Volume 154 — Wisconsin Reports

<p> Negligence: Failure to adopt Vest method of doing simple act: Injury: Master and servant: In whose service plaintiff was: Question for jury. </p> <p>1. In the simple, ordinary affairs of life a merely incorrect choice of methods, whereby the best method for making a simple movement or carrying out a simple transaction is not adopted, does not constitute negligence where injury to another is an unusual or extraordinary consequence of the method selected.</p> <p>2. So held as to the method by which the front end of a large and heavy box which plaintiff and five other men Were carrying was let down to the ground when they came to a narrow place through which they could not pass, as a result of which the plaintiff, who was at the rear end and claims that he did not know that the box was about to be let down in front, strained his back.</p> <p>3. Upon evidence tending to show, among other things, that a tool box which plaintiff and other men were carrying when he was injured belonged to a contractor who had erected buildings for defendant; that the men had been working for the contractor, but on the morning in question had been taken over by and were in the pay of defendant; and that they had been directed by defendant’s superintendent to help move the box in order to get things cleaned up, it is held that it was a question for' the jury whether the men were at that time acting for and in the service of defendant.</p>

Boss, Circuit Judge. Tbe appeal is from an order made under see. 4035, Stats., refusing to extend tbe time for taking an appeal from orders of tbe county court.

<p> Principal and agent: Authority to sell real estate: Tender and purchaser: Essentials of contract: Offer and acceptance: Withdrawal of offer. </p> <p>1. Authority to an agent to rent real estate, collect the rents, and ' look after the property generally, conferred, upon him no power to sell it; nor did the mere statement by the owner in a letter to such agent, “As to selling the place, I would let it go for $8,500,” authorize the agent either to enter into a written contract for the sale of the property or to secure a purchaser and charge a commission for so doing.</p> <p>2. An offer to sell at a certain price, contained in a letter written by the owner of real property to her agent, was not unquali-fiedly accepted, so as to be binding upon the owner, by the execution of a contract between such agent and the purchaser reciting that a part of the price had been paid to the agent and providing for payment of the balance to him upon delivery of a warranty deed and an abstract “showing perfect title of record.”</p> <p>3. Such an offer did not authorize a contract by the agent providing for payment of the purchase price to him, it being the owner’s legal right to have the money paid to herself personally at her plaóe of abode.</p> <p>4. The owner of real property having made an offer to sell it upon. certain terms, has a right to change her proposition or withdraw the offer entirely at any time before it is accepted.</p> <p>5. One to whom an offer to sell real estate is made has not the* right to change the place of payment or otherwise vary the-terms proposed, but must accept the offer unqualifiedly if he: wishes to make a binding contract.</p>

<p> Highways: Commissioners: Appointment and qualification: Majority may act. </p> <p>1. The decision of highway commissioners appointed pursuant to sec. 1279, Stats., is not void because one of the three failed to take a valid oath, as required by sec. 1280, before acting and signing such decision.</p> <p>2. The provisions added to said sec. 1279 in the revision of 1878 do not in terms or by necessary implication require that the three persons appointed shall all act in order to render a valid decision; hence, under sub. 3, sec. 4971, a majority of such persons may act.</p>

<p>Appeal from a judgment of tbe circuit court for Rock county; Geoege Grimm, Circuit Judge.</p> <p>Personal injuries. Tbe plaintiff, a man tbirty-eight years of age, was injured while attempting to leave a passenger elevator in defendants’ four-story office building in Janes-ville on tbe 30tb day of March, 1911. It appears that tbe plaintiff entered tbe car on tbe fourth floor of tbe building and that Mr. Chas. E. Pierce and Miss Janet Phillips entered tbe car at tbe same time. Tbe elevator boy was tbe only other occupant of tbe car. As it reached tbe second floor tbe boy stopped tbe car on signal from Mr. Pierce, wbo immediately left the car and proceeded toward his office. The testimony at this point ceases to agree. The plaintiff testifies that he followed Mr. Pierce at once, and just as he had extended his left leg into the corridor about two feet from the edge of the floor the car began to descend rapidly; that it descended so rapidly that his left leg was caught above the knee between the hood of the elevator and the moulding at the edge of the floor (a space of about two and one-fourth to two and one-half inches), and he hung suspended by his leg until the car reached the bottom of the shaft, when he dropped to thé floor of the elevator. The testimony of Miss Phillips and the elevator boy tended to show that the plaintiff started to get out of the car after it had started downward and while the boy was closing the door, and that his leg was not caught as he claims, but that he fell down on to the floor of the car as it descended, and received his injuries in some way during the fall. There was an injury of some consequence to the left leg, but the testimony as to the seriousness of it was quite conflicting.</p> <p>The jury returned the following special verdict:</p> <p>“(1) Were the defendants guilty of negligence in the operation of the elevator at the time of the injury? A. Yes.</p> <p>“(2) If you answer the first question in the negative, you need not answer this, but if you answer the first question in the affirmative, then answer this: Was such negligence on part of the defendants the proximate cause of the injury? A. Yes:</p> <p>“(3) Was the plaintiff, L. L. Hilton, guilty of any want of ordinary care which proximately contributed to produce the injury ? A. Yes.</p> <p>“(4) If the court should be of the opinion that the plaintiff is entitled to recover, what sum of money will compensate him for the injury received? A. $250.”</p> <p>Judgment being rendered for- the defendants on this verdict, the plaintiff appeals.</p>

<p> Bills and notes: Condition extinguishing note if payee dies before maker: Gifts. </p> <p>A promissory note payable to the maker’s brother, providing that “should [the payee] die first this to be a gift to” said maker, is held, upon the evidence, to have been made to evidence a completed settlement between the parties, the gift clause meaning that the debt should be forgiven if the payee predeceased the maker, and being intended to take effect as a gift in prmsenti.</p>

<p> Wills: Undue influence: Evidence. </p> <p>1. The charge that a will was made as the result of undue influence sounds in fraud an.d must be established by clear and satisfactory evidence.</p> <p>2. Declarations of the testator to the effect that he had been importuned by a person in whose favor the will was made are not competent evidence to prove that undue influence was in fact exerted.</p> <p>3. The evidence in this case is held insufficient to sustain the finding of the trial court that undue influence was used to procure the making of a will hy which the testator, who left no widow and but one child (a son thirty-seven years old), gave to his housekeeper, “in recognition of and as a reward for kindness and many acts of assistance bestowed upon” him during the latter years of his life, the use and control of his farm and much of the personal property thereon for a period of twelve years, with remainder to his son, to whom he also gave a separate forty-acre tract and the rest of the personal property.</p>

<p> New trial: Newly discovered evidence: Contracts: Negotiations merged in writing: Signatures: Location: Unilateral agreement: Performance: Real-estate brokers: Commissions: Right to sell to any person: Instruction by owner limiting such right: Appeal: Questions considered. </p> <p>1. The granting or refusing of a new trial on the ground of newly discovered evidence rests largely in the discretion of the trial court.</p> <p>2. Newly discovered evidence which is at most impeaching in character and does not tend to show that the verdict is based on perjured evidence is not ordinarily ground for a new trial.</p> <p>3. A new trial should not be granted because of newly discovered evidence unless there is substantial ground for believing that such evidence may probably change the result.</p> <p>4. There having been in this case no false representation that a written contract contained a certain provision, talk in respect thereto between the parties before signing the contract m.ust be regarded as merged in it.</p> <p>5. In an action upon a written contract, in view of admissions in the answer and the copy of the contract attached to the complaint and purporting to be signed by both parties, the objection that there was no contract because the writing was not signed by plaintiff is held not available when raised for the first time in the appellate court.</p> <p>6. The mere fact that one party named in a contract signed the same on the left side of the sheet while the other party signed on the right side thereof, does not show that the former signed in any other capacity than as a party.</p> <p>7. Even if a written instrument stating an agreement between a landowner and a broker, to the effect that the owner employs the broker to sell the land and agrees to pay him a commission, does not state any obligation on the part of the broker and must, therefore, be treated as a unilateral agreement or proposition which may be withdrawn before acted on, yet where it is delivered to the broker and he proceeds to procure a purchaser before any notice of withdrawal of the proposition, he thereby becomes entitled to the stipulated commission.</p> <p>8. "Wltere a binding written contract by which the owner employs a broker to sell land and agrees to pay him a commission contains no restriction as to who may be the purchaser, the broker is not bound to follow an instruction by the owner not to sell to a certain person, but may sell to that person or any one else.</p>

<p> Municipal corporations: Street improvements: Letting contract two years after assessment of benefits: Apportionment of cost: Appeal, from what and, when to he taken: Proceedings of common council: Repeal of resolution. </p> <p>1. Under tlie provisions of the general city charter it is not essential that a contract for street paving should he let immediately after the proceedings for the assessment of benefits are completed. Even after the lapse of a year or two the proceeding may be resumed and a contract legally awarded.</p> <p>2. The assessment of benefits to be made by the board of public works and confirmed or corrected by the common council, as provided by secs. 925 — 178 to 925 — 181, Stats., fixes the maximum amount that may.be charged against a given parcel for the proposed improvement, but the exact amount cannot be fixed until a bid has been accepted and the amount chargeable to the city has been determined as provided in sec. 925 — 182. Then an apportionment of the total cost chargeable to the property is to be made and assessed against each parcel in proportion to the benefits assessed.</p> <p>3. The appeal provided for in sec. 925 — 184 must be taken from the assessment of benefits, not from the apportionment of the actual cost, and must be taken within twenty days after the final determination of the common council fixing such benefits, due notice thereof being published. [Whether the limitation of time is dependent on such publication, not decided.]</p> <p>4. A resolution of the common council both confirmed the report of the board of public works assessing benefits for the paving of a street and made an apportionment of the actual cost chargeable to the property, based upon an accepted bid which was afterward rejected. Two years later, upon a reletting of the contract, the council again by resolution confirmed such report, but at the same time, repealed the former resolution by number, adding the explanatory words “relating to the apportionment of the cost of the proposed pavement.” Held, that the latter resolution repealed only so much of the former as related to the apportionment of the cost, and not that portion which confirmed the report of the board of public works, and it did not, therefore, extend the time for appeal.</p> <p>Timlin, J., dissents.</p>

<p> Municipal corporations: Injury from defective sidewalk: Defenses: Construction of walk according to plan: Authority to adopt plan: Statutes construed: Contributory negligence: Forgetfulness of known defect: Questions for jury: Instructions to jury: Trial: Recalling witness after argument begun: Discretion. </p> <p>[1. Whether, nnder sec. 1339, Stats., a city is liable for damage resulting from a defect in a highway which was due to building it in accordance with a defective plan, not determined.]</p> <p>2. Provisions of the city charter of Oconto (secs. 1, 3, subch. 8, ch. 56, Laws of 1882) empowering the street commissioners of a ward “to order and contract for the making, grading, repairing, and cleaning of streets,” etc., therein, do not authorize such commissioners to adopt plans for building sidewalks or to change the established grade therefor.</p> <p>3. The action of street commissioners in authorizing one lotowner to build his sidewalk above the established grade does not constitute the adoption of a plan within the rule of the cases holding a city exempt from liability for defective plans.</p> <p>4. An abrupt drop of eight inches in a sidewalk near the middle of a block renders the walk so obviously dangerous that, in an action for injuries resulting from such defect, the fact that the walk was built according to a plan would be no defense.</p> <p>5. Where plaintiff knew that there was an abrupt drop of eight inches in a sidewalk, but forgot about the danger and was injured in stepping from the higher to the lower level at a time when it was dark and snowing hard and his mind was occupied with something else, the question as to his contributory negligence was one for the jury.</p> <p>6. An instruction in s.uch case that the burden of proof was upon the defendant to show that plaintiff was guilty of contributory negligence, was not reasonably susceptible of the construction that the burden was on defendant to show inexcusable forgetfulness on plaintiff’s part.</p> <p>7. Mere failure to make the charge to the jury as’ comprehensive as it might have been will not be held error, where there was no specific request for additional instructions.</p> <p>8. Permitting a party to be recalled, after the argument to the jury was begun, for further examination upon one point was a matter within the discretion of the trial court.</p>

<p>Bills and notes: Validity: Défenses: Intoxication of malcer: Rights of holder, in due course.</p> <p>1. That the maker of an accommodation note was at the time of signing it in so complete a state of intoxication as to he temporarily deprived of his reason and understanding, renders the note absolutely void as between the maker and payee.</p> <p>2. Being thus void between the parties, such note is also, under the provisions of the Negotiable Instrument Law (sec. 1676 — 27, Stats.), void in the hands of a holder in due course.</p> <p>3. To have this effect, the drunkenness must be so complete as to deprive the maker of the use of his mental faculties. Intoxication merely to the extent that he cannot give the attention to the business that a reasonably prudent man would be able to give is not sufficient.</p> <p>4. The reasoh of the rule is that there can be no contract where there is no mind capable of contracting; and in such a case the rule of ordinary care as applied in negligence cases is not applicable. Nor, since the signing of notes is not the usual or probable result of drunkenness, can it be held that the maker should have exercised care not to get drunk.</p>

<p> Foreign corporations: Sales: Validity: Interstate commerce: "Warranty of “goods:" Assembled plant: Breach: Evidence. </p> <p>1. The fact that machinery sold by a foreign corporation is to he assembled and installed by the vendor upon the premises of the vendee after being shipped into this state, does not deprive the transaction of its character of interstate commerce; and notes given for the price of such machinery are not void because of the vendor’s failure to comply with sec. 17706, Stats.</p> <p>2. Where a dry-cleaning outfit consisted of a number of separate parts designed to form and be operated as a complete whole, to be assembled and installed by the seller upon the premises of the buyer, ready for use, a guaranty that the “goods” would remain in perfect order for a given length of time must be construed as a guaranty that such completed plant of which they formed constituent parts would remain in perfect order, under proper use.</p> <p>3. In an action for the purchase price of a dry-cleaning outfit guaranteed to work properly and to remain in perfect order for three years, evidence that from the beginning the plant leaked gasoline to the extent of seventy-five or eighty gallons a week, that the valves and filter leaked, that the pump never worked right, that part of the time no gasoline could be obtained from the tank, that the washers were of improper material, and that the connections and construction were such that dirty gasoline could not he forced out through the filter but would run into the clear gasoline tank, is held sufficient to take the case to the jury upon the question of a breach of the warranty.</p> <p>4. In an action for damages for breach of warranty that a machine or plant shall remain in perfect order, evidence that it does not operate properly, that it cannot be made to do so, and that the pipes and connections are defective and leaky, is competent.</p> <p>5. Reasonable latitude must be allowed, in such a case, in the admission of evidence of defects, especially when it comes from nonexperts who cannot readily, if at all, specify the particulars in which the machinery is out of repair or tell wherein the trouble lies; and this is especially true of complicated or unusual machines or complex plants in which the parts are difficult of inspection.</p>

<p>Accident insurance: Ambiguity in policy: Construction: Homicidal death: Evidence: Competency: Res gestae: Admissibility for single purpose: Instructions to jury: “Intemperate habitsTrial: Arguments: Improper remarlos by counsel: Appeal: Reversal of judgment.</p> <p>1. Ambiguous language in an insurance policy should be construed somewhat strictly against the insurer, and of two reasonable meanings which are fairly balanced, the one supporting rather than the one defeating liability should be taken.</p> <p>2. A policy of casualty insurance which provided for liability in case of death caused “solely through external, violent, and accidental means,” expressly excepted “intentional self-inflicted injury” and “loss or injury resulting from . . . any means or act which if used or done by the insured while in possession of all mental faculties would be deemed intentional or self-inflicted.” Held, that the exception did not cover homicidal death.</p> <p>3. Statements made by the assured and his companion immediately after the shooting from the effects of which he died, when others first came upon the scene, were so closely connected with the occurrence as to be within the field of res gestee.</p> <p>4. But statements made by tbe assured, after be bad been removed from tbe place where be was shot and while be- was under treatment for his injury, tending to show that tbe shooting was homicidal in character, were not a part of tbe res gestee and their admission was error.-</p> <p>5. Tbe issue being as to whether tbe death óf tbe assured was homicidal or self-inflicted, evidence that, two years before, his mistress, who was the author of his death if it was homicidal, admitted that she had tried to hill him and that later she threatened to do it on two occasions when they quarreled,— no connectiqn being shown between such events and the one under investigation, — was incompetent and its admission was prejudicial error.</p> <p>6. Evidence of a telephone conversation with the mistress of the assured, while he was in the hospital; wherein she admitted having done the shooting, was admissible for the purpose of discrediting her testimony to the contrary, but should have been carefully limited by the court, in instructions to the jury, to such legitimate purpose.</p> <p>7. Upon an issue as to whether the assured in a casualty policy was of “intemperate habits” in respect to the use of intoxicating liquors, it was error to so define this term in the charge to the jury as to impress upon them the idea of regularity of indulgence, — the plain meaning being that the excessive use of intoxicants has become a usual, customary characteristic of a man.</p> <p>8. Highly improper remarks of plaintiff’s counsel, denunciatory of defendant insurance company, persisted in despite the court’s ruling that they were improper, are held so prejudicial as to be, of themselves, ground for reversal of a judgment in favor of the plaintiff.</p>

D. Hastings, Circuit Judge.. Application was made to the supervisors of the towns of Allouez, Bellevue, and De Pere, of Brown county, Wisconsin, to lay out a highway on a town line between these towns. On August 10, 1910, the supervisors met to consider the application and refused to lay out the proposed highway.

Ray Stevens, Circuit Judge. This is an appeal by defendants from a judgment entered Eebruary 14, 1913, setting aside an award of the Industrial Commission made July 1, 1912. The award provided that plaintiff pay to the defendant Jela Nevadjic the sum of-$2,100 on account of the death of her husband by reason of injuries accidentally sustained by him while in the employ of the plaintiff.

Ray StevéNS, Circuit Judge. They argued, among other things, that intoxication proximately causing an injury is not “wilful misconduct” as matter of law.

J. MoNAHAN, Judge. Prosecution for a violation of sub. 10 of sec. 1668, Stats. 1911, wbicb provides: “All sales of blackberries, blueberries, currants, gooseberries, raspberries, cherries, strawberries, and similar berries in quantities of less tban one busbel shall be by tbe quart, pint, or half-pint, dry measure, and all berry boxes or baskets sold, used, or offered for sale within the state shall be of the interior capacity of not less than one quart, pint, or half-pint,…

<p> Workmen's Compensation Act: Total disability in particular employment: Measure of compensation: Statutes: Construction: Constitutional law: “Due process of law.” </p> <p>1. Under secs. 2394 — 9, 2394 — 10, Stats., wliere an employee is totally disabled from performing tbe work in which he was employed when the injury occurred, he is entitled to recover the maximum allowance for total disability, no matter what his earning capacity may be in other callings.</p> <p>2. So construed, the Workmen’s Compensation Act does not deprive employers of their property without “due process of law,” it being optional with them whether they will become subject to the provisions of the act or not.</p> <p>3. In construing statutes courts look to consequences, but only where there is room for construction by reason of ambiguous language being used and where a literal construction would lead to some absurd result.</p>

Appeals from a judgment of the circuit court for Dane county: ByRon B. Paek, Judge. This is an action brought under the, Public Utility Act to alter or amend an order of the Railroad Commission fixing the compensation to he paid by the city of Appleton for the taking of the plaintiff’s water works plant in that city.

A.ppeaa from an order of tbe circuit court for Dane county: E. Rat Stevens, Circuit Judge. Action for equitable relief respecting forcible disturbance of tbe plaintiff in tbe possession of tbe office of insurance commissioner. Tbe case, as primary matter, involved tbe right of peaceable possession by tbe plaintiff of tbe office of insurance commissioner pending determination of tbe validity of removal proceedings whereby be bad been, in form, removed from tbe office. .

<p> Taxation: Inheritance: Gifts made “in contemplation of death:” Statute construed: Evidence: Burden of proof: Appeal: Affirmance. </p> <p>1. In an action to determine the amount of an inheritance tax the burden is upon the state to prove that gifts made by the deceased in his lifetime were made in contemplation of death.</p> <p>2. Where, in such a ca.se, the facts are practically undisputed, if the evidence fairly justifies the inferences drawn therefrom by the trial court its decision must be affirmed on appeal.</p> <p>3. The facts that gifts made by an aged man to his only daughter and her husband within a period of seven years prior to his death were substantially in accordance with a will he had made shortly prior to the first of such gifts; that they included more than two thirds of a large estate; and that he had surrendered the management of his property and business to his son-in-law, are not very significant upon the question whether such gifts were made in contemplation of death, since they were a perfectly natural disposition to make of his estate and were equally as consistent with a desire to see his daughter and family enjoy the fruits of his accumulation and to observe the use they made thereof during his lifetime.</p> <p>4. An act is not done “in contemplation of death” within the meaning of the statute relating to inheritance taxes, when the feeling that dissolution is approaching is absent and is not the cause which impels or prompts the doing of the act. Hence gifts made to a child by an aged parent, sound in body and mind, cannot be subjected to the tax merely because the donor had reached an unusually advanced age.</p> <p>5. The words of the statute were intended to refer to an expectation of death which arises from such a bodily or mental condition as prompts persons to dispose of their property and bestow it upon those whom they regard as entitled to their bounty; and gifts are made “in contemplation of death” only when the donor is looking forward to his death as impending, and in view of that event.</p> <p>Siebeckee, J., dissents.</p>

<p> Constitutional law: Pure food laws: Interstate commerce: Labels: “Corn syrwp.”' </p>

<p> Fraud,: Release of claims: Signature procured by false representar tions: Evidence. </p> <p>1. If a party to a written instrument was induced to sign it by relying on false and fraudulent representations, and was guilty of no negligence in failing to ascertain what the instrument in fact was, he is not bound by it; but to accomplish the impeachment of a formal written instrument on such grounds the proof must be clear and convincing beyond reasonable controversy. ■</p> <p>2. The evidence in this case is held insufficient to sustain a finding by the jury that plaintiff’s signature to a release of his claims to compensation for certain personal injuries was procured by fraud and misrepresentation of defendant’s agents.</p>

<p> Adverse possession: Must he open and exclusive: Partnership: Lease to one partner: Claim of ownership hy the other. </p> <p>1. Where a partnership was in the actual and visible possession and occupancy of land, one of the partners (who was business manager of the firm) holding either for himself personally or for the firm a lease of the land in his own name from the owner of the legal title, while the other partner was making oral declarations that the land was his, but such declarations were not communicated to the owner, the possession of the latter partner was not such open and exclusive adverse possession as could ripen into title as against the true owner.</p> <p>2. Under such circumstances the partner claiming ownership either had no possession at all except under the lease, or there was a mixed possession and his possession was not exclusive of that of the other partner as tenant of the owner.</p> <p>3. Although the possession which may ripen into title need not be exclusive as against the world, it must be open and exclusive of the true owner.</p>

E.at Stevbus, Circuit Judge. This action was commenced in Dane county circuit court under sec. 1797 — 16, Stats., to review the proceedings had before the Railroad Commission of Wisconsin and vacate, set aside, and alter that portion of the order of the Railroad Commission providing that the city of Superior, appellant, pay twenty per cent, of the cost of construction of the viaduct and approach over the railroad companies’ yards and tracks on Belknap street in Superior, and…

Appeals from judgments of tbe circuit court for Dane county: E. Rat Stevuws; Circuit Judge.

<p> Master and, servant: Street railways: Injury to conductor from defect in trade: Assumption of risk. </p> <p>1. A street railway conductor received injuries resulting in death by being thrown from the running board of an open car at a place where the track was defective, while the car was operated in the usual manner and at the usual rate of speed. It was the second summer of his experience as a conductor, and for more than a month prior to the injury he had many times daily passed over the same defect in the track, which jolted the car substantially in the same way. Held, that he must have known of the defect and appreciated the risk of injury arising therefrom; hence that there couldv be no recovery against the street railway company for his death.</p> <p>2. To defeat a recovery in such case it is not necessary that the conductor should have anticipated the precise injury or the particular manner in which it occurred. It is sufficient if he, as a reasonably prudent man, ought to have anticipated that some injury might probably result from his being thrown from the car on account of the defective track.</p> <p>Timlin, Siebecker, and Kerwin, JJ., dissent.</p>

<p>Judgment: Res judicata: Issues: Matters determined: Partnership: Fraud.</p> <p>Causes of action in favor of a partnership and against a corporation for sums of money and other partnership assets received by the company through the fraudulent appropriation thereof, by one of the partners and the company’s agents, to the payment of the company’s claims against said partner individually, are held not to have been included in the issues or covered by the judgment in a former action brought by the corporation against the partnership, involving an account for goods sold and cash advanced to the firm and payments made thereon.</p>

<p>(1-3) Trial: Findings of fact: Ultimate facts. (4, 5) Corporations: Religious societies: Contracts: Estoppel: Ratification.</p> <p>1. The facts found by him which, under sec. 2863, Stats., the trial judge is required to state in his decision, are the ultimate facts, not merely evidentiary facts.</p> <p>2. The ultimate facts which should he so stated are, generally speaking, the issuable facts which a pleading should contain. They are the facts upon which the plaintiff’s right of recovery or the defendant’s right to defeat a recovery necessarily depends.</p> <p>3. The statement of an ultimate fact frequently includes a legal conclusion from the evidentiary facts.</p> <p>4. By direction of the pastor of the congregation, plaintiff drilled a well upon land owned by the defendant religious corporation (organized under secs. 2001 — 10 to 2001 — 17, Stats.). The directors of the corporation never authorized or contracted for the work as required by the statute, nor was there any holding out to the public that the pastor was the agent of the corporation authorized to transact such business or make such contracts. Plaintiff did not rely upon any apparent authority of the pastor. He knew that the directors only could act in the matter and that they had not done so, but proceeded with the work relying only upon the influence of the pastor and bishop to secure his pay. Held, that there was no estoppel rendering the contract binding upon the corporation.</p> <p>5. No ratification of such contract resulted from the fact that the well, after being completed, was by the pastor’s direction connected with the water pipes in the parish buildings and the water used thereafter.</p>

D. Hastings, 'Circuit Judge. Action to recover on an insurance policy. Defendant’s constitution and by-laws were made a part of the contract. There was a year policy which expired September 19, 1908. It was succeeded by a policy which expired September 30, 1908. That was followed by the policy which was outstanding at the time of the fire. The terms and conditions of the policies were identical. They were issued on the mutual plan.

D. Hastings, Circuit Judge. This is an action by plaintiffs as residents and taxpayers of the city of Green Bay for and in their own behalf and all other taxpayers of the city to recover from the defendants the sum of $734 for the benefit of the city. The- complaint alleges that this sum of $734 was unlawfully paid out-of the funds of the city, by the direction of the defendants, as city officers, to the defendant Hill.

<p> Master and servant: Negligence: ■ Death of servant: Direction of verdict. </p> <p>In an- action for tibe death, of plaintiff’s intestate, who was caught and crushed between two loaded wagons, one of which he had just guided into defendant’s storage building, it is held upon the evidence (stated in the opinion) that a verdict for the defendant was properly directed, no negligence upon his part being shown and the dangers of employment, if any, being as apparent to the deceased as to the defendant.</p>

<p> Torts: Cause of action: Statutes: Executors and administrators: Action against person taking property of estate: Defenses: Payment of preferred claims: Presentation of claims: Circuit courts: Jurisdiction: Pleading: Counterclaim. </p> <p>1. When, a right of action for a tort is given by statute and arises upon the performance or failure to perform certain acts, it must ordinarily he understood as existing only in favor of those to whom such acts are injurious, and damaging.</p> <p>2. Where the widow of an intestate received moneys belonging to his estate and in good faith applied them in payment of necessary funeral expenses and expenses of the last sickness of the deceased — these being preferred claims under sec. 3852, Stats.,— such payment is a good defense in an action under sec. 3259, Stats., by an administrator subsequently appointed, no damage having been done to the beneficiaries of the estate or to the administrator in his capacity as trustee for the creditors and heirs.</p> <p>3. In such a case, the fact that the 'widow did not, within the time limited, file a claim against the estate, in the right of the preferred creditors, for the amount so paid to them, does not affect the availability of such payment as a defense.</p> <p>4. The action brought by the administrator being properly in circuit court, that court has jurisdiction to grant complete relief without referring defendant to a proceeding in the county court where no relief could be given her.</p> <p>5. Defendant in such case not having paid out her own money and taken property of the estate thereafter to reimburse herself, no setoff, and therefore no such pleading as a counterclaim, is necessary.</p>

<p> Guaranty: Construed to be prospective: Renewal notes. </p> <p>1. Guaranties will be construed to be prospective rather than retrospective unless it clearly appears that they were intended to cover past transactions.</p> <p>2. An instrument reciting that it was given in consideration of the “making advances or giving credit,” guaranteeing payment of “all moneys that shall at any time be due” from C. B. or B. & Co. “on any balance of his or their account or indebtedness . . . incurred with 'reference to this agreement,” and providing that “this guaranty shall be a continuing guaranty and apply to future advances,” did not cover indebtedness existing at the time the instrument was executed nor notes thereafter given merely in renewal of those evidencing such indebtedness.</p>

<p> Master and servant: Independent contractor: Injury to employee: Unsafe ladder: Contributory negligence: Questions for jury. </p> <p>1. Where one is employed to do a- piece of work, if the right to control the details of the work remains in the employer, whether exercised or not, the relation will be held, in the absence of other controlling circumstances, to be that of master and servant or principal and agent, and not of employer and independent contractor.</p> <p>2. One S., who carried on the business of a mason, was employed by defendant to do the mason work upon a building under an arrangement by which he hired and discharged the men, fixed their compensation and hours of labor, directed them during the progress of the work, and furnished the tools and appliances needed. He was to receive a certain sum for his services and was not responsible for any specified result. Defendant was to pay the men directly and also to pay directly for the materials, whether ordered by it or by S. Up to the time when plaintiff, one of the men hired by S., was injured, S. had actually controlled the details of the work, but defendant had the right to determine how the work should he done in case of a disagreement. Defendant' might also discharge S. at any time without breach of contract and might stop the work or change the plans thereof at any time without liability to S. Held, that S. was a servant of the defendant and not an independent contractor.</p> <p>3. Where a ládder used by plaintiff and other workmen altering a building to reach a scaffold slipped and caused an injury to plaintiff as he was descending, the ladder having been placed in position by someone else and plaintiff having been the last of several men to go up and the first to come down, sec. 1636— 81, Stats. 1911, was applicable.</p> <p>4. The defense of assumption of risk and contributory negligence was not barred in such a case; but, under the evidence, the quéstions involved were for the jury.</p>

<p> Negligence of chauffeur of hired automobile: Liability of hirer: Master and servant. </p> <p>1. The chauffeur in charge of an automobile kept for public hire is not the agent or servant of the hirer, and the hirer is not responsible for the negligence of such chauffeur unless he in some way participates in or sanctions such negligence.</p> <p>2. Such participation or sanction is not shown by the single fact that the hirer at one time told the chauffeur to “be careful.”</p>

<p> Liens: Statutes construed: Right of subcontractor when principal contractor has none: Materials furnished for preparing land for use. </p> <p>1. As a general rule of construction, the right of a subcontractor to a lien will not be held to extend beyond the right given to the principal contractor, unless the statute expressly so provides.</p> <p>2. A principal contractor being, by sec. 3314, Stats., given a lien • for “work or labor” performed and for “materials” furnished in certain enumerated cases, the further provision in that section giving to such a contractor a lien for “manual labor” done on land “for the purpose of preparing such land for use as such” does not give a lien for materials furnished for the purpose so specified.</p> <p>3. Sec. 3315, Stats., providing that a subcontractor who furnishes any material to a principal contractor “in any of the cases mentioned in the preceding section may have the lien and remedy given by this chapter” does not give to a subcontractor the right to a lien in cases where the principal contractor has no such right.</p>

<p> Master and, servant: Unsafe working place: Statutes: Injury to servant: Liability of master: Questions for jury. </p> <p>1. Under sub. 11, sec. 2394 — 41, sec. 2394 — 48, and sec. 2394 — 49, Stats/(Laws of 1911, ch. 485), if the place of employment is not as free from danger to employees as the nature of the employment will reasonably permit, and the danger is patent, the employer cannot escape liability for a resulting injury to an employee by showing that he did not construct the dangerous place. It is sufficient that he occupied or maintained it or permitted his employees to work in it.</p> <p>2. Nor, under said statutes in connection with the statute abolishing the defense of assumption of risk, can the employer defeat a recovery by showing that he furnished appliances in common use.</p> <p>3. Plaintiff was injured while unloading logs from a flat car under the direction of defendant’s foreman, who was familiar with the situation and the dangers attending the work. The logs were held upon the car by stakes at the side, and plaintiff was chopping these partly off so that the logs might break them down and roll from the car. While he was cutting the last stake, which was partly rotten, the logs started and the stake, instead of breaking away to the Side, was forced toward the end of the car by a knot on a log pressing against it, and struck the plaintiff. The evidence tended to show that there was in common use, known to defendant or which in the exercise of ordinary care it should have known, a safe way in which logs could be unloaded, but that this required that the logs should he loaded in a different manner upon the cars. Seta that, although the logs had been loaded upon the car in question at another place by defendant’s vendor and the method of loading was not under the supervision or control of defendant, it was error to direct a verdict in defendant's favor.</p> <p>Vinje, Barnes, and Siebeckeb, JJ„ dissent.</p>

<p> Master and servant: Injury: Incompetency of fellow-servant: Boy under sixteen: Oireular saw on edging machine: Statute construed: Evidence: Competency:. Relevancy: Harmless errors: Examination of adverse witness as expert. </p> <p>1. Sub. 2, sec. 1728a, Stats, (forbidding the employment of children under the age of sixteen years “in operating or assisting in operating or taking material from any circular or band saw, . or any crosscut saw or slasher or other cutting or pressing machine, from which material is taken from behind”), is applicable to a machine for edging lumber, consisting of a shaft upon which are several revolving circular saws, with feed rollers in front and rollers behind said saws.</p> <p>2. Whether the mere fact that a boy employed to keep an edging machine clear of refuse was under sixteen years old and his employment unlawful, would render the employer liable for an injury to the operator of the machine caused by the negligence of the boy, is not determined, the findings of the jury in v this case that the boy was not a reasonably competent employee, that defendant knew of his incompetency, and that such incompetency was the proximate cause of the injury, being supported by the evidence.</p> <p>3. The error, if any, in permitting adverse witnesses examined ' under sec. 4068, Stats., to testify as experts concerning the condition and operation of a machine at which plaintiff was injured, is not available to defendant on appeal, where the jury found in defendant’s favor upon the question involved.</p> <p>4. Tlie question being as to the age of a minor employee, it was error to permit a municipal judge to testify as to statements made by the boy when applying for a permit to work; but such testimony in this case being very vague and substantially. agreeing with the record of the permit, the error was not prejudicial.</p> <p>5. Evidence that boys were customarily employed at the rear of edging machines to keep the tables clear of refuse was not relevant upon the question whether or not the boy employed in the present instance was incompetent.</p>

<p>Appeal from a judgment of the circuit court for Ashland county: G. N. Risjoed, Circuit Judge.</p> <p>Plaintiff brought this action in justice’s court to recover from the defendant the sum of $33.39, a balance alleged to be due him for work, labor, and services performed on defendant’s farm. On September 30th, the return day of the summons, the defendant made an offer of judgment for $15.25 and costs. By consent of' parties the case was adjourned to October 7th. On September 30th the defendant served an answer and counterclaim on plaintiff’s attorney. On October 7th the párties appeared and plaintiff’s attorney announced in open court that he would call for a jury. Thereupon by consent of parties the case was adjourned to October 9th. On the latter date the parties again appeared and plaintiff interposed a reply to the defendant’s counterclaim. Plaintiff then filed a written acceptance of the offer of'judgment made by defendant on September 30th and moved for judgment thereon. The justice entered judgment in accordance with the offer and acceptance and defendant appealed from the judgment so entered. Thereafter the plaintiff moved the circuit court to dismiss the appeal, presumably on the ground that defendant could not appeal from ■ a judgment which he consented should be entered against him. The circuit court made an order disPiissing the appeal and directing that a judgment for cost's be awarded against the defendant. Such a judgment was entered and the defendant appeals therefrom to this court.</p>

<p> Elections: Qualifications of - voters: Residence: Constitutional law. </p> <p>1. Under sub. 4, sec. 69, Stats., members of a logging crew wbo bad no intention of remaining in tbe town in wbicb tbeir camp was located longer than tbe logging job lasted, did not gain a residence in sucb town and bence were not entitled to vote in a town election, although tbey were citizens of tbe state, were unmarried,, bad no other place wbicb tbey claimed as a borne, and ate, slept, and kept tbeir clothing in tbe logging camp.</p> <p>2. Tbe legislature may prescribe reasonable rules and regulations for the exercise of tbe elective franchise.</p>

H. Eeid, 'Circuit1 Judge. This is an action by the payee against the indorsers of a negotiable note. The note was given by the Moose Lake Eishing Club, a voluntary association, of which both plaintiff and defendants are members, for moneys advanced by plaintiff to pay certain debts of the club. It was indorsed by the defendants before delivery to the plaintiff. All parties supposed at the time that the club was a corporation, but it was not so in fact.

H. Reid, Circuit Judge. Mandamus action to compel the proper officers of the city of Tomahawk to issue a municipal warrant to the relator for salary as “superintendent of trade and commerce.” The cause, in due form, was submitted on a record showing the following: The relator, during the term for which he sought' to recover compensation, had assumed to hold an official position in the city of Tomahawk, denominated “superintendent of trade and commerce.” ■ He commenced the…

<p> Conditional sale of property to be resold: Validity: Filing: Estoppel: Bankruptcy: Preferences. </p> <p>1. A contract under which, a manufacturer sold and delivered farm machinery to be resold at retail by the vendee, providing that the title should remain in the manufacturer until full payment of the purchase price and that the manufacturer should be entitled to possession whenever it might feel insecure or whenever the vendee might become insolvent or bankrupt, was a conditional sale, recognized by sec. 2317, Stats., as a proper mode'of transfer, and if free from actual fraud was valid and effective, although the terms stipulated therein for payment did not depend upon sales by the vendee and there was no requirement that moneys received from such sales should he paid • to the manufacturer or kept separate from or used otherwise than other moneys of the vendee.</p> <p>2.. The fact that such contract was not filed as required by sec. 2317, Stats., until after the vendee became insolvent and but two days before proceedings in bankruptcy were begun, did not ■ estop the vendor from claiming the property as against other creditors, none of whom were in fact misled by the failure to file.</p> <p>3. The transaction embraced in such contract did not constitute an unlawful preference under sec. 60 of the Bankruptcy Act (30 U. S. Stats, at Large, 544, ch. 541), the bankrupt not having transferred any estate in the property nor done anything by way of securing any antecedent debt so as to invalidate the transfer.</p> <p>4. No creditor having acquired any specific interest in the property while the contract was not on file, and the bankrupt having no1 interest therein at the time bankruptcy proceedings ■were commenced, the trustee in bankruptcy acquired no right to the possession thereof.</p>

<p>Appeal from a judgment of tbe circuit court for Clark county: E. O. Eschweilee, Judge.</p> <p>Action for money bad and received. In tbe latt'er part of December, 1897, tbe Clark County Bank, of wbicb plaintiff was a director, became insolvent, and assigned its resources and assets to plaintiff as security for its indebtedness to him. Plaintiff claimed that amongst sucb assets was a note, indorsed by one George Huntzicker, wbo bad made a voluntary assignment of bis property for tbe benefit of bis creditors to bis nepbew, Henry Huntzicker. Plaintiff owned a majority, in amount, of tbe claims against George Huntzicker, and was desirous of getting tbe consent of a majority, in number, of tbe creditors to remove tbe assignee, Henry Huntzicker, pursuant to the provisions of sec. 1702, Stats. 1911. This he was unable,to do, and as the court refused to remove the assignee for cause, he realized he would fail unless he could secure a consent of the majority in number of creditors. For the purpose of procuring the removal of the assignee, the then attorney for plaintiff advised him to ostensibly sell a number of his claims to others and have them file claims in their own name and join in a petition for removing the as-signee. The attorney, with the knowledge and consent of plaintiff, went to the defendant, asked him to purchase one of the notes against George Huntzicker, and told him the reason for it. He made the bargain with the defendant, and it was agreed that the latter should file' a claim in his own name and turn over to plaintiff the whole dividend that might be received on the note. Like agreements were made with several other persons. The defendant filed a claim in his own name prepared for him by the then attorney for plaintiff; and afterwards, in pursuance to a suggestion made by plaintiff to defendant before the alleged sale of the note, the defendant was appointed assignee in place of Henry Huntzicker, who was removed. On the final settlement defendant received a dividend on, this note amounting to $120.60, which the plaintiff seeks to recover in this action.</p> <p>Defendant denied that he made the agreement claimed by plaintiff, and his evidence was to the effect that the note was given him by one Klopf, the cashier of the Clark County Bank, as security for a sum of money, the precise amount of which he said he did not remember, which the bank owed him, and that he was the owner of the note and was entitled to the dividend that was finally paid thereon on the settlement of the George Huntzicker assignment.</p> <p>The court submitted to the jury the question of the ownership of the note and instructed them to find for plaintiff if they found the agreement was as claimed by him. The jury brought in a general verdict for the plaintiff, assessing his damages in the sum of $122.92. From a judgment entered thereon the defendant appealed.</p>

<p> Slander: Proof of words spoken: Explanations: Statements on other occasions: Instructions to jury. </p> <p>1. In an action for slander it was not error to charge the jury that plaintiff must prove the speaking of the words alleged in the complaint and that" proof of the speaking of similar words is not sufficient; although, if it had been requested, the court might properly and doubtless would have added that proof of substantially the same words would suffice, and that mere insignificant differences in the form of expression, such as the substitution of a pronoun for a proper name and the like, would not prevent a verdict for plaintiff.</p> <p>2. Statements made by defendant on a different occasion than that of the alleged slander are not to be considered on the question of his liability but only on the question of malice.</p> <p>3. The words alleged to have been spoken being, “G-. forged a check,” it was not error to charge the jury that, even if those words were used, still there could he no recovery if at the same time and in the same connection defendant made a statement indicating that he only intended to charge plaintiff with writing defendant’s name on a check without authority, — the word “indicating” being construed in its natural sense as meaning indicating to the hearers.</p>

<p>Corporations: T.oll-road company: Power to lease: Validation of lease by statute: Rights of assignees: Holding over after term: Abandonment of road: Pleading: Construction: Answer: Excessive claim: Quo warranto.</p> <p>1. Although, a toll-road company, created by tbe legislature in 1848, was not originally given power to lease its property and franchises, such power might afterwards be conferred by a statute ratifying and validating a lease which the company had given and the title acquired through successive assignments of such lease.</p> <p>2. Although in such case technically accurate words were not always used in the transfers forming the chain of title to the leasehold, yet since no particular form of conveyance was required by law, and there was a succession of possession, enjoyment, and claim of right referable to such chain, the last transferee succeeded to all the rights of the original lessee.</p> <p>3. The validation of the lease by legislative act gave it the same character as if the lessor had originally had authority to make it, and gave the parties the same status at the end of the term; so that, when the transferee of the lease then in possession continued for a week to operate the property as before, the possession was that of a tenant holding over and did not indicate an abandonment under sec. 1895, Stats., which would render the road a public highway.</p> <p>4. In an action of quo warranto against such a tenant holding over after the expiration of the lease, to test his right to exercise the franchises of the corporation, the fact that he claimed to be the owner of the toll road and franchises, instead of a tenant holding over, did not render his answer demurrable, where the other facts stated therein showed that his possession and operation of the road were lawful.</p> <p>5. Under the Code, the proper test of a pleading is not the pleader’s claim as to his rights upon the facts alleged, but the justice of his case for attack or defense on all the facts stated expressly or appearing by reasonable inference, giving to the pleading the most liberal construction it will fairly bear in favor of the pleader.</p> <p>6. The rules of pleading are the same in a quo warranto action as in any other civil action.</p>

<p> Executors and administrators: Allowances: “Income of the real estate.” </p> <p>1. Under sub. 2, sec. 3935, Stats., providing for an allowance to the widow and minor children “out of the personal estate or the income of the real estate of the deceased,” the words “income of the real estate” mean net income, or what is left after fixed charges of upkeep of the estate are paid.</p> <p>2. 'An order of the county court granting an allowance to the widow of,a certain sum per month, to he paid out of the personal estate or the income of the real estate, requires the administrator to pay only to the extent of such personal estate and the net income of the real estate.</p>

<p> Boundaries: Agreement between adjoining owners: When binding: Subsequent purchasers: Consideration: Trial: Special verdict: Surveys: Presumptions in support of judgment. </p> <p>1. Where an oral agreement between adjoining landowners to abide by a survey procured by one of them locating the boundary line between them did not rest upon any consideration, was not the compromise of any dispute, had not been acquiesced in for any length of time, and was not communicated to a grantee when he purchased from one of such owners soon after the survey was made and before a fence had been built on the line, the agreement was not binding upon said grantee.</p> <p>2. The division of the boundary fence to be built on the line so agreed upon was not a consideration for such agreement, but an independent stipulation.</p> <p>3. In an action involving the location of such boundary line wherein, although the jury found that plaintiff and defendant’s grantor agreed upon the line as located by plaintiff’s surveyor, the court rendered judgment in favor of the defendant, such finding by the jury is not sufficient to show that the judgment was erroneous, there being no presumption, as against the judgment, that the agreement so found was a valid written agreement, and it appearing, when the verdict is construed with the evidence, that the agreement was an oral one.</p> <p>4. Defendant having testified that at the time of his purchase no fence had been built on the line so agreed upon, and no finding by the jury upon that subject having been' made or requested, that fact will be presumed to have been found by the court in support of the judgment under sec. 2858m, Stats.</p>

<p> Railroads: Highway crossing not at grade: Apportionment of cost: Liability of town: Statutes: Implied repeal: Constitutional law: Police power. </p> <p>1. Under sec. 1797 — 12e, Stats., giving to the Railroad Commission authority to order the substitution for a grade crossing of one not at grade, to apportion the cost of such alteration between the railroad company and the municipality in interest, and to order the amounts so apportioned to be paid, the power to apportion and order payment implies that the parties against whom the assessment is made shall be liable for the amount thereof.</p> <p>2. Said sec. 1797 — 12e does not conflict with secs. 1836, 1299ft — 1, or sub. (d) of see. 1797 — 12; and if it did, being a later statute, it would prevail and impliedly repeal so much of the earlier statutes as was in conflict with it.</p> <p>3. Said section is a valid exercise of the police power of the legislature and does not conflict with any constitutional provision.</p>

This is an appeal by the plaintiffs from orders sustaining the separate demurrers of the two defendants to the complaint. The essential facts stated in the complaint1 are these: On and prior to December 14, 1910, the plaintiffs Krom and Wolpert conducted a large general;* store in Antigo, and the 'other plaintiffs were insurance-companies carrying insurance on The goods in said store in various amounts aggregating $40,500.

<p> Deeds: Condition in restraint of trade: Validity: Public policy. </p> <p>A "condition in a deed “that the premises hereby conveyed be used for saloon purposes at all future times when the same may be legally maintained, and the beer sold therein shall be beer which has been manufactured by the R: Brewing Company,” being in restraint of trade and not “limited as to time, space, and extent of trade,” is contrary to public policy and void.</p>

<p> Railroads: Injury to employee: Contributory negligep.ce: Comparar tive negligence: Direction of verdict. </p> <p>Plaintiff, an experienced carpenter in the employ of the defendant railway company, was injured hy the falling of a ladder upon which he was standing while repairing a broken shed roof under the direction of a foreman. Upon evidence showing that he had himself selected the place where the ladder r.ested against the broken roof boards; that after mounting the ladder he could know better than the foreman the condition of such boards and the danger to which he was exposed; and that he proceeded, without examination, to cut the roofing paper which held the boards against which he had placed the ladder, thus removing its support and causing it to fall and throw him to the ground, it is held as a matter of law, under sec. 1816, Stats., that his own negligence which proximately contributed to cause his injury was greater than that of defendant’s foreman, and hence that a verdict for defendant was properly directed.</p>

C. Backus, Judge. Plaintiff in error was convicted in tbe municipal court of Milwaukee county and sentenced to pay a fine for having sold at retail intoxicating liquors without first obtaining a legal license therefor from the city of Milwaukee. On June 30, 1901, the plaintiff in error resided in the town of Wauwatosa.

<p> Free high schools: Tuition fees of nonresidents: Statement: Sufficiency: Claim on behalf of city instead of district. </p> <p>Where the boundaries of a free high school district were coterminous with those of a city, and the clerk of the board of education of the city, pursuant to sec. 496fc, Stats., filed with the clerk of a town a sworn statement or claim for tuition fees of pupils admitted from the town, such statement, being otherwise sufficient and setting forth all the facts required by said statute, was not fatally defective merely because it appeared upon its face to be a demand on behalf of the city instead of on behalf of the free high school district, — the board of education of the city constituting the free high school board, the clerk of said board being ex officio secretary of said high school board, the city' treasurer ex officio treasurer of the high school board, and the city treasury the treasury of the district.</p>

Lueoe, -'Judge. Edward D. Lennon, to secure payment of his note, given in consideration of legal service to be rendered in defending him against the charge of having murdered Timothy McMahon, whom'he shot, causing his death, mortgaged to J. L. Mahoney certain real estate. The note and mortgage, before maturity, were acquired by plaintiff for a valuable consideration, the note being indorsed by P. J. Lennon and said Mahoney.

<p> Appeal: Separate appeals by different defendants: Reversal: Mandate construed: Satisfaction of judgment after appeal: Right to dismissal. </p> <p>1. Upon an appeal by I, from a judgment against Mm and P. for a certain sum and against P. for a further and separate sum, the mandate of the supreme court whereby the judgment was reversed and the cause remanded with directions to render judgment for appellant meant that the judgment was reversed as to I. hut was permitted to stand as to P., at least as to the separate recovery against P. [Whether if there had been no separate recovery against P. the .reversal on I.’s appeal would have operated upon the judgment in- its entirety, not decided.]</p> <p>2. After such reversal on I.’s appeal, P. had a right, under our statutes and practice, to appeal from that part of the judgment against him separately.</p> <p>3. Satisfaction of a judgment by the respondent about a year after an appeal therefrom was perfected did not entitle the respondent to a dismissal of the appeal.</p>

This is a contest over the probate of the will of Thomas Powell, deceased. The will was attacked on the following grounds: First, illegal execution; second, mental incapacity; third, undue influence exercised over the testator by legatees and devisees. The county court admitted the will to probate, and upon appeal tbe circuit court affirmed tbe judgment of tbe county court. Tbe court below made tbe following findings: “That on tbe 3d day of May,.

<p> Appeal: Error must he shown: Master' and, servant: Dangerous ma- . chinery: Negligence: Burden of proof: Anticipation of injury: Accident: Guarding machinery. </p> <p>1. In order to reverse a judgment on appeal, error must affirmatively appear; hence defects and obscurities in the evidence • and hill of exceptions count against the appellant.</p> <p>2. Where plaintiff claims that a machine made an unexpected and unprecedented movement which injured him, he must show, not only that the movement was made, but also the construction of the machine, so as to establish that such movement was- caused by defective construction or want of repair from which the result might, in the exercise of ordinary care, have been anticipated by defendant.</p> <p>3. Reasonable anticipation of injury to some one is an essential constituent of actionable negligence.</p> <p>4. If a movement of a machine causing injury is so wrapped in mystery that no one can explain it or its cause, and the occurrence is unprecedented, manifestly there could have been no anticipation of injury therefrom and the event becomes an unaccountable accident and not an act of negligence on tbe part, of the employer.</p> <p>5. Sec. 1636j, Stats., relating to the guarding of dangerous machinery, does not require such covering or guarding of operative parts as will entirely prevent the operation of the machine.</p> <p>6. The evidence in this case is held insufficient to sustain findings of the jury that plaintiff’s injury was caused hy defects in the machine' at which he was working or hy the employer’s failure to guard 'a sprocket wheel thereon.</p>

<p> Master and, servant: Negligence: Unsafe working place: Warning of recurring danger: Rules, when necessary. </p> <p>1. Plaintiff, one of a crew of four men employed by tbe defendant in unloading logs from cars, was struck and injured by a log wbicb was rolled from a car about thirty or thirty-five feet : from where he was standing. In doing the work, two of the crew rolled the logs from the cars and then joined the plaintiff and the fourth man in straightening them and rolling them away on the skids. Warning was customarily, though not always, given when logs were to he rolled from the cars; hut none was given at this particular time. Plaintiff had had long experience and was well acquainted with the movement of logs. He could at all times see what was going on around him, and he knew that two of the crew had gone back to the car to roll off the logs remaining thereon, one of which struck him. Held, that the situation was not one in which it was the duty of the defendant to promulgate a rule requiring warning to be given when logs were to he rolled from a car; and hence, as a matter of law, defendant was not guilty of negligence in failing to promulgate such rule.</p> <p>[2. Whether the failure to promulgate a rule could be said to he the proximate cause of the injury, or whether it is negligence not to promulgate a rule where servants customarily do the things which the observance of a rule would require, not decided.]</p>

<p> Contracts: Construction: Sates: Uncertainty as to price and quantity: Parol evidence: Breach: Measure of damages. </p> <p>1. Contracts deliberately made and not unreasonable in their terms ought, if possible, to be enforced by the courts rather than set aside.</p> <p>2. When a contract is clear to the contracting parties and those who have to do with such transactions generally, it cannot be condemned for uncertainty because the uninitiated may not understand the terms used; and parol evidence is admissible to show the meaning of such terms.</p> <p>3. In a written contract for the sale and delivery of two carloads of paper rags of different grades, the price of the grade last specified was stated as sixty cents “per ewt.,” but the quoted words were not affixed to the prices of the other grades. It appearing that such goods are always sold by the pound and prices fixed either by the ton or by the hundred pounds, it is held that there was no substantial uncertainty as to price and that all the prices were by the hundred weight.</p> <p>4. Under said contract one carload was to be made up of three classes of rags and the other of two classes, but the quantity of any one hind was not specified. It appeared that when the sale was made it was not ltnown how much of each of the kinds the seller would be prepared to ship. Held, that the contract should he construed as giving the seller the right to fix the amount of each kind to he shipped, provided he included a substantial amount of each kind and shipped the full amount of two carloads in gross.</p> <p>5. In an action by the vendee upon such contract to recover damages for a total failure to deliver, it appearing that.his loss by reason of such failure was at a different rate upon each kind of rags, so that his entire loss could not be definitely fixed, it is held that he should recover the least sum which under the evidence he could lose, i. e. the amount lost by failure to deliver two carloads of those kinds of rags respectively upon which there was the least loss.</p>

<p>Fire insurance: Proofs of loss: "Waiver: Change of possession: Personal property: Bailment.</p> <p>1. Where from the time of a loss the insurer denies liability on the ground that the policy became void before the fire, the assured need not furnish proofs of loss as required in the policy.</p> <p>2. The- hiere leaving of personal property in a building where in-' sured, in the custody of an occupant of such building whose tenancy commenced after the- date of the insurance and who had no control of the property otherwise than to hold the same subject to the order of the assured, was not a change of possession within the meaning of a provision whereby the entire policy was to be void if any change should “take place in the interest, title, or possession of the subject of insurance.”</p>

<p> Special verdict: Defects: New trial: Terms: Negligence: Burning of property. . </p> <p>1. A special verdict to the effect tkat a fire set by defendant on bis own land spread to plaintiff’s land and burned and injured his timber; that the setting of such fire was an act of ordinary care and prudence; that defendant used ordinary care and prudence in preventing the fire from getting upon plaintiff’s land; that the fire was the proximate cause of the burning of plaintiff’s property; and that plaintiff might, by ordinary care, have saved his property or some part of it and prevented the same from being burned after he knew of the danger, is heló, to be defective.</p> <p>2. A new trial granted in such case upon the court’s own motion, on the ground that the verdict was inconsistent and contrary to law and the evidence, was properly granted without costs, to either party.</p>

The appeal is from a judgment dismissing the appellant’s complaint with costs upon objection to any evidence under the complaint on the ground that it failed to state a cause of action.

B. QuietlaN, Circuit Judge. Action for personal injuries. The jury returned the following special verdict: “(1) Is the condition of plaintiffs heart the result of the collision, on March 4, 1910, by his team, which he was driving, colliding with a flat car left by the defendant standing on its track across one of the highways in the city of Oconto ?

<p> Landlord and tenant: Statute'of frauds: Oral leasing: Periodic tenancy: Tenancy at will: Termination by notice. </p> <p>1. An oral leasing of land to continue until the premises are sold is void under sec. 2302, Stats., so far as fixing the term of the tenancy is concerned.</p> <p>2. An oral leasing of land is void under sec. 2302, Stats., unless it affirmatively appears that it is “for a term not exceeding one year;” while an oral agreement is not void under sub. 1 of sec. 2307 unless it shows by its terms that it is “not to be performed within one year.”</p> <p>3. When a tenant enters premises under an oral lease, void under sec. 2302, Stats., and pays rent regularly thereafter, his tenancy becomes a “periodic tenancy,” i. e. either a tenancy from “year to year,” “month to month,” or “week to week,” according as the evidence shows that the rent was paid with reference to and in contemplation of a yearly, monthly, or weekly holding.</p> <p>4. A periodic tenancy arising as an inference from the conduct of the parties is a modified form of an estate at will; and the term “tenancy at will” in sec. 2183, Stats, (prescribing the notice which must be given to terminate a tenancy at will), includes such periodic tenancies, except those tenancies from year to year which are governed by sec. 2187.</p> <p>5. Where a tenancy at will is from month to month and, under sec. 2183, Stats., may be terminated by the giving of one month’s notice in writing, such notice must terminate the tenancy and fix the time for removal at the end of a rent-paying month.</p>

<p> Insurance against liability for personal injuries: Policy construed: “Addition:” “Alteration:" “Construction of a structure:” 8ab-rogation: Bringing in new parties: Discretion. </p> <p>1. The putting in, for use in winter only, of extra doors in each of the entrances of a retail store and the creation of a vestibule at each entrance was neither an “addition” to nor an “alteration” of the building, nor was it the “construction of a structure,” within the meaning of a policy insuring the occupant of the store against liability on account of injuries accidentally suffered by any person while in such store, but providing that “additions to or alterations in, or the construction of any building or structure, or elevator, are not covered under this policy.” The provision quoted did not, therefore, relieve the insured from liability where a customer in the store was injured by stumbling over the tool box of an employee of a contractor who was installing such vestibules and doors.</p> <p>2. The word “addition” as used in such policy means an enlargement or extension, so as to include additional space; the word “alteration” means a substantial change; and the word “structure” is ordinarily applied to a building of some size.</p> <p>3. Where ambiguity occurs in an insurance policy prepared by the insurer, the words are to be read most favorably to the insured.</p> <p>4. Plaintiff, having paid a certain sum in settlement of an action against him for an injury sustained by a customer in his store, brought this action upon a policy insuring him against liability for damages on account of such injuries. The defendant insurance company, claiming that the injury was caused by negligence of a contractor employed by plaintiff, that plaintiff had a remedy against such contractor, and that defendant was entitled to subrogation, asked to have the contractor made a party, under sec. 2610, Stats. Held, that the case was not within the compulsory provisions of said section, and that a refusal to make the contractor a party was not an abuse of discretion.</p> <p>[5. Whether the court, in the exercise of its discretion, might have ordered the contractor to be brought in, and whether the right of subrogation existed, not decided.]</p>

Appeals from a judgment and an order of tbe circuit court for Walworth county: E. C. Eschweilee, Judge. This is an action for libel originally brought against Maurice Morrissey and Edward Morrissey. On the trial a nonsuit was granted as to Edward Morrissey.

<p> Railroads: Killing of traveler at highway crossing: Omission of customary signals: Contributory negligence: Failure to loolc. </p> <p>1. The omission of the customary signals of an approaching ear will not alone excuse a traveler upon the highway from the duty to approach a railway, crossing carefully and to look with such care as to see what can he plainly seen.</p> <p>2. Plaintiff’s intestate, while riding in a buggy, was killed at a highway crossing in a collision with a south-hound car upon a double-tracked interurban electric railway. It appearing that after the vehicle going west had reached a point forty-one feet from the tracks the view was unobstructed, and that if the driver had looked carefully to the north he would have seen the car in time to avoid the collision, it is held that the failure so to look was a want of ¡ordinary care, imputable to the deceased and precluding a recovery, although it was necessary for'the driver to look to the south also and although the warning bell at the crossing was not ringing and he knew that a car from the north had passed but a short time before.</p>

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Rat SteveNS, Circuit Judge.</p> <p>«Tbe Industrial Commission, in due course, awarded Henry Miller, under tbe provisions of the Workmen’s Compensation Act, on account oí a personal, in jury to him which occurred while be was in tbe performance of bis duties as an employee of tbe city of Milwaukee, $222 for physician’s services, $32 for expense incurred for services of a nurse, $5 paid out for bandages and supplies, and $172.50 for disability indemnity. An action was brought in tbe circuit court for Dane county to test tbe decision as to tbe first two items, resulting in tbe award of tbe Commission being sustained.</p> <p>One of Miller s great toes was severely injured by a road roller. Tbe member was so lacerated and tbe bone known as tbe first digit so badly crushed that amputation became necessary. Tbe wound becoming somewhat infected, recovery was slow because thereof and tbe man’s age and condition of health. He resided in tbe bouse with two relatives, a niece and her mother. The former acted voluntarily as nurse, and without promise or expectation of compensation. Miller did not, at any time, notify the municipality of his needing services of a physician or nurse, or give the corporation any opportunity to furnish such services. He did not notify it of his injury until October 21, 1912, three weeks after it happened. The notice then given was in the ordinary form for claiming compensation for his loss. He called Dr. Bradstad to treat him on the day of the injury. The amputation took place eleven days thereafter. November 17th, after the city received the notice aforesaid, it voluntarily tendered Miller the services of Dr. Carroll, a competent physician. Notwithstanding such tender Miller continued to employ Dr. Bradstad. Erom the time of such tender to the end of Dr. Bradstad’s period of service, Miller knew that the city was ready at any time to furnish him with the services of a physician. 'He unnecessarily retained Dr. Bradstad for the full period of ninety days. The latter, in his bill as allowed by the Commission, charged for a visit to the patient and dressing of his injured member on some 135 occasions during ninety days, as indicated by the following copy of such bill:</p> <p> </p> <p> </p> <p> </p> <p>November 30tb after tbe tender of services of Dr. Carroll, tbe city caused written notice to be served on Miller that it would not pay for services of any physician except those rendered by its own selection. Dr. Bradstad verified the reasonableness of his bill. Dr. Carroll, under oath, condemned it, saying that $50 to $75 was ample for such a case. The Commission regarded Dr. Bradstad’s charges quite large, but accepted his evidence as sufficient to sustain his claim, notwithstanding the evidence of Dr. Carroll, since, as it viewed the matter, the injury was quite serious and Bradstad, because of greater experience than Dr. Carroll, was the best judge of the matter.</p>