Volume 144 — Wisconsin Reports

ActioN invoking tbe original jurisdiction of tbis court to-compel tbe board of county canvassers of Milwaukee county to certify tbe names of tbe petitioners as those of tbe regular nominees of the Democratic party in said county, entitled te have their names placed on tbe official ballot as such for the general election in 1910.

<p>Action invoking the original jurisdiction of this court to compel the state board of canvassers to certify to the various county clerks of the state the name of T. II. Hanna as that of the Democratic candidate for state senator for the Twenty-first senatorial district of this state, to he placed on the official ballot to be used at the general election to be held in November, 1910.</p> <p>The complaint by appropriate allegations and a demurrer thereto' presents for adjudication the questions raised by the pleadings in the case of State ex rel. MeQrael v. Phelps, decided herewith (ante, P- 1).</p>

<p> Payment: Under duress or voluntary? Exaction of excessive amount on note: Fraud: Pleading. </p> <p>1. Where the holder of a promissory note demanded payment of a sum in excess of the amount legally due thereon as a condition of surrendering bonds pledged for its payment, and the makers, with knowledge of the facts, paid such excessive sum in order to obtain immediate possession of the bonds so that the necessary delivery could be made to a purchaser to whom they had made arrangements to sell the bonds, such payment was not made under duress, but was voluntary, and the excess so paid cannot be recovered.</p> <p>2. An allegation in such case that defendants (the payee of the note and a bank with which it had been left) “conspired together to fraudulently exact from plaintiffs an excessive amount of im terest” was insufficient, when construed with the other allegations of the complaint, to show actionable fraud.</p>

<p> Insurance: Plate glass: Exception of loss “resulting directly or indirectly from fire.” </p> <p>1. A contractual negation of liability for damage caused directly or indirectly by a specified element presents a different -question from that presented in an investigation concerning tbe legal or proximate cause of an injury.</p> <p>2. A provision in an insurance policy that tbe insurer shall not be liable for any loss or damage resulting directly or indirectly from fire includes all damage of which fire is a proximate cause or a principal cause or a link in the chain of causation or an indirect cause or any cause which the law would recognize as such.</p> <p>3. Where plate glass was insured under a policy containing the above provision and an incendiary fire in a distant building containing dynamite caused the dynamite to explode and the concussion of this explosion broke the glass, the breakage resulted directly or indirectly from the fire and the insurer is not liable.</p>

<p> Village plat: Width of streets: Shore line of lalce as boundary: Dedication: Intent: Subsequent quitclaim deed. </p> <p>The recorded plat oí a village shows that by the survey it embraced all the land lying between certain definite lines and the shore of a lake and that the shore line formed a part of the boundary of the land platted. The location of “Park Avenue” is indicated on one side by the lines of the blocks abutting thereon and on the other side by the irr'egular shore line of the lake, except that a small portion of the avenue lies between two blocks and is there marked as sixty feet wide. The width of the other portions of the avenue is not indicated by figures on the plat, but the width of the other streets is so marked. The name of the avenue is printed nearly midway between the shore line and the block lines, and not, as in the case of other streets, in the center of a street sixty feet wide. The situation and location of the lots and blocks fronting on the avenue evinces a plan to provide for a wide avenue along the lake shore for the use of the public, to afford access to the water, and for the parking of the lake shore; and the unrestricted and open use of the whole place by the public and the conduct of the dedicator after the platting harmonize with that idea. The only evidence to the contrary is a quitclaim deed given by the dedicator about sixteen years after tbe land was platted, purporting to include unplatted lands lying between tbe avenue and tbe lake, but sucb deed recited that “tbe grantor makes no representations whatever as to tbe title to tbe lands herein described.” Held, that except as to tbe small portion above mentioned Park Avenue extends to tbe water’s edge and embraces all land between tbe shore line and tbe opposite blocks.</p>

<p> Vendor and purchaser of land: Oral contract: Deed in escrow: Oral surrender of vendee’s interest. </p> <p>1. Where, pursuant to an oral contract for the sale of land, the vendor executed a deed and deposited it in escrow to he delivered to the grantee on payment of the balance of the purchase money hy a specified date, and the grantee went into possession, no title-passed, and the deed had no validity until the condition was fulfilled.</p> <p>2. In such case the interest which the vendee acquired was at best-only the right to a conveyance on payment of the balance of the-agreed price, and such interest could be and was surrendered by a subsequent oral agreement between the parties, entered into-after default, whereby the sale was rescinded and the purchaser- and his family were to remain upon the land and have the use of the same upon condition that they should pay the taxes and; make improvements thereon.</p>

This suit is brought originally in this court to compel the-defendant to certify the name of the relator to the different county clerks of the state as the candidate to be placed upon the official ballot of the Republican party for the office of attorney general, to be voted for at the general election to beheld in November, 1910.

Paeish, Circuit Judge. Tbis action is brought by plaintiff as administrator of tbe estate of Philip La Pointe, deceased, to recover damages for tbe death of said La Pointe, resulting from injuries received by coming in contact with an exposed gearing in defendant’s sawmill.

<p> Sales: Place of delivery: Contract construed: Parol evidence: Failure to deliver: Measure of damages: Inconsistent verdict: Interstate commerce. </p> <p>1. Where a written contract for the sale of chattels at a specified price delivered f. o. b. cars at a certain station provides that, as a mode of securing the seller, he may ship the goods to their destination to his own order, drawing upon the buyer for the amount due and attaching the bill of lading to the draft, the place of delivery, for the purpose at least of fixing the measure of damages for a failure to deliver, is the place specified for delivery f. o. h. cars.</p> <p>2. Parol evidence of the intention of the parties is not admissible in such a case.</p> <p>3. The measure of damages for a failure to deliver in such a case is the difference between the price at which the goods were purchased and the market price at the place of delivery.</p> <p>4. A finding by the jury that the market price of hay at a certain place was the same as the purchase price named in a contract providing for delivery f. o. b. cars at said place, is not inconsistent with a finding that the buyer’s damages for a failure to deliver were twenty-five cents per ton, because the latter finding may refer to the value f. o. b., which the former does not expressly cover. ,</p> <p>6. A contract of sale made by correspondence between the seller in this state and the buyer in another, providing for shipment of goods from this state to the other, is a transaction of inter- . state commerce, and the buyer, though a foreign corporation not licensed in this state, may maintain an action here for breach of the contract.</p>

Pabisi-i, Circuit Judge. Tbe appeal is from an order sustaining a general demurrer to tbe complaint. Among other authorities they cited Jones v. Jones, 64 Wis. 301, 25 N. W. 218; Pierstoff v. Jorges, 86 Wis. 128, 56 N. W. 735; Fallass v. Pierce, 30 Wis. 443. in pro. per., cited Metzger v. Eochrein, 107 Wis. 267, 83 N. W. 308; Sullivan v. Collins, 107 Wis. 291, 83 N. W. 310; Madden v. Kinney, 116 Wis. 561, 93 N. W. 535; and other cases.

Action for personal injuries. Plaintiff was a man about forty-four years old wbo bad been accustomed to handle dynamite and do blasting work at different times during a period of about twenty years. In January, 1908, the defendant was engaged in the construction of a line of railroad adjacent to-tbe city of Watertown, and it employed the plaintiff to dynamite upon its right of way in order that the frozen ground might be loosened and graded for its roadbed and track.

Action to recover $1,694.59 and interest alleged to be a balance due plaintiff for lumber sold by bim to defendants.

II. Reid, Circuit Judge. By ordinance No. 30-]-, approved June 12, 1890, tbe common council of tbe city of Antigo granted W. G. Maxcy tbe right and privilege of erecting, maintaining, and operating a system of waterworks in tbe city of Antigo for a period of thirty years. This right and privilege was duly accepted and assigned to tbe plaintiff.

<p>'Appeal from a judgment of tbe circuit court for Eau ‘Claire county: Jakes O’Neill, Circuit Judge.</p> <p>'They cited, among other cases, Wilson v. Carpenter, 17 Wis. ■512; Harrigan v. Gilchrist, 121 Wis. 127, 314, 99 N. W. 909; Henschel v. Maurer, 69 Wis. 576, 34 N. W. 926; Brenger v. Brenger, 142 Wis. 26, 125 N. W. 109.</p> <p>Among other cases •cited in their brief were Schultz v. Beclcer, 131 Wis. 235, 110 N. W. 214; Tyler v. Stitt, 127 Wis. 379, 106 N. W. 114; More v. May, 117 Wis. 192, 94 N. W. 45; Jackman v. Em Claire Nat. Bank, 125 Wis. 465, 104 N. W. 98; Byan v. Oshkosh G. L. Co. 138 Wis. 466, 120 N. W. 264; Phipps v. Wis. Cent. B. Go. 133 Wis. 153, 113 N. W. 456; Milwaukee S. & B. Go. v. Lindenberger, 142 Wis. 273, 124 N. W. 272; Meyer v. Doherty, 133 Wis. 398, 113 N. W. 671.</p>

This is an action for trespass. The plaintiff owns the northwest quarter of the northeast quarter of section 32,. township 17 north, of range 2 east, in Juneau county. The defendant owns the southwest quarter of the northeast quarter of the same section.

<p>Appeal from a judgment of tbe circuit court for Eau Claire county: A. J. ViNJE, Judge.</p>

H. Reid, Judge. In 1865 Horatio Ward, an American banker residing in London, England, made a bequest “to the various asylums •or homes that have been formed or may be formed within a year throughout the loyal states for the orphans by the late war for the restoration of the Union.” Among other provisions his will contained this: “I judge that the interest only, for a time, will be used, and that the bequest be so managed as to give the orphans, as they become of age, a sum…

Eowleb, Circuit Judge. Action to recover tbe value of a deposit claimed to have-been made by plaintiff with defendants and wrongfully converted to their own use. Tbe subject of deposit was $250.

Fowlee, Circuit Judge. This action was brought to recover tbe value of certain personal property claimed to have been obtained from plaintiff, James Price, by defendants through fraud, duress, and with■out consideration.

<p> Bill of exceptions: Service: Extension of time: Appealable order: Discretion: Terms. </p> <p>1. The time limited in sec. 2876, Stats. (1898), for service of a proposed bill of exceptions may, after its expiration, be extended by the circuit court in discretion and upon conditions.</p> <p>2. An order so extending such time is within subd. 2, sec. 3069, Stats. (1898), and appealable if there is an abuse of discretion. Language used in Hatch v. Kurtzweil, 112 Wis. 231, and Wood v. Blythe, 42 Wis. 300, corrected and restrained.</p> <p>3. As a condition of granting such order the circuit court may require the moving party to stipulate that the cause be placed on the calendar for the next term of the supreme court and to perfect the appeal within ten days, in default of which the motion should be considered denied.</p> <p>4. There was no abuse of discretion in annexing such a condition to the order, where the moving party had ample time and means, to comply with its terms.</p>

<p> lÁfe insurance: Forfeiture: Nonpayment of premium: Tender: Es-toppel: Cancellation of policy: Notice. </p> <p>1. In an action on a life insurance policy which, had been canceled on the books of the company for nonpayment of a premium, the evidence is held to support a verdict finding, in effect, that plaintiff went to an agent of the company authorized to deal with her on the subject, that she offered to pay him the premium in question before it became due, and that she was deterred from making such payment by conduct or statements on the part of such agent which induced in her an honest belief • that a failure to then make the payment or tender would not be relied upon by the company to work a forfeiture of the policy; and upon such facts plaintiff is entitled to recover.</p> <p>2. After the policy in such a case had been canceled by the company 'and plaintiff had knowledge thereof, no duty devolved upon her to tender subsequent premiums.</p> <p>3. It is immaterial in such a case that the company did not properly or credibly inform plaintiff of the cancellation: it is enough that the information came to her and was true.</p>

0. Ludwig, Circuit Judge. Taxpayer’s action to secure a rescission, on tbe ground of fraud, of a transaction whereby tbe county of Milwaukee acquired title to certain lands for public purposes; a cancellation of conveyance made to tbe county in respect to tbe matter ; an injunction against making any payment for tbe property; and recovery into tbe county treasury of any money paid.

Tabkawt, Circuit Judge. This action was brought on quantum meruit to recover upon two causes of action. The first cause of action was for advertising done for the defendant by the plaintiff between the 1st day of January and August, 1906, alleged to be reasonably worth $248.67. An exhibit is attached to the complaint showing the items and dates of publication.

Williams, Circuit Judge. This is an action for personal injuries. It appeared on the trial that on July 20, 1907, the plaintiff was injured while working at a machine in the defendant’s shop in Milwaukee, she being at the time fourteen years and two months old.

<p> Wills: Construction: Public charitable trusts: Reverter: Conditions: City as trustee: Gift for manual training school: Right of city to comply with conditions: Raising additional fund: Naming school: Tuition fees, from whom exacted: Construction of building: Municipal bonds: Provision for payment of interest: Name of bonds: “Completion” of school building includes equipment. </p> <p>1. If a will contains no express provision for a reverter in the event of a diversion of a fund given for a public purpose, none can be implied.</p> <p>2. After reciting that her deceased husband had wished to give property to a city in trust for the founding of an educational institution, and that her will was made for the purpose of carrying out such wish, testatrix gave property to trustees to be held in trust for the purpose of building and perpetually maintaining a manual training school. Upon certain conditions the property was to he transferred to the city or to trustees for it, to be used perpetually to provide and maintain such a school. There was no provision for a reverter. Held, that a public charitable trust was thereby created.</p> <p>3. One giving property by will to any legitimate charity may generally prescribe the conditions under which the donation is made, and when those conditions are accepted there is a binding obligation which may be enforced through the courts.</p> <p>4. In order to create #publie charitable trust there must be some public benefit open to a vague and indefinite number of persons until they are selected or appointed to be the particular beneficiaries of the trust for the time-being.</p> <p>b. A city may become the trustee of a charitable trust where the donation is made to aid some public purpose, charitable in its nature, which it is the legal duty of the city to support and provide for; and when such a trust is accepted the city assumes the same obligations and becomes amenable to the same regulations that apply to other trustees of such trusts, and must perpetually administer the charitable fund in accordance with the expressed wish of the donor.</p> <p>45. Where property is given to a city in trust to found and maintain an educational institution, upon condition that a further sum for that purpose be raised by or for the city, the city has no right to bond itself for such purpose unless it is authorized by law to maintain such a school or institution as a part of its general system of education.</p> <p>7. Under its charter (Laws of 1891, ch. 59, subch. XI, sec. 4) the city of Oshkosh has power to erect one or more buildings to be used exclusively for manual training and may maintain such schools for the benefit of all pupils of school age and all other persons- whom it may have the right to admit to any of its public schools.</p> <p>■8. A will made for the purpose of carrying out the wish of the deceased husband of testatrix to found an institution wherein sound business principles might be taught and where pupils might be fitted for manufacturing and business careers and domestic duties, gave property for the purpose of founding and perpetually maintaining “a manual training school” the object of which should be to teach cooking, sewing, and domestic economy to girls, and “all things of mechanical and other technical work to young men, and to teach to both girls and boys such things as are usually taught in modern manual training schools, and . . . such things as the progress of time develops ought to he taught in a manual training school.” Seld, that the school so provided for was such a manual training school as the city of Oshkosh had a right to maintain at public expense, and that the city might, therefore, accept the donation and comply with a condition thereof requiring the raising of an additional sum for the same purpose.</p> <p>9.Bead with the context, the words “all things of mechanical or other technical work” refer to such things as were being or might properly be taught in a modern manual training school maintained at public expense; and no particular significance should be attached to the reference to the deceased husband’s wish to found an “institution” of learning.</p> <p>10. A condition of a testamentary gift to found and maintain a school, that it shall bear the name of the deceased husband of testatrix, may lawfully be complied with by a city.</p> <p>11. A testamentary gift to found and maintain a manual training school in a city was made upon condition that an additional 850,000 for that purpose be raised by or for the city. The will directed that the whole fund, except so much as might be necessary to purchase a site and erect suitable buildings, and the income thereof should be a perpetual fund to be used to provide, support, and maintain such school. The testatrix intended that the school should be a memorial to her deceased husband, and stipulated that a substantial building be constructed and equipped with modern appliances, placing no restriction upon the amount which should be expended therefor. SeM, that by raising the $50,000 and .expending the whole thereof for a building and equipment for the school the city would substantially comply with the requirements of the will, and thereby obviate the objection that the city had no power to raise a fund to be invested in perpetuity for such a purpose.</p> <p>12. Where a gift to a city in aid of some municipal purpose is made on condition that the city itself make a contribution for that purpose, the city may do so, provided it might lawfully make such expenditure had no gift been made.</p> <p>13. Property devoted to a charitable use, where a trust is created, must, if the gift is accepted, be irrevocably devoted to such use, and, in case of any attempted diversion, equity will intervene and, if necessary, name a new trustee to carry out the purpose of the trust.</p> <p>14. The term “perpetuity,” as applied to charitable trusts, retains its original meaning of an inalienable and indestructible interest, subject, however, to .unforeseen social changes or eventualities preventing the continued existence of the trust.</p> <p>15. A city may lawfully contribute funds to aid in the construction of a public school building provided for in part by a gift made under such circumstances as to create a trust in perpetuity and therefore requiring the permanent maintenance of the school.</p> <p>16. The ward schools of a city are "district” schools within the meaning of sec. 3, art. X, Const., and whatever may lawfully be taught in such schools must be taught without the exaction of tuition fees from resident children of school age.</p> <p>17. Every will should, as far as possible, be interpreted from the standpoint of testator, and attendant circumstances, such as the condition of his family and the amount and character of his property, should be taken into consideration as part of the res gestee, when the language is not plain nor the meaning obvious.</p> <p>18. It is the duty of the courts to uphold charitable bequests if it can be done without violating any provision of statute or principle of law.</p> <p>19. A will which gave property to a city to found and maintain a manual training school, upon condition that an additional sum for the same purpose be raised by or for the city and that a tuition fee should be charged which in the judgment of the city should be sufficient, together with the income of the fund provided, to perpetually properly maintain the school, is construed, in the light of all the circumstances, as showing that it was the intention of the testatrix that tuition fees should be charged only to those pupils from whom the city might lawfully exact such fees (i. e. nonresident pupils and those over school age), and that the city might therefore lawfully comply with such condition.</p> <p>20. The action of a city in raising and appropriating money to build a manual training school was not void, although induced by a conditional testamentary gift for such a school, where the testatrix was actuated by no ulterior motive in making the gift and neither she nor her family could reap any material benefit therefrom.</p> <p>21. The city charter of Oshkosh (sec. 6, subch. XI, ch. 59, Laws of 1891), providing that no school building shall be constructed until the plans therefor have been adopted and approved by the board of education, does not make the adoption of plans a condition precedent to the right of the city to vote bonds to raise money for the erection of a school building.</p> <p>22. Although the city charter (sec. 7, subch. XI, ch. 59, Laws of 1891) required the city treasurer to keep all moneys raised for school purposes as a separate fund and disburse the same only on the orders of the board of education, a formal tender of money raised by the sale of bonds to erect a building for a manual training school, made by the city to the trustees of a testamentary gift for such school conditioned upon the city raising the sum tendered, did not vitiate the bonds or create an unlawful diversion of the money, the tender being made merely to satisfy said trustees that the condition had been complied with, and the city thereupon becoming entitled to receive the gift as trustee and to hold and expend both it and the proceeds of the bonds for said school, and there being nothing to show that the city does not in good faith intend to expend said proceeds in erecting the building.</p> <p>23. Sec. 926 — 11, Stats. (Supp. 1906: Laws of 1903, chs. 228, 428), providing that no bonds shall be issued by a city unless the council shall provide for a direct annual tax “sufficient to pay the interest thereon,” etc., does not require an exact statement of the amount which is to be levied annually; and an ordinance providing for the levy of a tax to pay interest on a certain amount of bonds at a rate “not to exceed four per cent, per annum” is sufficiently definite and certain where the bonds issued in fact bear four per cent.</p> <p>24. Bonds headed “Manual Training School Bond of the City of Oshkosh” and reciting in the body thereof that they are issued “for the purpose of erecting, constructing, and maintaining a manual training school building in and for the city,” sufficiently comply with the requirement of said sec. 926 — 11 that such bonds shall “bear an appropriate name indicating the purpose of their issue.”</p> <p>25. Under the authority given by said sec. 926 — 11 to issue bonds “for the erection, construction, and' completion of school buildings,” bonds may be issued to build and equip a school building; such a building not being complete, within the meaning of the statute, until equipped.</p>

<p>Ceiminal Law: Homicide. (1-13) Evidence: Sufficiency: Competency: Curing error by striking out: Uxoricide: Relations between spouses: Babits of accused: Immaterial errors: Result of inquest: Unlawful search by police. (14-17) Jury discharged after trial begun: Jeopardy: Challenge to juror: Discretion. (18-25) Instructions to jury: Degrees of murder: Malice: Intent to kill: Reasonable doubt: Motive: Contradictory testimony: Presumption of honest mistake: "Weight of answer to hypothetical questions: Reputation: Double negative. (26, 27) New trial: Newly discovered evidence.</p> <p>1. Circumstantial evidence from which the jury might have concluded that the wife of the accused was murdered by shooting in their residence, about 7:45 a. m., when he and his wife were the only persons in the house and at the time when a shot was heard by the neighbors; that the accused was in the neighborhood or at the house during the day; and that he knew of his wife’s death prior to the discovery of her body in the evening by another person, but failed to disclose the fact or give any alarm, is held sufficient to support a verdict of guilty.,</p> <p>2. Error in admitting evidence is cured by striking it out and directing the jury to disregard it, unless it affirmatively appears that the accused was nevertheless prejudiced thereby.</p> <p>3. In cases of uxoricide great latitude of inquiry is permissible with respect to the relations existing between the spouses prior to the killing.</p> <p>4. In such a case evidence that accused was frequently intoxicated and that his health was impaired thereby, and describing his eccentricities and peculiarities and his general deportment, was admissible.</p> <p>5. Testimony of one from whom the accused sought a loan to be secured by mortgage on his homestead, to the effect that he informed the accused that the wife of the latter refused to sign the mortgage, was competent.</p> <p>•6. Where evidence on the part of an accused is offered tending to show that a third person displayed alarm and feared he might be charged with the offense on account of something that occurred in the trial, the state may rebut the inference that this arose from a guilty conscience by proving that the prosecuting attorney suggested to such third person that counsel for the accused might charge him with the murder.</p> <p>7. There was no error in permitting a witness for the state to testify to the number of strangers using the alley adjoining the house in which the murder was committed, by comparison with the number using other similar alleys.</p> <p>8. It was within the discretion of the court to permit a witness for the state to testify to financial transactions between himself and the accused after the murder, and such testimony was not incompetent because it tended to show that the accused had money after his arrest.</p> <p>9. Testimony that the accused mortgaged his homestead to raise money to defray expenses of his trial is held, though irrelevant and immaterial, not to have been prejudicial.</p> <p>10. Testimony as to conversations between witnesses as to the duty of every citizen forthwith to report to the police any information they might have concerning the commission of the crime of murder, was irrelevant and immaterial, but was not prejudicial.</p> <p>11. Where the prosecution seeks to establish that certain witnesses heard a shot at a stated time, it is competent to prove that these witnesses remarked to one another at the time that the sound heard was a shot.</p> <p>12. In a prosecution for murder the verdict of a coroner’s jury given in an inquest upon the body of deceased, to the effect that the death was caused by some person or persons unknown, is not competent evidence on behalf of the accused.</p> <p>13. Evidence tending to show that police officers acted without authority in searching the premises of the accused and seizing his personal property, is not competent unless some of the property or papers so seized are offered in evidence on the part of the state and objection is made on the ground that the instruments of evidence so offered were procured in this unlawful way.</p> <p>14. Where it is discovered, after the jury is accepted and the trial in progress, that one of the jurors is not impartial, has formed and expressed an opinion in the case, and has testified falsely on the voir dire, the court may discharge the jury, impanel another, and begin the trial anew; and the accused will not thereby have been twice put in jeopardy.</p> <p>15. This power of the court rests upon the ground of necessity, like the case of sickness or death of a juror or that of the presiding judge. It is absolutely necessary to discharge the first jury under such circumstances and begin anew in order to have a trial of the cause 'which is a trial and not a farce.</p> <p>16. This power of the court cannot be exercised for its own convenience or in discretion, and can be exercised only in cases in which the law recognizes and points out the necessity for such action.</p> <p>17. Sustaining the challenge of the prosecution to a juror is a matter largely within the discretion of the trial court, and its finding that the juror is not impartial is conclusive upon the appellate court, if there is evidence to sustain it.</p> <p>18. The instructions to the jury must be tested in view of the questions before the court arising upon the information and evidence, and not academically or by contrast with the whole body of the law relating to homicide.</p> <p>19. So tested, the charge in this case relating to implied malice and to the intent to kill which constitutes the “premeditated design” of murder in the first degree, is held not erroneous.</p> <p>20. A charge that the reasonable doubt which entitles an accused person to an acquittal is the doubt of guilt reasonably arising from all the evidence in the case, was not, in view of its context, erroneous as excluding the right to an acquittal by reason of reasonable doubt arising from lack of evidence.</p> <p>21. A charge to the effect that existence of a motive is not essential to a conviction for murder, but presence or absence of it is an evidentiary circumstance merely bearing, with more or less weight according to the circumstances, on the question of guilt, was not erroneous.</p> <p>22. A charge that if there is a conflict in the testimony of witnesses “the presumption is that either one or the other of the witnesses may be honestly mistaken, rather than that either wil-fully testified falsely,” was not misleading or prejudicial to the accused, although technically that is not a presumption of law.</p> <p>23. A charge to the effect that in weighing the answers of experts to hypothetical questions the facts stated in such questions should be kept in mind, and if not the same in material respects as the facts which the jury found to exist such opinions of the experts would be necessarily weak if not valueless, was correct.</p> <p>24. A charge that “evidence of good reputation or good character does not constitute a defense,” was not erroneous or misleading, when considered in connection with the whole charge on that subject, showing in what sense the word “defense” was used and understood.</p> <p>25. A mere slip of the tongue causing a double negative is not always understood by ordinary people as an affirmative, and such mistake in a charge will not suffice for a reversal where the same-proposition was many times stated correctly in the same charge and it is apparent the accused was not prejudiced by the error.</p> <p>26. On a motion for a new trial on the ground of newly discovered-evidence the motion may be denied if the trial court is convinced upon proper evidence that there is no reasonable probability that another jury, having before it all the former evidence together with the newly discovered evidence, would come to a different conclusion from that arrived at by the former . jury.</p> <p>27. In a case where the newly discovered evidence consisted of the testimony of a witness on a relevant and material point, but the witness was examined and cross-examined and therein his sanity, his veracity, and his general character were impeached by himself and others, the court may, upon the ground stated, deny the motion for a new trial.</p>

<p> Logs and timber: Bale: Entire contract: Part performance: Time for delivery: Breach by vendee, </p> <p>1. A contract for the sale and delivery of all standing timber on certain lands at specified prices provided that $5 per thousand feet, should be paid on the 15th of each month for all logs skidded during the prior month; that a second payment at a certain rate-per thousand feet should be made each week for logs loaded on cars during the previous week; that delivery of all logs which should be logged in each of two seasons should be completed on or before May 1st in each year; and that “as soon as all logs shall have been delivered and received” by the vendee “settlement shall he made for the balance due,” the vendee having an option to give its notes for such balance. The parties made a settlement for the logs delivered during the first season. Held, that the contract was not entire but apportionable, and that delivery of all the logs was not a condition precedent to the vendors’ right to enforce payment for those actually delivered during the second season.</p> <p>2. The contract not requiring all the logs to be delivered by May 1st in the second season, the vendors had a reasonable time after that date to deliver the logs not theretofore logged.</p> <p>3.- Breaches of the contract by the vendee in failing and refusing to make the stipulated payments and settlement gave the vendors a right to treat the contract as terminated and to dispose of the undelivered logs and uncut timber in some other way.</p>

<p> Railroads: Fire set by locomotive: Negligence: Piling wood near track: Destruction of neighboring property: Proximate cause: Notice of claim by insurance companies as subrogees: Evidence: Objections: Improper conduct of counsel: Harmless errors: Ohang§ of venue: Discretion: Taxation of costs. </p> <p>1. A finding hy the jury that a fire which started in dry wood piled upon defendant’s right oí way was caused hy sparks from an engine which had passed a short time before, is held to he sustained hy evidence which justified the rejection of all other alleged causes and tended to show, among other things, that such engines, even when free from defects and properly managed, did commonly emit sparks, although no witness testified to haying seen sparks lodge at the place where the fire was first observed.</p> <p>2. A railway company which as a common carrier is obligated to receive and transport firewood must conduct such business with a degree of care commensurate with the resulting dangers and hazards to the property of others from fire.</p> <p>3. Upon evidence in this case showing that a very large quantity of wood had been piled on defendant’s right of way, so near the track that sparks from passing engines were likely to fall upon it; that private buildings were so near as to be in danger of being destroyed if the wood should be burned; and that the wood had remained there for a long time in a dry and windy season and was in a very inflammable condition, highly susceptible to ignition from sparks, the jury were justified in finding that defendant was negligent in permitting the wood to remain at such place and in such condition. Baenes, Mabshail, and Vinje, JJ., dissent.</p> <p>4. Negligence of a railway company in permitting highly inflammable firewood to remain upon its right of way was the proximate cause of the destruction of neighboring property by a fire which was started in the wood by sparks from an engine, where the danger to such property from a burning of the wood was obvious.</p> <p>5. The notice of a claim for damage to property by fire which must be given to a railway company before an action can be maintained and which, under the terms of sec. 18165, Stats. (Supp. 1906: Laws of 1899,tch. 307), is to he “signed by the party owning such 'property . . . his agent or attorney,” may' he signed by the assignee or subrogee of the original owner, or by an agent or attorney.</p> <p>6. Insurance companies which have paid to the original owner the amount of loss on property damaged or destroyed by a fire set by a locomotive are subrogees of such owner and may give the notice prescribed by sec. 18165, Stats. (Supp. 1906: Laws of 1899, ch. 307).</p> <p>7. When the object of evidence is plainly indicated by the questions propounded to a witness, and no objection to them is made, a motion to strike out the testimony comes too late."</p> <p>8. Improper, conduct or remarks of counsel during a jury trial, not appearing to have had a prejudicial effect, are not ground for reversal of the judgment.</p> <p>9. Trial courts are vested with a large discretion in passing upon applications, under subd. 2, sec. 2622, Stats. (1898), for change of venue on .the ground that an impartial trial cannot he had in the county.</p> <p>10. Under the third paragraph of sec. 2921, Stats. (1898), costs may be taxed for notices given under sec. 18165, Stats. (Supp. 1906: Laws of 1899, ch. 307).</p> <p>11. Disbursements for sheriff’s fees for serving summons may be allowed in the taxation of costs, although not itemized in t^e bill.</p> <p>12. Although the depositions of witnesses had previously been taken, fees for their travel and attendance at the trial were properly allowed and taxed, fees for attendance at the taking of the depositions being disallowed.</p>

Hastings, Circuit Judge. Action to recover for a personal injury. Plaintiff pleaded that, while in the due performance of his duty as an employee of defendant, he was severely injured in his right foot by reason of its being caught by a revolving shaft, armed with a sprocket wheel, collar, and projecting set-screw, so located as to be dangerous to employees in discharge of their duties, unless securely guarded, and that no guard whatever was provided.

<p> Foreign corporation: Contract void on its behalf: Defenses: Sale of lumber: Delivery of inferior portions: Recoupment: Counterclaim. </p> <p>1. Under sec. 17706, Stats. (1898)', an unlicensed foreign corporation, -when sued upon a contract void in its behalf but enforceable against it, may establish as a defense any facts which will in whole or in part defeat plaintiffs right to recover, but is precluded from obtaining affirmative relief upon any cause of action or counterclaim arising out of the contract.</p> <p>2. In an action for a balance alleged to be due for lumber delivered under a contract for the sale of the plaintiffs entire stock of certain kinds of lumber at a specified price for all lumber of each kind graded as “No. 2 common and better,” and a lower price for “No. 3 common,” the answer alleged that plaintiff had wrongfully abstracted the best and most valuable portions of the lumber graded as “No. 2 common and better,” and had delivered only the inferior' portions, thereby reducing the value of that which was delivered to an amount much less than the contract price. Held, that the facts so alleged constitute a defense which would defeat in whole or in part plaintiff’s recovery, and therefore should not be treated as a counterclaim or cross-complaint within sec. 2656, Stats. (1898).</p>

<p> Municipal corporations: Police power: Ordinances regulating sale of milk: Tuberculin test: Glassification: Milk produced in and out of city: Destruction of property: Recovery by owner: Evidence: Scientific books. </p> <p>1. Where there are conflicting scientific beliefs or theories concerning the danger of infection from the use of milk from cows afflicted with tuberculosis and concerning the efficacy of the tuberculin test for the purpose of determining the presence of tuberculosis in cows, the common council of a city authorized by statute to legislate for the protection of the public health may determine upon which of these theories it will base its police regulations, and unless such determination is clearly and manifestly wrong the courts will not interfere with the ordinance on the ground that the scientific theory upon which it is based is incorrect or unsound.</p> <p>2. Statutes and decisions and evidence referred to go to show a widespread popular recognition of the danger of infection from bovine tuberculosis and of the efficacy of the tuberculin test.</p> <p>3. Classification for the purpose of valid police regulation may be based upon differences in the opportunity or facility for inspection inherent in the different classes, although danger of infection from each in case of actual contact might be equal.</p> <p>4. An ordinance which prescribes different police regulations relative to the sale and distribution of milk shipped into the city from those regulations relative to milk produced from cows within the city, is valid.</p> <p>6. In order to uphold an ordinance which requires for its enforcement destruction of property, a ease must be presented in which the usual sanction of fine or imprisonment or the abatement of nuisance by suit in court, or indeed any milder or slower mode of dealing with the offender than destruction of his property, would be inadequate to preserve public health or safety.</p> <p><S. In all ordinary cases of destruction of property under such authority the property owner may resort to the courts and recover his damages by proving that the property which was destroyed as a nuisance or as dangerous to the public health or safety was not such in fact.</p> <p>7. Where large quantities of milk are daily shipped into a city by persons residing outside of the jurisdiction of the city officers, the liability of the milk to rapid decomposition, the futility of proceeding by fine and imprisonment against the shipper, carrier, or consignee, and the necessity for effectually preventing any of such milk being used, all establish a situation in which it may be said that the common council had the right to decide that destruction of the milk was the only available or efficient penalty for the enforcement of the ordinance.</p> <p>8. There is a distinction relative to the power to destroy property in the abatement of existing nuisances and in the abatement of nuisances created by wilfully placing property in the forbidden place or condition after the enactment of an ordinance and in defiance of it. Self-inflicted damage is not recoverable. The open judicial inquiry in such case is, Was the damage self-inflicted?</p> <p>9. On the trial of a cause before the court without a jury it is not error to receive in evidence scientific books and reports of scientific bodies for the purpose of informing the court. Such books and reports so offered in evidence have only the weight and value of like books and reports read by the court without having been offered in evidence.</p>

Tak&ANT, Circuit Judge. This is an action for divorce on the ground of cruel and inhuman treatment, in which the defendant counterclaimed and asked a divorce from the plaintiff on the same ground. The plaintiff was a widower forty-seven years old at the time of his second marriage in January, 1907. His first wife died in 1905. There were three children born of the first marriage, two girls and a boy.

Williamis, Circuit Judge. This action was brought to recover for personal injuries. Tbe negligence charged is tbat tbe motorman so unskilfully and negligently managed tbe car of tbe defendant as to strike' tbe rear wheel of tbe vehicle in which tbe plaintiff was driving, throwing her forward upon tbe dashboard and thereby causing-tbe injury. Tbe answer is substantially a general denial.

J. TuhNee, Circuit Judge. On July 14, 1902, tbe common council of the city of Milwaukee passed an ordinance requiring all street railway companies operating lines in the city to sprinkle with water tbe entire roadbed of tbe railways operated, between single tracks and double tracks and one foot outside of all tracks, as well as tbe space between double tracks, such work to be done under tbe general supervision of tbe board of public works and under rules and regulations…

Halsey,. Circuit Judge. Action for personal injuries. Plaintiff at tbe time of bis injury, July 3,1907, was a young man sixteen years of age and of average intelligence. Defendant was tbe owner of a brewery, wherein it manufactured and bottled beer. Previous to the sale thereof the beer was put through a sterilizing process which consisted in placing about 1,800 filled and corked bottled in layers separated by iron sheets in a vat or tank into which cold water was let.

<p> Sales: Statute of frauds: Delivery: Pleading: Evidence. </p> <p>In an action for the purchase price of goods, where the contract of sale was oral and the price more than $50, no part of which was paid, so that under sec. 2308, Stats. (1898), there must have been actual delivery and acceptance to constitute a valid sale, evidence tending to show that there was no such delivery or acceptance is admissible under an answer merely denying the sale.</p>

Williaks, Circuit Judge. This is an appeal from a judgment awarding tbe plaintiff $735.16 on account of alleged breach of contract on tbe part of tbe defendant by discharging tbe plaintiff before tbe term of services under a contract bad expired.

Williams, Circuit Judge. June 1, 1906, Wilhelm Uecke and his wife Caroline, the-plaintiff herein, sold to the defendant Jacob Held certain real-estate which they owned jointly. Held: the deed was made to bis son, the defendant George L. 'Held. Payment of the note for $700 was extended for a year. Upon its becoming due payment was refused.

<p> Contracts; Construction; Exchange of lands: Performance and tender: Remedies. </p> <p>1. Pursuant to a previous written contract, the parties exchanged lands as therein agreed, with the exception of one lot the title to which was in litigation, and defendant agreed in writing to pay plaintiff $500 if he should he unable to give title to that lot by a certain date. Held, that the two contracts should be construed together, the original contract remaining in force and binding plaintiff to carry out any stipulations on his part which remained unperformed, and defendant’s new promise being in the nature of security for performance on his part.</p> <p>2. Within the time limited defendant perfected his title to the un-conveyed lot and tendered a proper conveyance to plaintiff upon condition that the latter pay over a certain excess of rents which he had in the meantime collected and which defendant was entitled to under the original contract. Held, that such condition was reasonable and proper and the tender sufficient under the contract.</p> <p>[3. Whether, if defendant being able had absolutely refused to convey under any circumstances, plaintiff could maintain an action to recover the $500, or whether his remedy would be for specific performance, not decided.]</p>

<p> Contracts: Writing: Failure to examine: When assent presumed: Fraud. </p> <p>1. One who, through misrepresentation as to its purport, is induced to refrain from examining a writing given Uim by another will not, unless in an extreme case, be held to have assented to the contents of the document before they were in fact known to him. Reasonable diligence on the part of the recipient is all that is required.</p> <p>2. Plaintiff paid money to defendant under an oral contract of sale and received back a writing which defendant told him was a mere receipt, but which in fact recited some parts of the contract, omitting a condition of the sale. Plaintiff did not examine the paper, but nine days later, pursuant to the condition, demanded return of his money and promptly began suit therefor. Held, that he had not assented to and was not bound by the writing as correctly embodying the oral agreement. Bostwiclc v. Mut. L. Ins. Co. 116 Wis. 392, and Ripley v. Sage L. & I. Co. 138 Wis. 304, distinguished.</p>

Halsey, Circuit Judge. Action for damages to person. Tbe jury found (1) that defendant’s automobile frightened tbe horse behind which plaintiff was driven and she was injured as a result thereof; (2) that defendant did not drive to the right of the middle of the traveled track of the road; (3) that by the exercise of ordinary care he could have driven to the right thereof without injury to himself; (4) that his failure so to do was the proximate cause of plaintiff’s injury;…

J. TueNbe, Circuit Judge. This is an action to recover $990.55 alleged to have been received by defendant for plaintiff’s use. The defendant pleaded a counterclaim and brought into court $380.20 and costs theretofore incurred and denied any further liability. The action was tried by the court. The following facts appeared: In 1901 the defendant dealt in lumber at Milwaukee at wholesale and. as a jobber for manufacturers.

'Appeal from a judgment of the circuit court for Milwaukee county: Orrew T. Williams, Circuit Judge. Plaintiff commenced an action to recover damages from defendant for, as cliarged, Raving maliciously injured his business by publishing and distributing circulars containing false and defamatory statements concerning it.

Halsey, Circuit Judge. The amended petition in this proceeding alleges that between the 1st day of February and the 7th day of March, 1910, the petitioner was nominated for the office of justice of the peace on the Democratic ticket in the Fourth district, composed of the Fourth and Sixteenth wards of the city of Milwaukee, and that his nomination papers were duly and properly signed by a sufficient legal number of qualified electors; that the petitioner has accepted the…

TarraNt, Circuit Judge. This action was brought to recover damages for personal injuries alleged to have been sustained in consequence of the negligence of the defendant. The answer, after certain admissions, denies generally the material allegations of the complaint. At the close of the plaintiff’s evidence a motion for nonsuit was denied, and at the close of all the evidence defendant moved for a directed verdict, which was denied.

<p> Contracts: Construction: Questions for court: “Net profits:” Practical construction: Master and servant: Contract of employment: Commission on profits: Accord and satisfaction. </p> <p>1. The construction oí a written contract is tor the court; as is also the question what interpretation the parties placed thereon by subsequent written communications.</p> <p>2. The term “net profits” and the word “profits” ordinarily mean the same thing.</p> <p>3. The term “net profits,” when applied to a course of dealing including several successive transactions, involves the idea of time and, if unqualified by custom, usage, or other words in the contract, ordinarily refers to the termination of the adventure. It may, however, refer to the expiration of some fiscal period, less than and within the period of adventure, at the end of which profits are to be computed.</p> <p>'4. Where the whole period of adventure covers several fiscal periods designated for the purposes of computation, losses and gains arising out of matters covered by the earlier fiscal period but occurring after ascertainment of the profits for that period are carried into and increase or diminish the net profits in the next or some succeeding fiscal period. Anything included in the profits of any fiscal period during the adventure which after-wards turns out to be a loss goes to diminish the net profits of the next or some succeeding period.</p> <p>5. Where a contract of employment entitled the employee to receive a commission of ten per cent, of the net profits up to $2,000 per month and thereafter on the basis of five per cent, of such profits, and computations were made monthly, net losses in one month should be deducted from net profits in others in computing the commissions. The fiscal period for computation of the net profits in such case is the month, but the real period to which the term “net profits” refers is the period of the employment.</p> <p>,6. Rendering and receiving monthly statements in which the net profits of one month were reduced by the losses in another month also places this interpretation on the contract.</p> <p>7. Where a check or draft is sent by letter with a statement of account showing a balance due the person to whom the letter is-sent equal to the amount of the check or draft, together with a statement that this is sent as settlement in full, the party receiving such letter cannot accept and retain the avails of the-check or draft and at the same time deny that he received it in. full settlement.</p>

<p> •Contracts: Breach of warranty; Measure of damages: Appeal: Bill of exceptions: Presumptions. </p> <p>1. In an action for breach 'of warranty on a contract to furnish connections and accessories and install an engine in a boat, the measure of damages is the difference between the value of the boat in the condition in which it was delivered and what its value would have been had the contract been complied with, as well as such special damages as are properly shown.</p> <p>:2. An award of damages in such case “ (a) for the difference in value between the connections, accessories and labor furnished, and that called for by the contract,” and also “(b) for the expenses actually incurred by the plaintiff in putting the connections, accessories and installation work in the boat in a condition to correspond with the contract,” is erroneous because involving duplication, the second item, so far as proper, being included in the first.</p> <p>3. The second item above mentioned should in any case have covered only the expenses reasonably and necessarily incurred.</p> <p>4. Where special damages have been awarded for breach of a contract it will be presumed on appeal, In the absence of any bill of exceptions, that if amendment was necessary the complaint was amended at the trial so as to permit recovery of such damages, and also, if evidence could show such damages to be proper* that such evidence was offered.</p>

C. Ludwig, Circuit Judge. Action for damages for death, of a minor son of the plaintiff caused by the alleged negligent speed of an automobile driven by a man claimed to have been the servant of the defendant and acting within the scope of his employment at the time of the injury. The case was tried at the January term of court, and on March 25, 1910, the jury returned a special verdict and assessed plaintiff’s damages in the sum of $1,750.

Williams, Circuit Judge. This is an action to recover $618.15 alleged to have been expended by the plaintiff in the purchase of corn on the board of trade in Chicago at the request of the defendant. The defense was in substance that the transaction in question was a gambling transaction and not an actual purchase of corn.

<p> Master and servant: Unsafe working place: Warning of recurring dangers: Buies, when necessary. </p> <p>1. Where there are many fellow-servants, some working in one department or feature of an industry and some in others quite independent thereof, and the situation is such that the work in one department is likely from time to time to create peril of personal injury to those engaged in some other part of the work unless precautions according to some prescribed method are exercised to avoid it, ordinary care requires the making and efficient promulgation of reasonably sufficient rules to that end.</p> <p>2. But where there is a single small crew of men working with each other at a single task, and one of them is injured by reason of a danger incident to constantly changing conditions created by the men themselves, which all appreciate and understand they are expected to avoid by individual vigilance, the foregoing rule and the general rule respecting the duty of the master to furnish a safe working place have no application.</p>

<p> Bales: Automobiles: Warranty: Breach: Rescission: Waiver. </p> <p>1. Representations by 'the seller of a second-hand automobile that it was in a good state of repair and efficiency and would develop eighteen horse power and operate all right, made to a buyer who was unfamiliar with the mechanism of automobiles and so informed the seller, were relied upon by the buyer and were understood by both parties as conditions upon which the car was purchased. RelcL, that they became a part of the contract of sale, and failure of the car to conform thereto warranted a rescission by the buyer.</p> <p>2. The buyer’s right to rescind the sale in such case was not waived by his accepting from the seller a written memorandum stating in detail the repairs which the seller proposed to mate and adding, “if the above repairs do not make car right will dispose of the same,” where it appears that the giving of such writing was but a step in a continued attempt of the seller to put the car in proper condition and that, notwithstanding such repairs, the car still failed to conform to the contract.</p> <p>3. After rescission by the buyer, no act of the seller in rebuilding the car or any of its parts to make it conform to the conditions of the sale would bind the buyer.</p>

<p> Liens: Subcontractors: Application of payments: Notice and claim: Sufficiency: Amount due: Misnomer of owner: Appeal: Findings. </p> <p>1. The general rule that, where a debtor makes a voluntary payment to a creditor who has several claims against him and fails to direct where such payment shall he applied, the creditor has a right to apply the same on any of the claims, governs a payment made by a contractor to a materialman who had furnished materials to him on several different jobs, as against a property owner from whom the contractor had received the money so paid.</p> <p>2. A notice of subcontractor’s lien sufficiently complies with sec. 3315, Stats. (1898), in respect to stating the amount due where it states the total amount of the bill and the amount paid thereon, the balance due being necessarily inferable from the facts stated. Chandler L. Co. v. Fehlau, 137 Wis. 204, distinguished.</p> <p>3. A notice of subcontractor’s lien directed to “St. Jacobi Congregation,” etc., but properly served upon the real owner, “Evangelical Lutheran St. Jacobi Society,” etc., is sufficient, the statute (sec. 3315, Stats. 1898) not requiring that the notice be directed to the owner, but merely that it shall be given to the owner and shall contain certain particulars.</p> <p>4. Where the complaint of a subcontractor alleges that a claim for a lien was duly filed which contained the name of the person against whom the demand was claimed, a finding of that fact by the trial court will not be disturbed on appeal where the record shows that the claim for lien filed in the clerk’s office was received in evidence without objection and the certificate to the bill of exceptions shows the loss of some of the exhibits, although the owner’s name was not correctly given in the copy of the claim annexed to the complaint and it does not appear that any amendment was asked for or allowed.</p>

<p>Real-estate brohers: Option contract: Assignment: False representations: Who may maintain action: Assignability of cause of action: Retroactive statute: Discontinuance: Discretion: Appealr Waiver of right: Acceptance of costs.</p> <p>1. Where the owners of property, wishing to sell It for a certain net price and to secure to selling agents, as a commission, all that could he obtained in excess of such price, gave to the agents an option to purchase the property at said price, the mere fact that such option ran to the agents “and their assigns” did not render misrepresentations made by the owners to such agents available as the basis of an action of deceit in favor of other persons, not purchasers of the property, to whom such agents afterwards assigned an interest in the option.</p> <p>[2. Whether agents to whom an option is given for such a purpose can create other agents with equal authority, by assigning to-persons, not purchasers of the property, undivided interests in such option, not determined.]</p> <p>3. The word “assigns” in such option means purchasers of the property to whom the agents might transfer the option, not other persons to whom the agents might transfer an interest in the option for the purpose of creating other agents of the owner.</p> <p>4. An action by assignees of such option to recover damages on account of false representations made by the owners, by reason of which the holders of the option were unable to make a sale and lost their time and money expended in the attempt to sell and their prospective profits on a sale, is an action for unliquidated damages caused by deceit.</p> <p>5. To support an action of deceit the misrepresentations must have been made to the plaintiff, or to a third person with the intention that they he communicated to plaintiff, or so made to a class of which the plaintiff is a member, or so made to the public generally, — in each case with the intention on the part of the person making such misrepresentations that the plaintiff should rely and act thereon; and plaintiff must have so relied and acted.</p> <p>6. Misrepresentations which accompanied the giving or induced the acceptance of a written instrument running to the vendee or obligee therein named “and assigns,” do not run with the instrument so as to give a right of action in favor of persons to whom they were not uttered or addressed or> intended to be communicated.</p> <p>7. Prior to the enactment of ch. 353, Laws of 1907 (sec. 4253, Stats.), a cause of action at law for deceit did not survive and was not assignable.</p> <p>8. Assuming, without deciding, that ch. 353, Laws of 1907, affects rights of action which accrued prior to and existed when that law went into effect, still it could not be retroactive in the sense that an assignment of an otherwise nonassignable cause of action made several years before that statute went into effect would be thereby made valid.</p> <p>9. Ordinarily it is within the discretion of the trial court to permit the plaintiff to discontinue an action at law in which no counterclaim is interposed, where the application for leave to discontinue is timely made. •</p> <p>10. Where a complaint, fails to state a cause of action and is first. challenged by demurrer and motion for judgment on the pleadings, and plaintiif thereafter bases his reguest for a discontinuance upon an admission that a plea in bar contained in the answer is true, and defendant again requests the trial court to dispose of the objection going to the sufficiency of the complaint before granting leave to discontinue, it is error to permit the discontinuance of the action instead of disposing of it on the other grounds first before the court.</p> <p>11. The disposition of the' case, under such circumstances, should be that which will define rights and finish litigation rather than that which will leave the case open for further and perhaps fruitless and expensive litigation.</p> <p>12. An appellant who contends that there should have been a judgment dismissing the action on the merits instead of a judgment of discontinuance, did not waive his right to appeal from the latter judgment by taxing and recovering his costs prior to taking the appeal, because, being entitled to the costs under either judgment, he did not thereby do anything inconsistent with the claims urged on the appeal.</p>

The “Gegenseitige Unterstuetzungs Gesellsehaft Germania” is a Wisconsin corporation organized under ch. 86, Stats. (1898), for the purpose of furnishing life insurance to its members on the assessment plan. The highest authority in the corporation appears to be the “Central Society” or the “Grand Council,” which consists of all charter members of the corporation and the officers thereof and one member from each subordinate council.

Ray Stevens, Circuit Judge. The plaintiffs, Union Lime Company and Nasi Bros. Lime &■ Stone Company} and the defendant Eden Independent Lime & Stone Company are the owners of parcels of land in section 6, town 14, range 18, in Eond du Lac county. The Nasi Company owns the southeast quarter of the southeast quarter of said section and also the east two acres of the southwest quarter of the southeast quarter.

<p> Railroads: Death of servant: Comparative negligence: Questions for jury. </p> <p>1. In an action against a railroad company for the death of a section foreman who was hilled in a collision between his handcar and a train, the negligence of decedent and that of the engineer, both of which contributed to the accident, are held upon the evidence to have been ordinary negligence only.</p> <p>2. In such a case, under sec. 1816, Stats. (Laws of 1907, ch. 254), the trial court must ascertain and decide whether anything in the evidence would authorize the jury to find that the negligence of the engineer was greater and contributed in a greater degree to cause the injury than that of the decedent.</p> <p>3. In all cases in any wise doubtful those questions should be submitted to the jury.</p> <p>4. In ascertaining whether the negligence of one is greater than that of another the court is to consider that care must be proportionate to the risks to be apprehended and guarded against.</p> <p>5. Negligence of the injurer may be held to contribute in a greater degree to cause the injury where, other things being equal, such negligence displays a greater lack of .ordinary care than that of the injured person, or where the negligence of the injured person was only remotely or not at all the cause of his injury, while the negligence of the other person was the proximate cause of the injury.</p> <p>6. These comparisons are made not on the ancient classification of negligence into slight, ordinary, and gross, but by comparing the ordinary negligence of one with the ordinary negligence of the other and ascertaining which was the more culpable.</p> <p>7. It appearing in this case that each of the two servants of the railroad company, the injured and the injurer, was of equal rank and authority in the management of the vehicle used and controlled by him; that the responsibility resting on each for his safety and the safety of others was equal; that their opportunities for anticipating and avoiding danger weré equal; that the necessity for the injurer to continue his course without stopping was more imperative; that the injured servant was required by rules to exercise diligence to keep out of the way of the'injurer; and that the injury resulted from the collision of the two vehicles negligently moved in opposite directions to a meeting point on the same track, it cannot be said that the negligence of the injurer was greater than that of the injured, and there was no question in that respect for the jury.</p> <p>Winslow, C. J:, and Siebeckek, J., dissent.</p>

<p> EqUity: Injunction: Laches: Mills and milldams: Rights of flowage: Riparian rights: Erosion of banlcs: Highways. </p> <p>1. Where, by user during more than forty years, a town acquired a prescriptive right to maintain a highway on a bank of a river, but during the same period recognized and acquiesced in the right of the owners of a lawful milldam lower down on the stream to maintain such dam at substantially the same height and to keep the water adjacent to the highway at about the same level, large sums being expended by sucb owners on the strength of their belief that they could continue such use of the water power, the town is not entitled to equitable relief restraining the mill owners from maintaining, by the use of flush-boards on the dam, substantially the same conditions as had existed during the period mentioned, especially where the injury to the town is slight and the loss to the mill owners would be comparatively large.</p> <p>2. Acts of the town twenty-two years before commencing the action, and again four years before the action, in moving back the highway, without protest, because of the erosion of the bank theretofore caused by the water, showed conclusively that it recognized the right of the owners of the water power to maintain the water at its then level, and acquiesced therein.</p> <p>3. The owner of water power has a right, the whole year round, to the use of the stream and the banks below ordinary high-water mark as nature created them, subject to a reasonable use thereof by other owners of power and of riparian rights; and he may, in a season of low water, by artificial means restore the water to a higher stage, provided he does not raise it above ordinary high-water mark, and provided such restoration is reasonably necessary to the full enjoyment of his water rights and creates no essentially different conditions from those which would prevail were the rise of the stream a natural one.</p> <p>4. A mere riparian right is subject to reasonable use of the stream for power purposes, and if any damage results therefrom the, owner of the right is without remedy.</p> <p>5. The owner of a water power whose use of the water is lawful and usual cannot be held liable for damage done to a highway so, located on the edge of a stream above his dam that some injury thereto by the waters of the river is natural and inevitable, although the damage is increased by the combined action of upper proprietors in periodically shutting off the flow of the water, of the lower owner in then ponding it, and of nature in freezing and expanding it under such changing conditions, together with the natural stage of high watér in the spring when the ice is carried away.</p>

<p> Contracts: Construction: Corporations: Sale of shares: Appeal: Af-firmance on equal division of justices: Judgment: Opening case for further defense. </p> <p>Plaintiff agreed in writing to sell to defendant on November 30, 1899, “twenty-five shares of the five hundred shares of the capital stock” of a corporation at the hook value at that date, payment to he secured by defendant’s notes with the stock as collateral, and that if at any time defendant should cease to be a director and officer of the corporation plaintiff would repurchase said twenty-five shares at the book value at the time of repurchase, deducting any amount unpaid on the notes. Five hundred shares were then outstanding, of the par value of $1,000 each, being the full authorized capital stock of the company. Afterwards a certificate for 174 shares was canceled, so that the outstanding capital stock was $326,000. On November 30 the books showed that on the basis of $500,000 the shares were worth about ten or twelve per cent, above par, and on the basis of $326,000 were worth about forty or fifty per cent, above par. Thereafter the parties made a new contract by which plaintiff agreed to employ defendant at a salary for five years as a director and officer of the company and, “in accordance with the terms of the” previous agreement, to sell to defendant twenty-five shares of the capital stock of the company at par, accepting defendant’s note in payment as before provided. Accordingly twenty-five shares were sold and delivered by plaintiff to defendant, and defendant gave therefor his note for $25,000, with the stock as collateral security. After the five-year term of service defendant ceased to be a director and officer of the company. Plaintiff brought this action upon defendant’s note. Defendant counterclaimed for the book value of the twenty-five shares of stock at the time he ceased to be director, and recovered judgment for the excess of such value over the amount due on the note. On appeal, upon the foregoing and other facts, the question being whether the agreement should be construed as being for the sale of a one-twentieth interest only in the corporation, so that after the reduction of the outstanding stock to 326 shares the sale was of one twentieth of that number only, this court at first decided against such construction (Marshall. and Kebwin, JJ., dissenting), hut afterwards, on a rehearing, divided equally — Winslow, C. J., and Babnes and Vinje, JJ., adhering to the former opinion, Mabshall, Siebeckeb, and Keb-win, JJ., holding the contrary view, and Timlin, J., taking no part; and the judgment of the trial court was therefore affirmed.</p> <p>Per Mabshall, Siebeckeb, and Kebwin, JJ., it is suggested that this court has power and, under the circumstances, ought to send the cause hack to the trial court with authority, in discretion and upon proper terms, to open the case so as to permit plaintiff to interpose an equitable defense to the counterclaim.</p>

<p> Officers: Clerk of Milwaukee municipal court: Official bond: Statutory or common law? Construction: Action for breach: Parties: Statutes: Special and general: Re-enactment and repeal. </p> <p>1. The act creating a district court in Milwaukee county (ch. 218,. Laws of 1899) made the clerk of the municipal court ex officio■ clerk of such district court, without requiring of him an additional bond or oath of office. The new court was in fact created to relieve the municipal court of its lesser business, so that, the clerk was simply required thereby to perform part of his old duties in a separate tribunal. Held, that the bond given by him as clerk of the municipal court covered his acts as clerk, of the district court also. •</p> <p>2. A bond given by the clerk of the municipal court of Milwaukee county to the city of Milwaukee, conditioned that he shall “well and faithfully in all things execute and discharge the duties” of' his office “without any fraud, neglect or omission,” and shall indemnify the city against all damage from his acts or neglect, is broad enough to entitle the city to recover thereon for moneys which such clerk is required to pay over to the city treasurer, although they do not belong to the city but are to be paid over in turn to the county treasurer or as fees to witnesses.</p> <p>3. A bond given by a public officer is not deprived of its character as an official statutory bond by the fact that it differs in verbiage from the bond prescribed by statute, or by the further-fact that it covers all of his official duties, while the statute requires one covering only the single duty of paying over moneys. In such case the surplusage will be rejected and the bond sustained as to the statutory conditions which it includes.</p> <p>4. Such a bond being an official and statutory bond to the extent that it includes statutory conditions, the liability so far as such conditions are concerned is to be construed and enforced with the aid and in the light of all statutory provisions bearing thereon.</p> <p>5. Where the bond of the clerk of a municipal court is required to be given to the city, such city is the proper party to sue for a. breach of its conditions in failing to pay over moneys, regardless of the ultimate disposal of such moneys or whether or not the city is the real party in interest. The city in such case is. the.trustee of an express trust within sec. 2607, Stats. (1898).</p> <p>6. Notwithstanding see. 4816, Stats. (1898), — re-enacted from R. S. 1878, — requires forfeited hail moneys to he paid into the county treasury, ch. 36, Laws of 1897, being a special act applying to the municipal court of Milwaukee county, governs in respect to that court and requires hail moneys forfeited therein to he paid over to the city treasurer.</p>

<p> Injunction "bond: Liability of surety: By what lato governed: State and federal courts: Payment of damages “awarded." </p> <p>1. Tbe liability of a surety on an injunction bond given in a suit in a federal court pursuant to a law of tbe United States is governed by tbe principles adopted and applied by tbe federal courts, not by tbe state law.</p> <p>2. Under tbe laws of tbe United States as expounded by its courts tbe condition of a bond for payment of sucb damages as may be awarded by reason of tbe issuance or continuance of an injunction is not broken so as to make the surety liable until tbe amount of tbe damages is assessed and determined and tbe principal obligor has refused to pay tbe amount awarded.</p>

<p> Negligence: Dangerous premises: Railroads: Steam pit in breakwater used as walk: Duty to licensees: "Want of repair: Notice: Death of child: Contributory negligence. </p> <p>1. Where a railway company whose track ran along the shore of Lake Michigan had constructed outside of such track a breakwater covered on top with planking which formed a firm and even walk or pathway, access to which from the street was unobstructed, and to the knowledge of the company’s agents'and servants such planked surface was used by the public as a pathway or walk and by boys as a place for boating, fishing, and swimming, the persons making such customary use of the premises were licensees, having implied permission so to use them, and not trespassers.</p> <p>2. Under such circumstances a licensee must be deemed to take the premises as he finds them, and the licensor owes him no duty except to refrain from acts of active negligence rendering the premises dangerous.</p> <p>3. Where in such breakwater the railway company had constructed a steam and hot-water pit, five feet in diameter at the top and six or seven feet deep, covered like the rest of the breakwater with planking, and had suffered a large hole in the covering, caused by the removal of one of the planks, to remain a long time unrepaired, and such hole was not readily observable, being obscured by the steam rising through it and through the cracks between the other planks, the company was guilty of active and actionable negligence rendering it liable for the death of a boy five and one-half years old who, while walking with an older brother along the plank covering of the breakwater, fell through the hole into the steam pit.</p> <p>4. Evidence that persons had observed such hole at various times, from three months before the accident down to the day thereof, warranted the jury in finding that the railway company was negligent in failing to discover the hole and repair it.</p> <p>5. In view of the tender age of the deceased and of the surrounding conditions, it cannot be held as matter of law that he was guilty of contributory negligence in not observing and avoiding the hole.</p>

J. TurNer, Circuit Judge. This action was brought to recover damages for breach of contract. The plaintiff was a duly qualified teacher in Milwaukee county, Wisconsin, and the defendant a duly organized school district. The plaintiff’s complaint is based upon an alleged contract with the defendant to teach its school for one year and that the defendant breached the contract, in consequence of which plaintiff sustained damages.

<p> 'Appeal: Issues: Nature of action: Deceit: Money fiad, and received: Contracts for services: Shill and diligence: Mistakes: Breach: Damages. </p> <p>1. Notwithstanding confusion, and uncertainty in the pleadings, evidence, and instructions, this court will search the record and if a right of recovery upon any ground appears to exist will permit plaintiff'to assert it and the defendant to interpose any defense he may have.</p> <p>2. One who contracts to render services requiring skill and diligence impliedly undertakes that he possesses the requisite skill and that he will serye faithfully and diligently, but there is no implied agreement that he will commit no errors.</p> <p>3. Where there has been no fraud, actual or constructive, and where no money of the employer of any ascertainable amount has come into the hands of the employee, there is no legal liability of the latter for deceit or for money had and received, although there may have been a breach of the contract of service in that the employee did not serve faithfully or with the requisite skill and diligence.</p> <p>4. Where defendant was employed by plaintiff to aid in locating certain valuable timber lands and entering them by proper description under the Stone and Timber Act (20 U. S. Stats, at Large, ch.. 151, p. 89), and through, defendant’s failure to exercise the requisite skill and diligence plaintiff failed to enter the lands intended, plaintiff is not necessarily entitled to recover the whole amount which he paid out to a third person for informing him of the existence of said lands and for pointing them out.</p>

<p><1, 6) Appeal: Review: Estoppel: Bill of exceptions. (2-7) Fire insurance: Gasoline clause: Violation: Instructions to jury: Total or partial loss: Pleading: Amendment to conform to proof: Ownership of property: Evidence.</p> <p>1. A party wliq requests the submission of a question to the jury cannot on appeal assign such submission as error.</p> <p>2. Evidence that one of the owners of a factory insured under a policy which by its terms became void if gasoline was kept, allowed, or used on the premises without consent, ordered five gallons of gasoline not intended for use in the factory or to be kept therein, but failed to direct where it should be sent, and that it was delivered at the factory while he was out, hut on his return a few minutes later was set outside, where it remained about an hour until he went home at night, when he took it with him, does not show a violation of the policy.</p> <p>3. In an action upon such policy instructions to the jury that the-words “kept or allowed” did not refer to the temporary presence of gasoline on the premises; that they meant something more than a mere casual taking of gasoline on the premises and removing it soon after; and that the burden of proof was on the defendant to show by the preponderance of the evidence “that the plaintiff exposed the property to the additional hazard of habitually keeping gasoline on the premises for a considerable time,” before they could find the condition violated, were not erroneous as applied to the facts.</p> <p>-4. Although there was some evidence from which the jury might have inferred that the fire was caused by an explosion of gasoline vapor, yet, there being no other evidence of gasoline being brought to or removed' from the premises, such instructions were thereby not rendered misleading.</p> <p>■5. Where error is assigned upon the charge of the court, if the whole charge is not made a part of the record the bill of exceptions should affirmatively show that it does include the whole charge on the subject matter covered by the exception.</p> <p>-6. Property was insured in several companies, and after a fire there was a dispute -as to whether or not the loss was total. The assured finally agreed to allow a certain amount as salvage provided the insurance companies would pay in cash, which several of them did, and proofs of loss were made and forwarded to all the companies on that basis. In an action against the companies which did not settle, the complaint claimed damages on the basis of such proofs, but the uneontradicted evidence on the trial showed a total loss, and the jury rendered a verdict accordingly. Held that, in the absence of any showing that defendants were misled or placed at any disadvantage by the averments of the complaint, it was within the sound discretion of the court to allow the same to be amended to conform to the proof.</p> <p>7. Where insured property destroyed by fire was nearly all received by the assured from one company which was claimed by the insurance companies to be the real owner, statements made by such company to a bank prior to the fire as to the amount of its accounts receivable, offered in evidence to prove such ownership, were properly excluded, especially where such statements were not itemized and there was no proof that they did not include, and it was possible they did include, the •'mount which the assured admitted that they owed such company, and no other testimony as to ownership was offered in connection therewith.</p>

<p> Reference: When proper: Presumption on appeal: Findings of referee, when to he affirmed: Evidence: Preponderance: Contracts: Implied promise to pay for services: Banks and hanking. </p> <p>1. Where the record does not show what proofs were produced in support of a motion to refer, it will he presumed on appeal that a case was made warranting the order of reference, if the character of the action was such that it might he referred under any circumstances.</p> <p>2. Findings of a referee appointed to hear, try, and determine a case should not, when reviewed hy the circuit court, he treated from an original standpoint, but should have the same force and significance that findings of a trial court have upon review in this court. They should he affirmed unless contrary to the clear preponderance of the evidence, due weight being given to the superior advantages which the referee has for discovering the truth. This means that, ordinarily, such findings should not be disturbed unless manifestly so contrary to the evidence as to be really unexplainable except upon the theory that wrong rules of law were applied or material evidence wholly overlooked or a perverted view taken of the case.</p> <p>3. The preponderance of evidence is not to be determined by merely taking account of the number of persons testifying on each side.</p> <p>4. If a person performs valuable services for another at that other’s request, the law implies, as a matter of fact, the making of a promise by the latter and its acceptance by the former to pay the one performing the services the reasonable value thereof.,</p> <p>5. If one merely accepts services from another which are valuable to him, the presumption arises, in general, that such services are to be paid for, and the burden of rebutting such presumption is upon the recipient; but such burden is more easily lifted than when the services are rendered by request.</p> <p>6. When the referee or court has found the facts from which the law implies the promise and its acceptance, it is unnecessary,, though not improper, to find in terms that the parties made ai contract by implication.</p> <p>7. The existence of an implied contract need not be shown by undisputed evidence, but may be established by the preponderance of conflicting evidence.</p> <p>8. Findings of a referee to the effect that plaintiff, by request of the cashier of the defendant bank and with the knowledge and approval of its officers and directors, rendered services for it in supervising the management and financial affairs of a mercantile corporation, for the purpose of protecting defendant and' insuring repayment to it of moneys which it had loaned to said! corporation, and that such services, covering a period of five and one-half years, were reasonably worth a certain sum, are held not to have been so contrary to the clear preponderance of the evidence as to justify the trial court in disturbing them.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. BurNell, Circuit Judge.</p> <p>This is an action of conversion brought by the plaintiff as administrator of the estate of one Mary Becker to recover the value of bank certificates of deposit amounting to $1,200 which were the property of the deceased. The defendant claims title by virtue of a completed gift made just prior to Mary Becker’s death. The case was here once upon appeal from a former judgment and is reported in 131 Wis. 235, 110 N. W. 214, where a statement of the leading facts will be found. As originally brought the action included a quantity of household furniture, and the trial court upon the first trial ■directed a verdict for the plaintiff as to all the property in dispute. Upon the former appeal this court held ¿o. effect that the court’s ruling was correct as to the bank cbrffiicates, but that there was a jury question as to whether there had been any conversion of tbe household furniture, and the case was sent back for retrial. Before the new trial took place the plaintiff abandoned all claim to recover for the household furniture, and the only question at issue upon the second tidal was as to the bank certificates. The jury in response to special questions found in substance that after the making of the writing of gift, quoted at length upon the former appeal at pages 237 and 238, Mary Becker was informed by the scrivener that it was not valid and that it was abandoned and that a new method of transferring title by actual delivery of the certificates was undertaken. The court, however, upon motion set aside this finding and rendered judgment for. the plaintiff on the ground that the testimony was substantially the same as upon the former trial and hence that the former judgment in this court settled the question of the validity of the alleged gift against the defendant. From this judgment the appeal is taken.</p>