenty-five cents.</p> <p>Defendant alleged, and on the trial urged, that the action was barred under the provisions of secs. 1187, 1188, 12107&, and 1189a, Stats. (1898).</p> <p>By the judgment of the court defendant was allowed the sums he had paid for taxes, interest, and charges in procuring his tax deeds and the amounts paid in subsequent tax sales: Plaintiff was allowed costs. This is an appeal from the judgment.</p>

<p>(1-7) Contracts: For services: Acceptance: Partnership: Construction: Limitations: When cause of action accrues: Demand o/ performance: Laches: Estates of decedents. (8-11) Appeal: When jurisdiction of supreme court terminates: Remitting record: Motions, when must he made.</p> <p>1. Defendant’s testator, one P., having a stock of dry goods worth about $10,000, proposed to plaintiff that if the latter would go with him to another city where he intended to establish a dry goods business, and would remain with him until he should be able to draw from the concern $10,000, besides “keeping the stock up” and paying expenses, he would pay plaintiff $15 per week, and when he should be able to draw from the business as aforesaid he would give plaintiff a one-fourth interest in the store, this being intended as additional pay, and plaintiff being expected to use his best endeavor to “make the store the greatest success possible.” Plaintiff at once commenced, and until P.’s death continued, to comply on his part with the terms of the proposal. Held, sufficient to show that plaintiff accepted the proposal as a whole and not merely as to the weekly compensation.</p> <p>2. No partnership in prmsenti was created by such proposal and its acceptance.</p> <p>3. By the phrase “keeping the stock up,” in the contract, was meant the maintenance of such a volume and variety of merchandise as would best promote the ultimate- purpose of making the store the greatest success possible.</p> <p>4. Not until P., in the exercise of honest and reasonable judgment, deemed that he was able to draw $10,000 from the concern, consistently with keeping the most advisable volume of business, would plaintiff have the right, under the contract, to demand the transfer of a one-fourth interest.</p> <p>5. The fact that for about seventeen years after the making of the contract, and until his death, P. refrained from drawing the $10,000, and kept it in the business to enable the advancement and increase thereof, shows conclusively, as against him and his personal representatives, that the time did not come during his life when he was able to withdraw said sum and “keep the stock up,” in the contractual sense of those words; hence that no cause of action upon the contract or for breach of it arose in his lifetime, against which any statute of limitation ran.</p> <p>6. Until a demand by the plaintiff and refusal by P. to perform the contract according to its terms, or until repudiation of the agreement by P., no cause of action at law for money could accrue to the plaintiff; and the statute of limitations would not begin to run until the cause of action hAd accrued.</p> <p>7. Plaintiff’s failure to demand transfer to him of a one-fourth interest in the business during P.’s lifetime, — he having no reason to suppose that P. was acting otherwise than in good faith in continuing to postpone the time for withdrawal of the $10,000, — did not, under all the circumstances, constitute laches- on the part of the plaintiff, precluding his recovery of the value of said interest-after P.’s death.</p> <p>8. When the record upon an appeal to the supreme court has been regularly transmitted to and filed with the court from which it- originally came, the jurisdiction of the supreme court over the cause, as also to vacate or modify its own judgment, is at an end.</p> <p>9. Under sec. 3071, Stats. (1898), it is the duty of the clerk of the supreme court to remit the papers in a case to the trial court within sixty days after the decision of the appeal, unless the court directs them to be retained to enable a party to move for a rehearing; and at the expiration of the sixty days if no such direction has been given, or whenever, without disobedience of any rule or order of the court, the clerk actually transmits the papers within the sixty days and they are filed in the court below, the jurisdiction of the supreme court is terminated.</p> <p>10. The termination of the jurisdiction of the supreme court when the record has been transmitted as stated does not affect its power to correct the mere record of its judgment so as to make the record properly express such judgment.</p> <p>11. Under Supreme Court Rule 42 all motions in the nature of a motion for a rehearing (as one to modify the judgment or mandate) are, like motions strictly for a rehearing, to be made within the thirty days during which, by Rule 37. in all cases the papers are directed to be retained.</p>

<p>Appeal from a judgment of the circuit court for Ashland ■county: Johu K. Pabisi-i, Circuit Judge.</p> <p>This is an action to recover for personal injuries. It appeared upon the trial that the plaintiff on the 29th of July, 1902, was a common laborer about forty-one years of age and ■was employed by the defendants in their lumber • mill at Ashland, where he had been continuously working since May 10th of the same year. His Work was to take the lumber -cut by a bandsaw on the east side of his -position and also that cut by a resaw on the west side and place the same on certain live rollers which carried it some twenty feet to an ■open edger. When the lumber reached the edger it was taken by another employee called the edgerman and put feough that machine. The edger was seven feet wide and had sis circular saws set on a shaft or arbor, the two outside ■saws being stationary and the others being movable by means •of a lever. The edger had no safety devices to prevent hoards from being thrown back by the saws. It was claimed by the plaintiff that there were three devices which might have been used to prevent boards from being thrown back, -viz.: (1) A spiked roller behind the saws with a press roll above; (2) a guard-composed of long iron teeth or fingers fastened to a rod above the saws, which teeth or fingers rested lightly upon the boards behind the saw as they passed through at such an angle that if the board started back they ■would gouge into it and stop it; and (3) a press roller immediately in front of the saw resting firmly upon the board and preventing it from wabbling.</p> <p>On the day first named a two-inch Norway pine plank ten inches wide and eighteen feet long was being passed through the edger and was cut into two pieces, one four inches and the other six inches wide. The larger strip passed out in the usual manner, but the other was caught by one of the saws and was split in two, and both pieces were shot or thrown with great velocity backwards, one of them penetrating the plaintiff’s body and inflicting very serious injuries. The following special verdict was returned by the jury:</p> <p>“(1) Did August Yazdzewski, the plaintiff, receive injuries while in the employment of the defendants Christopher C. Barker and Hiram C. Stewart at the time and place alleged in plaintiff’s complaint ? A. (Answered by the court.) Yes. (2) Was the edger in defendants’ sawmill at which plaintiff was employed when injured a reasonably safe machine as it was then operated by defendants? A. No. (3) Did the defendants fail to provide at the time plaintiff was injured any suitable swing press roll, teeth, fingers, spikes, or guards, as alleged in plaintiff’s complaint, for the protection of their employees while at work on or about said edger ? A. Yes. (4) If you answer question number 3 by ‘yes,’ could defendants, without impairing the usefulness of said edger, have provided an appliance to protect their employees while at work on or about said edger ? A. Yes. (5) If you should find the defendants were guilty of a lack of ordinary care in failing to provide an edger with reasonably safe appliances for their employees while at work on or about the same, was said negligence of defendants the proximate cause of plaintiff’s alleged injuries? A. Yes. (6) Was plaintiff guilty of any negligence which in any manner contributed towards his said injuries ? A. No. (7) If from your answers to the foregoing questions the court is of the opinion that the plaintiff should have judgment herein, at what sum do you assess his damages? A. Five thousand dollars ($5,000).”</p> <p>Judgment for the plaintiff was rendered on the verdict, and the defendants appeal.</p>

<p>Quo warranto: Action by whom brought: Taxpayers: Refusal of attorney general to act: Constitutional law: Who are “county officers:” County supervisor of assessment: Construction of statutes: Qualifications for office: Official bonds: Local self-government: Assessment for taxation.</p> <p>1. Under sec. 3466, Stats. (1898), providing that an action of quo warranto may he brought in the name of the state by a private person on his own complaint when the attorney general refuses to act or when the office usurped pertains to a county, etc., the person bringing the action must have some inteiest in ending the claimed usurpation, but it is sufficient that he be a taxpayer of the district affected.</p> <p>2. The office of county supervisor of assessment, created by ch. 445, Laws of 1901, is an office which “pertains to a county,” within the meaning of said sec. 3466.</p> <p>3. The fact that in an action brought in the name of the state by a private person under sec. 3466, Stats. (1898), the attorney general appears and continues as one of the attorneys for the defendant sufficiently shows that an application to him to commence the action would have been futile, and is equivalent to á refusal by him to act in the matter on behalf of the state.</p> <p>4. The county supervisor of assessment whose election by the county board for a term of three years is provided for by ch. 445, Laws of 1901, is not a county officer within the meaning of sec. 4, art. VI, Const., providing that “sheriffs, coroners, . . . and all other county officers except judicial officers shall be chosen by the electors of the respective counties once in every two years.”</p> <p>5. The term “all other county officers,” incorporated into sec. 4, art. VI, Const., by amendment in 1882, means the heads of the several major divisions of county government existing at that time, and the section as amended does not take away the legislative power mentioned in sec. 9, art. XIII, to create other county offices with other duties and to provide for the manner of filling such offices and the terms thereof.</p> <p>6. Obscurities in constitutional provisions are discoverable by the same process as are uncertainties in legislative enactments, and are to be dealt with in substantially the same way in determining the real intent of the lawmakers.</p> <p>7. Where language used in a constitution may reasonably have more than one meaning, long, constant, and uniform legislative adoption of one of such meanings, not in violation of any existing judicial construction, may be taken as controlling.</p> <p>8. As to offices created by the legislature and having peculiar duties incident thereto, the legislature may prescribe qualifications if they are reasonable and not opposed to constitutional provisions or the spirit of the constitution.</p> <p>9. A requirement that, in order to be eligible to the office of county supervisor of assessment, a person must have been an elector and householder of the county not less than four years, is not unreasonable.</p> <p>10.The legislature may provide, in respect to an office created by it, that the official bond of the officer shall be by a surety company and at public expense.</p> <p>11. Ch. 445, Laws of 1901, which gives to a county supervisor of assessment supervision and direction of the" work of the assessors in his county, but does not take out of the hands of an assessor the duties of his office or take away his right to exercise his discretion in valuing property, does not violate the right of local self-government. The whole duty of the supervisor, under said act, has reference to assisting the assessors, testing their work, seeing that the law is not violated, and in case of violations applying the proper remedy.</p> <p>112. Whether ch. 259, Laws of 1905, imposing new duties on the supervisor of assessment, violates the right, of local self-government, not decided.]</p>

<p>Appeal from an order of tbe circuit court for Sheboygan, county: Michael EjbwaN, Circuit Judge.</p> <p>Tbe complaint in this case alleged in brief tbe following facts: That on and prior to June 30, 1902, tbe defendants J ohn Franey and Tbomas E. Eraney were partners under tbe name of T. E. Eraney & Co., owning a stock of goods and conducting a furniture business at Plymouth, Wisconsin, owbicb business Tbomas E. Eraney was tbe managing partner; that on tbe day named tbe plaintiff purchased tbe interest of J ohn Franey in tbe business on tbe representation that said business was profitable and owed no debts, and upon tbe further express agreement in writing on tbe part of J ohn Franey that be would pay all debts of the former firm if any there were; that plaintiff was thereupon received into tbe firm, and that in truth tbe former firm was then owing debts amounting to $3,721.95; that thereafter tbe plaintiff advanced to tbe new firm the sum of $4,000 on tbe representation of Tbomas E. Eraney, tbe managing partner, that it would be used to discount tbe bills of tbe new firm; that without tbe plaintiff’s knowledge or consent said Tbomas F. Eraney used $3,721.95 out of said sum in discharging tbe debts of tbe old firm, a list of said debts so paid being given; that Tbomas E. Eraney was, at tbe time plaintiff discovered said misapplication of funds, and now is, wholly insolvent, possessing no money or property out of wbicb plaintiff could' then or can now realize any part of said moneys; that tbe plaintiff by reason of tbe premises became the equitable owner of said claims so paid and is entitled to be subrogated in place of tbe creditors so paid. Judgment of subrogation and that tbe plaintiff re cover the sums so paid against Tbomas E. Eraney and John Franey was demanded.</p> <p>Tbe defendant John Franey demurred to the complaint on three grounds: (1) That there is a defect of parties plaintiff in that Tbomas E. Eraney should have been joined as a plaintiff; (2) that there is a defect of parties defendant in that tbe creditors whose claims were paid should have been joined as defendants; (3) that the complaint does not státe facts sufficient to constitute a cause of action. Tbe demurrer was overruled, and tbe defendant J ohn Franey appeals.</p>

M. Webb, Circuit Judge. This action was commenced December 11, 1905, to recover damages sustained by alleged false representations in a land deal between the parties, and also by a failure of the defendant to perform an alleged oral contract in respect to the deal. The lands were situated near Grand Rapids and Nekoosa in Wood county.

<p> Master and servant: Injuries from defective machinery: Court and jury: Expert testimony: Striking out testimony: Sufficiency of ruling: Physicians and surgeons: Competency to testify: Special verdict: Damages: Instructions to jury: Excessive damages. </p> <p>1. In an action for personal injuries caused by a splinter broken from a die in a punch press wbicb plaintiff was operating for defendant, the question whether the die produced in court by plaintiff was the one from which the splinter came is held, upoii the evidence, to have been for the jury.</p> <p>2. Testimony of witnesses in such case that they had examined and compared, with the aid of a magnifying glass, the splinter and the crevice in the die produced by plaintiff, and had tested the material of both as to hardness and similarity of surface and grain, and that from such examination they could state that the splinter came from that die, was competent and proper.</p> <p>3. Expert testimony to the effect that the die was improperly set, based on the facts that it sheared and that the knife of the die became loosened as it was operated, and on the marks appearing on the dies, was also proper.</p> <p>4. Plaintiff’s counsel, in presence of the jury, asked that certain opinion evidence introduced by him be stricken out and the jury requested not to consider it. The court stated: “The motion is granted and the jury is so instructed;” but gave no further instruction on the subject. Held, that this ruling, in connection with the language of counsel’s request, sufficiently informed the jury that the evidence in question was not to be considered.</p> <p>5. Sec. 1436, Stats. (Supp. 1906; Laws of 1903, ch. 426), does not preclude a physician who holds neither the license nor the certificate of registration there referred to from testifying to facts not within the field of an expert but within the observation of any person. So held as to testimony of a physician that he found plaintiff’s eye had been injured by some object; that he washed the eye, sent plaintiff to the hospital, and there removed a metal splinter from the eye with a magnet; and that he afterwards removed the eye.</p> <p>6. Where by a special verdict it is found that defendant’s negligence was the proximate cause of injuries to plaintiff, it was not error to refusfe to submit in such verdict questions, as to whether the injuries were not the result of mere of .unavoidable accident.</p> <p>'7. An instruction that plaintiff was entitled to recover “such sum as will fully compensate him for the loss of his eye and the disadvantage, disfigurement, and inconvenience it is reasonably certain from the evidence will result from such loss,” is held not to have misled the jury to understand that they might duplicate the damages by allowing full compensation for the loss of the eye and further compensation for the resulting disadvantage, disfigurement, and inconvenience.</p> <p>8. An award of $5,000 for the loss of an eye, involving much pain and suffering, is held not excessive.</p>

<p> Master and servant: Injury to servant: Unguarded shafting: Duty to furnish safe place: Evidence of relation of employer and employee: Assumption of rislc: Insufficient light: Court and jury: Instructions: Special verdict: Waiver of defects or omissions: Excessive damages. </p> <p>1. In an action for injuries to an employee caused by an unguarded set-screw projecting from a revolving shaft in defendant’s factory, the evidence is held to sustain findings in the special verdict to the effect that plaintiff at the time of the accident was working at a place in which he was authorized by defendant to do his work; that the unguarded set-screw was so located as to be dangerous to plaintiff at his work in that place; and that plaintiff did not assume the risk and was not guilty of contributory negligence.</p> <p>2. The set-screw being so located as to be dangerous to employees while doing their work, it was the duty of defendant, under sec. 163Gj, Stats. (1898), to securely guard it.</p> <p>■3. Evidence tending to show that plaintiff when injured was at work in one of the departments of defendant’s factory, the working place and the necessary machinery and appliances being furnished by defendant; that he was paid by the piece, but that defendant hired the men who assisted him, and paid them out of his earnings; -and that plaintiff and the men were subject to the supervision and direction of defendant's superintendent, and were in fact in some cases directed in their work by him, is held sufficient to sustain a verdict to the effect that the relation of employer and employee existed.</p> <p>4. One who furnishes to another a working place, machinery, and appliances with which to do his work owes to the latter the duty of furnishing him with a reasonably safe place in which to do his work.</p> <p>5. In submitting for special verdict'the question whether the working place furnished by defendant was a reasonably safe one, the jury were instructed that if the shafting in that place was “so located as to be dangerous to plaintiff in the discharge of his duties in the line of his employment at the time of the injury” they should answer the question “No.” Held, that a further statement of what the law required in respect to guarding dangerous shafting did not render the instruction preju-dicially erroneous as informing the jury of the effect of their finding; and, it being undisputed that the shafting was not guarded at any time, the jury could not have been misled.</p> <p>■6. The words, in such instruction, “in the line of his employment at the time of his injury” could not have misled the jury, but must have been understood as having reference to the performance of his ordinary duties under his employment.</p> <p>7. Failure in the charge to distinguish between furnishing a safe place originally and thereafter exercising ordinary care to keep it reasonably safe, and failure to submit in the special verdict the question whether defendant originally furnished a safe place and thereafter used ordinary care in maintaining it, cannot be complained of by appellant where a proposed question on that subject was excluded from the verdict upon his objection and insistence that it was not a material fact to be submitted to the jury.</p> <p>S. In an action for' injuries to an employee caused by the catching of a bed spring which he was handling upon a projecting and unguarded set-screw upon a line of overhead shafting in defendant’s factory, the insufficiency of light, if there was such, at the time and place in question was a fact properly to be considered by the jury in determining whether plaintiff assumed the risk, but alone was not sufficient to charge him with assumption of unknown dangers.</p> <p>9. An award of $5,000 for injuries to a laborer forty years old which left his hand in a mutilatecj and practically useless condition, is held not excessive.</p>

<p>Appeal from an order of tbe circuit court for Calumet county: Geo. W. BueNell, Circuit Judge.</p> <p>Tbe appeal is from an order sustaining a general demurrer to tbe complaint.</p>

<p>Judgment: Res judicata: Yoid mortgage.</p> <p>A judgment, in an action to foreclose a mortgage, declaring the mortgage void because it wholly failed to describe any land, is res judicata in a subsequent action to reform and foreclose the same mortgage, brought against the same defendants by a transferee of the former plaintiff.</p>

<p>Appeal from an order of the circuit court for St. Croix county: E. W. Helks, Circuit Judge.</p> <p>The appeal is from an order granting a new trial in an action for malicious prosecution.</p> <p>Defendants, according to the allegations of the complaint, maliciously and without probable cause swore out a warrant before a justice of- the peace in St. Croix county,’ Wisconsin, falsely charging plaintiff with the offense of maliciously disturbing, interfering with, and injuring the wires and poles of the defendant company, used in its business of operating an electric power plant in such county, and procured plaintiff to be arrested on such warrant and imprisoned till she gave bail for her appearance to answer the complaint. Further, as alleged, plaintiff was duly tried upon such charge and acquitted. Other allegations were made as part of. plaintiff’s cause of action bearing on the question of damages.</p> <p>Defendants answered, among other things, that the complaint was made in good faith, without malice, and with probable cause to believe plaintiff was guilty.</p> <p>On the trial there was substantially undisputed evidence to-this effect: Defendant TSpley was president of the defendant company, which owned, controlled, and operated an electric power plant. The pole line was located along the highway in front of plaintiff’s premises. In the latter part of November,. 1904, her son, assuming to represent her and to he under the guidance of a lawyer, called upon Epley and demanded a removal of the poles from in front of his mother’s place, threatening, if the demand was not complied with, to cut the' poles down. No attention was paid to such demand. December 2d, thereafter, an employee of the company who had been' in its service for several years and was regarded by it and by Mr. Epley to be trustworthy informed the latter by telephone-that plaintiff’s son was cutting the poles down and that he was acting under her direction. A short time afterwards Epley-was informed a second time as before by one of the company’s employees who said: “They are chopping the poles and the-current is on.” Thereupon JSpley went to the office of a justice of the peace, who was a lawyer, and stated to him the situation. He suggested seeing Mr. McNally about the matter. The latter was a reputable lawyer of twenty years’ experience- and more. Epl&y related to Mr. McNally all the facts aforesaid, which were all that were within his knowledge. He believed plaintiff’s son, under her direction, had actually disturbed the company’s property, as he stated. On such statement Mr. McNally advised JUpley that he was justified in making the complaint, and to do so was the only way to proceed. Thereupon McNally prepared the complaint and the-warrant. They were taken to the justice of the peace, tire complaint being duly sworn to and filed, and the warrant then issued and executed. The complaint charged both the plaintiff and her son with being guilty of unlawfully disturbing the company’s property. Upon the hearing before the justice the plaintiff was discharged, but it was proved that her son actually did unlawfully disturb the company’s property.</p> <p>At the close of the evidence each of the defendants separately, and they jointly, by connsel, moved for the direction of a verdict. '¡The motion was denied and the canse submitted to the jury for a special verdict, resulting in the following findings: (1) Defendant Epley in procuring the warrant to 'be issued did not act without probable cause. (2) Before commencing the criminal prosecution he made a full, fair, and honest statement of all the material facts known to him bearing upon the question of plaintiff’s guilt of the offense alleged against her to W. E. MclSTally for the purpose of procuring his legal advice thereon. (3) Said MclSTally honestly and in good faith advised Epley that upon the facts so stated to him plaintiff was guilty of the offense for which she was arrested. (4) Epley at the time he swore to the complaint did not have knowledge or information such as would lead a man of ordinary prudence and caution to believe plaintiff was guilty of the offense charged. (5) Epley, before he swore to the complaint, did not use the same prudence and caution an ordinarily prudent and cautious man would have exercised in ascertaining the facts concerning the commission of the crime charged. (6) He sincerely and in good faith believed when he swore to the complaint that plaintiff was guilty of the offense charged. (7) He swore to the complaint in good faith and without malice against the plaintiff. (8) Plaintiff suffered actual damages by reason of her'arrest in the sum of $1,000. (9) We do not assess any exemplary damages to be recovered by plaintiff in case she is entitled to judgment.</p> <p>The defendants moved for judgment on the verdict and plaintiff moved for an order setting the same aside and for a new trial. The former was denied and the latter granted upon the ground that the answers were inconsistent and that error was committed in the instructions; the error supposed to have been so committed not being specified. The defendants appeal.</p> <p>They contended, inter alia, that if his statement of facts is made on information furnished by others, good faith may require that the person seeking advice should have made investigation as to the sources of his informant’s knowledge and the grounds of his belief, and supplemented and verified such information by such further investigation as ordinary caution and prudence demand. Blunle v. A., T. ■& 8. F. B. Oo. 38 Fed. 311; Galloway v. Stewart, 49 Ind. 156; Flora v. Bussell, 138 Ind. 153, 37 N. E. 593; Ahrens & Ott Mfg. Go. v. Hoeher, 106 Ky. 692, 51 S. W. 194; Atchison, T. & 8. F. B, Go. v. Brown, 57 Kan. 785, 48 Pac. 31; Anderson v. Columbia F. <& T. Co'. (Ky.) 50 S. W. 40; Hurlbut v. Boaz, 4 Tex. Oiv. App. 371, 23 S. W. 446. Where the defense of advice of counsel is interposed, and the good faith of the prosecutor is disputed, the question is for the jury, even though it is not very plain what the precise element of doubt is. Connery v. Manning, 163 Mass. 44, 39 N. E. 558. The court rightly submitted to the jury the question whether Fpley believed the plaintiff guilty and whether such belief was properly founded. Eg-gett v. Allen, 119 Wis. 625; Billingsley v. Maas, 93 Wis. 176, 180; Hutchinson v. Wenzel, 155 Ind. 49, 56 N. E. 845. On the question of probable cause, it was for the jury to say whether Epley had made such inquiry and investigation as a reasonably prudent and cautious man would have made under the circumstances. Boyd v. Mendenhall, 53 Minn. 274, 55 N. W. 45; Talbert v. Cooley, 46 Minn. 366, 49 N. W. 124; Stubbs v. Mulhollcmd, 168 Mo. 47, 67 S. W. 650, 659; Blunle v. A., T. '& 8. F. B. Go. 38 Fed. 311; Bechel v. Pac. Exp. Go. 65 Neb. 826, 91 N. W. 853.</p>

<p> Statute of frauds: Oral authority to purchase property: Brokers: Rescission of contract: Conversion. </p> <p>1. An oral agreement authorizing one as agent to purchase property for another from a third person is not within the statute of frauds — sec. 2308, Stats. (1898) — relating to contracts for the “sale of goods,” etc.</p> <p>2. Where plaintiffs had placed money in defendant’s hands to pay in part for property to he purchased for them, and defendant, relying thereon, had hound himself to take and pay for the property, plaintiffs could not cancel or rescind their agreement, and defendant had the right to use the money in paying for the property.</p>

<p>Appeal from a judgment of the circuit court for Sauk county: E. Ray Stevens, Circuit Judge.</p> <p>This is an appeal from a judgment dismissing the plaintiff’s complaint with costs. The complaint alleges, substantially, that the plaintiff was authorized to do business in Wisconsin, and the defendants are interested in the land in question; that the interest of defendant Anna Kindschi and Wanda E. Thomas is limited to that of dower right of their respective husbands; that the estate of the parties to this action arose as follows: The real estate hereinafter described was possessed in fee simple by Martha Kindschi, and she died while such owner; that at the time of her death she left, her surviving, Christian Kindschi, her husband, and four children, Bdwin B. Kindschi, Margaret Kindschi, Dora Kindschi, and Kate Kindschi, defendants named herein; that prior to the commencement of this action the plaintiff, Plano Manufacturing Company, obtained a judgment against Christian Kindschi and docketed the same, and thereafter the interest of Christian Kindschi in the real estate in question was sold on sheriff’s sale to the plaintiff, and plaintiff became entitled to the possession of the estate of Christian Kindschi in such real estate; that before the commencement of this action and for a valuable consideration plaintiff sold and transferred a one-third interest in said real estate to defendant H. H. Thomas, and "Wanda E. Thomas is the wife of H. H. Thomas; that the real estate in question consists of about one acre of land in the village of Prairie du Sac, Sauk county, Wisconsin, described in a deed recorded in the office of the register of deeds in Sauk county, Wisconsin (vol. 54 of Deeds, p. 341) ; that the defendants, children of Martha Kindschi, namely, Kdiuin, Margaret, Dora, and Kate Kind-schi, are the owners each of a one-fourth interest in the fee simple in the real estate in question, subject to the right of the plaintiff and defendant EL IT. Thomas; that plaintiff and defendant EL EL Thomas have an estate in possession and each is entitled to an undivided portion of said real estate.</p> <p>The complaint further alleges that the real estate is so situated and the buildings thereon are so constructed that it will be impossible to divide the same; that it is inadvisable and inexpedient to plat the same or attempt to plat the property, and it will be impossible and inexpedient to divide it among the various parties entitled thereto; that an attempt to do so will result in depreciation of the value of'the whole estate; and that it will be necessary to sell the property and divide the proceeds in manner prescribed by law. The complaint prays for partition and sale of the" real estate in question according to the rights of the parties interested and that the plaintiff be allowed costs and disbursements, and that the court direct the balance to be paid to the children and parties named in the action according to law, equity, and good conscience.</p> <p>The defendants Edwin E. Kindschi, Margaret Kindschi, Dora Sanies (nee Kindschi), and Kate Kindschi answered, admitting that they are heirs of Martha Kindschi, deceased, and denying that the plaintiff or defendant H. H. Thomas has any right, title, or interest, joint or otherwise, in the property in question. The answer further alleges that the property in question is, and for many years last past has been, in an untenantable condition and so out of repair as to he an annual expense; that it is not self-supporting, and the earnings of said estate not sufficient to pay the annual taxes and unavoidable expenses of repair. The answer further alleges that the interests of Christian Kindschi, the Plana Company, H. H. Thomas, and Wanda E. Thomas, if any interest they have, are indebted to the defendant Edwin E. Kindschi in a sum exceeding $250 as improvements necessary and advances for and on behalf of said estate; that the sale by the plaintiff of a part of its estate by the curtesy to defendant Thomas was made in collusion and for the purpose of depriving defendant Edwin E. Kindschi and the heirs to said property of their just share and interest therein; and defendants denied generally other allegations of the complaint.</p> <p>The defendants also answered setting up a counterclaim. The plaintiff replied to the counterclaim, denying all the material allegations thereof. The court sustained an objection to any evidence under the complaint, and granted plaintiff twenty days to serve an amended complaint on payment of $10 costs, and thereafter, upon failure to amend, judgment was rendered in favor of the defendants and against the plaintiff, dismissing the plaintiff’s complaint with costs, from which this appeal was taken.</p> <p>They contended, inter alia> that partition suits are equitable in' tbeir nature and tbe courts bave power to do justice to all tbe parties and protect all tbe estates tbat go to make up ’tbe fee simple. Pulse v. Osborn, 30 Ind. App. 631, 64 N. E. 61; Hanson v. Hanson (Neb.) 97 N. W. 23; Walker v. Williams, 84 Miss. 392, 36 South. 450; Bennett v. Bennett, 84 Miss. 493, 36 South. 452; Deery v. McClintock, 31 Wis. 195, 202. Tbe only limitation upon tbe power of tbe court to direct tbe sale of tbe fee is tbat contained in sec. 3117, Stats. (1898). See Beery v. McClintock, 31 Wis. 195, 202; Jenkins v. Fahey, 73 N. Y. 355; Hanson v. Ingwaldson, 77 Minn. 533, 80 N. W. 702, 704. In view of tbe manifest injustice which would otherwise result, and in view of tbe express provision of our statute making but a single exception (see. 8117), this court should authorize a sale of tbe fee simple in casé an actual division of tbe real estate is impossible. Shaw v. Beers, 84 Ind. 528; Fitts v. Craddock, 144 Ala. 437, 39 South. 506; Gayle v. Johnston, 80 Ala. 395.</p>

<p>'Appeaxs from a judgment of tbe circuit court for Sauk county: E. Rat SteveNs, Circuit Judge.</p> <p>Cross-appeals from a judgment for nominal damages and costs in favor of tbe plaintiff and against tbe defendant.</p>

Rat Stevens, Circuit Judge. This is an action to enforce a mechanic’s lien upon the lands described for 245 feet of casing or tubing, of the reasonable value of sixty cents per foot, put into a well drilled by the plaintiff thereon between March 20, 1906, and April 13, 1906.

<p>Appeal from a judgment of tbe circuit court for Langlade county: JohN GoodlaNd, Circuit Judge.</p> <p>Tbis is a certiorari proceeding brought to review the determination of the county court of Langlade county in appointing a special guardian for appellant, Mary Deleglise. The appeal here is from the judgment of the circuit court quashing the writ. It appears from the record that application was made on notice to the county court of Langlade county for the appointment of a guardian over the person and estate of the plaintiff, Mary Deleglisej that a hearing was had upon such application, and on the 30th day of December, 1905, one Edward Cleary appointed guardian, and letters of guardianship issued to him and he qualified as such guardian; that an appeal was duly taken to the circuit court for Langlade county from such order appointing him guardian and a stay of proceedings duly obtained; that after said appeal and stay, upon application made ex parte and without notice to the plaintiff, Mary Deleglise, the county judge of Langlade county made an order appointing said Edward Oleary special guardian, assuming to act under the provisions of ch. 89, Laws of 1905.</p> <p>To the point that ch. 89, Laws of 1905, contravenes sec. 1, art. XIV, Const, of U. S., in that it does not provide for “due process of law,” they cited Bertholf v. O’Reilly, 74 1ST. Y. 509, 519 ; Stuart v. Palmer, 74'N. Y. 183; 8 Cye. 1083, 1094; 16 Am. & Eng. Ency. of Law (1st ed.) 807; Cooley, Const. Lim. (4th ed.) 438; Hovey v. Blliott, 167 TJ. S. 409, 414; In re Boyettj, 136 1ST. 0. 415, 1 Am. & Eng. Anno. Cas. 729; Dietz v. Neeñah, 91 Wis. 422, 429; Schütz v. Roenitz, 86 Wis. 31, 40; In/re, Bassett, 68 Mich. 348, 36 1ST. W. 97; -In re Myers, 73 Mich. 401, 41 X. W. 334; Campbell v. Campbell, 63 Ill. 462; Chase v. Hathaway, 14 Mass. 222.</p>

Garnishee action in aid of an execution issued on a judgment entered in justice’s court in a replevin action. The execution creditor made and delivered to the constable who held the. execntion an affidavit in substantial compliance with the statute for the purpose of having an alleged debtor of the execution debtor duly summoned as garnishee.

Action to recover moneys due under an alleged contract whereby, in consideration of the plaintiffs joining in a warranty deed of conveyance of her husband’s farm, the defendants agreed to sell said farm and certain personal property received therewith, and, after retaining a commission of $100, to pay to the plaintiff all excess above the amount of the indebtedness against said property.

J. Vinje, Circuit Judge. This is an appeal from an order overruling a demurrer to -defendants’ answer. The complaint claims damages on account of breach of contract.

<p> Change of venue: Jurisdiction: Stipulation: Damages: Itemizing in special verdict: Pleading: Recovery by parent for injuries to child: Services of wife: Instructions to jury: Excessive damages. </p> <p>1. In an action by a father for loss of services of his infant son disabled through defendant’s negligence it was stipulated that all issues except as to the amount of damages should abide and be determined by the result of an action by the infant based on the same negligent acts, and that if the infant should recover in said action the parties to the action by the father-should try and submit the question of the amount of damages “in the above-entitled court,” in which the action by the father •'was pending. Afterwards, in the latter'action, defendant filed an affidavit of prejudice of the judge for the purpose of applying for a change of the place of trial or the calling in of - another judge, and thereupon, on defendant’s motion, the cause was sent to another court for trial. Held, that defendant could not be heard to object that the last-named court had no jurisdiction to try the case because of the stipulation.</p> <p>9 Itemization of unliquidated damages by separate questions in a special verdict is, as a general rule, unnecessary; and the refusal to submit such separate questions in an action for loss of services of an infant son is held to have been within the discretion of the trial court. ></p> <p>3. In an action for loss of services, expenses, etc., by reason of plaintiff’s infant son having been disabléd through defendant’s negligence, the complaint alleged that the son was struck by a swinging block and knocked down into the hold of a vessel, resulting in a swelling on his cheek, intense pain, confinement to his bed for six weeks, and a concussion of the spine, and that the injuries were of a permanent nature, etc. Held that, giving the complaint a liberal construction, there could be a recovery thereunder of all the damages which in law are consequent upon the breach of duty alleged, and not merely of those resulting from the concussion of the spine.</p> <p>4. For the services of his wife in nursing his infant son injured through defendant’s negligence, a father may recover an amount not exceeding that for which he could have employed others to do the work.</p> <p>6. In an instruction that the father might recover for expenses necessarily incurred in caring for his son during the illness resulting from the injury, including medical services, etc., the word “caring” was clearly used as a synonym for “nursing,” and the instruction was proper.</p> <p>6. An award of $1,000 to a father for loss of services of his son during the four and three-fourths years of the latter’s minority remaining after he was injured is held, not excessive.</p>

<p> Appeal: Trial contrary to stipulation: Consent of party alleging error: Compulsory reference: Long account: Appealable orders: Taxation of costs. </p> <p>J After it had been stipulated by tbe “parties that two actions should be tried together, tbe pleadings were amended and new issues introduced. On suggestion by the court of tbe difficulty of trying tbe cases together, plaintiff’s attorney in one of them stated that be was willing to have it tried separately, and it was so tried. Held,'that as against plaintiff there was no error in such separate trial contrary to tbe stipulation.</p> <p>.2. Where it appeared that tbe trial of an'issue of fact required tbe examination of an account on one side containing more than 500 entries and one on tbe other side containing nearly 100 entries, a compulsory reference was authorized by sec. 2864, Stats. (1898).</p> <p>-8. An order fixing tbe costs to be inserted in a judgment is not appealable, but is reviewable on appeal from tbe judgment if tbe evidence on which it is based and the exceptions thereto are preserved in a bill of exceptions.</p>

J. Viitje, Circuit Judge. This is an action to recover for personal injuries suffered by the plaintiff by reason of being thrown from his buggy. The evidence disclosed the following facts: Keller avenue is the main highway in the village of Amery, Polk county, and runs north and south. The defendant’s railroad crosses the highway at right angles. At the point of crossing the highway is thirty-two feet in width and planked for its entire width.

<p>Appeal from a judgment of tbe circuit court for Polk county: A. J. ViNje, Circuit Judge.</p> <p>Suit on ordinary promissory note, dated July 26, 1906, negotiable in form. Plaintiff gave evidence that be was an innocent purchaser for value before due with no notice of any defense or invalidity. It was stipulated that tbe note was in fact given in payment for lightning rods erected upon defendant’s buildings in accordance with a prior written contract made by tbe defendant, whereupon, on motion of defendant, judgment of nonsuit was entered dismissing tbe action, from wbicb tbe plaintiff appeals.</p>

<p> 'Waters: Bight to discharge surface water upon lands of others: Damages: Equity. </p> <p>1. The common-law doctrine as to the right of a landowner to protect his premises from surface water and to rid the same thereof in a reasonable way, even though consequential injuries may thereby be caused to other lands, is the law of this state, subject only to the limitation declared in Pettigrew v. Evansville, 25 Wis. 223, that one landowner cannot rightfully collect surface water on his premises in a reservoir and then discharge the same directly upon or near to the lands of another so that it will reach such lands in a large volume to the material injury thereof.</p> <p>2. The mere change of the surface of one’s premises where reasonably necessary to cause surface water to flow therefrom by the natural course of drainage, even to the extent of causing it to pass to adjoining lands in a ditch, is not an accumulation of water and casting of it upon adjoining land within the doctrine of Pettigrew v. Evansville, supra.</p> <p>3. Defendants’ lands contained a basin or depression to which surface waters from surrounding lands as well as their own flowed and in which, under natural conditions, such waters were to some extent retained except when, in periods of drouth, they evaporated or were absorbed into the ground. When the waters in the basin reached a certain height they overflowed through an old ditch or draw across defendants’ lands and the lands of others (including plaintiffs) to a creek some distance away. Held, that defendants had the legal right to prevent such accumulation and retention of surface waters on their land by causing the same, by such means as were reasonably necessary — such as the digging of a ditch or the deepening of the existing one, — to flow in the natural course of drainage to and upon adjoining lands, and for injuries to other lands caused by their so preventing subsequent accumulation of surface water on their own lands they are not liable.</p> <p>4. If there was any liability in such a case for injuries to the lands of plaintiffs caused by the discharge, at the time of opening a ditch into the basin, of the waters then accumulated therein, " which passed to plaintiffs’ lands across the lands of others in an artificial drain for which defendants were not responsible and at a time when plaintiffs were in the attitude of assenting to the existence of such drain and ditch as a town drain, such liability is not an independent ground for equitable interference nor enforceable in an action to compel a restoration of the former condition.</p>

B. BeldeN, Circuit Judge. This action was brought to quiet title to certain land owned by the plaintiff 'Edward 0. Uihlein against claim of defendants that a restriction existed limiting the use, created by a certain agreement hereafter designated as the Johnston-Weiss agreement. The defendants answered, among other defenses, by way of counterclaim, setting up the agreement and demanding affirmative relief against the violation thereof by the plaintiffs.