Volume 142 — Wisconsin Reports

Rat Stevékts, Circuit Judge. This action was brought by one Nahielshi, owner, and one Benz, tenant, of a certain bakery building in the city of Milwaukee, against the defendant Kremer, as state bakery inspector, and Beclc, commissioner of labor and industrial statistics, to restrain them from in any manner interfering with the plaintiffs in the use and enjoyment of the property in question and described in the complaint, and from interfering with the plaintiff Benz in…

<p> Distress of animals doing damage: Notice: Replevin: Demand. </p> <p>If a person distraining animals damage feasant knows their owner hut fails to give him the notice prescribed in sec. 1631, Stats, (1898), within the time there specified, his seizure and detention of the animals becomes wrongful and no demand is necessary to enable the owner to maintain replevin.</p>

<p>Appeal from a judgment of the circuit court for Sauk county: E. Rat StbveNS, Circuit Judge.</p> <p>Two causes of action are stated in the complaint. When the case was called for trial plaintiff gave notice that he had entirely abandoned the second cause of action and would make no claim for recovery thereon. The first cause of action was brought to recover the amount of an invoice of goods shipped by the National Medical Company, an Iowa corporation, to the defendant, and amounting to $36:15. The order was taken, by one Pike, a traveling salesman for tbe National Medical Company, and is as follows:</p> <p>Order No. 8 June 30, 1906</p> <p>M. Wm. Barnett</p> <p>Ship to La Valle, Wis.</p> <p>A</p> <p>How Ship C. & N. W. When at once</p> <p>Terms: Aug. 1, 90 days.</p> <p>12 pints Liquid Koal $8.00'</p> <p>6% Gal. “ “ ‘ 7.00-</p> <p>3 Gal. “ “ 6.00</p> <p>24 Pts. Lice Killer 5.00</p> <p>6% Gal. “ “ 2.25</p> <p>10 Gal. Dip 6.50</p> <p>6 Sprays 2.00</p> <p>25 Pints Liquid Koal free</p> <p>10 Pints Dip “</p> <p>1 Pair Blankets “</p> <p>Statements 250 “</p> <p>Envelopes 250 “</p> <p>L. K. books & Eveory them in Ad’v matter.</p> <p>[Signed] Wm. Baknett.</p> <p>Tbe National Medical Company, shortly after tbe receipt of tbe order, accepted tbe same and shipped tbe goods described therein, and forwarded to' tbe defendant a bill for tbe amount of such goods under date of July 2, 1906, and, under date of July 3, 1906, wrote defendant as to tbe superiority of tbe goods over others of a like character. Tbe defendant received the goods and placed the same in bis store and allowed them to remain therein for some considerable length of time, apparently without making any sales. On November 5tb tbe National Medical Company wrote defendant demanding payment. Under date of November 9th tbe National Medical Company notified defendant that it bad made a draft on him for tbe amount of tbe bill. Some time thereafter tbe defendant returned tbe goods to tbe vendor.</p> <p>Tbe defendant interposed two defenses to tbe claim sued on: (1) That tbe goods were purchased with tbe understanding that they were not to be paid for until sold, and that the defendant should have tbe right to return tbe whole or any part thereof at any time that he desired. (2) That the National Medical Company is a foreign corporation and failed to file its articles of incorporation with the secretary of state, as'required by sec. 17705, Stats. (1898), and therefore could not recover on the account sued on. The plaintiff brought suit as the assignee of the National Medical Company. The court submitted the following question to the jury: “Q. Did Mr. Pike have authority to bind the National Medical Company by agreements not incorporated in the written order?” To which the jury answered “Yes.”</p> <p>On this verdict judgment was entered for the defendant dismissing the complaint, from which judgment this appeal is taken.</p>

<p>Appeal from a judgment of tbe circuit court for Shawano-county: Johs GoodlaND, Circuit Judge.</p> <p>Action for divorce. Tbe facts as found or appear by the evidence are these:</p> <p>Plaintiff and defendant lived together as man and wife for some eighteen years prior to their separation which occurred some time before the action was commenced. Each of tbe parties, when they intermarried, had children by a former marriage, all of whom are now able to care for themselves. There are two children by their union, both also being of sufficient age to care for themselves and be of some help to the-defendant with whom they reside. At the time of the marriage each had property of the value of some $800. They soon purchased eighty acres of land for a home, each paying-one half, of the'consideration. They took the title to the-realty jointly and made their home on the land till the separation. ■ Some time after the first purchase, the parties acquired forty acres of land additional, which was practically paid for jointly, and the title taken accordingly. The income-of the property, together with the sum of $1,400 in money which came to the hands of the plaintiff, belonging to his-■children by bis first marriage, was expended in making improvements on the farm and acquiring personal property for use in connection therewith.</p> <p>Plaintiff’s entire money investment in the property, including the children’s fund and excluding the income, is $2,200, with interest on $800 from 1894, and on $1,400 from 1898. The entire money invested by defendant on the same basis is $800, with interest from 1894. The total value of the property is about $6,200. Plaintiff owes one of defendant’s children $400 for work done on the joint property. He is ■about sixty-one years of age and defendant fifty-seven. She is a strong capable woman in fairly good health and of good ability to care for herself. He, for more than fourteen years, has been so crippled and infirm as to be unable to do anything. He is now blind and needs personal attention by others. In 1906, for the purpose of. compensating defendant for rendering him needed attention and supporting him in their home, he quitclaimed to her his half of the homestead eighty, worth •at least $2,000. From that time she has possessed and used all of the property of the parties substantially as' if it were her own. A few days after defendant obtained the conveyance she placed á mortgage on the property to obtain $600, which she gave to her son by the former husband, and she now owes the debt. There is a judgment debt against plaintiff for the money belonging to his children, which he used as •aforesaid, of $2,847.35, rendered May 8, 1908, but it was said on the trial, that could be settled for $1,500, in case of payment being made within a reasonable time. For a long period before the action was commenced, defendant treated plaintiff in a most cruel and inhuman manner. Such treatment was reprehensible to a high degree, before the defendant obtained the deed aforesaid, but was worse thereafter. She made his life .miserable and practically forced him from his home and to subsist by charity. For over a year he has been a public charge because of defendant’s bad treatment. He bas made repeated unsuccessful efforts to become sufficiently reconciled with ber to enable bim to obtain support in tbe home, and was compelled to commence this action in order to secure a part of tbe property described and devote it to bis own use instead of having to depend on charity. She is entirely to blame for tbe unhappy condition. He bas promised' to reimburse tbe town which relieved bis necessities. That will take about $200. He is indebted to bis attorney for upwards of $100.</p> <p>On the situation aforesaid tbe court concluded, as matter of law, and adjudged accordingly, that plaintiff was entitled to a divorce as prayed for and to have out of the property $200 to reimburse tbe town; also $100, and such other sum as be might have to expend, as expenses of tbe litigation; also to have bis clothing and carpenter’s tools and an allowance of $25 per month, payable every three months during bis life, on tbe first days of January, April, July, and October in each year, tbe same to be a lien on all of tbe real estate owned by tbe parties, or either of them, and that subject to such lien and other existing liens and debts mentioned, defendant was entitled to all tbe property, with a privilege to discharge tbe lien for the quarterly payments aforesaid by paying to tbe plaintiff $2,000, and that-she should pay the costs of tbe litigation.</p> <p>She appealed.</p>

<p>Appeals from a judgment of the circuit court for Langlade ■county: John G-oodland, Circuit Judge.</p> <p>Action to quiet title. Answer, with, counterclaim, asked ■same relief in behalf of defendant. Both, plaintiffs and defendant deraign title from one C. F. Smith: defendant, by a sheriff’s deed on execution -under a judgment docketed in the -circuit court for Langlade county, March 18, 1902; the plaintiffs, by two deeds from Smith, both dated prior to said March 18th, but delivered subsequently. These two deeds ran, respectively, to one John Hartl and John Lewis, an undivided half to each. It was claimed that Hartl’s deed was in performance of a contract, resulting from correspondence, to convey the land upon consideration fully paid prior to the docketing of said judgment. The deed to- Lewis was ■claimed to be in acknowledgment and execution of a parol trust agreement made at the time Smith obtained the land prior’to 1892 to hold an undivided half thereof for Lems and ■another.</p> <p>The court found the contract to convey to ILartl to be established by the evidence, and that he therefore had an equitable title to the property prior to the docketing of the judgment, and owned an undivided half by title superior to that of the defendant. The court further held that Lewis had no interest in the land prior to the docketing of the judgment, the parol agreement therefor being void, and that therefore the half interest conveyed to Lewis was in Smith, subject to the lien'of the judgment, and by the later execution sale was transferred to defendant. Plaintiffs appeal from the whole judgment Defendant appeals from that part thereof which establishes plaintiffs’ title to an -undivided half..</p> <p>As to the admissibility of secondary evidence of the contents of the letters, they cited 17 Oye. 529; Diener v. Schley, 5 Wis. 483, 527; Orr v. Le Glair, 55 Wis. 93; Newell v. Clapp, 97 Wis. 104; Menasha W. W. Go. v. Harmon, 128 Wis. 177; Bonner v. Home Ins. Co. 13 Wis. 677; Wis. B. L. Go. v. Walker, 48 Wis. 614; Speiser v. Phoenix' Muf. L. Ins. Go. 119 Wis. 530; Bruger v. Princeton & St. M. Mut. F. Ins. Go. 129 Wis. 281; Kohl v. Bradley, Clark & Go. 130 Wis. 301; Burton v. Driggs,'20 Wall. 125; S'teb-bins v. Duncan, 108 U. S. 32; Jones, Ev. (2d ed.) §§ 17-19, 213, 214, 217, 218.</p>

<p>Mpbbal from a judgment of the circuit court for Outa-gamie county: Jorrar Goodlabtd, Circuit Judge.</p> <p>On July 3, 1907, Anna Steffen was struck and killed in the city of Appleton by an automobile which was operated by the chauffeur of the defendant. The deceased' came from Lawrence street, running east and west, and was crossing a part of State street, running north and south. As she approached State street from the west on Lawrence street she signaled a street car coming from the south on State street to stop. The car waited for her, and when she was about midway between the curb and the street car she turned her head and saw the automobile approaching from the north. She stopped, hesitated, and probably turned, and had taken a step backward when she was struck. She died shortly after. The chauffeur had had about five months’ experience in the handling of automobiles and had been in the employ of the defendant a little less than two months. At the time of the accident the chauffeur was alone in the automobile and was going to his home for dinner. There is evidence that he saw the deceased step from the curb when he was about 150 feet from her; that he continued on his course without slacking the speed of the car, and that he attempted to pass between her and the curb.' He claims that the deceased caused the collision by negligently stepping back toward the curb and in front of tlie automobile; that he had turned toward the curb to pass her, and that it was impossible for him to avoid the collision because the space between her and the curb was insufficient for him to pass. The evidence varies much as to the rate of speed at which the car was traveling. The distance between the curb and the street ear was about twenty feet, and the deceased was struck when nine or ten feet from the curb. The automobile was a five passenger, thirty horsepower machine. It was 112 inches long and sixty-seven inches wide. It weighed between 3,000 and 3,500 pounds. The chauffeur had full charge of the automobile under the direction of the defendant and his family and under his contract of employment. Under the contract of employment the defendant did not furnish the chauffeur with his meals, and the chauffeur went to his home for them. During the chauffeur’s employment by the defendant he had taken the machine to a shop for repairs, and had taken and used it to go to his dinners, perhaps ten times. He had not been directed by his employer to use the machine for this purpose and he had never obtained permission so to use it. The defendant testified that he did not see the chauffeur so use the machine and that he did not know that he so used it. This is an appeal from the order of the court directing a verdict for the defendant and from the judgment on the verdict.</p>

<p>Appeal from an order of tlie circuit court for Douglas county: A. J. Vinje, Circuit Judge.</p> <p>Among references cited upon the part of the appellants were the following: Stein v. Benedict, 83 Wis. 603, 53 N. W. 891; Ellis v. Southwestern L. Go. 102 Wis. 409, 78 N. W. 583; Bicharás v. Allis, 82 Wis. 509, 52 N. W. 593; III. S. Go. v. Schroeder, 133 AYis. 561, 113 N. W. 51; Magmison v. Glithero, 101 Wis. 551, 77 N. AY. 882; Munger v. Len-root, 32 Wis. 541; Turner v. Duchman; 23 Wis. 500; Blake ■v. Van Tilborg, 21 AYis. 672.</p> <p>cited, among other authorities, Dobie v. Fidelity & G. Go. 95 Wis. 540, 70 N. W. 482; Momr ■sen v. Noyes, 105 Wis. 565, 81 1ST. AY. 860; Goss v. Lester, 1 Wis. 43; Pendleton v. Beyer, 94 Wis. 31, 68 N. W. 415; Smith v. Dickinson, 100 Wis. 574, 76 N. W. 766; Draper v. Brown, 115 Wis. 361, 911ST. W. 1001; Filis v. N. P. B. Co. 77 AYis. 114, 45 N. W. 811.</p>

<p> Appeal: Review: Talcing questions from jury: Railroads: Negligence: Death of employee: Contributory negligence: Special verdict: Inconsistency. </p> <p>1. Tke conclusion of the trial court respecting sufficiency of evidence as to any fact in issue to present a jury question should not he disturbed unless it appears to be clearly wrong, giving due weight to the superior advantages of that court for discovering the truth.</p> <p>2. In an action against a terminal railway company and also- against a fuel company for death of a switchman who was crushed between a switch engine, on the side steps of which he was riding, and a box-car loader operated by the fuel company upon a parallel track, a nonsuit as to the railway company is held to have been properly granted, the evidence as to the duties and conduct of the fireman on the engine being insufficient to make it a question for the jury whether he was negligent, as alleged, in failing to keep a lookout ahead and to warn the deceased of his danger.</p> <p>3. A finding by the jury in such case that it was not customary for the box-car loader to move upon its track opposite to or past the switch engine or cars when the switch engine was moving on its track, was not inconsistent with a finding that deceased was guilty of contributory negligence, there being evidence tending to show that the loader had been brought to a full stop on its track before the engine passed it and that deceased, though familiar with the manner in which the loader was handled, rode in the position he did without looking to ascertain where the loader was; and both such findings are held to be sustained by the evidence.</p>

<p>Appeal from an order of tbe circuit court for Douglas county: A. J. Votje, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Douglas-county: A. J. Vikje,-Circuit Judge.</p> <p>Action to quiet title. The pleadings were in the usual form presenting the question of whether the claimants of the land in controversy, as possessors of the patent title, had' been in possession of such land during the three years succeeding the execution of the tax deed, under which defendant claimed, so as to extinguish by force of sec. 1188, Stats. (1898), the latter title, or defendant took possession of the premises under the tax-deed title and held the same adversely to the original owner during the three years succeeding the recording of such deed so as to, under such section and sec. 1187, extinguish the original title.</p> <p>The following facts were undisputed and found accordingly: The holder of the original title did not pay the tax assessed on the property after' 1891. In due form taxes were levied thereon each year and returned delinquent. In 1905, by tax deeds, fair on their face, based on a sale of the .property for delinquent taxes, the property was conveyed' to Douglas county, and February 17, 1906, the tax title, by a deed in due form, was conveyed to the defendant. The property consisted of ten lots in the platted portion of Superior city, Douglas county, Wisconsin, known as-block 69. On lots 1 and 10, forming the westerly side of the block, there was a dwelling house and a bam which existed during all the period herein mentioned and for a long time prior thereto. The block was inclosed by á fence. In 1902, the plaintiff and another, who then represented the original title, leased lots 1 and 10 and the buildings thereon to one McCloud who resided thereafter thereon, as a tenant, till the time of the trial. He agreed to pay rent at the rate of $2.50 per month and paid some thereof at irregular intervals. Some time after he took possession and before the date of the tax deed, the tenant, at the request of the landlords, repaired the fence making it a substantial inclosure of the block. In Eebruary, 1907, defendant took down the fence at the rear of lot 5 sufficiently to enable it to move a building onto the back part of such lot, the building being placed thereon for the purpose of taking possession of the entire block under the tax-deed title. Defendant used the building for election purposes twice each year thereafter but did no other acts of ownership on the block except, in March, 1907, it procured McCloud to sign a lease, he, in form, thereby becoming its tenant of lots 1 and 10 at a monthly rental of $3. Plaintiff acted in concert with another, they together representing the original title to the whole block. During all the time of dealing with McCloud as tenant under the holder or rightful representatives of the original title, the actor in the matter was plaintiff’s associate. Plaintiff became possessed of the entire original title subject to the tax title before the commencement of this action. He and his associate knew of the delinquent taxes, the execution of the tax deed, the placing of the building on lot 5, and claim of defendant under the tax deed, substantially as the events occurred, but there is no direct evidence that they knew of the claimed relations of landlord and tenant between McCloud and defendant.</p> <p>The court found these additional facts: Neither plaintiff nor his associate, representing the original title, collected or ■demanded any rent of McCloud after the building was placed on lot 5, or thereafter exercised any act of owner-ship over any part of the block, except some grass was cut under the direction of one of them but without defendant’s knowledge that the cutting was under such direction. Defendant’s officers had every reason to believe from the time the building was placed on lot 5 till long after tbe tax deed was more than three years old, that the holder of the original title had, as the fact is, abandoned the property. McCloud did not occupy any part of the block except the two lots covered by his lease, or do anything with reference to, the same other than to repair the fence as aforesaid and to occasionally pasture-his cow on the vacant lots. Defendant had actual possession of all of the block from the time it placed the building on-lot 5 till the commencement of this action.</p> <p>On the facts so found the court concluded that the original title was fully superseded by the tax title and the statute of' limitations relied on by defendant and rendered' judgment accordingly.</p>

<p> Mechanics’ liens: Waiver: Giving credit: Setoff: Counterclaim: Appeal: Harmless error. </p> <p>1. The giving of credit, by one entitled to a mechanic’s lien, for a reasonable time but not to a definite date beyond the period fixed by law for commencing the lien action, does not per se waive the lien.</p> <p>'2. In an action to foreclose a mechanic’s lien defendant may set off a demand for the amount of plaintiff’s board furnished him in the course of the work.</p> <p>'3. The error, if any, in striking out a counterclaim for such demand was not prejudicial where plaintiff recovered only the value of his services over .and above the board so furnished, so that the defendant had the full benefit of his demand by way of defense.</p>

<p> Master and, servant: Personal injury: Unsafe worhing place: Unlighted timber chute: Assumption of rish: Contributory negligence: Evidence: Photographs: Excessive damages. </p> <p>1, Evidence showing that a timberman worhing at night on a roll-way at the foot of a chute in a sawmill could avoid being struck by timbers coming down the chute only by stepping quickly to one side; that ifi the absence of a light over the chute he could see freshly sawed, light-colored timbers in time to avoid them, but could not see dark-colored ones; that during his employment only light-colored timbers had come down the chute, and he had a right to expect that none others would come; and that he was struck and injured by a dark boom stick which, although keeping a lookout; he could not see in time to avoid i&wkey; warranted a finding by the jury to the eHeet that the employer’s omission to maintain a light over the chute rendered the place dangerous and constituted actionable negligence.</p> <p>2. Under the circumstances stated, the risk of being injured by a dark boom stick coming down the chute could not be said to be an open and obvious one which the timberman assumed as incident to his duties; nor was he guilty of contributory negligence as a matter of law.</p> <p>3. Testimony of a witness in such case that boom sticks had not come through the mill that season, and that they were “pretty hard to see,” was relevant and was properly admitted.</p> <p>4. Photographs which were shown to give a correct view and representation of the place where plaintiff was working at the time of the accident were properly admitted in evidence:</p> <p>5. An award of $3,150 for injuries consisting "in the breaking of both bones of the leg above the ankle and resulting in a permanent deformity and impairment of the use of the foot, is held not excessive.</p>

J. Venue, Circuit Judge. This was an action of replevin commenced in the circuit court for Douglas county, and afterwards removed to the circuit court for Washburn county, to recover the possession of a quantity of hay alleged to be owned by the plaintiff. The complaint alleges that the value of the hay is $150 and that the same had been wrongfully taken and detained by the defendants. The answer was in substance a general denial.

<p> Landlord and, tenant: Holding over: JReneioal of lease: Presumption: New agreement: Evidence. </p> <p>1. Where the tenant after the expiration of a term fixed by a lease at one year or less, continues to occupy the leased premises without any new contract, the holding over may, at the option of the landlord, be considered a renewal of the prior lease for a like period and upon like terms.</p> <p>2. The presumption of renewal of the lease in such case cannot be repudiated by proof of a contrary intention on the part of the tenant alone.</p> <p>3. The parties in such a case may agree that the holding over shall be on different terms or for a different period; and such agreement may be proven like any other parol agreement.</p> <p>4. A printed form on the back of rent receipts given to a tenant holding over, stating that the law requires tenants, when no lease has been signed, to give thirty days’ notice before vacating, did not constitute a new contract.</p>

<p>Appeal from a judgment of the superior court of Douglas county: Ohajrles Smith, Judge.</p> <p>Tlie complaint in tliis action alleged that between the 8th and 29th days of August, 1907, the plaintiff performed work as a railroad laborer for II. F. Balch in constructing a portion of the defendant’s line of road, upon which account said Balch became indebted to the plaintiff in the sum of $26.73, which amount became' due and payable on the 20th day of September, 1907; that such indebtedness was not paid, and that within thirty days from the time same became due and payable plaintiff served a notice in writing upon the defendant railway company, as required by sec. 1815, Stats. (189.8), in order to render the defendant herein liable on said ac-coünt; and that suit was commenced within sixty days after the claim became due and payable and' said notice was served. The answer was a general denial.</p> <p>Plaintiff had judgment in the municipal court of Douglas county. An appeal was taken to the superior court of said county. At the close of the plaintiff’s testimony the defendant moved for a nonsuit on the ground that the notice was not served upon the proper person, and that it did not comply with the statute in that it did not name the person who was indebted to the plaintiff. The motion was granted, and from judgment of nonsuit this appeal is taken.</p>

<p> Mortgages: Equity of redemption: Extinguishment by deed to mortgagee: Validity: Burden of proof: Pleading: Instructions to fury. </p> <p>1. Though an arrangement between mortgagor and mortgagee by which the equity of redemption is apparently extinguished will be closely scrutinized and it must appear that the consideration was adequate and that no advantage was taken of the mortgagor’s necessities, and though in doubtful cases the courts incline to hold that the mortgage relation still exists, nevertheless such an arrangement will be sustained if fairly made.</p> <p>2. Where the mortgage relation has been apparently terminated by an absolute deed from mortgagor to mortgagee, but the mortgagor claims -the excess obtained by the mortgagee, over and above the mortgage debt, on a subsequent sale of the premises, the burden of proof is upon the mortgagor, whether he bases-his claim upon an express contract to pay such an excess to him or upon continuance of the mortgage relation either by agreement between the parties or because advantage had been taken of his necessities.</p> <p>3. Where in such case the mortgagor’s complaint alleged an express contract for payment to him of any excess received on the sale, an instruction to the jury that the controlling question in the case was whether the parties intended to cancel the mortgage-debt and that upon this question the burden of proof was on, the defendant, was confusing and erroneous.-</p>

<p> Contracts: Validity: Construction: What law governs: Intention of parties: Enforcement in other states: Comity: Public policy: . Married women: Accommodation notes. </p> <p>1. As to mere personal contracts, tiieir validity and interpretation is referable to the lex loci contractus, unless the parties intended they should be governed by the lex loci solutionis or that of some other place, the real place of the contract being a matter of mutual intention, except in exceptional circumstances evincing a purpose in making the contract to commit a fraud on the law. "</p> <p>2. What the intent was, mentioned in No. 1, as to the place of the contract in any case, is generally determinable by presumption of fact that the place of the contract was intended to be that where it was actually made, unless the place of performance was elsewhere, then the presumption is that the latter was intended, but such presumptions are rebuttable. In this the term “place of the contract” means the place mutually intended for reference as to validity and interpretation.</p> <p>3. The law as to manner of performance is referable to the place of performance, while remedies for nonperformance are referable to the law of the forum where performance is sought to be enforced.</p> <p>4. A contract valid by the law of the place thereof is valid everywhere.</p> <p>5. Thé affording of remedies in one country for enforcing a contract which would not be valid if made in such country, but is valid by the law of the place where it was made, depends upon judicial comity of nations.</p> <p>6. The comity mentioned is uniformly extended unless such contracts as the one sought to be enforced are contrary to the public policy of the country of the forum, as declared by its courts or its lawmaking power on grounds of good morals, or the state or its citizens would be injured.</p> <p>7. The scope of the comity spoken of, within reasonable limitations, is determinable, as a matter of judicial policy, by each state for itself.</p> <p>8. The rule that the law of a place of a contract governs, as to its validity and interpretation, applies to the capacity, including that of married women, to contract.</p> <p>9.The rule that a contract, valid by the law of the place thereof, is valid everywhere, is without exception, notwithstanding in some cases a foreign contract is not enforceable.</p> <p>10. A foreign contract, of a class which if it were made in the country of the forum would be contrary to the law thereof, is not •necessarily unenforceable in such forum because such a contract is contrary to public policy. To be so, the contract must be, by moral standards in the judgment of the court, pernicious and injurious to the public welfare.</p> <p>11. The contract of a married woman as accommodation maker of commercial paper having not been judicially declared unenforceable in this state on grounds of public policy, nor prohibited by legislation as pernicious, is enforceable in our courts, in case of its having been made in another state where such contracts are valid, unless such contracts are, in. fact, inherently bad in the sense indicated in the foregoing rules.</p> <p>12. The general legislative policy of this state as to- relieving married women from common-law disabilities to contract, and other considerations, negative the idea that full right in that regard would involve anything inherently bad and warrant our courts in refusing to enforce the foreign contract of a married woman as accommodation maker of a promissory note on grounds of public policy.</p> <p>[Syllabus by Mabsiiall, J.]</p>

<p>Ajppeal from a judgment of the circuit court for Waukesha •county: MaRtiw L. Lueck, Circuit Judge.</p> <p>This is a second appeal from judgment in the same action, reported 137 Wis. 44, 118 N. W. 217. Upon remittitur, the cause was referred to a referee to take evidence upon-the question of damages, and was then heard in court upon the evidence so taken and upon some other evidence offered in open ■court. The court found the contract as stated upon the former appeal; the breach thereof by the defendant substantially an there set forth; that the wholesale price of ice during the'season of 1904 was from sixty cents to $1 per ton; that there were three wholesale concerns dealing at wholesale in ice in the city of Milwaukee, where plaintiff carried on a retail business; that plaintiff made no application to such wholesalers, although they were dealing in ice of the kind required by him- in his contract, and made no reasonable effort to procure ice to take the place of that which' the defendant failed to furnish. Accordingly the court rendered judgment for the plaintiff for six cents damages; also judgment for the defendant upon its counterclaim for the unpaid price of the ice which plaintiff had received. Erom that judgment plaintiff appeals.</p>

<p> Master and servant: Injury from unsafe machinery: Special verdict: Definiteness: Abnormal action of machine: Discoverable defects: Evidence: Questions for jury: Assumption of risk. </p> <p>1. In an action for personal injuries sustained by plaintiff -while operating a machine which the complaint alleges was unsafe in several particulars, the special verdict should be so framed that it will show in which, if any, of such particulars the jury find that the machine was unsafe.'</p> <p>2. Where injuries to an employee are claimed-to have been caused by abnormal action of a machine in starting up suddenly without apparent cause after the drive belt had been shifted to a loose pulley and the machine ha.d come to a full stop, the mere-statement of plaintiff that it so started is not sufficient to sustain an inference that there was a discoverable defect in the machine, as against evidence, otherwise undisputed, that the machine had been used for years without any abnormal action and that it was of proper and safe construction and in good repair.</p> <p>3. An adult of ordinary intelligence and experience who has learned from working in and about a woolen mill and its machines the usual conditions and hazards of tjie business, must be deemed, as matter of law, to have known the risk incident to putting his hand into a machine (in this case a mixing picker) while it was running, to remove clogging material.</p>

<p> Criminal law: Instructions to jury: Oral request: Review: Homicide: Degrees: Heat of passion: Self-defense: Evidence: Quarrelsome disposition. </p> <p>1. The accused cannot, as a matter of strict legal right, predicate error upon the refusal of the trial court to instruct the jury as orally requested; hut the supreme court may, in its discretion, consider the point as raised.</p> <p>2. Sec. 4354, Stats. (1898), — providing that any person who shall kill another in the heat of passion without a design to effect death, by a dangerous weapon, in any case except such wherein the killing of another is declared to be justifiable or excusable, shall be deemed guilty of manslaughter in the third degree,— does not apply to a ease where the accused justifies the homicide as one committed in self-defense.</p> <p>3. An instruction to the effect that the law limits the right of self-defense to necessity as it reasonably appears to the defendant at the time, and. that in acting upon appearances and in taking the life of his fellowman a person acts at his peril and will not be excused unless the circumstances proven were such as would reasonably cause him to believe his act necessary to save his own life or to save himself from great personal injury, was appropriate to this case and not erroneous.</p> <p>4. So, also, upon the evidence in this case it was proper to instruct that if defendant was in fault in creating the situation of danger his right of self-defense did not arise until he had done all he could reasonably do to avoid the necessity of killing the deceased in order to protect himself.</p> <p>5. Evidence that a short time before the killing, while a group of fellow workmen, including the accused and the deceased, were returning to their boarding house, the accused was the aggressor in a quarrel with another member of the party and knocked him down with one hand while holding a revolver in the other, was competent to show the quarrelsome and homicidal disposition of the accused, nearly up to the time of the homicide, toward his workmates.</p>

<p>Ekrob to review a judgment of the municipal court of ’Milwaukee county: A. C. Bhazee, Judge.</p>

W. Helks, Circuit Judge. This action was brought to recover damages for injuries to appellants’ steamboat caused by. the swinging against it of the draw span in respondent’s bridge across the Mississippi river at Winona, Minnesota. It is alleged in the complaint that while the boat was passing through the open draw respondent negligently swung the draw span against the boat.

<p>(1) Law of the case: Decision on -former appeal. (2-4) Constitutional law: Due process of law: Equal protection of the laws: Classification for legislative purposes: Railway carriers: Liability for injuries to employees.</p> <p>1. A decision on a former appeal that a statute does not violate constitutional provisions is the law of the case.</p> <p>2. Laws governing railway carriers as a class in their relations with their employees, and subjecting them to liabilities and obligations greater than those imposed upon other emploj'ers of labor, are based upon just and proper classification and are not in violation of the XXVth amendment to the federal constitution.</p> <p>3. It is not essential to the validity of such laws that their operation should be confined to employees engaged in moving trains.</p> <p>4. Exemption of "employees working in shops or offices” from the operation of a law imposing upon railway carriers peculiar liabilities to all their other employees, is not so unreasonable a subclassification that it can be held to be beyond the power of the legislature.</p> <p>Maeshalx,, J.; concurs upon the sole ground that the court is bound by its former decision, from which he dissented.</p>

<p>Appeal from a judgment of the circuit court for Rush county: Maetin L. Lueck, Judge.</p>

D. Hastings, Circuit Judge. Action to recover compensation for the death of plaintiff’s intestate, alleged to have been caused by actionable negligence of defendant.

<p>Appeal from a judgment of the circuit court for Brown -county: S. D. Hastings, Circuit Judge.</p> <p>Plaintiff sold to one Hashek certain lots in the town of Preble, Brown county, Wisconsin, evidently with the contemplation that some kind of a factory would he built upon them. The sale price was $1,400, but the land contract provided for the payment of $2,000, plaintiff having loaned or-agreed to loan said Hashek an additional sum to the amount of $600. In December, 1907, Hashek organized the defendant corporation to take over his business, including these lots, with whatever buildings and machinery had been erected thereon. Plaintiff participated in the organization of the company and agreed to taire $400 of stock Certain small amounts had been paid upon his land contract, and on January 9, 1908, the directors applied to him to make a deed, to-the end that the company might borrow money upon its plant. A settlement was had, and the balance then due upon plaintiff’s land contract was agreed on $1,350. He consented to-make a warranty deed provided he was given a note of the company indorsed by all the directors for this $1,350, and this was done. March 12, 1908, the corporation, not having succeeded in finding a lender elsewhere, borrowed $2,500 of money of the plaintiff, for which amount it gave a mortgage upon the lots in question and buildings thereon and also a chattel mortgage upon the machinery therein.</p> <p>This action was brought about March 13, 1909, first to. foreclose both the real and chattel mortgage securing the. $2,500 loan, and, as a second cause of action, to establish and enforce a purchase-money lien upon the equity of redemption for said $1,350. On the 7th day of April following the. corporation was adjudged bankrupt, the defendant John A. KitteU appointed trustee and allowed to interplead as a defendant in this action. The plaintiff had at all times been a director in the corporation, which, both prior and subsequent to the making of his warranty deed, had been incurring indebtedness both for goods purchased and for money borrowed-upon its general credit. It was largely insolvent at the time-of the adjudication in bankruptcy, but there is no direct proof as to insolvency at any specific earlier date. Some evidence was offered as to the understanding which plaintiff and the corporate directors had at the time of the making of the warranty deed tending to show that they contemplated that plaintiff would have a right to enforce his purchase-money note of $1,350 against the equity of redemption.</p> <p>The court held that plaintiff did not intend to waive or relinquish his purchase-money lien and that the same thereafter persisted as against all except innocent purchasers, of whom there were none. Judgment was accordingly for foreclosure of the real estate and chattel mortgages and for the application of the proceeds of such foreclosure sale to the $2,500 debt thereby secured, also declaring a subsequent lien for the $1,350 note with its interest and the application of any surplus proceeds of the real-estate sale thereto, from which judgment the defendant Kittell appeals.</p>

<p>(1) Appeal: Review: Questions of fact. (2-4) Contracts: Drilling of well: Implied guaranty of success: Custom: Evidence. (5) New trial: Newly discovered evidence.</p> <p>1. If the evidence upon an issue is conflicting, the verdict of the jury is decisive.</p> <p>2. A contract to drill a well does not imply that water shall be obtained or that the well will be a success as to either the quantity or quality of the water.</p> <p>3. In order that a particular custom or usage shall be considered as part of a contract, it must be so well established, uniform, • and notorious that the parties must be presumed to have known it and to have contracted with reference to it; and the proof of such custom must be positive, clear, and satisfactory.</p> <p>4. A particular custom or usage to the effect that one who undertakes to drill a well is not entitled to compensation unless a reasonably sufficient supply of water is obtained, was not established by the testimony of two witnesses that they followed such practice in their own business.</p> <p>5. It is not an abuse of discretion to deny a motion for new trial based on newly discovered evidence, where such evidence is merely cumulative.</p>

<p> Poor-laws: Relief in emergencies: Questions for jury. </p> <p>1. Under sec. 1499, Stats. (1898), a distinction exists between that degree of poverty and indigence which will entitle one to support from the town and that which will entitle him to temporary relief in emergency.</p> <p>2. Where the necessity for aid is urgent and the afflicted person poor, indigent, and helpless to such a degree that obtaining relief without town aid in time to save life or health may be impossible, it cannot be said as matter of law that he is not entitled to relief from the town merely because he possesses some meager property not immediately available for conversion into cash or as a basis of credit.</p> <p>3. It was a question for the jury in this case whether a family consisting of father, mother, and minor son, all of whom were ill with typhoid fever and bedridden, were entitled to relief from the town, although they owned a homestead worth $725, subject to a mortgage not exceeding $450, and had about $7 in money and some credit at a grocery.</p> <p>Makshall, J., dissents.</p>

<p> Mortgages: Satisfaction by deed: Payment: Vendor's Hen: Enforcement in action to foreclose mortgage: Judgment. </p> <p>1. A deed by which a mortgagee conveys to the mortgagor or owner of the equity of redemption all the estate, right, title, interest, claim, or demand in law or in equity of the mortgagee in and to the mortgaged land, operates to satisfy and discharge the mortgage and cannot be contradicted by evidence of a contemporaneous parol agreement that the mortgage shall not be affected thereby.</p> <p>2. Discharge of a mortgage securing an unpaid balance of purchase money of the land does not per se establish payment of such balance, and it may be shown that it was not paid.</p> <p>3. In an action to foreclose a mortgage securing purchase money, if it appears that the mortgage has been discharged but that the purchase money has not been paid, the court may enforce plaintiffs right to a vendor’s lien, treating the complaint as amended to conform to the facts proved.</p> <p>4. A judgment in such ease decreeing foreclosure of the mortgage and sale of the land is permitted to stand after striking therefrom the award of attorney’s fees and the direction for a deficiency judgment, since as thus modified it accomplishes the same result as a, judgment enforcing the vendor’s lien, on terms more favorable to the defendant than are usually imposed.</p>

<p>Appeal from an order of the circuit court for Rock county: John K. Paeish, Circuit Judge.</p> <p>The appeal is from an order overruling a general demurrer to the complaint.</p> <p>The complaint in substance sets forth that on January 15, 1905, a -written contract was made between the plaintiffs and the defendant, by the terms of which the defendant promised to convey to the plaintiffs 4,89451 acres of land by deed of warranty, free and clear of incumbrances, for $25,737.81; that pursuant to this contract a warranty deed in due form was made, executed, and delivered by the defendant to the plaintiffs on January 25, 1905, and that the plaintiffs paid therefor the consideration mentioned in said land contract; that the southeast quarter of the northeast quarter and the northeast quarter of the southeast quarter of section 24, township 33 N., of range 7, were included in said contract and conveyed to said plaintiffs by said deed; that said defendant on or about October 11, 1904, sold and conveyed by an instrument in -writing to one William Diamond the timber on said descriptions; that the south half of the northeast quarter of section 26, in the township and range aforesaid, was likewise included in said land contract and conveyed to plaintiffs by said deed, and that by an instrument in writing bearing date November 28, 1904, said defendant sold the timber on said tract of land to one Charles Wood, and conveyed to said Charles Wood the right to enter upon said parcel of land and to cut and remove said timber; that the conveyances to Diamond and Wood were not a matter of record on January 15, 1905, when the land contract with the plaintiffs was executed; that prior to the execution of said land contract the plaintiffs entered on the lands described therein and made an examination thereof, which said examination was completed during the month of December, 1904; that at the time such examination was made no person was in the occupancy or possession of the parcels of land described in the conveyances made to Diamond and Wood. On information and belief the plaintiffs allege that said lands were unoccupied on January 15, 1905; that there was a large amount of valuable timber on the lands described in the conveyances to Diamond and Wood; that before making said land contract the plaintiffs represented to defendant that they desired to purchase the tract of land in question for a sheep ranch; that it was absolutely essential that they should have the timber ,on the aforesaid parcels of land situated in sections 24 and 26 in order to erect the necessary buildings for their sheep ranch; that the president of the defendant company falsely and fraudulently represented that defendant owned said timber and that the same was part of the property which defendant proposed to sell, and that if the lands in question were purchased by the plaintiffs the timber thereon would be purchased and conveyed with them; that, relying on such representations and believing them to be true, plaintiffs entered into the contract of January 15, 1905, and subsequently accepted the deed of said lands and paid the consideration therefor ; that said Diamond and Wood, without the knowledge or consent of the plaintiffs, during the months of January, Eebru-ary, and March, 1905, cut and removed the timber purchased by them; that by reason of the false representations made by the agent of the defendant to the plaintiffs, and by reason of the fraud and deceit practiced upon said plaintiffs, and by reason of their reliance on such representations, plaintiffs suffered damages in a large sum, for which judgment is demanded. In addition to the market value of the timber cut and-removed, plaintiffs allege certain facts tending to show special damage by reason of the removal of the timber, for which judgment is also demanded.</p>

<p>Appeal from, a judgment of the cirenit court for Bayfield' county: A. H. Reid, Judge.</p> <p>Personal injuries. The plaintiff was a man .of ordinary intelligence, forty-seven years of age, who at the time of his injury had been employed by the defendant as a coal shoveler at its large coal dock at the city of Washburn for nine years. On -the 6th of September, 1907, he was engaged shoveling coal into a large bucket in the hold of a large vessel lying at defendant’s coal dock, when the end of a half-inch steel wire rope fell down through the hatchway and struck him in the face, knocking out several teeth and inflicting other injuries. The fall of the rope came about in this way: In order to rapidly unload the boat, a long boom extends out from and about thirty-five feet above the dock to a point above the middle of the hatchway of the boat. On the end of the boom is a pulley or sheave through which the steel rope in question runs to a large drum, which is operated by a hoister in a shanty on the dock. During the early stages of the unloading of the boat, large clam shells (so called) are attached to the steel rope and lowered into the hold, which automatically load themselves and are drawn, up to the end of the boom, and then pulled back by a sort of a carriage running on the boom back into the yard and emptied. When the coal is nearly gone in the hold, the clam shells are detached because they will no longer load themselves, and large buckets are substituted. This operation takes about half an hour, and in course of it the end of the steel rope has to be drawn through the pulley by men on the dock and always falls down into the 'hatchway if a boat be at the dock, or into' the water if there be no boat there. At the time of the accident the clam shells had been taken off and the steel rope was being pulled out of the pulley, and in course of this operation the end of it fell down into the hatchway. ISTo warning was given of its approaching fall. The foregoing facts are all without dispute.</p> <p>The jury returned a special verdict finding (1) that the defendant did not furnish the plaintiff with a reasonably safe place to work; (2) that this failure was a proximate cause of plaintiff’s injury; ( 3) that defendant was negligent in failing to warn plaintiff of the expected drop of the rope; (4) that such negligence was a proximate cause of plaintiff’s injury; (5) that plaintiff did not know and appreciate, before his injury, the danger to which he was subject by the process of changing from clam shells to buckets; (6) that he could not have known or appreciated such danger before his injury by the exercise of ordinary care; (7) that no want of ordinary care on plaintiff’s part proximately contributed to his injury; and (8) that his damages were $1,200.</p> <p>The defendant moved to reverse the answers to the various questions and. for judgment on the verdict as corrected, also that the verdict be set aside and a new trial granted, hut all the motions were denied and judgment rendered on the verdict for the plaintiff, from which judgment defendant appeals.</p>

<p> Master and, servant: Injury: Unsafe working place: Erection of building: negligence of fellow-servant. </p> <p>1. Where a master furnishes to a force of employees suitable material to erect a building upon a proper site he is not liable for injuries to one of them resulting from perils created by them in the progress of the construction.</p> <p>2. The fall of a loose planlr placed near the edge of the floor on the second story of a building in process of erection was not of itself prima facie evidence that the place was unsafe, the rule res ipsa loquitur being equally effective to establish that the fall of the plank might have been due to the negligence of co-employees of the person injured.</p>

<p> Master and servant: Injury ■from, dangerous machinery: Assumption of obvious rislcs: Proximate cause: Burden of proof. </p> <p>1. Dangers incident to the operation of a machine which are open and obvious to any person of ordinary intelligence are assumed hy a servant who undertakes the employment of operating it.</p> <p>2. The fact that a machine whose operation was attended with obvious danger might possibly have been equipped with appliances which would render it less dangerous affords no ground for complaint to one who undertook to operate it, the employer having the right to use such a machine if he thereby violated no positive law and did not expose his employees to hidden dangers.</p> <p>3. In an action for an injury sustained by an employee while operating an obviously dangerous machine the burden is upon plaintiff to show that the injury was proximately caused by the alleged negligence of the defendant; and proof which is as consistent with a theory that the injury was due to a cause not actionable as with a theory that it was due to an actionable cause is not sufficient to carry the case to the jury.</p> <p>4. The evidence in this case is held not to show a causal connection between the alleged negligence of the defendant in running at a slow speed the splitter saw at which plaintiff was working and the injury to plaintiff occasioned by the turning of a stave holt which he was feeding into the saw and by his hand slipping and coming in contact with the saw.</p>

<p>Appeal from a judgment of the circuit court for Ashland county: John K. Pauish, Circuit Judge.</p> <p>This action was brought to recover for personal injuries alleged to have been sustained by plaintiff on the 19th day of June, 1907, while in "the employ of the defendant. The complaint contains the following allegation:</p> <p>“Upon information and belief, the defendant is a corporation duly incorporated under and by virtue of the laws of the state of Wisconsin, doing business at the city of Ashland, in said state, under the corporate name of the C. G. Bretting Manufacturing Company, and that on the 19th day of June, 1907, and for a long time prior thereto, the said defendant was the owner of and operated a foundry at the said city of Ashland, in said state, wherein certain kinds of machinery, wheels, and castings were made.”</p> <p>The complaint then goes on to state the negligence of defendant which caused plaintiff’s injury, and demands judgment for $7,500. The defendant answered as follows:</p> <p>“The defendant above named, for its amended answer to the amended complaint herein, admits that it is a corporation duly organized under the laws of the state of Wisconsin and that the plaintiff was injured at the time and place stated in said amended complaint; and defendant avers that the injury received by plaintiff mentioned in the complaint was caused by the negligence of the plaintiff and that of a fellow-servant, and not otherwise. Defendant denies each and every allegation of the complaint not herein specifically admitted.”</p> <p>A trial was had on the issues joined and a general verdict found in favor of the plaintiff for $1,700 damages. Judgment was rendered on the verdict in favor of the plaintiff and against the defendant, from which this appeal was taken.</p>

<p>Appeal from a judgment of the circuit court for Oneida •county: A. H. Reid, Circuit Judge.</p> <p>Plaintiff brings action to recover on a contract for the •construction of a sehoolhouse alleged to have been made by it and the defendant city through the common council and the school board of the city. The defendant alleges that no valid contract was made. The court awarded judgment of non-suit. This is an appeal from the judgment.</p>

<p>Appeal from a judgment of tbe circuit court for Oneida county: A. H. Reid, Circuit Judge.</p>

<p> Injury from, defective sidewallc: Notice of defect: Negligence of town officers: Instructions to jury: Harmless errors. </p> <p>1. In an action against a town for injuries caused by a loose plank in a sidewalk,' evidence that tbe walk bad been in that condition for ten or twelve days and that during that time tbe town officers were frequently upon tbe street in question, was sufficient to sustain a finding by tbe jury that by tbe exercise of ordinary care the town officers could have discovered and remedied tbe defect before the accident.</p> <p>2. An instruction to tbe jury which correctly states tbe law in tbe abstract will not work a reversal merely because there was no evidence to which it was applicable.</p> <p>3. An instruction that a lotowner was not responsible for any negligence or default, with reference to tbe sidewalk in question, of contractors erecting a building on bis lot, was harmless in this case, even if not correct, there being no evidence that there was any necessity for tbe contractors to interfere with tbe walk at the point in question, or that they did interfere with it or create tbe defect, and tbe jury having found in effect that tbe defect existed before such contractors began work.</p>

<p>Appeal from a judgment of tbe circuit court for Eau Claire county: James O’Neill, Circuit Judge.</p> <p>Action in ejectment. Tbe defendants, among other things, pleaded title in defendant Fannie H. Morrison by adverse possession, under tbe twenty-year statute. There was proof that plaintiff bad paper title to the south forty-six and one-fourth feet of the platted lot in question, but that her occupancy had only been up to the south side of a narrow strip of irregular width, averaging about four feet, sought to be recovered in this action. On the north side of that part of the lot occupied by plaintiff, for more than twenty years, there had existed a division fence and that part of the lot within the fence, including all the disputed strip, had been continuously occupied by the defendant Fannie H. Morrison and those under whom she claimed. More than twenty years prior to the commencement of the action said defendant’s remote grantor owned the north part of the lot, claiming his south line to be the north line of the premises as occupied by plaintiff and her predecessors in title, and so ■claiming he located his dwelling house partly thereon, so that the north line as the plaintiff claims the same to be, passed through the south side of said house. Neither the person who built said house nor any one in the chain of title from him, intended to claim any further south than the true line, but the claim during the entire statutory period of twenty .years has been that the fence aforesaid, recognized as a diwision fence, was on the line, or at least that no point of it was too far south. If such claim was not correct it was owing to a mistake of boundaries; claimant on the north side of the fence during the whole time treating that part immediately north of the fence as his property and actually and exclusively occupying the same. It was within an inclosure ■containing the dwelling house aforesaid which stood, partly south of the north line of the disputed strip. The inelosure was used continuously for the full period of twenty years as appurtenant to such dwelling house. Whenever the dwelling house was occupied by the owner or a tenant the grounds were used on the north side of the fence in all respects as one having full title would use such premises. At no time during the twenty-year period did plaintiff or any one claiming under her use or occupy in any way any part of the strip of land sought to be recovered. When she constructed her sidewalk she built only to the point opposite the street end of the division fence.</p> <p>The owner of the property north .of the line fence in 1882 occupied it continuously till he lost the same to a purchaser under foreclosure proceedings. Thereafter the house and yard, including the strip in question, under the chain of title resting on the foreclosure proceedings, was kept for lease-bold purposes. Generally the premises were occupied by a tenant. There were periods when there was no tenant; periods of absence from the premises of any person representing said defendant, but during none of such periods was there any invasion of the premises by plaintiff, or was there any indication, by any circumstance, of abandonment of any of the land north of the fence. It was treated by the person holding in defendant’s chain of title as an owner might treat property kept for leasehold purposes.</p> <p>On such evidence the court directed a verdict for defendant. Judgment was rendered thereon in defendant’s favor and for costs.</p>

<p> Equity: Election between inconsistent positions: Estoppel: Waiver: Corporations: Subscription for stoclc: Repudiation: Delay in asserting right: Assignment. </p> <p>1. One who, having a choice between two inconsistent positions, exercises that choice, is finally concluded and confined to the rights and remedies appropriate to the position so chosen, and excluded from those consistent only with the repudiated one.</p> <p>2. The rule above stated does not necessarily rest upon grounds of estoppel, and the election may have conclusive effect as a waiver of rights, independent of any prejudice to other persons which may result from a subsequent change of front.</p> <p>3. Where a subscriber for stock of a proposed corporation had repudiated his contract and the other subscribers, acquiescing in such repudiation, had proceeded to form the corporation and after years of struggle had placed it upon a paying basis so that its stock was at a premium, the subscriber first mentioned had no right in equity to make payment and enforce issuance of the stock for which he had subscribed.</p> <p>4. Although in such case it need not be shown that the granting of such right would result in prejudice to the other stockholders, such prejudice might well be found from the facts stated.</p> <p>5. Where a right existing only in equity is not asserted, and no intimation of any purpose to assert it is given, until years after it arose, during which time there has been such a change in the situation that enforcement of the right will work substantial hardship, inconvenience, or embarrassment to the other party which would not have followed its prompt assertion, the claim founded on such right will be deemed stale and inequitable, whether sought to be enforced by the party originally entitled or by ah assignee.</p>

<p>EbuoR, to review a judgment of the circuit court for Ke-nosha county: A. C. Brazee, Judge.</p>

<p> Corporations: Subscription to stock: Tender of certificate: Release of subscriber: Abandonment of enterprise: Examination of officer as adverse witness: Harmless error. </p> <p>1. Tender of a stock certificate is not a condition precedent to liability upon a stock subscription, in tbe absence of any stipulation to that effect in the agreement.</p> <p>2. Where a subscriber to stock who has paid only a portion of his subscription tenders his resignation as an officer and director and states his decision not to take any more stock than he has already paid for, action of the board of directors in accepting his resignation and instructing the secretary to send him formal assignments for the transfer of his subscription (which the subscriber never executes or returns) is insufficient to effect the cancellation of his subscription or to release him from liability thereon.</p> <p>3. Proof of the sale of the property of a corporation and a suspension of business activity for the time being does not show such an abandonment of the business enterprise for which the corporation was organized as will relieve from liability a subscriber for stock, where it does not appear but that the company may resume its business upon payment of the unpaid stock subscription.</p> <p>4. Refusal to permit the examination of the former secretary of the plaintiff corporation as an adverse witness did not affect the substantial rights of the defendant in this case, he having been accorded the privilege of a full examination upon everything pertaining to the issues, and the material facts having been presented to the court.</p>

<p>Appeal from a judgment of tlie circuit court for Milwaukee county: Laweeuce W. Halsey, Circuit Judge.</p> <p>The complaint in this action alleges the making of a contract between plaintiff and defendant by the terms of which plaintiff agreed to do certain marble work in the six stories of the defendant’s building known as the Colby & Abbot building in the city of Milwaukee, Wisconsin, for the sum of $24,150, and that through mistake on the part of one Grant, president of the plaintiff, he included in such contract work and material for only five stories of such building, while the contract covered the six stories. It is further alleged that the agent of defendant either fraudulently concealed the fact or did not know or appreciate that the additional work was included in the contract; that the original specifications for the job included only five stories, while the specifications upon which the contract was made included six stories, and that Grant, president of plaintiff, did not know that the original specifications, calculations, and bid based tbereon bad not included any work for tbe sixth story; tbat after plaintiff discovered the mistake it, through its agent, took the matter up with defendant’s manager, who ordered the work to be done on the sixth story and promised on behalf of defendant to make it right. The plaintiff finished the sixth story in marble the same as the story below, which was reasonably worth $2,882.05, which defendant refused to pay, claiming that the item was covered by the contract between the parties. The prayer is for reformation of the specifications and contract on which they are based so as to confine the marble work to five stories, and, further, that defendant pay for the work and material in the sixth story what the same was reasonably worth, and for general relief.</p> <p>Defendant moved to make the complaint more definite and certain by separately stating the two causes of action and by electing whether plaintiff stands on its action to reform the contract referred to in the complaint and recover upon the contract as reformed for the work and material alleged not covered thereby, or upon the cause of action attempted to be Stated upon alleged promise by defendant to pay in addition to the contract price, and that part of the complaint be stricken out, which motion was denied.</p> <p>The defendant answered, and the court found substantially: That in October, 1905, defendant, through his architect, called upon plaintiff to make estimates and a bid upon marble wainscoting in the corridors of said building, and at said time there were corridors partitioned off in the first to the fifth stories, inclusive; that the outer walls of the sixth story were in course of construction, but the interior had no existence; that plaintiff sent one Martin, an employee, to said architect for the purpose of receiving instructions and making measurements, and that the architect pointed out to Martin the character of the wainscoting required in each of the five stories and asked him to make measurements of the same and that the plaintiff submit a bid therefor, at the same-time informing him that the manner of finishing the sixth story, then in course of construction, and the work required therein had not been determined; that said architect also submitted to said Martin certain written specifications for such wainscoting, calling for the same for the first, second, third, fourth, and fifth stories only; that said Martin thereupon made measurements of all of said corridors in which said work was to be done and submitted same to the plaintiff; that plaintiff thereupon, on October 27, 1905, submitted to said architect, through J. E. Heimerl, its agent charged with making estimates and bids in its behalf, a bid offering to do said marble work for $20,050; that thereafter, and prior to the 11th day of November, 1905, said plaintiff was informed by said architect that additional marble work was required for said building of which items were given plaintiff ; that said plaintiff was also asked to submit a bid for putting marble floors in parts of the first story of said building and in the corridors of the second, third, fourth, and fifth stories thereof; that plaintiff prepared a bid thereon in writing, dated November 11, 1905, and caused the same to be sent to the office of said architect, but the evidence does not convince the court that said'architect received it; that prior to the 29th day of October, 1905, said architect had prepared specifications calling for marble wainscoting, also specifications for the floors, calling for tile flooring, and had received bids on behalf of said specifications, said floor specifications being confined to the first, second, third, fourth, and fifth stories of said building; that on the 29th day of October, 1905, it was concluded at a conference between defendant, his secretary at Milwaukee, and said architect to finish all corridors in said building, including corridors thereafter to be laid out in the sixth story, with marble floors and marble wainscoting; that no notice of such change of plan or enlargement of the work was ever given to plaintiff or any agent of plaintiff nor to any other contractor; that the specifications theretofore made by said architect .remained on exhibit in his office and were not changed or amended, nor was any specification calling for marble floors or marble wainscoting in the sixth story ever prepared by said architect, bnt long after said date, and on or shortly before the 14th of November, 1905, a copy of the aforesaid specifications was delivered to said Heimerl, representing the Grant Marble Company; that said Grant Marble Company, through said Heimerl, made its estimate of the cost and value of doing said work according to the information and the specifications so furnished by said architect; that the final instructions of said architect included some other items of work and said Heimerl figured up the total cost and value thereof at $27,821; that on the 14th of November, 1905, said architect called up W. J. Grant, president of plaintiff, who was then in Chicago, by telephone, asking him to come to his office with the view of a contract on the building of said defendant; that said Grant, in pursuance of such message, came to Milwaukee on said day and proceeded directly to the office of said architect; that said Grant had taken no personal part in examining the specifications or the extent of work required thereby or by instructions of said architect, but the same had been wholly attended to by said Heimerl; that said Grant met said Heimerl at the office of said architect and was informed by him that the total of said work amounted to the aforesaid sum of $27,821, and that a reduction from said figures was desired; that said Grant, said Heimerl, and said architect thereupon proceeded to the office of Miss Bright, secretary of said defendant, in the same building, and said Grant then and there informed said architect and Miss Bright in the presence of said Heimerl that the bid of the Grant Marble Company for the work in question would be said sum of $27,821; that said architect and said secretary asked for a reduction of the amount, and said Grant thereupon suggested the change of material wbicb would somewhat cheapen 'the cost, and also made concessions of price, reducing said bid to $24,150, which was acceptable to said secretary and architect, subject to the approval of the defendant, which was afterwards given; that in making said final bid said Grant was not informed of any work required in any way adding to or extending the work which had theretofore been exhibited to said Heimerl by said specifications and the instructions of said architect; that said Grant thereupon offered to put the specifications for the contract in proper shape; that he drew the same, and, knowing that said building was being enlarged to six stories and supposing that the floors and wainscoting in the corridors of each of such stories was embraced in the work submitted to and estimated by said Heimerl, he drew the same covering such work in six stories of said building; that said Grant was at that time in a state of mental distress by reason of the critical illness, which shortly afterwards terminated in death, of his son, by reason whereof he was less careful in examining the premises than he otherwise would have been; that when he submitted said specifications to said architect and Miss Bright no information was given to him of the extent of the work which had been submitted to said Heimerl as aforesaid; that in the month of January, 1906, and before any work had been done on said sixth floor, said Heimerl discovered that said specifications called for marble floors and marble wainscoting in the sixth story of said building and he at •once called the attention of said Grant to the mistake, and said Grant thereupon called upon the secretary of said defendant and showed her the specifications and the schedules of the Grant Marble Company giving the itemized figures of the bid, and that the same related to five stories only in accordance with said specifications; that said secretary said ■she would write to the defendant about it, and a few days later read to said Grant a portion of a letter received by her from defendant dated January 22, 1906, of wbicb the following is a copy:</p> <p>“Replying to yours of tbe 20th about Mr. Grant, I appreciate what you say and I do not want him to make a loss on his contract. You can tell him that I will personally take up the matter with him when the work is all finished and see what is really fair. I do not propose to have him make a loss for a mistake, especially under the circumstances; but we cannot adjust the matter now. You are quite right in saying that he can rely on a 'thoroughly fair settlement, when it is all over and we can see just where he stands. Meantime, let him go ahead, and do everything just as well as he can, and I do not think he will be sorry for it.”</p> <p>That, relying upon the promises contained in said letter,, said Grant Marble Company completed all the marble work desired for said building, including the laying of marble floors and putting in marble wainscoting in the sixth story thereof; that there was no fraudulent intent on the part of defendant or his agents, but that said mistake on the part of said Grant was induced by the acts and omissions of the defendant’s agents hereinbefore stated; that it appears by testimony given on behalf of plaintiff that the total work done and material furnished amounted to and was reasonably worth $28,493.73, including the floors and wainscoting in the sixth story, which at the contract rates amounts to and is reasonably worth the sum of $2,882.05 ; that the defendant has paid on account thereof $25,612.18, leaving a balance of $2,881.55; that all of said work was completed in 1906; that on or about the 23d day of February, 1907, the plaintiff rendered a bill to defendant for said sixth-story work, amounting to said balance of $2,881.55, which defendant refused to pay, and insisted that all of said work was covered by said contract and that he was under no obligation to pay therefor.</p> <p>The court concluded that said plaintiff is entitled to judgment rescinding the contract and for judgment against the defendant far tbe reasonable value of tbe entire work done, not exceeding, however, tbe rates of said contract less tbe amount of payments made; and, if tbe defendant so desires, the court will receive further evidence upon tbe subject of reasonable value of said work and material not exceeding the rates of said contract, or, if defendant desires, will cause said question to be determined by a jury. Tbe defendant is required to serve and file written notice to this effect, if be so desires, within five days after service of a copy of these findings, and, unless defendant files such notice within such time, judgment will be rendered for plaintiff rescinding tbe contract and for the sum of $2,881.55, with interest from February 23, 1907, and tbe costs of this action.</p> <p>Judgment was entered for plaintiff in accordance with tbe conclusions of law, from which this appeal was taken.</p>

<p>Appeals from an order of tbe circuit court for Manitowoc county: Michael KiewaN, Circuit Judge.</p> <p>Eor many years prior to February, 1903, William Einne-gan owned a tract of land in Brown county fronting on the Fox river. It appeared from the testimony that the land was valuable for manufacturing sites, owing to its proximity to. the city of Green Bay and the Eox river. On February 9, 1903, Finnegan deeded a portion of this parcel of land to the petitioner, Barkhausen, excepting two strips, each 274 feet in width, one on the north and one on the south of the parcel conveyed to Barkhamen. Prior to the execution of this deed, and in 1895, Finnegan entered into a lease with the Chicago, Milwaulcee & St. Paul Railway Company for a private side track. This track was built in 1896, and extended through the strip of land to the north of the parcel sold to Barkhamen, and also a distance of about 343 feet into the land purchased by Barkhausen. Aside from this extension there was still another side track extending into the parcel of land purchased by Barkhamen, which, however, is of no materiality in this proceeding. The deed from Finnegan to Barkhamen contained the following clause:</p> <p>“It is also understood that the Chicago, Milwaukee & St. Paul and the Chicago & Northwestern Railroad Companies have and shall have a joint right of way twenty feet wide across the whole of lot one (1) at a place where the track is now located, extended in a straight line across said lot.”</p> <p>Lot 1, above referred to, included the parcel of land sold to Barkhamen and the strips of land adjacent thereto on the north and south retained by Finnegan. On March 13, 1907, Finnegan conveyed to J. W. Keogh the strip of land lying to the south of the Barkhamen tract. It appeared from the testimony that Keogh bought with a view of erecting a manufacturing plant, and was intending to engage in the manufacturing business upon the site so conveyed.</p> <p>On November 20, 1908, tbe Chicago, Milwaukee & 8t. Paul Railway Company extended its track tbrongb the Bark-hausen tract and into the Keogh tract to a point near the south line thereof. The track extension of 1908 ran a distance of 4tl 0 feet on the land conveyed to Barkhausen, extending in a straight line from the portion of the track built on said parcel of land at the time Barkhausen purchased the same. Since its construction the Chicago, Milwaulcee & St. Paul Railway Company has operated over said track, and the Chicago & Northwestern Railway Company has also operated over said track under a lease from the Chicago, Milwaukee & St. Paul Railway Company.</p> <p>On November 25, 1908, Barkhausen began condemnation proceedings, and prayed for an order appointing commissioners to appraise and determine the value of the land taken by the railway companies. The Chicago, Milwaukee & St. Paul Railway Company answered, setting up, in substance, that it had the right to appropriate the twenty-foot strip of land for right-of-way purposes under the clause in the deed from Finnegan to Barkhausen hereinbefore set forth. The Chicago & Northwestern Railway Company did not interpose any answer, and on the hearing the proceeding was dismissed as to that company. Keogh appeared and answered, setting up substantially the same facts that were set up by the Chicago, Milwaukee & St. Paul Railway Company.</p> <p>The court made an order appointing commissioners to assess the petitioner’s damages, but provided in the order that the petitioner was “not entitled to any compensation for the use or operation which said Chicago,' Milwaukee & St. Paul Railway Company has hitherto made, or shall hereafter lawfully make, of said side track at the request of the owner or lessees of the tract of land adjoining the aforesaid lands of the petitioner on the south, and for the purpose of any lawful use thereof, or business conducted thereon, by such owners or lessees aforesaid, while a certain provision in the deed from William Finnegan and wife, conveying said land to petitioner, which, provision relates to a right of way across said land, remains in force.”</p> <p>Both parties appeal from the order.</p>

<p>Eusband and wife: Oral antenuptial agreement reduced to writing after marriage: Statute of frauds: Execution of contract: Consideration: Jointure or pecuniary provision barring dower, etc.: Election by widow: Laches: Estoppel. 1</p> <p>1. A written contract between husband and wife, reciting that the parties before their marriage, “having agreed to marry and intending to do so,” made an agreement under which, “on account of such intended marriage and on account of the promises hereinbefore mentioned and hereinafter stated,” certain real estate was to be settled upon the wife, and stating that other provisions of such agreement were made “on account of such intended marriage” and "by reason of such marriage of the parties,” sufficiently shows tnat the oral agreement referred to was made upon consideration of marriage and hence was void under subd. 3, sec. 2307, Stats. (1898).</p> <p>2. An oral antenuptial agreement, absolutely void under subd. 3, sec. 2307, Stats. (1898), cannot be validated by being reduced to writing and executed by the parties after marriage. Such a writing, though reciting the prior oral agreement, is merely a postnuptial contract.</p> <p>3. Independent of the statute of frauds (subd. 3, sec. 2307, Stats. 1898) a jointure or pecuniary provision which shall operate to bar dower and all interest of a wife in the estate of her husband must, under secs. 2167-2170, 2172, Stats. (1898), be made, and be assented to by the wife in writing, before marriage. If not so made and assented to, the wife, after the husband’s death, may elect to take the share of his estate provided for in sec. 2172.</p> <p>4. An oral antenuptial agreement as to rights of the wife in the husband’s property is not changed from an executory to an executed contract or taken out of the statute of frauds by the marriage.</p> <p>5. The furnishing of support and maintenance by the husband to the wife cannot be considered as part performance of or consideration for such an agreement.</p> <p>6. The execution by the husband of a conveyance of land to the wife in accordance with the terms of an oral antenuptial agree* ment which, after marriage, had been reduced to writing, and the deposit of such conveyance in escrow to be delivered to the wife after tbe husband’s death, was not such performance of the agreement as took it out of the statute of frauds.</p> <p>7. The mere fact that after the death of the husband the wife assented to the recording of the conveyance above mentioned, took possession of the land, and collected some rents, did not preclude her, on the ground either of laches or estoppel, from afterwards, within the year limited therefor, electing to take the provision made for her by law, where she tendered back the title and possession of the land and the rents collected, and the estate had in no way changed its position because of her acts.</p>

<p>'Appeal from an order of tbe circuit court' for Dane county: MaetiN L. Lueck, Judge.</p>

Appeal, from a judgment of the circuit court for Marquette county: A. H. Reid, Judge. The appeal is from a judgment entered upon a verdict directed for defendant in an action to recover damages for personal injury caused by defendant’s negligence. cited, among other cases, Townley v. O., M. & Bt. P. P. Co. 53 Wis. 626, 11 N. W. 55; Davis v. G. & N. W. B. Co. 58 Wis. 646, 17 N. W. 406; Cahill v. Layton, 57 Wis. 600, 16 N. W. 1; Dowd v. O., M. & ffi.

<p>Appeal from a judgment of the circuit court for Green Late county: Chestee A. Fowleb, Circuit Judge.</p> <p>■The plaintiff brings this action to recover for personal injuries received on May 28, 1908, by an explosion of blasting powder in defendant’s granite quarry.</p> <p>The defendant owns and operates several granite stone quarries, and the injuries were received in one of these quarries at Berlin, Wisconsin. There is a blaster for each of the three pits of this quarry, and the plaintiff was the blaster in one of them at the time of the injury.</p> <p>Plaintiff was thirty-six years of age. About fifteen years before he received his injuries he had taken up his residence in Berlin. Thereafter he worked on a farm for about a year and then went to work for the defendant. At times he had done other work, but at the time he received his injuries he had worked for the defendant about nine years altogether. He started work as a driller and worked in other quarries as such, and had done a little blasting in one of these quarries. Eor one year prior to the time he was.injured the plaintiff had been the blaster in his pit, and for two years or more prior thereto he had been the blaster’s helper. During this time, as helper, he had assisted in loading and firing blasts, and he thus became familiar with the way in which the blaster performed his work. When the blaster was away he did the blasting.</p> <p>Preparatory to the blasting proper, holes are drilled into the rock from eighteen inches to fourteen feet or more in depth. In drilling a deep hole, a kit of drills, eight or nine in number, is used. As the hole becomes deeper, each succeeding drill is a- little smaller than the preceding one by about one sixteenth of an inch, and a hole twelve or fourteen feet deep will be about three inches in diameter at the top and about an inch and one-half at the bottom. The blaster examines the hole which has been drilled, using a steel rod about half an inch thick and of a length depending on the depth of the hole. One end of this rod is bent into a ring; the other end is flattened and notched on the end. If the blaster finds water in the hole he removes it with a pump if necessary. If only a small quantity is in the hole he removes it by means of a rag which is put through the ring at one end of the steel rod and acts as a mop when the rod is thrust into the bole. Wben tbe bole bas been dried tbe blaster pours a bandful or two of sand into tbe bole to absorb any water remaining at tbe bottom and to keep tbe powder dry when poured into tbe bole. If several charges are exploded in tbe same bole, tbe layer of sand poured into tbe bole by tbe blaster is designed to cover any smoldering damp powder which may be left in tbe bole and thus prevent tbe premature explosion of a subsequent charge. Tbe notched end of tbe steel rod is used to remove projections or irregularities existing in the bole or which may be caused by tbe discharge of a blast.</p> <p>Tbe blaster then inserts a measuring rod, which rests upon the sand at tbe bottom of tbe bole; a chalk mark is made upon tbe rod at tbe surface level; and tbe top end of tbe rod is held in tbe band of tbe blaster while powder is poured into tbe bole with tbe free band. As tbe powder runs into tbe bole tbe blaster gradually lifts tbe rod and moves it about, thus determining whether tbe powder is resting on tbe bottom of tbe bole and rising therein, or whether it is running away through crevices, and also ascertaining, from tbe rising chalk mark on tbe rod above tbe surface, tbe height of the powder in tbe bole. Wben sufficient powder bas been placed in tbe bole tbe blaster inserts an exploder. Tbe exploder, or loaded cartridge, is about one quarter of an inch in' diameter and a little more than an inch long. Two wires are connected with tbe exploder and these are connected with tbe wires of. an exploding battery. Tbe exploder is placed in tbe notched end of tbe measuring rod and held in place by tbe blaster keeping taut tbe two wires, one on either side of tbe measuring rod. Tbe rod is then thrust down tbe bole and tbe exploder thus placed upon tbe surface of tbe powder. After tbe exploder is in its proper position in tbe bole sufficient powder is poured into tbe bole to cover tbe exploder. Sand and dirt are then run and packed into tbe bole, and tbe blaster and bis helper then go to tbe battery, which is stationed at a safe distance from tbe hole, turn on the electric ■current, and the explosion results. The loading and exploding are repeated until the rock is dislodged or broken loose. It is the duty of the helper to stand by and hand the blaster the tools and materials as needed.</p> <p>The plaintiff, as stated, had worked in the quarry of the defendant for about nine years. He had worked as blaster for the year immediately preceding the time he received his injuries and for two years theretofore as helper to the blaster. As such helper he had observed the blaster at work and had become familiar with the blaster’s way of performing his work. He, as helper, handed to the blaster the steel rod for gauging, probing, and smoothing the hole, and the powder and the exploder, as called for, and, when told so to do, turned on the current at the battery, or lighted the fuse when the blast was so exploded The blasting was usually done •during the noon hour or after the other workmen had quit work in the quarry and when the blaster and his helper were alone. The helper received no instructions as to the process except such as he received and learned by doing the work and from observation. He was given ■ no specific warning as to the dangers incident to blasting and knew of them only as his experience, knowledge, and observation informed him.</p> <p>The superintendent requested the plaintiff to take charge of the blasting when the blaster with whom he had been working as helper quit work, and upon plaintiff expressing doubt of his fitness to handle the work he was assured by the superintendent that he knew all about the work and that the knowledge he had obtained from his experience and observation of the former blaster qualified him to do the work all right. In undertaking the work the plaintiff did the work as it had been done by the former blaster and he used the same tools.</p> <p>Plaintiff was injured shortly after 6 o’clock in the evening. The hole at which he was working was about twelve feet eight inches deep, a trifle slanting. He had pumped the water out of the hole and discharged a blast. The charge blew out, and no rock was loosened so that it could be used for quarrying purposes, and the plaintiff went back to the hole to recharge it. He put the steel rod down into the hole to probe it, and on withdrawing it found that it was nice and dry. He threw a handful or two of sand into the hole and then took from his helper a cup of powder to pour into the hole. He held the steel gauge rod lightly in one hand, resting it upon the powder in the hole. He poured about three-quarters of the powder into the hole, the helper standing back of him ready with the exploder. While thus gauging the charge the plaintiff felt the rod catch. He turned and lifted the rod, which seemed a little tight, and when he so lifted and turned it the powder exploded and the burning powder and gas shot up from the hole and injured him. He testifies that he held this rod by gripping it between his thumb and two fingers, and that he gave it a slight lift and a turn just before the explosion. Plaintiff’s hand was burned, his upper lip was tom away, his face was burned, and he lost the sight of both eyes. His nostrils were injured, and in. healing have become drawn together so that plaintiff has difficulty in breathing and is often compelled to insert a tube to enable him to breathe through- them. His face and hands are scarred.</p> <p>Plaintiff alleges that he was ignorant of the dangers incident to the use of this steel gauge rod in the operation of blasting; that he had not been instructed as to the safe way of performing the work; that he had not been warned that sparks were likely-to be emitted if a steel gauge rod was used in contact with granite; and that the explosion resulted from a spark which was caused by the friction of the hard steel against the rock on the side of the hole. It is claimed that the explosion would not have occurred if the plaintiff had been furni.sh.ed with a wooden or copper rod with which -to place and gauge the powder in the hole.</p> <p>The evidence as to whether it was customary to use a wooden or soft metal rod for placing the powder and exploder in position was in conflict. There was evidence that the explosion might be due to the friction upon the powder between the rod and the rocky side of the hole, that it might have been caused by smoldering damp powder in the hole, or because the hole was overheated; and there was also evidence that an explosion due to the friction upon the powder between the side of the hole and the rod might have occurred even if a wooden rod or one of soft metal were used.</p> <p>The court denied a motion for judgment in defendant’s favor. The jury returned a verdict finding that the explosion was set off by a spark caused by the friction of the steel rod against the rock; that the steel rod was not a reasonably safe gauge to use in determining the height of the powder in the hole; that it was defendant’s duty to warn the plaintiff of the danger incident to the use of the steel rod as a gauge; that the failure to furnish a reasonably safe gauge and the defendant’s failure to warn the plaintiff of this danger were the proximate cause of the plaintiff’s injury; and that the plaintiff was not guilty of contributory, negligence. The jury found the amount of damages to be awarded. This is an appeal from the judgment on the verdict.</p>

Eowleb, Circuit Judge. Slander. Tbe complaint contains two causes of action. Tbe first alleges that tbe defendant falsely charged in tbe presence of two persons named that one K. bad bad sexual intercourse with tbe plaintiff (a girl sixteen years of age), and tbe second alleged that tbe defendant made tbe same charge on another occasion by telephone to one Tamutzer.

Eowleb, Circuit Judge. Action in tbe nature of quo warranto between rival candidates for tbe office of county superintendent for Eond du Lae county at tbe election beld April 6, 1909. Alter some amendment of pleadings tbe action was transformed into a recount of all ballots cast, whereby respondent was found to-bave a majority of sixteen of concededly valid ballots.

Eowlee, Circuit Judge. This action was brought to recover damages occasioned by a collision between the plaintiffs horse and wagon and the defendant’s automobile.

<p>Appeal from a judgment of the circuit court for Pond du Lac county: Ohestee A. Eowlee, Circuit Judge.</p> <p>cited Pelion v. Powell, 96 Wis. 473, 71 N. W. 887; Tilas v. Mason, 25 Wis. 310; McArthur v. Green Bay & M. C. Go. 34 Wis. 139; Gilbert v. Lob erg, 86 Wis. 661, 57 N. W. 982; GolUns v. Mom-son, 91 Wis. 324, 64 N. W. 1000; Ainsworth v. Bowen, 9 Wis. 348, and other cases.</p> <p>He cited Wood v. Noack, 84 Wis. 398, 54 N. W. 785; Scheunert v. Kaehler, 23 Wis. 523; Rowlands v. Voechting, 115 Wis. 352, 91 N. W. 990.</p>

J. Vinje, Judge. Action to recover damages for the death of a horse, alleged to have been caused by an injury received through stepping into a hole in a highway.

Lyon, Judge. This is an appeal from an order sustaining a general demurrer to the plaintiff^ complaint.

Appeals from orders of the circuit court for Racine county: E. B. Bjeldeh, Circuit Judge. In proceedings to acquire land by the right of eminent domain pursuant to secs. 1845 to 1851, Stats. (1898), after the commissioners filed their award respondent, as one of the property owners affected, to whom was awarded $7 64, moved the court, on affidavits and due notice to appellant, to set aside the report as to its land because of misconduct of the commissioners.

B. BeldeN, Circuit Judge. Tbe plaintiff, having obtained tbe necessary preliminary authorization from tbe Railroad Commission for tbe construction of a road passing through tbe city of Burlington, filed its petition, alleging tbe survey and staking out of its road, the necessity of running its line upon certain streets and highways in said city, entitling persons named in tbe petition to damages for tbe injury; also tbe necessity for taking certain sundry parcels of land,…

B. Beldew, Circuit Judge. On February 21, 1906, the defendant leased to one John McGovern certain premises in the town of Burlington, Racine county, for the period ending December 1, 1906. Within the lease was included the right to cut ice upon a millpond on the premises. The defendant reserved the right to cultivate such part of the premises as was not used by the lessee. The lease contains nothing on the subject of fixtures.

<p> Wills: Construction: Perpetuities: Two lives in "being: Trusts: Time fixed for distribution: Survivorship: “Remaining living heirs?’ Indefinite failure of issue. </p> <p>1. Where a disposition of real property by will is questioned for remoteness of time of vesting, the inquiry involves, not the number of estates which precedes the time of vesting, but the number of designated persons living at the time of the death of the testator who must die before it can be known in whom the title to the property will vest.</p> <p>2. The power of alienation is suspended beyond the period permitted by statute by the creation of future estates when the period within which such estates can vest is so remote that the persons in whom they are to vest cannot be ascertained until after the lapse of more than two lives in being at the death of the testator and twenty-one years in addition.</p> <p>3. The power of alienation may also be suspended by a devise in trust where the trust term exceeds two lives in being and twenty-one years and alienation prior to that time would be in contravention of the trust and void under sec. 2091, Stats. (1898).</p> <p>4. To construe a will not expressly bequeathing personal property in trust as creating a trust with the designated executors as trustees, is proper when this is necessary to carry out the apparent intention of the testator, but not otherwise.</p> <p>•5. Provisions in a will specifying a fixed time certain to arrive for the distribution of testator’s personal property among his surviving children and the children of any deceased child must, as the larger and more significant indication of intention, override-mere words and forms of expression not inconsistent therewith hut somewhat indicative of a contrary intention.</p> <p>6. Where, after devise of a life estate to two persons, a life estate in remainder is devised to each of testator’s four children, and this is followed by a provision that in case of the death of either one of the four children the property willed to either of them is to be equally divided to the remaining living heirs of the testator, subject to the same rule of descent and governed by the same rule as is the property willed directly to the testator’s children, there is an apparent intention of the testator that after the death, subsequent to his own, of either of his children without issue the share of such child and the same estate which was provided for such child should pass to the surviving children of testator and to the issue, then living, of any other deceased child.</p> <p>7. Such a provision shows also an intention that the property so-passing to the survivors shall be affected by the same quality of survivorship, so that in case of other deaths of testator’s children without issue the whole property would accumulate in the last survivor, except as it had been diminished by vesting in part in the issue of children who died leaving issue.</p> <p>8. Alternative legacies and bequests conditioned upon the “death of all my children and any and all children or heirs being their descendants,” “the death of all my children and their heirs, meaning any grandchildren that may be born hereafter,” and “the death of all my children and their children or heirs,” following a fixed time, certain to arrive, for distribution of personal property among testator’s children and the child or children of any deceased child of testator, relate to such failure of issue at the time fixed for distribution, and not to an indefinite-failure of issue.</p>

E. Belden, Circuit Judge. On January 7, 1909, one M. G. O’Donnell obtained a judgment in a tort action against tbe plaintiff for $283.18 damages and costs. On January 12, 1909, execution'was issued on said judgment, which was returned unsatisfied on the 22d. On January 23d execution was issued against the body of the plaintiff and he was arrested by the defendant, who was the sheriff of Kenosha county.

W. Bubnell, Judge. This is an action in equity by owners of certain lowlands in the vicinity of Camp Lahe, Kenosha county, to restrain the defendant from maintaining a dam across a certain ditch' which extends from said Camp Lahe to Channel Lahe in Lahe county, Illinois. The defendant, a corporation owning lands bordering on said Camp Lahe, seehs by counterclaim to restrain the plaintiffs from interfering with said dam. The action was tried by the court.

B. BelbeN, Circuit Judge. Action, in form, to recover a balance due on contract, with ■some allegations in the complaint appropriate to an action for damages for nonfulfilment of an agreement to purchase. 'The issues were thus decided as to facts: (1) Plaintiffs sold defendant and defendant purchased from plaintiffs, on July 20, 1907, fifteen cases of cheviot cloth, to be manufactured and delivered at seven and one-quarter cents per .yard, five cases October 5, 1907, five…

I. TueNeb, Circuit Judge. The defendant owned and operated a brickyard consisting of a series of ovens or chambers ten or twelve feet in height, thirty feet long, and fifteen feet wide, composed of arches constructed of fire brick in which brick were placed to be baked and, of course, when baked were removed. Plaintiff was a common laborer, of mature age and considerable experience, whose work included the removal of the brick from these arched ovens.

Appeals from a judgment of the circuit court for Milwaukee county: ObRee T. Williams, Circuit Judge. This 'is an action for an accounting concerning transactions between the parties from August 1, 1905, to January 1, 1907. Both parties appeal from the judgment. In the interim between the time when the transactions occurred and • the bringing of the action one of the members of the defendant partnership died, but bis interest in tbe business is beld by bis representative.

Williams, Circuit Judge. This action was brought by the plaintiff against the defendants to recover upon a promissory note executed by defendants, payable to thé order of one Andrew D. Agnew, for $425, On the back of the note appears the following: “I hereby guarantee the collection of the within note. Andrew D. Agnew.” “Nor Collection.

<p>Appeal from a judgment of tlie circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge.</p>

<p> Pleading: Unverified amendments: Harmless error: Negligence: Personal injury: Contributory negligence: Burden of proof: Automobiles: Frightening horses. </p> <p>1. Harmless error in allowing unverified amendments to a verified complaint will fie disregarded under sec. 3072m, Stats. (Laws of 1909, cfi. 192).</p> <p>2. In an action for personal injuries caused fiy defendant’s negligence plaintiff need not, in order to make a prima facie case, show affirmatively that he himself was free from contributory negligence. O’Malley v. Dorn, 7 Wis. 236; Chamberlain v. M. & M. JR. Go. 7 Wis. 425; and Dressier v. Davis, 7 Wis. 527, so far as they hold to the contrary, overruled.</p> <p>3. Evidence tending to show that upon a traveled track twenty-two feet wide with a ditch on each side plaintiff had driven his single horse as far to the right as he could, and had stopped, as defendant approached in his automobile; that defendant could have kept wholly to the right of the center of the road, but instead of doing so turned his machine to the left and passed so close to plaintiff’s buggy that there was but from one to two feet between the wheel track of the buggy and that of the car; that water and slush were splashed toward the horse as the car passed; and that the horse, though ordinarily not afraid of automobiles, suddenly lurched and overturned the buggy, is held sufficient to sustain a verdict to the effect that defendant was negligent and that his negligence proximately caused the injury.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Laweence W. Halsey, Circuit Judge.</p> <p>This is an action to recover damages for the death of one Joseph Miscewski (plaintiffs decedent), caused, as is alleged, by the negligence of defendant’s employees. A verdict for the defendant was directed by the trial court and the plaintiff appeals.</p> <p>The facts, stated most favorably to the appellant, are as follows: Miscewski, the deceased, was a Polish laboring man, fifty-two years of age, and of average intelligence. At about 6 o’clock p. m. October 26, 1907, he was a passenger on one of defendant’s street cars in Milwaukee, carrying with him his shovel, and he alighted from the car as it reached the end of the line, and started toward his home. After going 100 feet or more he recollected that he had forgotten his shovel and lie started lack towards tie can. Meantime tie trolley-lad leen reversed and tie ear lad started on its return trip. Miscewski jumped on tie rear platform of tie moving car after it lad gone two or tlree car lengths, walked rapidly past tie conductor, tlrougl tie car, slouted “Stop, I want my slovel!” in Polisl, stood in tie front vestilule witl lis lack to tie motorman, lolding on to tie railing on tie front door of tie car witl lis left land and reading around into tie car witl lis riglt land for lis slovel, wlicl was lying on a seat, wlen tie motorman applied more electricity, in-, creasing tie speed of tie car to about sis miles an lour, and in some manner Miscewski fell off from tie platform, striking tie pavement witl lis lead, and receiving injuries from wlicl le died. His slovel was not removed from tie car.</p>

J. Vihje, Circuit Judge. 'This is an appeal by the defendant from a judgment against him for the sum of $165.50. The question involved is the right of the clerks of the circuit courts of this state, who, pursuant to the state statute, have been placed upon a salary basis of compensation, to retain fees allowed to them by the federal statutes for services in naturalization proceedings.

Pabish, Circuit Judge. This is a motion by the respondent to review and set aside the taxation of costs by the clerk of the supreme court.

<p> Appeal: Divorce: Suit money: Temporary alimony. </p> <p>A motion for suit money and temporary alimony pending an appeal in a divorce action is denied because, no bill of exceptions baying yet been returned, tbe court is unable to say whether there are merits in the appeal.</p> <p>See Supreme Court Rule 43a, adopted April 26, 1910, 141 Wis. page iv. — Rep.</p>

<p> Appeal: Divorce: Suit money: Temporary alimony. </p> <p>A motion for suit money and temporary alimony pending an appeal in a divorce action is denied because, no bill of exceptions having yet been returned, the court is unable to say whether there are merits in the appeal.</p>

<p>ApReajl from a judgment of tbe circuit court for Eond du Lac county: Chestee A. Eowlee, Circuit Judge.</p> <p>Action to quiet title.</p> <p>Tbe cause involved tbe validity - of certain tax deeds. Sucb validity turned on whether the lands were subject to taxation for tbe years tbe taxes on which tbe deeds were based were levied. Tbe lands and others having been granted to the state by the general government in trust for a particular purpose and duly selected and segregated from tbe public domain, a contract to execute sucb purpose was made by it with tbe Sturgeon Bay and Lake Michigan Ship Canal and Harbor Company, under authority of ch.-105, Laws of 1868. Such purpose was to secure tbe construction of a breakwater and harbor at tbe bead of Sturgeon Bay, in tbe county of Door, to connect tbe waters of Green Bay with Lake Michigan. Pursuant to sucb contract it was provided that upon tbe completion of specified portions of tbe work to tbe satisfaction of tbe governor be should certify tbe same to tbe company, specifying tbe proportion of lands earned to tbe company, and deposit a copy of bis certificate in tbe office of tbe secretary of state, and thereupon that tbe commissioners of school and university lands should patent to tbe company such portion as selected by it and that it should be privileged to sell and convey tbe same, and upon tbe entire work contemplated being completed and duly certified to tbe governor and approved by him, be should certify tbe fact to tbe company and deposit a copy of bis certificate in tbe office of tbe secretary of state and then that tbe remainder of tbe granted lands should be patented to tbe company by sucb commissioners with effect, as follows:</p> <p>“Which shall stand seized and possessed of all said lands as fully as tbe state can convey tbe same, and free from any tax for tbe term of ten years, if so long held by tbe said company, and tbe said company shall use all due diligence in disposing of said lands at a fair and equitable price, and they shall not be held by the said company for speculation, and when sold by said company they shall be subject to taxation: ;provided, that previous to the issue of a patent therefor or for any of said lands, said company shall reimburse the state for all expenses incurred on account of the same.”</p> <p>All conditions precedent to finally closing up the relations between the state and the company by issuance of the last patents were satisfied December 5, 1881, and the company was then and continuously thereafter entitled to have such patents issued to it or its grantees, till they were finally issued. Nevertheless patents to 2,000 acres of lands, including the particular lands in dispute, were not issued till June, 1901, because of an unfounded adverse claim of the state that they belonged to it under the federal swamp land grant, notwithstanding they had been segregated from the public domain and certified to it for the particular purpose covered by the contract aforesaid. In the meantime the company, subsequent to final completion of its work and it becoming entitled to patents as aforesaid, sold said lands, with all others earned by it under the contract and patented to but undis-posed of by it, to Ephraim Manner and Guido Pfister, as trustees, conveying the patented lands by warranty deed, and the lands to which those in suit belonged by quitclaim deed, as indicated by the following language of the conveyance:</p> <p>“Has granted, bargained, sold and assigned and quit-claimed and by these presents does grant, bargain, sell, assign and quitclaim unto the said party of the second part, all its right, title and interest in and to the following described real estate and all its right, title and interest which it now has, or may thereafter acquire, to select and have patented to it (should the title to said party of the first part fail) other lands of the United States in lieu thereof. . . .”</p> <p>Prior to the issuance of patents to the lands the full equitable title thereto and right to receive such patents became vested in plaintiffs and the patents were issued accordingly June 7, 1901. During the period intervening between the time ’when said lands were earned by the company, as aforesaid, and June 7 th, /patents therefor were wrongfully withheld by the state by reason of its unfounded but good-faith claim before indicated.</p> <p>Eor the purpose of taxation the quitclaimed lands were treated as subject thereto from and after the time they were deeded by the canal company as aforesaid. The taxes levied thereon for the years 1882, 1883, 1885, and 1887 were not paid and in due course and form tax titles of such lands, based on the 'taxes for such years, were perfected and by conveyances in due form vested of record in the defendant. In the situation stated, — the patent title to the lands in appellants and acquired subsequent to the levy of the taxes which were imposed thereon after the full equitable title had passed under the contract, as aforesaid, and the tax titles, as indicated, in the respondent, and circumstances existing rendering appellants competent to test the validity of such tax titles by an action against respondent to quiet title, — this suit was commenced. The trial court held as matter of law that the lands were taxable for the years the taxes were levied, upon which the tax titles were based, and that respondent was the owner of the lands by virtue of such titles, and rendered judgment in its favor accordingly.</p>

0. Ludwig, Judge. This action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff in consequence of the defendant’s negligence. The plaintiff was engaged with several others in erecting a factory building for the defendant, and while so engaged one of the walls fell and seriously injured the plaintiff.

Williams, Circuit Judge. Tbe appeal is from an order denying tbe application of defendant, wbo was under twenty-one years of age, to vacate a judgment against bim and permit bim to defend. Tbe action was to recover on a promissory note upon wbicb appellant was an accommodation maker. Tbe complaint was duly verified. .No answer was served. Judgment by de-' fault was taken, in due course. Nothing appeared of record indicating that appellant was a minor.

Tabbant, Circuit Judge. This action was brought for partition of the lands described in tbe complaint. The complaint is in the nsnal form and alleges that on the 18th day of-March, 1908, Agnes Arnold, formerly Wiesner, being the owner in fee of the real property described in the complaint, died intestate; that said Agnes Arnold left her surviving J ohn 0.

TabbaNt, Circuit Judge. Action for damages for personal injury. Tbe plaintiff was employed as a cbainman in defendant’s foundry, and bad been so employed for five or six months before be was injured. There were a number of cranes used in tbe foundry that were operated by electricity and that ran on tracks above tbe floor upon which tbe work of molding was carried on.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: A. H. Reid, Judge.</p>

<p>Costs: Guardians ad litem.</p> <p>1. The right to costs does not accrue until judgment, and until that time they may be abolished or changed in amount by statute.</p> <p>2. Unless made liable by special direction of the court under sec. 2932, Stats. (Laws of 1907, ch. 325), a guardian ad litem is not. responsible for costs adjudged against his ward after the repeal of sec. 2931, Stats. (1898), by said act of. 1907, even though the-action was commenced prior to such repeal.</p>

J. TueNeb, Circuit Judge. Suit in equity by plaintiff as taxpayer, on behalf of himself and others, to enjoin the defendants from entering into contract for the erection or purchase of any municipal lighting plant, or any part thereof, or machinery therefor; from paying anything upon any such contract; and from executing or issuing certain bonds therefor under a resolution of the common council.

<p>Contracts: Validity: Corporations: Sale of Bonds.</p> <p>1. Contracts in violation of the common law or statutes are void and cannot be made the foundation for the enforcement of a legal right.</p> <p>2. A contract by which plaintiff was to sell the bonds of a corporation, receive the proceeds and expend them for its benefit, receive all the proceeds of the corporate, business and retain for himself fifty per cent, thereof, as part compensation for his services in selling the bonds, until such fifty per cent, should equal the amount received from the sale of the bonds, and was to have a first lien on all the property of the corporation to secure payment to him of an amount equal to the proceeds of the bonds sold by him, in legal effect made plaintiff the owner of the proceeds of the bonds, with an obligation to advance the money to the corporation upon security for its repayment, and was in violation of sec. 1753, Stats. (1898), because under it the corporation would not actually receive seventy-five per cent, of the par value of the bonds in money, labor, or property.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: OrreN T. Williaks, Circuit Judge.</p> <p>They cited 31 Cyc. 1370; Wheaton v. Trimble, 145 Mass. 345; Bartel v. Brown, 104 Wis. 493, 80 N. W. 801; Loizeaux v. Fremder, 123 Wis. 193, 198, 101 N. W. 423; Grane v. Gruenewald; 120 N. T. 274, 24 N. E. 456; Brown v. La Grosse Gity G. L. & O. Go. 21 Wis. 51; Davenport v. Schram, 9 Wis. 119; Twohy M. Go. v. Bstate of McDonald, 108 Wis. 21, 22, 83 N. W. 1107.</p> <p>They cited, besides other authorities, Winkelmann v. Brickert, 102 Wis. 50, 78 N. W. 164; Bautz v. Adams, 131 Wis. 152, 111 N. W. 69; Kohl v. Beach, 107 Wis. 409, 83 N. W. 657; Marling v. Nommensen, 127 Wis. 363, 106 N. W. 844; Mclndoe v. Clarke, 57 Wis. 165, 15 N. W. 17; Meyer v. Hafemeister^ 119 Wis. 539, 97 N. W. 165.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Oebeit T. Williams, Circuit Judge.</p> <p>This action is brought to set aside an assessment levied against the property of the plaintiff to defray the cost of a sidewalk constructed in front of his property. The city awarded the contract for building the walk to the Milwaukee Sidewalk Company. Such contract provided that the walk should he built according to certain specifications referred to therein. The plaintiff claimed that there were material departures from such specifications, and that, while they called for a good sidewalk substantially built, the one constructed was practically worthless, owing to its thinness and the character of the material and workmanship used in building it.</p> <p>Evidence was offered on the trial tending to show that two of the aldermen knew of the condition of the walk before the same was paid for by the city, and also that the plaintiff advised the chairman of the board of public works of the condition of the walk some two months after it was laid and before it was paid for. Edward Schrantz, one of the aldermen from the ward in which the walk was laid, testified that he knew of its defective character shortly after it was laid and refused to sign the pay roll therefor. None of the facts were alleged in the complaint relating to notice to the city of the defective character of the work prior to the time of payment therefor. The city at first declined to pay for the walk, and did not do so until about one half of it bad been relaid. After a portion of tbe walk bad been relaid tbe city paid tbe contract price for tbe entire job, assessed tbe cost thereof' against plaintiff’s property, and sold tbe same for nonpayment of tbe tax so levied. Tbe certificates of sale were purchased by said city, and are still held, and tbe principal relief demanded is that such certificates be declared null and void and canceled.</p> <p>After bearing the testimony offered by tbe parties tbe trial court struck out all evidence tending to show fraud on the part of tbe city because fraud was not alleged in tbe complaint, and sustained a demurrer ore terms which bad been interposed thereto before any evidence was offered thereunder. Tbe plaintiff moved to amend bis complaint so as-to make it conform to tbe proofs offered, which motion was denied, and judgment was entered dismissing tbe complaint without prejudice and without costs, from which judgment this appeal is taken.</p>

<p> Pleading: Contracts: Prevented performance: Certainty: Sufficiency on demurrer: Relief: Adequate remedy at law. </p> <p>1. Performance on plaintiffs part of a contract in respect to which relief is sought need not be alleged if the complaint shows that such performance was wrongfully prevented by defendants.</p> <p>2. Where the complaint definitely sets forth the contract in suit it need not, even where specific performance is prayed, also allege in detail just what would be required to execute it, if those matters can be made certain by proof.</p> <p>3. If the facts stated in the complaint, expressly and inferentially, upon any reasonable view, entitle the plaintiff to any judicial relief in equity against all or any of the defendents who join in a general demurrer, though it be not the relief specifically prayed for, or though the cause of action be not the one the pleader supposed lie had and intended to state, and regardless of mere indefiniteness of statement, it is sufficient.</p> <p>4. Where the complaint shows that plaintiff has a right to have a partnership agreement carried out, or to have the partnership wound up, the objection that he has an adequate remedy at law is untenable.</p>

<p>Appeals from a judgment of the circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p> <p>Defendant King Knob Coal Company, under a verbal contract for a lease with a railway company, contracted with the-Hoisting & Conveying Machinery Company to construct and place upon certain land of the Chicago, Milwaukee & St. Paul Railway Company at Milwaukee coal-handling machinery to-the extent of about $95,000, which by the contract of lease was not to become a part of the realty, but to be removable at pleasure by tbe coal company. Tbe machinery company, principal contractor, ordered a considerable amount of castings from the plaintiff, some if not all of which were intended for the machinery so contracted for. Plaintiff furnished such castings from time to time to' the machinery company at its place of business in Chicago, whence the machinery company transported the same to Milwaukee. The last articles supplied by the plaintiff which actually reached the premises were delivered October 14, 1905, but on October 26, 1905, the plaintiff delivered at the place of business of the machinery company in Chicago one gear wheel oí value about $13, intended for use in the construction of said machinery. November 17, 1905, the machinery company became bankrupt, and at some time thereafter the receiver in bankruptcy, having taken possession of all its property, sold this gear wheel to a stranger. Ultimately the coal company purchased it from such third person and used it in completing the machinery left incomplete by the machinery company. On December 21st the plaintiff gave its notice of claim for subcontractor’s lien, alleging the delivery of said gear wheel as the last charge.</p> <p>The trial court, finding substantially the above facts, held that such delivery was a sufficient furnishing to the owner to bring it within the statute and thus to render the notice valid and effective as within sixty days from that date. It accordingly rendered judgment for allowance of plaintiff’s entire bill and for enforcement of subcontractor’s lien both against the plant of the coal company and also against the land belonging to the railway company whereon it was situated, from which judgment the coal company and the railway company separately appeal.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Obbek T. Williams, Circuit Judge.</p> <p>This is an action to recover damages for personal injuries alleged to have been due to the negligence of a servant of the defendant. The defendant operates a street railway in the-city of Milwaukee. About 6 o’clock on the morning of March 28, 1907, the plaintiff boarded a car for the purpose' of going to his work. The plaintiff alleges that he received the injuries complained of through the negligence of the motorman, who, after slacking the car for plaintiff to alight, '.without looking to see whether plaintiff had alighted, suddenly turned on the current and caused the car to start forward with a sudden jerk and increase of speed, by which the plaintiff was thrown from the platform, inflicting injuries which required the amputation of his leg below the knee.</p> <p>The defendant denies any liability to the plaintiff, on the ground that he was guilty of contributory negligence, and also alleges as a further and separate defense that on June 24, 1907, the plaintiff executed to the defendant a release of all claims and demands on account of the injuries received by him. Plaintiff claimed that he had been overreached and defrauded at the time lie release was given, that he did not understand the release, and that the release did not contain the agreement which was actually made. Plaintiff received $250 as a consideration for the release. He has also received from the defendant an artificial limb. Ho mention is made in the release of the artificial limb. .The plaintiff testified that at the time the release was given he was promised a life job and additional money. The interpreter, who had been secured by the plaintiff because plaintiff did not speak English, testified that at the time the release was given the plaintiff requested that he be given a life job, but that the agent of the company informed her that the company would not promise any such position, and that she, in turn, informed the plaintiff that the company would not agree to give him a life job or promise future employment, and she also explained to him that the $250 was in full satisfaction of his claim. Although the interpreter went with the plaintiff to aid him to confer with the defendant’s agent in this matter, she was paid for her time by the defendant. The release was made by the plaintiff with the agent of the company through the interpreter and in the absence of the attorney of the plaintiff. At the conclusion of the evidence the trial court granted defendant’s motion for a direction of a verdict, and stated that he felt assured from the evidence that the plaintiff understood the nature of the release and that no fraud had been shown. This is an appeal from the judgment.</p>

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

<p>Appeal from a judgment of the circuit court for Winnebago county: G-eo.W. BubNell, Circuit Judge.</p> <p>Personal injuries. The plaintiff was employed by defendant in July, 1908, as an errand boy and to do sweeping out and general work about its large printing plant. He worked in this capacity till October, when he was set to work at a rotary printing press and was injured two or three days later, at which time he was ten days more than sixteen years old. This press was twelve feet long east and west, four feet wide, and four feet in height. It rested on two twelve-foot steel beams running east and west, which in turn rested on the cement floor of the pressroom. Under the press was a pit nineteen and one-half inches deep below the floor. In this pit plaintiff was set to work. It was his duty to sit or partially recline upon the floor of the pit under the east end of the press and in such position as to watch some slitters or shears some distance above his head' near the southeast corner of the framework of the machine, which slitters trim off the margin of the paper before it passes between the printing rolls. It was further his duty to shove the shavings from the slitters back towards the west end of the pit as they accumulated, and if the slitters became clogged it was his duty to grasp a rope near at hand and give it a jerk, and thus stop the press in order that the tangled paper shavings might be removed. This rope or cord was fastened to the electric controlling lever on the south side of the press, and then ran down into the west end of the pit and back nearly to the east end thereof, and was tied to the center of a steel beam which ran from north to south between the two twelve-foot beams on which the press rested. .This crossbeam was nine and three-fourths inches from the east end of the pit, and was immediately above the plaintiff’s shoulders as he reclined in the pit. Above this beam and a little to the west thereof were the large type roller and a smaller ink roller of the press which ran together in contact turning upwards, their point of contact being thirteen and one-half inches above the lower side of the transverse steel beam.</p> <p>On the evening of October 15, 1908, at about 9 :15 o’clock, while the plaintiff was at work in the pit, his right hand was caught between the two rollers above mentioned and drawn in and badly mangled and crushed before the machine could be stopped. The plaintiff claimed that as he was watching the slitters and moving back the shavings the slitters clogged, and he grabbed for the rope to stop the press, but grabbed too high, and that his right hand went in between the rollers. The negligence claimed was that he was not sufficiently warned of the danger before he was set at work.</p> <p>A special verdict was found by the jury to the following effect: (1) That the plaintiff was injured as stated; (2) that the rollers were so located as to be dangerous to an employee working in the pit; (3) that plaintiff did not know at the time of the injury that there was danger of serious injury to him from working in the pit by getting his hand into the rolls; (4) that the plaintiff in the exercise of ordinary care ought not to have reasonably anticipated that there was such danger; (5) that the defendant in the exercise of ordinary care ought to have foreseen that such rollers might probably cause personal injury to an employee working where plaintiff was working; (6) that defendant ought to have known that plaintiff required warning in order to comprehend the danger incident to his employment; (7) that plaintiff was not of sufficient age, understanding, and experience to comprehend such danger; (8) that no want of ordinary care on plaintiff’s part contributed to his injury; (9) that there was danger in plaintiff’s work which was not open and obvious to a person of bis age, experience, and apparent intelligence; (10) that defendant o-ugbt to have anticipated that plaintiff would not know of such danger and might, because of his ignorance,, probably be injured as he was; (11) that defendant did not give plaintiff sufficient warning and instruction to advise him of the danger to which he was subjected; (12) that such lack of warning was the proximate cause of plaintiff’s injury;. (13) that plaintiff’s damages were $4,000. The defendant moved for judgment non obstante, also to set aside the verdict, and for a new trial in case the former motion should not be granted. Both motions being denied and judgment entered on the verdict for the plaintiff, the defendant appeals.</p>

<p>Appeal from a judgment of tbe circuit court for Wixme-,bago county: Geo. W. BurNell, Circuit Judge.</p> <p>Action to recover a balance due for farm machinery of various Muds sold aud delivered by plaintiff to defendants. Tbe amount claimed was $367.14, with interest. Defendants counterclaimed for breach of express warranty respecting a gang plow which was one of the implements charged in the account. • The claim was that the plow was bought on the faith of specific assurance of its fitness for the work for which it was designed and purchased; that' upon trial it failed to satisfy the guaranty and proved useless for the purpose it was purchased; that thereupon defendants offered to return the same, but plaintiff refused to receive it.</p> <p>As the case was submitted there is no question but that plaintiff was entitled to recover according to the prayer of the complaint, unless it was liable for a reduction because of warranty as to the plow.</p> <p>The evidence in respect to the plow was, substantially, this: Plaintiff was a manufacturer, among other farm implements, of a gang plow of such combination character, that by some changes, readily made, it could be changed from a breaking to an ordinary plow, or from the latter to the former. Plaintiff had dealt with the defendants for quite a period of time, though there was no contract existing between the parties when the particular transaction occurred. Defendants knew plaintiff was the manufacturer of a combined gang plow, which was scheduled in its advertising literature with which defendants were familiar. .They had been accustomed to serve plaintiff as sales agents under contracts which expressly, or by necessary inference, or both, negatived liability as war-rantor of any of their machinery, except as to breakage from unsuitable material or workmanship. Although the season contract expired before the plow in question was ordered, defendants knew it was the custom of trade on plaintiff’s part not to accompany sales of goods with warranty, except as indicated. Before the particular transaction they had been importuned by plaintiff’s agents to sell some of its gang plows. Defendants ordered one for one of their customers. Such customer informed the defendants what he desired, and it was agreed that they should obtain for him one of plaintiffs make of gang plows of the size and character suggested. Pursuant thereto defendants ordered the plow, intending to obtain one of such character of plaintiffs manufacture. The order was by letter in this form:</p> <p>“Omro, Wisconsin, Oct. 28, 1907.</p> <p>“La Orosse Plow Company, La Orosse, Wis.</p> <p>“Gentlemen : We have a customer that wants a foot-lift gang plow with two bottoms, one for stubble and the other for prairie breaker. He has a large tract of land in North Dakota, and 180 acres here, and wants to use it here this fall and ship it to North Dakota in the spring. 14-inch with one extra share each for the stubble bottom and two extra shares for the sod bottom. Please send this as soon as possible and give us the best terms possible.</p> <p>“Tours truly,</p> <p>“Geoege W. Beooks & Son.”</p> <p>The plow was forwarded and in due course delivered to the customer. There was evidence tending to show that it was not suitable for breaking sod land; that not being adaptable therefor as well as for ordinary plowing, it was useless to the customer; that it was accordingly returned to defendants and they offered to return it to plaintiff, claiming credit for the amount charged therefor. There was no evidence to sustain the claim that the plow was sold with express warranty, but the court held, under the circumstances, that there was an implied warranty that the implement was reasonably suitable for the work for which it was purchased, and submitted the cause to the jury to pass upon the question of whether there was a breach of such warranty and, if so, to assess damages for the breach. The jury found in defendants’ favor, assessing their damages at the full sale value of the plow and its accessories, and adding to the finding “and the plow to be subject to the order of the plaintiff.”</p> <p>Plaintiff claimed judgment on the undisputed evidence for the full amount of its demand, but the court, on motion, granted judgment for such amount less the charge for the plow and its accessories, and in the judgment established the status of the title thereto in plaintiff.</p>

<p>Appeal from a judgment of tbe circuit court for Calumet county: Geo. W. BubNell, Circuit Judge.</p> <p>On May 3, 1894, one George Binder was tbe owner of tbe premises involved, and bad witbin two years theretofore made three certain mortgages thereon in tbe following order: one for $1,000 to Sieben; one for $1,770 to John Binder; and one for $1,427 to this plaintiff. At said date suit was commenced by Sieben to foreclose her mortgage, naming as defendants both John Binder and tbe plaintiff, together with George Binder and other defendants not now material. Tbe summons was attempted to be served on all of tbe defendants in that action, including tbe plaintiff in this, a foreign corporation having its principal offices in Minneapolis, Minnesota, as to whom tbe sheriff’s return showed service as follows:</p> <p>“By serving tbe same on Henry Hardgrove, its managing agent for tbe state of Wisconsin, in its office in tbe city of Eond du Lac, by then and there leaving in tbe office of said company true copies thereof, in tbe presence of Richard Me-Roy, who was then and there in charge of said office, and who was then and there a person of suitable age and discretion, to whom tbe contents thereof were explained.”</p> <p>All defendants defaulted in that action and judgment of foreclosure was entered therein June 30, 1904, reciting due and personal service upon all of tbe defendants. On September 9, 1895, tbe mortgaged premises were sold by tbe sheriff in pursuance of the judgment to Peter Ashauer for $2,175, a sheriff’s deed in ordinary form made, a report filed, together with a sum of surplus money, and the report of sale duly confirmed by order of the court, whereupon, on the 26th of September, 1896,- Mary Binder, as holder of the second mortgage, made application for payment to her of the surplus money. Notice of such motion was served by mail upon the plaintiff in this action on September 26, 1895, and the surplus money was ordered paid to Mary Binder.,</p> <p>Since the sheriff’s deed Peter Ashauer has occupied and improved the premises, and plaintiff has done no act suggestive of a purpose to claim any rights in said real estate. It has collected a part of its mortgage debt from the debtor, George Binder, but not all. The present action is an ordinary statutory one for foreclosure, alleging merely that Ashauer and his wife claim some interest or lien, which interest or lien, if any, is subsequent to the lien of plaintiff’s mortgage and subordinate and subject thereto. The trial court, finding substantially the above facts, decided that Ashauer’s title had become complete by lapse of time and that plaintiff, by reason thereof and of its laches, could not maintain this action, and rendered judgment dismissing the complaint, from which the plaintiff appeals1.</p>

<p>Appeal from an order of the circuit court for Milwaukee-county: WabbeN D. TaebaNt, Circuit Judge.</p> <p>This 'is an appeal from an order overruling a general demurrer to the complaint. The complaint in substance alleges that on and prior to January 7, 1906, the net assets of the-plaintiff corporation exceeded $54,000 and that all of the stock therein was owned by John M. Goetzinger and his wife and daughter; that on January 3, 1906, it was agreed between Goetzinger and the defendant Donahue that the capital stock of the company should be increased to $50,000, and that Goetzinger should sell and assign all of said stock to Donahue in consideration of the payment of $50,000„ $20,000 of which amount was to be paid in cash and the remainder in six equal annual instalments, the deferred payments to be evidenced by promissory notes; that the payment of such notes should be secured by an assignment from Donahue to Goetzinger of $40,000 of the capital stock of said company to be issued to said Donahue, such stock to be held by said Goetzinger until all the notes were fully paid; that it was further agreed between the parties that Goetzinger should be elected a director and treasurer of the corporation and act in an advisory capacity and countersign all checks and obligations for the payment of money, and that such.employment should begin January 2, 1906, and end when the notes given him by Donahue were fully paid, and that he should be paid a salary of $1,800 per year; that pursuant to such agreement the capital stock was- 'increased and Goetzinger was elected to the offices specified; that on January 6, 1906, Donahue paid Goetzinger $20,000 in cash and delivered his notes for $30,000 as agreed upon, and there was then issued to Donahue $48,900 of the capital stock of the corporation, to Goetzinger $100, and to one Coggeshall $1,000; that ttíe stock issued to Coggeshall was issued at the request of Donahue; that of the stock issued to Donahue $39,900 was eventually transfex*red and assigned to Goetzinger as collateral security for the indebtedness of $30,000; that there was also issued to Goetzinger one share of stQck of the face value of $100 as collateral security for the payment of 'said notes; that the agreement as to the employment of Goetzinger and the salary which he should receive was reduced to writing on January 6, 1906; that on February 1, 1907, Donahue sold $5,000 of the capital stock of said corporation to the defendant Schroeder, and stock to that amount was legally transferred on the books of the company to said Schroeder. On information and belief the plaintiff alleges that Donahue guaranteed Schroeder, against loss of the moneys paid for said stock; that at the annual election of officers held on the 1st day of February, 1907, Donahue, Goggeshall, and Schroeder were elected directors; that on said day, without just cause, the directors unanimously passed a resolution dispensing with the services of Goetzinger as treasurer, and thereafter and until April 1, 1909, combined and confederated together to exclude, and did exclude, Goetzinger from all participation in the affairs of the plaintiff corporation; that on said last-named day the defendants ceased to be directors and officers of the company, and John M. Goetzinger, his wife, and daughter were elected officers and directors in their places; that three of the notes given by Donahue to Goetzinger have been paid, but those due January 6, 1910, 1911, and 1912 are unpaid; that Goet-zinger has at all times owned said notes and at all times held and still holds $40,000 of the stock of the plaintiff as collateral security for the payment of said notes; that so long as Goetzinger was retained as treasurer and financial manager the business was profitably conducted, but thereafter the business was conducted at a loss, so that by the end of the year 1908 the capital stock was impaired to the extent of over $11,500; that after Goetzinger was excluded from participation in the affairs of the company and while its capital stock was impaired by its losses, the defendants, acting as directors and officers of the corporation, fraudulently, knowingly, and wilfully authorized and permitted the defendant Donahue to withdraw and take a large sum of money from the corporation and to devote the same to his personal use, and that the amount so taken exceeded $13,000; that on December 22, 1908, at a special meeting of the board of directors of said •corporation at which, all of tbe defendants were present, said Donahue was authorized to borrow the sum of $12,450 from the corporation, giving therefor his unsecured note without interest; that with the knowledge and consent of all the defendants said Donahue secured from said corporation the sum of $12,450 in exchange for his note, and that at such time plaintiff owed debts in a sum exceeding $22,000; that the defendants had mismanaged the business and wasted the property, so that when the aforesaid sum of money was withdrawn by Donahue the plaintiff was left without means to pay its liabilities, and its entire assets were worth but little, if anything, above its liabilities; that shortly before the defendants ceased to be directors, the National Exchange Bank, to which the corporation was indebted in the sum of $19,000, threatened bankruptcy proceedings, and that to avoid such proceedings said Goetzinger paid to said bank all of its claim and took an assignment thereof; that during the years 1907 and 1908 Donahue, with the knowledge and consent of his co-directors, withdrew large amounts of money from the corporation for the purpose of paying the expense of litigation then pending between him and Goetzinger; that at the times the moneys were taken and permitted to be taken by Donahue he was wholly insolvent, which fact his co-directors well knew; and that they also knew that said moneys were being withdrawn and taken by Donahue for his own uses and purposes and not for the use of the corporation.</p> <p>The relief prayed for is that the defendants be compelled to pay into the treasury of the corporation all moneys taken therefrom by Donahue, and that it have such other and further relief as may be just.</p>

Appears from a judgment of the eircuit court for Winnebago county: Geo. W. Burnell, Circuit Judge. This action was commenced to recover for damage to goods while in transit from New York to Osbkosb. The action was commenced against the Pere Marquette Railroad Company and the Wisconsin Central Railway Company and the Merchants Despatch Transportation Company, and discontinued as to the former companies.

<p>Eeboe to review a judgment of tbe circuit court for Monroe county: E. C. Hig-bee, Circuit Judge.</p>

<p>Eeeob to review a judgment of the county court of Clark county: Oscab W. Schoehgaeth, Judge.</p>

<p> Evidence: Parol agreement varying writing: Fraud: Degree of proof required: Appeal: Verdict, when disturbed: Instructions to jury: Exceptions. </p> <p>1. A distinct oral agreement which ordinarily could not be shown to vary or contradict a written contract between the parties may be so shown as a matter of defense to a dishonest or fraudulent claim under the writing.</p> <p>2. The foregoing rule should not be applied except in a clear case, and the party alleging the fraud must establish it with that degree of certainty which is produced by clear and satisfactory evidence.</p> <p>3. The expressions “clear and satisfactory evidence” and “clear, satisfactory, and convincing evidence,” used in defining the degree of proof required to establish fraud, are not to be considered as different in meaning.</p> <p>4. The finding of a jury approved by the trial court will not be disturbed on appeal unless it appears to be unwarranted in any reasonable view of the evidence, giving due weight in its favor to the fact that the jury had the advantage of observing the manner of the witnesses while testifying.</p> <p>6. Where, upon the question whether defendant’s use of a written contract was dishonest and fraudulent, the testimony of the two interested parties was in direct conflict, both being apparently equally credible and neither corroborated, except that the writing itself accorded with defendant’s claim, and the jury were not properly instructed that the burden was upon plaintiff to establish the fraud by clear and satisfactory evidence, a verdict in plaintiff’s favor was not warranted by the evidence.</p> <p>6. The judgment is reversed in such case because of- the probability of injustice to the defendant if the verdict were permitted to stand, although he did not except to the instructions given on the subject of fraud or request the giving of other instructions properly stating the degree of certainty with which plaintiff - was bound to establish that fact.</p>