Volume 155 — Wisconsin Reports

Appeals from a judgment of tire circuit court for Bacine county: E. B. BeldeN, Circuit Judge. Held: “That the election of April 4, 1911, and the notice given of said election and the notice given of the submission at such election of the question of the purchase by the city of Racine of its water works were in all respecte valid and sufficient for the purpose of submitting to the voters of the question of the purchase of the plant…

<p>Appeals from judgments of the circuit court for Racine county: E. B. Bbldeu, Circuit Judge.</p> <p>These are mechanics’ lien actions, the first being brought to foreclose a lieu upon a railroad track and right of way six miles iu length, running from the Chicago & Northwestern Kailway station at Dousman? Waukesha county, southward to the manufacturing plant of the Eagle Lime Products Company, a corporation, and the second to foreclose a lien upon said plant and the lands upon which the buildings stand. The. first action is against the corporation alone, the second against the corporation and William II. Lindwurm, who are alleged to be the owners of the plant, joining also as a defendant the Citizens Trust Company, a corporation, which is alleged to have a subsequent interest in or lien upon the plant. Both actions were referred to Charles II. Welch, Esq., as referee, and by consent they were tried together on the same evidence. The referee, after trial, made a single report covering both actions containing the following findings of fact and conclusions of law:</p> <p> “Findings of Fact. </p> <p>“That the plaintiff, Joseph Whalen, is a general contractor. That the defendant Eagle Lime Products Company is a corporation duly organized and existing under the laws of the state of Wisconsin. That on the 18th day of September, A. D. 1908, the plaintiff, Joseph Whalen, and the defendant Eagle Lime Products Company entered into a written contract, consisting of a proposition, acceptance and exhibits filed herein and marked ‘Exhibit A,’ wherein and whereby the said Joseph Whalen undertook to build a railroad upon the right of way owned by the Eagle Lime Products Company, said land and right of way being in the towns of Ottawa and Eagle, Waukesha county, Wisconsin, and described in detail in plaintiff’s complaint, connecting defendant’s plant with the Northwestern Kailway at Dousman, Wisconsin. That defendant Eagle Lime Products Company was to furnish the rails, ties, fish-plates, angle bars and spikes to be used in the construction of said railroad, and was to put in the bridge at Scoopernong Creek. That the plaintiff was to construct the railway entirely complete, doing all grading, surfacing, putting in all culverts, cattle passes, road crossings, and laying of the rails; to furnish all material for culverts, ■cattle passes and road crossings, and to do tbe work in a first-class workmanlike manner. Thát he was to have said work thoroughly completed in a satisfactory manner by the 15th day of December, A. D. 1908. . -</p> <p>“That the contract price for said work was to be $10,650, lo bfe paid upon estimates made every thirty days, the first «estimate to be made thirty days from the beginning of the work and the amounts to be paid according to such estimates, ■minus fifteen per cent.</p> <p>“Jliat the plaintiff entered upon the performance of said ■contract and continued up to the 18th day of December, A. D. 1908. That prior to the 18th'day of December, 1908, there had been delays in furnishing rails, ties, angle bars •and fish'-plates. That the plaintiff suffered damage by said ■delays in the sum of $2Ú0.</p> <p>“That upon said 18th day of December the plaintiff had not completed the contract. That differences arose between the plaintiff and defendant company, the plaintiff claiming he had practically finished the work under the contract, and ■the defendant claiming that he had already paid plaintiff more than was due him for the work already done. That plaiiitiff refused to proceed furthér unless advanced more money. That after some negotiations an estimate was made by F. O. Blunt, an engineer of 'the Chicago & Northwestern Railway, who had been on the work of supervising engineer ■since its inception, in which Mr. Blunt found that it would require $3,700 to complete the work according to the contract. That plaintiff refused to accept the figures of the ■engineer, and subsequent to this time, did no further work under the contract except a small amount of spiking in Janu.ary, 19.09; and ceased work entirely on January 25, 1909.</p> <p>“That on December 26, 1908, the defendant company served notice on the plaintiff that he had not completed his ■contract according to the terms thereof, nor on-the date fixed for its completion, to wit, December 15, 1908, and demanded that‘he complete said work without delay. That defendant further offered to waive the retaining of the fifteen per cent, and allow plaintiff to receive a balance at that time of -$1,556.60 with which to meet the payments for labor and ■complete the work. Defendants also expressed themselves willing, if sufficient work could be completed during the present season, and for which the engineer had estimated that $3,700 be withheld, to advance and pay for such uncompleted work, or any portion which was completed and done to the engineer’s approval. That plaintiff still failed and neglected to proceed with the completion of the contract, and upon the first day of February defendant served upon the plaintiff notice that owing to his neglect they were obliged to take in charge the construction of the road to prevent an increase of d amages due to his default, and gave him due and final notice'that the contract and specifications between plaintiff and defendant were rescinded and that plaintiff’s connection with the railroad was terminated; that they would take the work in charge and complete the same according to the specifications, holding plaintiff and his bondsmen liable for any losses.</p> <p>“That defendant company thereupon proceeded to complete the contract and did complete it. That they necessarily expended for labor in so doing the sum of $3,013.08; and were obliged to and did use a locomotive in hauling gravel in connection with said work at a cost of $200 additional.</p> <p>“That the plaintiff performed extra work and labor for the defendant Eagle Lime Products Company in putting in an extra culvert and doing some extra filling, all of the value of $25.</p> <p>“That the plaintiff performed extra labor for the defendant Eagle Lime Products Company upon the land owned by the defendants, Eagle Lime Products Company and William 11. Lindwwrm, in filling in around the plant, to the amount of $405.30.</p> <p>“That the plaintiff has received from the defendant Eagle Lime Products Company, in cash, moneys advanced to help on plaintiff’s orders and for his account, and for freight and other items, $6,643.36.</p> <p>“From the foregoing I find that the account between the plaintiff and the defendants should be stated as follows: Joseph Whalen</p> <p>In account with.</p> <p> Eagle Lime Products Company. </p> <p>Contract price .^. “ $10,650 00</p> <p>Extra filling at plant. “ 405 30</p> <p>Extra cattle pass and filling. “ 25 00</p> <p>Damages for loss of time of men. “ 200 00</p> <p>$11,280 30</p> <p>Dr.</p> <p>To amount admitted to have been re--ceived, including cash and amounts paid upon orders and.'' agreed journal items . “ $6,618 90</p> <p>To journal items allowed, not included in the above. “ 24 46</p> <p>To use of engine and crew, ten days at $20 per day.... “ 200 00</p> <p>To cost of completion of road. “ 3,013 08</p> <p>—- 9,856 44</p> <p>Balance due plaintiff. $1,423 86</p> <p>'“That plaintiff duly filed his claims for lien as set forth in his eqmplaints, and that snch liens are now valid and existing liens upon the properties described in the complaint.</p> <p> “Conclusions, of Law. </p> <p>“That the plaintiff, Joseph Whalen, have judgment against the defendant Eagle Lime'Products Company upon the cause of action set out in his complaints herein for the sum of $1,423/86, with interest from February 1, 1909; and that the plaintiff have a valid lien against the defendant Eagle Lime Products Company, upon the land described in the complaint in his action, against the Eagle Lime Products Company, in the amount of $1,018.56, with interest from February 1, 1909; that the plaintiff have a valid lien against the Eagle Lime Products Company and William H. Lind-wurm ujion the land described in the complaint in his action against the Eagle Lime Products Company and William II. Lindwurm in the amount of $405, with interest from February 1, 1909.”</p> <p>Motions by the defendants to consolidate the two actions and .to modify the referee’s report were denied, and the report was confirmed by the court and separate judgments entered, in the first action against the corporation for $1,018.56, with interest thereon since February 1, 1909, and costs, and declaring and foreclosing a lien therefor upon the railroad right of way, and in the second action, against both the corporation and Lindwurm, for $405.30, with interest from-February 1, 1909, and costs, and declaring and foreclosing a lien therefor upon the manufacturing plant aforesaid. Appeals are now prosecuted from both judgments.</p>

<p> Master and servant: Injury to employee: Safety of worhing place: Beet pulp on floor of sugar factory: Nonsuit. </p> <p>1. In an action for personal injuries sustained by an employee in a beet sugar factory who slipped upon wet beet pulp on the -floor of a well-lighted room through which the pulp was carried by a conveyor, it is held that a nonsuit was properly granted on the ground that the evidence failed to show that the place was not, within the requirement of the Workmen’s Compensation Act (sec. 2394 — 48, Stats., as limited by the. definition of the term “safe” in sub. 11, sec. 2394 — 41), as free - from danger as the nature of the employment would reasonably permit.</p> <p>[2. To what extent, if any, the statute modifies the common-law duty of the master to exercise ordinary care in furnishing a safe working place, not determined.]</p>

<p>Appeal from an order of tbe circuit court for Milwaukee county: W. J. TueNeb, Circuit Judge.</p> <p>-On March 19, 1910, Paul Kranz, while an employee in a cooper shop owned and operated by- Fred Ketter, was injured, and later died as a result of such injury. February 20, 1912, this, action was brought by plaintiff, as the ad-ministratrix of the estate of Paul Kranz, deceased, under secs. 4255 and -4256, Stats. 1911, for the benefit of herself as widow. The defendant answered, and afterwards, on March 22, 1912, he died. On December Y, 1912, an application was made by plaintiff to revive the action against the defendant as administrator of the estate of Fred Ketter, deceased. From ar^ order granting such application the defendant appealed.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: W. J. TueNEb, Circuit Judge.</p> <p>Action for construction of a will. Tbe proceeding was commenced in county court. It involved tbe meaning of tbis provision of tbe instrument:</p> <p>“I give, devise and bequeath to my children, Mary Neu-meyer (née Ehlers), Minnie Badenz (née Ehlers), Ida Hass (née Ehlers) and Alwine Ehlers to each an undivided one-fifth part of my estate and to tbe children of my son, Carl Hassj whose names are Margarelha Hass, Adela Hass, Mane Hass, Paul Hass and Carl Hass, 'each an undivided one-tenth part of my estate.”</p> <p>The petition for construction was made by Carl Hose, only child of the testator’s blood. The persons remembered as her children were her stepchildren. There was no residuary clause as such and no devise or bequest except those mentioned in the quoted provision.</p> <p>The county court decided that the will was void for uncertainty. On appeal to the circuit court that was reversed and the will sustained as bequeathing one fifth of the estate to each of the four stepchildren and one twenty-fifth to each of the grandchildren.</p> <p>contended that the will fails to disclose the intention of the testatrix and that any effort to give effect to its provisions must rest upon conjecture alone. The intention which is sought for in the construction of a will is not that which existed in the mind of the testator but that which is expressed by the language of the will. Willey v. Ciarle, 105 Wis. 22, 24, 25, 80 N. W. 102; Pabst v. Goodrich, 133 Wis. 43, 66, 113 N. W. 398; In re Donges’s Estate, 103 Wis. 497, 500, 501, 79 N. W. 786; Will of Ohse, 137 Wis. 474, 119 N. W. 93; Burlce v. Lee, 76 Ya. 386; Gee v. Gee, 204 Ill. 588, 68 N. E. 515; Daugherty v. Rogers, 119 Indi 254, 20 N. E. 779; Waters v. Bishop, 122 Ind. 516, 24.N. E. 161; Stokes v. Van Wyck, 83 Ya. 724, 3 S. E. 387; Byrn v. Godfrey, 4 Yes. Jr. 5; In re Creighton s Estate, 91 Neb.'654, 136 N. W. 1001; Rodlsch v. Moore, 257 Ill. 615, 101 N. E. 206; Graves v. Rose, 246 Ill. 76, 92 N. E. 601.</p>

IIalsey, Circuit Judge. Tbis action was brought to recover for services performed and material furnished in decorating the premises belonging to the defendants. The plaintiff alleged^ a special contract to do the job for $310, and also alleged that he performed extra work and furnished material not included in the first contract which are reasonably worth $345, amounting in all to $655, for which he demanded judgment and a lien.

EeRoe to review an order1 of the circuit court for Milwaukee county discharging the defendant in error on habeas corpus: LawreNoe W. Halsey, Circuit Judge. There was also a brief by Morris & Hartwell, amici curiw.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: E. R. BelbeN, Judge.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: OrREN T. Williams, Circuit Judge.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: Oscae M. Eeitz, Circuit Judge.</p> <p>Personal injuries. Tbe plaintiff, a millwright, nearly forty years of age, was in the employ of defendant at its large manufacturing plant at South Milwaukee, and was very seriously injured February 3, 1911, by reason of a large roller falling upon him. The roller was in the shape of a solid wheel, 'forty-two inches in diameter, fifteen and one-half inches thick, made of semi-steel, and weighing nearly 4,000 pounds. The roller was a part of the machinery of a so-called sand mill or sand mixer, which was situated in the foundry annex of the defendant’s plant and was used for mixing moulding sand. There are two sand mixers in the annex and each contains two of these large steel rolls, which revolve in a large pan, eight feet in diameter, into which the sand is thrown. The pan revolves horizontally and the wheels vertically, and the sand is thus thoroughly mixed. The rolls revolve on a shaft which runs through the middle, like the axle of a wheel, and the aperture through which this shaft runs is about six inches in diameter. The rolls become worn in time, and sometimes the metal bushings in the aperture, which serve to reduce the aperture to the size of the shaft, have to be replaced. Two days before the accident Adams with his helper’, one Ranthum, was directed by Beck (his foreman) to put new bushings in the apertures of the rolls belonging to one of the sand mixers. The rolls had then been removed from the machine and were standing on their fifteen-inch rims or edges on the sand floor of the annex near the mixer. Plaintiff and Ranthum drove in bushings on one side of each of the rolls with a sixteen-pound sledge. The bushings were bands of iron which fitted closely in the aperture and reduced the size thereof from about six inches to about three inches, and were about six inches in length. They fitted very closely, and it was necessary to spend some time driving in each bushing, a block of wood being placed against the outer end of the bushing and struck repeatedly by the sledge. It took about four hours to put the bushings in one side of each roller, and plaintiff then tried to fit the bushings into the apertures on the other sides of the rollers and found them too small. Plaintiff informed Beck, the foreman, of the fact and gave Beck the measurements of the hcde, and Beck promised to have larger ones made. No work was done on the rollers the next day. In the evening of the last named day one Pfeiffer, who was a sand mixer on the night force, found the rollers in his way as he wheeled sand to 'the other sand machine, and he asked the man who operated the electric crane to move them away with the crane, which he did, placing them four or five feet to the south of their former positions, one being left about two feet from the concrete foundation of an iron column on the east side of the annex, and the other four or five feet west thereof, and both standing on their rims or edges, as before. On the following-day, at about 9:30 a. m., plaintiff and Eanthum were sent back to complete their work on the rollers with the new bushings. They drove one of the new bushings about two inches into one of the rollers, when it seemed to hit a burr and stopped. Eanthum then went on the other side and drove the bushing out. Plaintiff got down on his hands and knees with a candle and looked in the hole to see what the obstruction was. While he was doing this Eanthum (as he testifies) took the other bushing and tried it in the aperture of the roller which stood near the column and tapped it lightly with the machinist’s hammer, whereupon (according to Eanthum’s testimony) the roll rolled a little northward and tipped over westward on to the plaintiff as he was kneeling, thus crushing him to the ground and inflicting very serious and permanent injuries. No one saw the roll fall except Eanthum.</p> <p>The jury returned the following special verdict :</p> <p>“(1) Was the plaintiff injured on February 3, 1911, by an iron roller falling upon him in the foundry annex of the defendant? A. (by the court). Yes.</p> <p>“(2) Was the place where the plaintiff was at work when injured, reasonably safe considering the condition of the material underneath the roller, which fell on him, the position and character of that roller and the nature of the work in hand? A. No.</p> <p>“(3) If you answer the second question ‘No,’ then answer this question: Did the defendant know in time to have prevented the injury to plaintiff that the place where he was at work was not reasonably safe? A. Yes.</p> <p>“(4) If you answer the third question ‘No,’ then answer this question: Ought the defendant, in the exercise of ordinary care, to have known in time to have prevented the injury to plaintiff that the place where he was at work was not reasonably safe? A. Yes.</p> <p>“(5) If you answer the second question ‘No,’ then answer this question: Was such failure to provide a reasonably safe place for the plaintiff to work in, the proximate cause of his injury ? A. Yes.</p> <p>“(6) If you answer the second question ‘No,’ then answer this question: Ought the plaintiff, in the exercise of ordinary care, to have known that the place in which he was working at the time of the injury was not reasonably safe? A. No.</p> <p>“(Y) Did any want of ordinary care on the part of the plaintiff proximately contribute to produce his injuries? A. No.</p> <p>“(8) Was Emil Eanthum guilty of negligence in his attempting to put the bushing in the roller that fell on the plaintiff? A. No.</p> <p>“(9) If you answer the eighth question ‘Yes,’ then answer this question: Was such negligence on the part of Emil Ttanthum the proximate cause of plaintiff’s injury? A. No.</p> <p>“(10) What sum will reasonably compensate the plaintiff for the damage sustained by him as a result of his injury ? A. $18,300.”</p> <p>The court overruled defendant’s motions to change certain answers and for judgment, and entered judgment on the verdict for the plaintiff, from which judgment defendant appeals.</p>

Eritz, Circuit Judge. ■ Action to recover damages for an alleged illegal change of grade. The property owned hy plaintiff was affected by the construction of a viaduct, substantially as in Pabst B. Go. v. Milwaukee and Joseph Schlitz B. Go. v. Milwaukee, 148 Wis. 582, 138 N. W. 1112, and Gross G. Go. v. Milwaukee, 148 Wis. 72, 134 N. W. 139. The structure alleged to have caused damage in those cases is the one said to have injured plaintiff’s property.

<p>Appeal from three orders of the circuit court for Milwaukee county: J. 0. Ludwig-,- Circuit Judge.</p>

0. Ludwig, Circuit Judge. The appeal is from an order overruling several demurrers to the complaint. They contended, inter alia, that the city was not liable to plaintiff for damages for interference with his basement under the sidewalk,- especially where it was not charged with notice of its existence, citing Jennings v. Johonnott, 149 Wis. 660, 135 N. W. 170; Milwaukee-Western F. Go.'v. Milwaukee, 152 Wis. 247, 260, 139 N. W. 540; Sanderson ¶.

Eeitz, Circuit Judge. Action to recover compensation for a personal injury. The action was commenced in the civil court of Milwaukee coimtyJ Plaintiff was injured in the course of his employment for defendant. Pie and others were engaged in assisting in unloading steel rails from a car to which an engine in charge of an engine crew was attached. By direction of the foreman, plaintiff held the end of a rope which was attached to some rails on tbe ear.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: OureN T. Williams, Circuit Judge.</p> <p>On May 12, 1911, plaintiff was employed by tbe Schlitz Brewing Company, and in. tbe performance of bis duty was engaged in moving cars along one of tbe railroad tracks in tbe yards adjacent to said company’s plant. Horses were used in moving the cars, .tbe crew consisting of three men. On this occasion tbe horses could .not start tbe ear because the brake shoes were tight against tbe wheels. Plaintiff took a club which be used for tbe purpose and attempted to knock the brake shoes loose. While be was standing with one foot'over tbe rail and one hand on tbe lower rung of tbe ladder of tbe.car, tbe defendant railway company switched in other cars against tbe one upon which plaintiff was working, and be was run over and bis right leg crushed so that amputation below tbe knee was necessary. This action was brought to recover damages for the injuries sustained. Tbe complaint alleged negligence on tbe part of tbe defendant by reason-of its failure to warn tbe plaintiff of tbe approach of tbe cars which were being switched in, by tbe ringing of tbe engine bell or tbe blowing of the whistle or some other signal. -Tbe complaint also alleged that tbe defendant company was tbe owner of tbe tracks in tbe yards of tbe Brewing Company upon which the ears were standing when tbe accident occurred. Tbe jury found that tbe defendant was negligent, and by its answer to tbe sixth question in tbe special verdict found tbe plaintiff guilty of contributory negligence, and in accordance with sucb finding judgment was entered in favor of tbe defendant dismissing tbe complaint, from wbicb judgment plaintiff appeals.</p> <p>Tbe plaintiff filed separate exceptions to tbe following-portions of tbe charge under tbe sixth -question in tbe verdict :</p> <p>1. “You may take into consideration also this instruction, that a person entering upon an employment in wbicb be is engaged when injured, assumes all risk or danger of injury ordinarily incident to sucb service. That is, be is held to assume the ordinary risks of tbe employment upon -which be enters so far as those risks are known to him or in so far as they could become known to a person of ordinary care; all sucb risks be assumes- in tbe employment in wbicb be is engaged.”</p> <p>2. “It was tbe duty of the plaintiff to exercise ordinary care to keep himself out of danger. It was his duty to listen for signals that cars were approaching. Aud if you believe from tbe evidence that he did not listen for signals that cars were approaching, and for that reason failed to bear what Nick Barth called out to Klubertanz, be was guilly of a want of ordinary care. And if you believe from all tbe credible evidence that be was guilty of a want of ordinary care, and that sucb want of ordinary care naturally and probably contributed to bis injury, and that be, as a person of ordinary intelligence and prudence, ought to have seen under tbe attending circumstances that by failure to listen for signals be might receive injury of some kind to bis person, you will answer tbe sixth question Yes. Otherwise you will answer tbe question No.”</p> <p>8. “You should also take into consideration all tbe evidence and surrounding facts and circumstances bearing upon tbe question as to whether tbe plaintiff’s fellow-servants', those in bis immediate car-moving crew, tbe other two men, or any of them, failed to exercise ordinary care or were neglectful of any duty wbicb be or either of them owed to tbe plaintiff at tbe time, for the plaintiff’s safety, which proximately contributed to Ms injury. And if you so find, that they failed to exercise ordinary care with respect to his safety by giving notice or warning, then your answer to this question should be Tes. Because the plaintiff is chargeable with the neglect or failure to exercise ordinary care for his safety on the part of his fellow-servants; and their neglect, if you find there was any such neglect, or failure to exercise ordinary care on their part, which proximately contributed to his injury, it is imputed to him in the law.”</p>

J. TubNEE, Circuit Judge. In April, 1910-, plaintiffs leased tbe store known as 240-2-42 West Water street; in tbe Cawker building, together witb some space in tbe basement, to tbe defendant for tbe term of ten years, to be used as a restaurant and saloon.

<p> New trial: Error in charge as to damages. </p> <p>The evidence in this case showing that plaintiff was entitled to-substantial damages for breach of contract, the trial court properly granted a new trial after the jury — as they were told they might do by an erroneous charge of the court — re- " turned a verdict for nominal damages only.</p>

Halsey, Circuit Judge. Suit in equity to cancel a written agreement and to remove a cloud upon title. ' On February 12, 1912, tbe plaintiff Euclid W. James and the defendant, for a legal consideration, entered into a- written agreement wherein plaintiff agreed to convey to the defendant by good and sufficient warranty deed certain premises described therein, and the defendant likewise agreed to furnish full abstract of title and to convey to the plaintiff by good and…

<p> Evidence: Competency: Value of property: Cost: When owner may testify: Fixing value by court: Conversion of goods stored: Proof of ownership: Lien for storage charges: Enforcement: Common carriers. </p> <p>X, The owner of property, such as used household goods, which has no established market value is competent to testify to its value, particularly- where such owner purchased the greater part of the goods.</p> <p>2. The testimony of the owner of such goods that in fixing values she took into account the cost price of the articles, making such deduction as she thought proper to cover depreciation, and that the values fixed by her were reasonable, was competent and tended to prove market value. Allen v. G. & N. W. R. Go. 145 Wis. 263, distinguished.</p> <p>3. Where there is a wide discrepancy between the testimony of the witnesses for the respective parties as to the value of property, the court is not bound to accept the valuation of any witness but may find the value at some intermediate figure.</p> <p>4. Where goods were left for storage with defendant by a constable who had taken them on a writ of replevin sued out by plaintiff, plaintiff’s uncontradicted testimony, given without objection, that she had been awarded the goods in the replevin action and had promptly notified defendant of that fact, was sufficient proof of her ownership to justify a recovery by her for conversion of the goods by defendant.</p> <p>5. The fact that a storage company is also engaged in the draying business does not make it .a common carrier as to that part of its business which consists of storing goods for hire, or entitle it to enforce a lien for storage charges by proceedings under ch. 391, Laws of 1903 (secs. 1646 — 1 to 1646 — 3, Stats.); but it must proceed under sec. 3347, Stats.</p>

J: Tueheb, Circuit Judge. Plaintiff received an injury September 1, 1911, to bis band while -feeding leather soles through large rolls in a machine in defendant’s shoe factory. At the close of the trial the jury returned the following verdict: “(1) Were the revolving appliances on the machine at which the plaintiff was at work at the time he was injured securely guarded?

<p> Appealable orders: New trial: Discretion: Affirmance. </p> <p>1. That part of an order granting a new trial which refuses to change the answers to questions of the special verdict and denies defendant’s motion for judgment is not appealable, standing by itself.</p> <p>2. A motion to modify a previous order granting a new trial is not a special proceeding, and the order denying such motion is not appealable.</p> <p>3. An order granting a new trial, made in the exercise of the trial court’s discretion, will be affirmed unless an abuse of discretion appears.</p>

Halsey, Circuit Judge. The plaintiff in error petitioned the circuit court for Milwaukee county for a writ of error.

C. Eschweilee, Circuit Judge. This action was brought to recover damages for the alleged breach of contract to transport the members of plaintiffs orchestra, their instruments and baggage from Denver, Colorado, to Milwaukee, Wisconsin, by failing t'o deliver the ear containing the baggage and instruments to the Chicago, Milwaukee & St. Paul Eailway Company at Chicago in time to make connections with a certain train, No. 5, leaving Chicago at 9:15 a. m. and arriving in…

<p> Life insurance: Policy issued to husband for benefit of wife: Assignment by husband: Tested rights: Regulation of marriage relation: Constitutional■ law: Statutes: Validity. </p> <p>1. The rule that one who insures his own life for the benefit of another and pays the premiums himself may at any time dispose of the policy or may will it away without consent of the beneficiary, was changed, so far as policies in favor of married -.women are concerned, by ch'. 376, ;Laws of 1891, which ainended sec. 2347, R. S. 1878, so'as to provide in substance that any such pQlicy. either assigned or made payable to a married woman or to a trustee for her benefit should he her . sole and separate property, free from , the control, disposition, or claims of her husband.</p> <p>3. The right of a husband to. sell, assign, and' dispose of a. policy ■ .of insurance upon his own life for the benefit of his wife, issued prior.to passage of ch, 376, Laws of 1891, and upon which he paid the premiums,' was a valuable. property right . and was fully vested; and in so far as said act of 1891 attempted to deprive him of that right it is invalid.</p> <p>3. The public has the right to control and regulate the marriage relation and the property rights of the parties thereto by such reasonable and appropriate regulations as do not unnecessarily interfere with those rights of person and property which both i state and federal constitutions were framed to protect; but the interests or welfare „of the public do not make necessary any such considerable extension of the police power as would ' be-involved in holding that a vested property right, such as the right of selling, assigning, or willing a policy of insurance, can he taken .away from the husband by legislative act.</p>

0. Eschwexlee, Circuit Judge. Action to recover compensation for a personal injury.

Halsey, Circuit Judge. This action was brought in the civil court of Milwaukee county to recover for breach of contract'.

. Appeal from a judgment of the circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge. On May 22, 1912, the plaintiff was employed by the defendant as a carpenter, and was engaged in laying boards on the roof of a building then being constructed by the defendant. The boards or planks to be laid were raised to the roof and put' in piles at convenient places preparatory to being matched and nailed.

0. Ludwig, Circuit' Judge. This action was brought by tbe plaintiff, as administra-trix, to recover damages for injuries to, and death of, her son, William Priebe. Tbe facts out of which this cause of action arose are practically undisputed and are, briefly stated, as follows: The defendants, copartners, own and operate a foundry in tbe city of Milwaukee and are in the agricultural implement business.

WilliaMS, Circuit Judge. Tbis is an action to recover $1,200 for services claimed to bave been rendered in tbe year 1903 in procuring an option for a lease of a store building for saloon and restaurant purposes on Third street in tbe city of Milwaukee.

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

<p>Master and servant: Injury from ineompetency of fellow-,servant: “Habitual” carelessness': Special verdict: Evidence: Constructive notice.</p> <p>1. Tke word "habitual” is ordinarily applied to those things which we do customarily or from force of habit.</p> <p>'2. A servant may be incompetent because of carelessness, although not habitually careless.</p> <p>3. In an action for personal injuries alleged to have been caused by incompetency of a fellow-servant, the evidence showed that the fellow-servant was either habitually careless or was guilty of an occasional fugitive act of carelessness which, in this case, would not show incompetency. The court submitted for ' special verdict the question whether he was “an incompetent employee of defendant because of any habitual carelessness" in doing his work, and attention was not at any stage of the proceedings below specifically called to such use of the word “habitual.” Held, that its inclusion in the question was not improper or prejudicial to plaintiff.</p> <p>4. A servant cannot be held incompetent merely because he does what all of his numerous fellow-servants do who are engaged in the same work. So. held, where the act resulting in plaintiff’s injury was the sprinkling of gasoline upon burning gasoline in the process of drying the molds in' a foundry.</p> <p>5. Where there was a shop rule prohibiting the doing of the act which resulted in plaintiff’s injury, and the employees had been repeatedly warned not to do their work in that way and sharply reprimanded for disobeying the rule, and it appeared that they were careful not to violate the rule when any of defendant’s officers or agents or vice-principals were around, evidence of a few fugitive violations by one employee during a long period of time did not warrant a finding that defendant had, by reason thereof, constructive notice of the incompetency of such employee.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge.</p> <p>This is an action in equity brought by the executor and the devisees and legatees under the last will of Johanna ITuth, deceased, to recover of the defendant (the husband of the deceased) certain moneys and real estate received by the defendant from his deceased wife during her lifetime.</p> <p>' It appeared without substantial dispute that the defendant had received in moneys from his wife in various ways $3,815.46. It did not áppéar affirmatively that.any part of this money had at' any time been transferred by the wife to her husband with intent to make a gift thereof. It also appeared that there was conveyed to the defendant and his deceased wife, by deed, two certain lots in Milwaukee, which were in fact a part of the wife’s share in the estate of her deceased mother, the title of which had been held by a .brother of the testatrix in trust for the-mother during her lifetime, that the deed of said lots ran to the defendant and his said wife as grantees, and that the title remained in the same condition at the time of the death of the wife; also that the defendant had spent $800 for repairs upon the real estate and $125.46 for the funeral expenses of the deceased wife.</p> <p>• Upon these facts the trial court held that the defendant had received the aforesaid sum of $3,815.46 in trust for his said wife; that the amounts spent by him for repairs and funeral expenses, aggregating $925.46,- should be credited thereon, leaving $2,890 still due from the defendant to the executor, Friedrich; that‘by the conveyance of the two lots the title was placed in the defendant and the deceased as joint tenants, and that this title could not be affected but must' remain as it was placed by the legal import of the deed.</p> <p>Judgment that the plaintiffs recover the -$2,890, and that the same be paid to the executor and that the plaintiffs be denied all further relief, was entered, and the plaintiffs appeal.</p>

<p> Discovery: Examination of party before issue joined: Nature and scope: Unfair trade: Reports of agents and employees: Disclosure of names of witnesses: Formula of food product: Production of physical objects: Privileged communications: Attorney and client: Unreasonable searches and seizures: Constitutional law: Discretion of trial court: Appeal: What orders ap-pealable. </p> <p>1. An examination under sec. 4096, Stats., is in the nature oí a cross-examination. The statute has been, amended from time to time so as to accomplish full disclosure and should be liberally construed to that end.</p> <p>2. The examination of a corporate officer under the statute, after complaint served hut before answer, is subject to the same rules as that of any other witness, the only restriction being that he cannot be compelled-, to disclose anything not relevant ■ to the controversy.'</p> <p>3. The examination is very largely in the discretion of the trial court, and its order made in proceedings under the statute will not he disturbed on appeal except for clear abuse -of such discretion.</p> <p>4. In an equitable action to restrain defendant from selling a spurious article as and for a product manufactured by plaintiff corporation, an officer who verified the complaint, in which the making of Receptive sales was averred on information and belief, may properly be required, in an examination under said sec. 4096, to disclose the contents of reports made to him concerning such sales, by employees and agents of the corporation, which formed the basis of the allegations of the complaint.</p> <p>5.. Reports made by employees and' agents of a corporation to a superior officer for the purpose of enabling the corporation to bring or prosecute an action, are not privileged.</p> <p>6. The privilege existing between attorney and client is confined strictly within the limits of the statute (sec. 4076, Stats.) and extends only to communications made by the client to his attorney and the advice given thereon by the latter in the course of his professional employment.</p> <p>7. In an action for unfair trade, questions asked of a corporate officer who verified the complaint, upon his examination under sec. 4096, as to the names and addresses ot persons making reports to the corporation upon which he based his belief of the truth of the complaint, and whether such reports were in writing or by parol, did not call for the disclosure of trade secrets, nor did they constitute an unreasonable search or seizure under sees. 11, 22, art. X, Const of Wis., or under the Fourth amendment, or sec. 1 of the Fourteenth amendment, to the federal constitution.</p> <p>8. Where it is not clear that evidence called for under sec. 4096 is within the knowledge of the party calling for it, the discretion of the trial court in requiring the questions to be answered will not be interfered with.</p> <p>9. Where a complaint for unfair trade charges substitution of a spurious article for á food product manufactured by plaintiff, the ingredients of plaintiff’s product involve a vital issue in the case, and questions on that subject are therefore relevant and proper.</p> <p>10. It was also proper upon such examination to direct the witness to produce certain bottles and their contents from which the alleged substitution was made, which had been in defendant’s store but which had been delivered before the action to an agent of the plaintiff.</p> <p>11. Under the provision of sec. 4096, Stats., that a party may be required to produce upon his examination “all books, papers, files, records, things, and matters,” etc., the production of any article, though of a physical character, which is relevant to the controversy may be compelled.</p> <p>12. Although an examination under sec. 4096 is a substitute for the old bill of discovery, the statute goes further than the bill of discovery and an examination under it is not governed nor limited by the rules in chancery.</p> <p>13. An order directing that a party need not answer certain questions asked of him on his examination under sec. 4096, Stats., is not appealable.</p>

<p>Res judicata: Former adjudication: Appeal: Double costs.</p> <p>1. The judgment of this court upon appeal in a former action between the same parties, wherein the same questions were litigated and determined, is conclusive upon the parties in this action.</p> <p>2. Double costs under sec. 2951, Stats., are not allowed to respondents in this case, although the parties are held to be concluded by a former judgment of this court.</p>

<p>Appeal from an order of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p> <p>Civil action for damages brought against the defendant C.onlan and others for a criminal conspiracy to libel. The alleged dissemination of a printed circular, referred to as Exhibit 1, appears to form the basis of the action. It contains the following language:</p> <p>“To the Honorable John 0. Karel, County Judge of Milwaukee County: That the public records in the county court show the notorious fact that you have from time to time permitted crafty attorneys and guardians ad litem to plunder the estates of orphans and widows of thousands of dollars,, and in some instances as high as twenty-five thousand dollars. . . . That while the widows and orphans have been clamoring to have their business transacted in the county court, you have been the pliant candidate for governor at the-request of special interests, big business and tax dodgers, with or without pay.”</p> <p>After service of the summons, upon an affidavit' therefor an order was obtained for an examination of the defendants-under sec. 4096, Stats. 1911, to enable the plaintiff to plead.. The examination was had before a court commissioner, and the defendant Conlan, after being ordered by the commissioner to answer, refused to answer a number of questions-put to him by plaintiffs counsel on the ground that the answers would tend to incriminate him. The following are-fair samples of the questions the witness refused to answer::</p> <p>“Where did you first see the proof for the printed document Exhibit 1 ? Did you prepare the copy for this paper,. Exhibit 1 ? Who gave the order for printing Exhibit 1 ? Who did you consult with before ordering this paper referred to, Exhibit 1, printed? Did you have any meeting-of county committee, or any of its members, at which the matter of the issuance of Exhibit 1 was discussed? Who-besides yourself had anything to do with the preparation of the copy for this paper Exhibit 1 ? How did this Exhibit 1 come to be issued or printed and circulated? When was Exhibit 1 first brought to your attention in it's printed form? Did you order it printed? How many did you order printed? Did you show Exbibit 1 to Mr. Bollow at any time before it was printed? Who gave the defendant L. Breithaupt Printing Company, or any of its officers or agent's, directions about the printing of this document Exhibit 1 ? Were you present at any time when any copy was prepared or directions given in regard to the printing of Exhibit 1 and its duplicates ? Did you hire anybody to aid in the distribution or to distribute them? Who paid for the distribution of these papers, the mailing, postage stamps, stationery, and the services involved in the mailing of them ? By whose suggestion was the stamp placed upon these papers apparently made by a rubber stamp, .Return to Room 300, Poster Building, 403 Grand avenue, corner Pourth street? Who ordered the stamp made? Did you have anything to do with obtaining any room in the Poster Building or elsewhere, for the purpose of having these papers distributed and received after they had been sent out and returned? Did you ever read the matter before it was printed, the matter contained in Exhibit 1 ? Did you believe the statements in Exhibit 1 were true, before they were circulated? Did Mr. Pred Lorenz and Mr. Theodore Kronshage, or either of them, ever talk with you about issuing these circulars before they were issued? Did Mr. Pred Lorenz talk with you about it before they were printed ? ■ Had Mr. Theodore Kronshage talked with you about it before they were printed ? Do you know whether or not the printing of this Exhibit 1 was done by the L. Breithaupt Printing Company ?”</p> <p>It appeared that one Prank L. Prescott distributed copies of Exhibit 1 at the South Side Turn Hall, Milwaukee. The witness was interrogated at length as to his connection with such distribution, in each case refusing to answer the questions on the ground that the answers might tend to incriminate him.</p> <p>The questions which the witness refused to answer were certified to the circuit court and it affirmed the ruling of the ■commissioner and ordered the witness to answer the questions. The witness again refused, claiming his constitutional privilege, and the court commissioner adjudged him in contempt, and ordered bis imprisonment in the county jail of Milwaukee county until be shall answer the questions and pay the sum of $50 costs and expenses. The circuit court,, upon review, entered an order affirming the order of the court commissioner, and from such order of the circuit court the defendant Oorilcm appealed.</p>

Eoss, Judge. This action was brought by the plaintiff to recover damages for the death of his son, who was killed in the defendant’s plant in Milwaukee April 28, 1911, by being caught' by a large metal counterweight which moved up and down between guides and which was a part of the mechanical apparatus used in the defendant’s plant for handling coal.

<p> Mortgages: Foreclosure: Receivers: Removal: Appeal by receiver: Deficiency judgment against wife. > </p> <p>1. After the plaintiff in an action to foreclose a first mortgage had applied for a receiver, and after notice of lis pendens had been filed, an action to foreclose a second mortgage was commenced without making said plaintiff a party, and thereafter judgment . by default was taken in the second action and a. receiver appointed therein, without notice to the plaintiff in the first action, to collect the rents and profits of the mortgaged premises. Said plaintiff, who was entitled to have the rents and profits applied on the first mortgage, made the receiver a defendant in the first action. Held, that the court had the right to remove such receiver and appoint another in his stead.</p> <p>2. Such receiver having answered in the first action that he was indifferent whether he continued as receiver or not, and having appealed without leave of court from a judgment for plaintiff in that action, it is held that he has no substantial ground upon' which to ask for a reversal of that judgment.</p> <p>3. Where the mortgaged property was owned jointly by husband and wife and the note secured was signed by both, and the mortgage was given to pay a prior mortgage on the same premises, it was proper in the judgment of foreclosure to provide for a deficiency judgment against the wife.</p>

<p> Estoppel: Burden of proof: Erronéous instruction: Appeal: Prejudicial error: Milwaukee civil court: New trial on appeal: Motion costs: Discretion. </p> <p>1. Where defendant in his answer sets up affirmative matter by way of estoppel, the burden of proof is upon him to establish such defense.</p> <p>2. An erroneous instruction as to the burden of proof upon a material issue is sufficient cause for reversal where the finding of the jury on that issue is adverse to the party upon whom the burden is erroneously placed.</p> <p>3. Under sub. 3, sec. 28, ch. 549, Laws of 1909, upon appeal from the civil court of Milwaukee county, if a new trial be ordered it should be had in the circuit court. The statute does not provide for the remanding of a case to the civil court for a new trial.</p> <p>4. It was not an abuse of discretion, under sec. 2924, Stats., for the circuit court to allow $10 costs of motion when granting a new trial in a case appealed from the civil court of Milwaukee county; but it would be better not to impose costs upon defeated parties in such motions.</p>

<p> Taxation: Income tax: Corporations: “Searing and appeal’’ as to-decision of tax commission: Statute construed: Illegal taxes: Remedies. </p> <p>1. Sec. 1087m — 13, Stats, (providing that any corporation feeling, aggrieved by the decision of the state tax commission regarding the assessment of its income “shall he granted the same rights of hearing and appeal as are now granted corporations. assessed by said commission”), does not refer to an action to recover taxes illegally levied, but to a review before tbe tax commission of its preliminary decision as to tbe amount of income upon wbicb tbe corporation must pay an income tax; being in effect tbe same right as tbe right “to appear and be beard” given to certain corporations, in respect to the assessment of their properties, by secs. 1215 — 10, 1218 — 11, 1222— 11, 122266, 1222 — 53, 1222 — 63, 1222 — 73, Stats.</p> <p>2. Tbe time of the bearing under said sec. 1087m — 13, Stats., is a matter of detail for which tbe commission may provide.</p> <p>3. It seems that the remedies as to the cancellation of illegal taxes and the refund of moneys paid thereon which, by ch. 27, Laws of 1913 (sub. 4, sec. 1087m — 22, Stats. 1913), are preserved to all persons paying income taxes, include the remedies given by sec. 1164, Stats. (Laws of 1913, ch. 478), by way of the filing of a claim and the commencement of an action against the town, city, or village to which the illegal taxes are paid.</p>

<p>Eeeoe to review a judgment of the circuit court for Shawano county: JohN Goodla1íí:d>- Circuit Judge.</p> <p>Tliis is a writ' of error, to review a conviction of plaintiff in error of the offense of conducting the business of peddling without a license contrary to the statute, see. 1570, Stats. 1911, which provides .that “No person shall engage in or follow the business or occupation of a hawker or peddler within this state without having first obtained a license for that purpose as provided in sections 1570 to 1584i, inclusive.”</p> <p>The accused was in due form, charged under sec. 1570, Stats. 1911. The proof was to the effect that, during the time and within the territory alleged, the accused traveled from place to place with horses and wagon and selling as he could from house to house such spices, medicines, and other articles of merchandise as he carried. He obtained his stock under contract with a wholesaler who sold only by such methods. Ey the terms of the contract he was given the character of an exclusive agent for the seller within specified territory, but was in fact dealt with as a purchaser of the goods. He was required t'o pay for goods ordered substantially the same as in ordinary cases and depended for remuneration for his w.ork upon selling such goods at an advance over the purchaáe price. He ordered the goods in quantities, stored them at his home, stocked his wagon there, and restocked it from time to time as needed. In due course he was found guilty as charged and judgment was rendered accordingly.</p>

H. Reid, Circuit' Judge. This action was brought to recover damages for the burning of certain forest products piled for shipment by the plaintiff along and adjacent to a spur track of the Abbotsford & North Eastern Railway Company. It was alleged in the complaint that the defendant railway company owned and operated the railroad and spur track, and that its codefend-ant by its permission operated the locomotive which set the fire.

<p>Appeal from a judgment of tbe circuit court for Oneida county: A. H. Eeid, Circuit Judge.</p> <p>Tbe appellant, grantee in a tax deed executed May 18, 1909, upon tax certificates issued in 1906 for delinquent taxes of 1905 and conveying the northwest quarter of the northwest quarter and the southeast quarter of the northwest quarter of section 25, township 40 north, of range 2 west, brought this action to bar the original owner, making the wife of the latter a codefendant. Application for the tax deed and an affidavit of nonoccupancy were made on May 18, 1909, as required by sec. 1TT5, Stats. Eespondents answered to the effect' that no notice of. application for a tax deed was given and that said lands were occupied at the time the affidavit of nonoccupancy upon which the tax deed issued was filed and had been so occupied during the six months immediately preceding the date of application for said tax deed for a period of more than thirty days by the respondent named, who was then the owner of said land, and that said lands were sold for an unjust' and illegal sum in addition to the amount actually levied and assessed against said lands and in excess of the lawful and proper amount due the county at the time of the sale. Respondents did not at the time of filing this answer deposit with the clerk of the court for the use of the appellant the sum for which the lands were sold with interest, etc., as required by sec. 1200, Stats. Testimony was taken before a referee relative to the occupancy of the land in question and to the alleged illegal excess. Upon argument before the court, where it was objected that the deposit was not' made, the trial court, upon the application of respondents, made an order extending the time within which such deposit should be made; and the deposit was made.</p> <p>The trial court found that one McCormick, a logger, occupied said land in his logging operations by oral permission of the respondent; that' these operations involved open and obvious possession of the northwest quarter of the northwest quarter from the fall of 1908 to the spring of 1909, and were such that any person going upon said forty-acre tract during that time could readily observe them; that' the possession and use of said land so had and made was substantially the only use and possession thereof practicable excepting possession accompanied by cutting the timber. No finding of occupancy was made as to the other forty-acre tract involved, but it was found that this tract was sold for an illegal excess of $1.06 and that the tax deed was invalid as to both tracts. Judgment' on the findings was entered dismissing the plaintiff’s complaint with costs, taxed at $465.88. No terms were imposed upon the respondents upon granting their application at the trial to make tbe deposit required by sec. 1200, Stats.</p> <p>Many errors are assigned by appellant, but they may. be summed up as follows: (1) There was no sufficient proof of occupancy to entitle the respondent's to notice of the application for the tax deed under sec. 1175. (2) Eespondents having failed to make the tender and deposit required by sec. 1200, Stats., at the time of pleading, were precluded from attacking the tax deed on account of the illegal excess in the taxes for which the land was sold, and the circuit court had no discretion to extend the time within which to make this tender; or, if it had such discretion, there was an abuse of discretion in not requiring payment of appellant’s costs up to the time of such tender. ></p>

<p>Official bonds: County treasurer: Sealed instruments: Lacle of scroll: Limitation of actions: Statutes: Construction: Definitions: “Knowledge” of default, etc.: What constitutes: Records of county: Examination: Fraud and concealment: Pleading.</p> <p>1. An instrument in the form of a bond which was executed by a county treasurer and sureties under a statute in terms reguir-ing a bond, and which'expressly states upon its face that it is sealed with the seals of the signers, must he considered a sealed instrument, although there is no scroll or other indication of a seal after the signatures.</p> <p>2. The time within which an action must he commenced on the bond of a county treasurer was fixed by sec. 4220, R. S. (1878), at twenty years; and by virtue of sec. 4976, R. S. (1878) and Stats. (1898 and 1911), the same limitation continued to he applicable to a cause of action which accrued prior to the enactment of ch. 268, Laws of 1898, unless at the time of such enactment the county had''had for three years notice and knowledge that there was a default in the conditions of the bond and -that it was entitled' to recover thereunder, in which .case the time-was shortened to ninety days.</p> <p>3. Ch. 268, Laws of 1893, provided for such actions a limitation of three years after the county had notice and knowledge as 'stated, but, there being.- no provision to the contrary, the twenty-year limitation of sec. 4220 continued by virtue of sec. 4976 to be applicable to causes of action accruing after the en- - actment of said ch. 268 and prior to the revision of 1898, where the county did not have such notice and knowledge.</p> <p>4. By the revision of 1898, ch. 268, Laws of 1893, became sec. 984 of the Statutes, and was amended by dropping the words “notice and” therefrom,, so as to require “knowledge” only, and at , the same time sec. 4220 was changed so as to expressly except from it the official bonds mentioned in said sec. 984, thereby leaving the limitation prescribed in that section the only one in force applicable to causes of action thereafter accruing upon such bonds.</p> <p>5. In the construction of statutes, the subject of the legislation, the context, the associated words, and the mischiefs'which the ■ particular statute was intended to guard against, as well as the consequences of a particular, interpretation, all factors in arriving at correct results, make mere judicial definitions of particular words used in a different connection and with reference to a different subject of quite subordinate, if of any, importance as aids.</p> <p>■6. Knowledge Is more than notice, and ma.y or may not flow from notice; and knowledge of a municipal corporation is quite distinguishable from knowledge on the part of a natural person or a business corporation.'-</p> <p>7. A county is not chargeable with “knowledge” (within the meaning of ph. 268, Laws of 1893, or sec. 984, Stats.) of everything that an inspection of the books and records in the treasurer’s office would disclose.</p> <p>8. Especially would it not be chargeable with knowledge of the contents of duplicate receipts for taxes collected, which, were never countersigned as required hy law nor filed with the county, clerk, as also required, hut were retained by the county treasurer in his own files where they had no legal right to be.</p> <p>9.Knowledge of the failure of the treasurer to have such duplicate receipts countersigned and to file them with the clerk does not necessarily include knowledge that the county “was damaged because thereof,” within the meaning of sec. 984, Stats.</p> <p>10. A county is not chargeable with knowledge of collections made by the treasurer of delinquent taxes before sale, from the mere fact that he indorsed the'same upon the'delinquent tax return kept in his office, the statute not requiring such indorsement, but a different record in another office and in a different form.</p> <p>11. If fraud and false entries are resorted to by a county treasurer for the purpose of concealing a default, and he thereby does successfully conceal it from the county officers charged with the duty of investigating, without negligence on their part, the county is not chargeable, as matter of law, with knowledge of the default, even though it might have been discovered by expert examination.</p> <p>12. But if such officers might from the lawful records, by a cursory investigation, have discovered the default, or if the lawful records on their face plainly show the default, or if actual knowledge is brought home to the officers charged with the duty of examination and accounting, at the time of such ex- ,. amination and accounting — in all cases excluding the delinquent officer, — the county would have knowledge within the meaning of the statute.</p> <p>13. Lack of knowledge, under the statute, is sufficiently averred in a complaint upon a county treasurer’s bond which alleges false entries by the treasurer in his books and false reports of moneys collected by him, made for the purpose of concealing and which did in fact conceal from the plaintiff and its county board the withholding of funds by him, and that neither the county nor its board of supervisors had, prior to a certain date, notice or knowledge of any default in the condition of the treasurer’s bond or that the county was entitled to recover thereon.</p>

<p>Appeal ‘from a judgment of the circuit court for Oconto county: S. IX Hastings, Judge. Reversed.</p>

, Judge. Action to recover on a money demand. The trial of the cause resulted in findings in favor of plaintiff. A motion was made on newly discovered evidence for a new trial which was denied. Judgment was rendered in plaintiff’s favor for $412.22 damages and costs, in accordance with the findings.

Appeals from a judgment of tlie municipal court of Racine county: Wm. Sat peden g, Jb., Judge. In 1885 one Catherine Schulver owned the north forty feet of lot 5 of block 26 of the city of Racine, and her two children, Albert and Annie Iluse, owned the south twenty feet of said lot. Mrs. Schulver was either building or contemplating the erection of a building on the portion of the lot owned by her.

Arread from a judgment of tbe circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge. The defendant' company was engaged in constructing the steel and iron work of a building being erected in the city of Milwaukee.

Feitz, Circuit Judge. This action was brought to restrain the collection of a special assessment against fifteen lots belonging to the plaintiffs, which assessment was levied for the expense of constructing cement sidewalks amounting to $662.42. The material parts of the city charter involved in this controversy are secs. 16 and 17, ch, VII,.and are as follows: “Section 16.

C. Ludwig, Circuit Judge. This is an action of interpleader. The question involved is as to the ownership of the proceeds of' a life insurance policy on the life of one Foster D. Adams. The policy was issued June 21, 1881, and named as beneficiary “his wife, Ida M. Adams/’ The insured then lived in the territory of Dakota, and the policy stated on its face that it was a contract made and to be performed in the state of Wisconsin.

0. Eschweilbe, Circuit Judge. Tbis is an action against tbe sureties upon the official bond of a school district treasurer to recover for an alleged breach thereof. The facts were not seriously in dispute. One John F. Peterson (the principal in the bond in suit, but now deceased) was elected treasurer of the plaintiff school district on the first Monday in July, 1905.

Eeitz, Circuit Judge. Action to restrain enforcement of a judgment because of its being inequitable.

<p>Appeal from a judgment of the circuit court' for Milwaukee county: E. C. EschweileR, Circuit Judge.</p>

C, Eschweiler, Circuit Judge. Plaintiff brings this action to recover damages for the •death of her husband, who was a fireman of the city of Milwaukee. Death resulted from grasping a guy wire charged with electricity. The wire in question had become broken or detached, and hung suspended about eighteen inches distant from a wooden pole. It reached within five or six feet of the ground. The wire in swaying back and forth from the wind periodically touched the pole.

<p> Abatement and revival: Death of party: Appealable orders: Abuse of discretion. </p> <p>1. An order reviving an action against the personal representatives o.f a deceased party is appealable.</p> <p>2. Such an order, being in a matter within the sound discretion of the trial court, will not-be disturbed unless that discretion was abused.</p> <p>3. In an action commenced in June, 1906, for the purchase price of women’s furs, defendant alleged that he never ordered or accepted them, that if they were furnished to his wife it was without his knowledge or consent, that they were not necessaries, and that he was not liable therefor. A few days later he brought suit for a divorce on the ground of desertion, and a divorce was granted in December, 1908. The action against him was noticed for trial in October, 1906; in June, 1907, it was by stipulation continued over the current term; and thereafter nothing was 'done by either party to bring it to trial. In August, 1911, defendant died suddenly. In April, 1913, after a motion to dismiss for want of prosecution had been made, plaintiff moved to revive the action. It being apparent that the -defense practically died with the defendant, it is held that it was an abuse of discretion,- under all the circumstances, to revive the action.</p>

Halsey, Circuit Judge. In an action of certiorari brought to reverse the action of the Common Council of Milwaukee in revoking the relator’s saloon license, the revocation was affirmed and the relator appeals.

<p>■ Appeal from a judgment of the municipal court of Milwaukee county: A. 0. Backus, Judge.</p> <p>Prosecution for violating a municipal ordinance regulating the business of junk dealers.</p> <p>The cause was commenced in the district court' by filing of a complaint and issuance of a warrant, as in a civil action for the recovery of a penalty. In due course, the accused was found not guilty by the verdict of a jury. The city of Milwaukee, still dealing with the matter as a civil action, appealed to the municipal court where, in due course, the action was dismissed because the offense charged, as thought, was a misdemeanor and so the city had no right to appeal from a judgment of acquittal.</p>

<p>Appeal from a judgment of the circuit court for Winnebago county: Geobge W. Bumell, Circuit Judge.</p>

<p> Trial: Special verdict: Answer construed in light of instructions: Conflicting findings: Presumption on appeal: Master and servant: Injury: Assumption of risk: Unsafe scaffold: Change made in progress of loork. </p> <p>1." The effect of an answer in a special verdict must he determined in the light of the instructions given in connection with the question, and it may he broader than the mere wording of the question would imply.</p> <p>2. Assumption of risk and absence of contributory negligence may co-exist.</p> <p>3. An affirmative answer to a question, “Did the plaintiff voluntarily use the platform in its changed condition?” after a finding that he took part in making the change in question, did not in terms constitute a finding upon the issue of plaintiff’s assumption of the risk; but where the court in connection with such question instructed the jury that a servant voluntarily using a dangerous structure or machine with knowledge of its condition assumes the risk, it would, if standing alone upon that issue, constitute such a finding.</p> <p>4. Where, however, the court by its instructions in connection with a question upon the issue of contributory negligence, submitted under that question the issue of whether or not plaintiff assumed the risk, and the jury returned a negative answer, such answers were conflicting and would warrant judgment for neither party.</p> <p>5. Defendant having requested the submission of a question clearly presenting the issue of assumption of risk, which was refused, no finding upon that issue in defendant’s favor can he presumed under sec. 2858m, Stats., unless it can be held as a matter of law that plaintiff did assume the risk.</p> <p>6. In an action for personal injuries alleged to have been caused by a defective scaffold or platform upon which plaintiff was working, the defense of assumption of risk is available to the defendant.</p> <p>7. The facts that plaintiff assisted other workmen in changing ■ one joist in a scaffold and that he heard .another employee advise the person nailing it to put in more spikes, to which the latter replied that it was strong enough, were not sufficient to charge plaintiff with assumption of the risk as a . matter of law.</p> <p>8. Where such change was necessary.to allow the performance of work with which the timbers of the original scaffold interfered, and was made in the presence and with the consent of defendant’s foreman, the statutory duty to furnish a safe scaffold applied to the structure as changed.</p> <p>9. Such single alteration in the scaffold did not render applicable the rule relative to a place of work which is constantly changing during the progress of the work.</p>

<p> Appeal from county court: "Person aggrieved.:" Proponent of will. </p> <p>1. The proponent of a will, who is named as executor therein, is a “person aggrieved” hy a judgment of the county court refusing prohate to the will, and hence, under sec. 4031, Stats., may appeal from such judgment.</p> <p>2. Such a person, if he in good faith believes that the will has been wrongfully denied probate by the county court, should appeal from the decision.</p>

<p>Bales: Bona fide purchaser: Conditional sale of timber: Estoppel: Notice: Ordinary course of business.</p> <p>1. A conditional vendor who, Laving given to the vendee possession and apparent authority.to sell the property, either expressly or impliedly consents to such sale hy the vendee, will he es-topped from asserting his rights to the injury of a purchaser who bought in the ordinary course of business and paid for the property without notice.</p> <p>2. The mere fact that about one third of the purchase price of lumber was paid by applying thereon a precedent debt of the vendor for advances made to him by the vendee for the purpose of paying for stumpage and secured in part by'an executory contract for the sale of the lumber in the following season at the market price, did not render such sale, when consummated, one out of the ordinary course of business.</p> <p>3. Knowledge by the purchaser of lumber that the vendor was logging on land which did not belong to him, was not notice that the timber so being cut was not paid for or that its sale to said vendor was conditional with title reserved in the owner of the land.</p>

<p> Contracts: Construction: “Value:” Proportional payments on building contract: Practical construction: Appeal: Disposition of cause: Talcing further evidence. </p> <p>1. The term “value” usually means market value, hut if such meaning, when applied to a particular contract or conditions growing out of it, leads to results clearly not contemplated by the contract, and it is susceptible of another meaning which harmonizes all the provisions of the contract, such other meaning should be given to it.</p> <p>2. In a building contract providing for payment in each month of “a sum equal to ninety per cent, of the value of the work done and material furnished during the preceding month, as assessed by the architects,” the word “value” is construed to mean, not market value, but contract value, i. e. the proportional value of the work and material, based upon the contract price.</p> <p>3. The fact that under such construction of the contract the owners had overpaid the contractors, does not show a practical construction of the contract, whére upon discovery of such overpayment further payments were refuse,d.</p> <p>4. A practical construction will not he deemed to have been given to a contract hy the parties in the absence of knowledge of the facts and circumstances to which that construction relates.</p> <p>5. In an action upon a building contract and 'for extras, where plaintiffs had ample opportunity at the trial to present evidence as to all their claims, and it was stipulated that affirmance on appeal of the judgment entered should end the litigation, the cause will not, upon such affirmance, be sent back for the taking of further evidence.</p>

<p>Appeal from a judgment of the circuit court for La Fay-ette county: Gteoege ClemeNtsoN, Circuit' Judge.</p> <p>The plaintiff sued one Richey upon a promissory note and garnished the respondent bank. Having obtained judgment in the principal action, the garnishment action was tried by the court. It is admitted that' at the time the garnishee summons was served there was a general credit to Richey on the books of the bank of $1,312.48, and the question litigated was whether that sum represented an indebtedness of the bank to Richey, as in the case of an ordinary deposit, or whether it' was a special fund placed in the bank by one Smith in trust for the purpose of assisting Richey in the purchase of stock.</p> <p>The court made findings of fact and concluded therefrom that the bank was not' indebted to Richey at the time the garnishment proceedings were instituted and dismissed the proceedings, from which judgment the plaintiff appeals.</p>

<p> County courts: Settlement of estates: Claims: Constructive trusts: Concurrent jurisdiction of circuit .court: Discretion. </p> <p>1. The county court has full jurisdiction, in law as well as in equity, in respect to all controversies involved in the settlement of the estates of decedents; and the concurrent jurisdiction of the circuit court should not he exercised unless that court can afford more complete and adequate relief than can be had in the county court.</p> <p>2. A money demand against the estate of a decedent, the amount of which is to be determined by an accounting as between trustee and cestui que trust, should ordinarily be litigated in the county court, though circumstances may warrant the circuit court in taking jurisdiction. Whether the circuit court should do so or not is so largely a matter of discretion that its determination will not, in general, be disturbed on appeal.</p> <p>3. Where one person has money of another and without the latter’s consent invests it in property, taking the title in his own name, such property is impressed with a trust, and the money so fraudulently used can be recovered out of it, provided it can be clearly traced into it and the rights of other persons who have dealt with the property in good faith and without fault will not be prejudiced.</p> <p>4. In an action to charge with such an implied trust real property of which plaintiff’s husband died seised, it appearing that the persons to whom the lands were devised and other persons who would be affected by the litigation were not made parties but were parties to the pending proceedings to settle the estate in the county court, and' there being no good reason why that court should not deal with all the matters involved, an order sustaining a demurrer to the complaint is affirmed without prejudice to the plaintiff’s right to proceed in the county court.</p>

<p>Appeal from a judgment of tbe circuit court for Iowa county: Geoege ClekeNtsoN, Circuit Judge.</p> <p>This action was brought to recover damages sustained by plaintiff on account' of m/juries received in the defendant’s mine through the negligence of the defendant. The following verdict was returned:</p> <p>“(1) Was the plaintiff injured on the 21st day of May, 1912, by the fall of a large stone that was a part of the south wall of the drift in the defendant’s mine, which stone projected from the top of said wall over the place where the plaintiff was set' at drilling by Cushman, the defendant’s ground boss, who had the direction of the underground workings of said mine? A. Yes (by the court).</p> <p>“(2) Before the plaintiff began to drill on the day in question, had the wall above the place where he was at' work separated from the cap-rock which formed the roof of the drift? A. Yes.</p> <p>“(3) Did said ground hoss, before he set the plaintiff at work drilling at said place, know that the top of the wall at said place had, to some extent, separated from the cap-rock that formed the roof of said drift ? A. Yes. .</p> <p>“(4) Should said ground boss, as a man of ordinary care, prudence, and experience as a miner, under all of the facts and circumstances, have known that by reason of the separation of the upper stone of said wall from the cap-rock the place where he set the plaintiff at work was probably an unsafe place to drill and have warned the plaintiff of the condition of the wall? A. Yes.</p> <p>“(5) Did Cushman inform the plaintiff before the accident that the upper part of the wall where he set him at work had separated from the roof of the drift? A. No (by the court).</p> <p>“(6) Was the plaintiff aware of the condition of the wall at that place? A. No.</p> <p>“(I) Was Cushman wanting in ordinary care, that is, was he negligent in setting the plaintiff at work drilling at the place in question without notifying him of the condition of the top of the wall, and ought Cushman, as a man of ordinary care, intelligence, and experience as a miner, to have reasonably foreseen under the attending circumstances that in setting the plaintiff to drill in that wall without warning him of its condition, that as a natural and probable result of so doing it was to be reasonably apprehended that a personal injury to the plaintiff might probably result ? A. Yes.</p> <p>“(8) Was the plaintiff guilty of any want of ordinary care which contributed to produce the injury he received? A. No.</p> <p>“(9) If the court should decide upon your answers to these questions that the plaintiff is entitled to recover, what sum of money will compensate him for the injury he received ? A. $11,000.”</p> <p>Judgment was rendered in favor of the plaintiff upon the verdict, from which this appeal was taken.</p>

<p>Appeal from a judgment of tbe circuit court for Monroe county: E. C. Higbee, Circuit Judge.</p>

- Appeal from a judgment of the circuit court for Monroe county: E. C. TIigbee, Circuit Judge. This action was brought to recover damages for slander. The alleged slanderous words set forth in the complaint are as follows: “ ‘I don’t have to use my wife for immoral purposes’ (thereby falsely imputing that the plaintiff’s wife was unchaste and that plaintiff profited thereby).” “ ‘You run a house of ill-fame.

<p> Life insurance: Construction of .contract: Tontine policy: Illustrative statement: Cash value not guaranteed. </p> <p>A life insurance policy provided that at the end of twenty years, if it was then in force, the • insured might, at his option, “withdraw in cash the entire equity (that is, the net reserve, being $3,607.20, and in addition thereto the accumulated surplus” apportioned by the company to the policy). Delivered with the policy, but not attached to it, was a statement purporting to “illustrate” the contract but containing no words of promise or guaranty. This statement showed a cash value of $8,160 at the. end of twenty years, but the figures used therein -were expressly said to be “based on the results realized on tontine policies which have matured during the current year in this company.” Treating such statement as a part of the contract of insurance, it is held that it did not change the ' policy so as to make it guarantee or promise a cash value of $8,160 at maturity. Timlin v. Equitable h. Assur. 8oc. 141 *" Wis. 276, distinguished. - •</p>

<p>Appeals from a judgment of tbe circuit court for La Crosse county: E. C. IIigbee, Circuit Judge.</p> <p>Action for damages for breach of contract to sell and deliver 2,000 cases of canned peas known as “No. 4 Alaska peas” at eighty-five cents per dozen cans, there being two dozen cans in each case.</p> <p>The defendant in June, 1911, operated a pea-canning factory at West Salem, Wisconsin, and the plaintiff was a wholesale grocery corporation at New York. The defendant at this time had an agent named Killian at New York who had the exclusive agency for the sale of its goods in New York; H. C. Gilbert was a broker in canned goods at Indianapolis, under the name of H. 0. Gilbert Company; and Johnston, North & Co. were broker^ in canned goods at New York.</p> <p>On June 10, 1911, Gilbert (who had previously sold one or two lots of canned peas for the defendant on commission) telegraphed to the defendant an offer to sell some of its canned goods in New York, and defendant replied that it had-a broker in New York but' that it had a “few futures left for your territory.” June 13th Gilbert telegraphed, “Wire immediately list we can offer .in our territory, we have one or two good prospects.” June 14th defendant replied, “Have 2,000 cases four Alaska at ninety, usual freight allowance.” June 15th Gilbert wired Johnston, North & Co. at New York, “We offer subject to goods being unsold 1,000 cases number four sweets, eighty cents, 2,000 cases fancy four Alaskas, eighty-five cents, f. o. b. Wisconsin,” to which Johnston, North & Co. replied on the same day, "Leggett will take thousand four sweets, eighty, Muncie, 2,000 four Alaskas, eighty-five, West Salem, approval samples both, merely wants to be protected, wire answer.” Also on the same day Gilbert telegraphed defendant, “Offered eighty-five f. o. b. for 2,000 fancy four Alaskas as per your wire fourteenth, also seventy-five f. o. b. for 2,000 sweets, wire answer,” and to this the defendant replied on the 16th, “'2,000 eases four Alaskas at eighty-five, f. o. b. factory, O. K.” On the 16th also Gilbert telegraphed to Johnston, North & Co., “Confirm Leggett 2,000 cases fancy four Alaska, eighty-five cents, f. o. b. Salem.” On June 15th Johnston, North & Co. wrote Gilbert the following letter:</p> <p>“We have your wire offering 1,000 c-s No. 4 sweets at 80c f. o. b. Muncie and 2,000 c-s Fancy No. 4 Alaskas at 85c West'Salem, Wis. Now Vallette of F. M. Leggett & Co/s will take these two lots if we can show him samples of the goods or give him some kind of a contract that will cover him on quality. As far as the No. 4 fancy Alaskas go, why this can be covered in the contract, for we all know what a fancy No. 4 Alaska Pea is, Wisconsin Pack, but as far as the 1,000 c-s No. 4 Sweets, Indiana, it is pretty hard to describe the quality to a buyer and protect him. See if you can tie these two lots up and advise us by wire.”</p> <p>On June 17th Gilbert wrote and sent to defendant the following letter which in the ordinary course of mail would reach West Salem on the 19th or early on the 20th of June, viz.:</p> <p>“Referring to the 2,000 c-s Fancy No. 4 Alaska Peas you have confirmed to me, after confirming this to the buyer, it occurred to me that' you wired me a few days ago that you had a broker in New York and I understood from this that you did not wish me to offer your peas in that city. I had already confirmed these to Francis HI Leggett Company before it occurred to me, and I hope under the circumstances it will be agreeable to yon to accept a contract made out to Francis II. Leggett <& Company, New York. If, however, you are afraid this will get you into trouble, I will have the contracts made out to myself and then of course I can sell them to Leggett without interfering with your New York representative.</p> <p>“Along this line, I would suggest that this question comes up very often with me in selling goods for packers. The most of the packers take the position that their local representatives should not complain if I go into their markets and sell canned goods for them. In other words, the local representative is presumed to be looking after the interests of said packer, and if he were doing this work conscientiously, any broker from an outside market could not get in there and sell his trade. I do not think any local broker has a right to complaint when I go into his market and sell goods for a packer he represents direct because, as I have said before, if he were looking after your interests there, he would get the business instead of me getting it for you. Please let me hear from you on this subject, and oblige.”</p> <p>This letter was not specifically replied to by defendant, unless a telegram and letter sent by defendant to Gilbert on June 21st may be considered as replies. The telegram and letter ■ referred to read respectively as follows: “The extremely hot weather has cut the crop short in this section and we are now sold np to the limit.” After this telegram was received and on June 22d, Gilbert wrote defendant the following letter:</p> <p>“Your telegram of the 21st received saying that you could not take on any more business for future peas. We inclose the contract for 2,000 cases No. 4 fancy Alaskas sold for you on the 16th. This contract has just gotten back signed by the buyer. Please sign the blue copy and return retaining the yellow copy for your^files. Now, these people are shipping their labels but before you put the labels on the peas, ■ they want you to send them a dozen cans of your peas so they can see just what the quality is. In other words, they want to determine whether the labels they are sending to you are the ones they want put on these peas or whether they will want to have them under another label. Just as soon as you can send them a dozen cans that will represent the peas that you will ship on this contract, ship the samples by express to Johnston, North & Co., New York, and mark them for Francis H. Leggett ■& Co., and our associate brokers there will advise us in regard to the labels.”</p> <p>This letter was never replied to. On July 1st the defendant’s office, with all of its correspondence, was consumed by fire. On July 3d Gilbert wrote reminding the defendant that it had not signed and returned the Leggett contract, also on July 7th, 12th, and 14th. To the last named letter the defendant replied as follows:</p> <p>“We have had a fire that burned our. office and we are trying to straighten things. We have not the contract you refer to if we have had it must burned. However, we will have our bookkeeper look the rest of our papers through, but do not think we have any contracts not .signed for parties. We aré nearly through with pack, will be able to fill our orders.”</p> <p>To this letter Gilbert replied on July 15th, inclosing a second copy of the contract for signature and requesting the forwarding of samples. On July 17 th the defendant replied to this letter as follows:</p> <p>“We have your letter of the 15th with contracts inclosed, which we herewith return as we are unable to fill it on account of the short crop. We are sorry that we cannot, fill this contract, but under the unfavorable condition of the weather it is impossible to fill any more contracts. We assure you that if we have anything left after filling our futures we will notify you and give you a chance.”</p> <p>Other correspondence followed in which Gilbert still claimed that a valid contract existed, and on July 31st the defendant sent to Gilbert the following letter:</p> <p>“We have your letters referred to in your letter of the 26th inst. We do not consider ourselves under contract with Francis II. Leggett ■& Go. We have a copy of your telegram on June 12th and our reply on the 16th simply stating what we had and at what prices. We have accepted no order nor have we signed any contract with these people, but, however, if it is possible for us to accommodate you on this order later in the season, we will be pleased to do so. The writer is familiar with all this transaction and the laws binding thereon. We are not trying, to shirk any contracts that we have made, nor do we propose to sign contract unless we can see our way clear to do so.”</p> <p>The circuit court ruled.,that the telegrams of June 15th and 16th constituted a contract for the sale of 2,000 cases of Alaska peas at eighty-five cents, and the only question for the jury was the question of damages. In response to special questions the jury found that the market value of “fancy four Alaska peas” per dozen cans at West Salem, June 21, 1911, was eighty-five cents, on July 17th $1, and on August 1st $1.20.</p> <p>Upon this verdict the court rendered judgment for the plaintiff for $600 with interest, being the difference between the market value of the peas on June 21st and on July 17th. The defendant appeals from the whole judgment, and the plaintiff appeals from that part thereof which limits the re-eovery of damages t'o the difference in market price which existed July 17th, instead of the difference which existed on August 1st.</p>

<p> Appeal: "Verdict, when conclusive: Injury from defective sidewalls: Duty and liability of abutting owners: Discharge of water upon walls: Negligence: Duty to keep walks in repair: Landlord and tenant: Excessive damages. </p> <p>1. Where the evidence is conflicting the verdict of a jury, confirmed by the trial court, is conclusive; and when the trial court fairly decides that there is a conflict in the evidence the determination is well nigh as conclusive as a verdict where a conflict of evidence is conceded.</p> <p>2. It is the duty of a city to maintain its sidewalks in a suitable condition for public travel; but it is the duty of the abutting owners to act reasonably to prevent and remedy a condition rendering the walk unsuitable for use.</p> <p>3. If an abutting owner by his own fault renders a sidewalk defective, he is liable for a resulting injury regardless of the concurrent liability of the city.</p> <p>4. Ordinary care for the safety of others is not consistent with such conduct as that of a person accumulating into a body the water falling upon his premises and discharging the same in such a manner that the natural and probable result will be to render the premises receiving the flow unsuitable for their ordinary use.</p> <p>5. Where the owners of a building discharged water from the roof thereof through a conductor pipe into an alley near a sidewalk, and a culvert under the walk, designed to afford a channel for such water, had been obstructed for some time, so that as a natural and probable consequence the water flowed upon the walk, causing ice to form thereon and render the walk unsafe, a jury was warranted in finding that said owners acted unreasonably and hence negligently in thus discharging the water, even if it be conceded that it was the duty of the city to keep the culvert clear. Hausmann v. Madison, 85 Wis. 187, distinguished.</p> <p>6. But, under sub. 7, sec. 925- — 205, Stats., imposing upon abutting lotowners the duty of keeping sidewalks in repair, it was the duty of the owners of the premises, primarily, to repair the obstructed condition of the culvert.</p> <p>7. The duty to repair being imposed upon the owners, the fault which rendered the manner of discharging the water from the premises unreasonable and negligent was the fault of the owners, even though the premises were at the time occupied by a tenant, especially since the conditions in question existed long before the premises were leased. ></p> <p>8. Where a married woman, fifty-fire years of age, sustained seri'ous injuries by reason of a fall on an icy sidewalk and, though . no bones , were broken, suffered much-pain, was unable to go outdoors for some months, could not for nearly a year go about as usual, and was likely always to suffer some sense of weakness and infirmity from the1 injury, an award of $1,500, though large, was not clearly excessive.</p>

<p> Life insurance: Payment of premiums after due: Waiver of strict performance and of forfeiture: Reinstatement, when unnecessary. </p> <p>1. Where, during the last two and one-half years before the death of the insured, all the quarterly premiums on a life insurance policy except the last one were paid by the insured and received by the company, without penalty, at times ranging from 75 to 118 days after they were due, and such course of dealing had induced the insured to believe that strict performance of the terms of the policy had been waived and that payment of defaulted premiums would be received within a reasonable time after default on the understanding that the contract had not lapsed, the failure to pay the last premium, which fell due 33 days before his dea.th, did not result in a forfeiture or lapse of the policy, since the company must be held, under such circumstances, to have waived the provision in the policy for strict performance as to payment of premiums when due and forfeiture for nonpayment.</p> <p>2. There having been no forfeiture in such case, no reinstatement of the insured as provided in the policy was necessary.</p>

<p> Municipal corporations: Street cleaning: Negligence of driver of , dump wagon: Injury to child: Liability: Attractive nuisance. </p> <p>1. The cáre and maintenance of the highways in. a- .city is a governmental duty; and the city is not liable respondeat superior for negligence of an employee or licensee in operating a city dump wagon which is being used for' street-cleaning purposes.</p> <p>2. ■ The mere fact that a dump wagon owned and. operated by a city for street-cleaning purposes was attractive to children would not make its use on the streets unlawful or its presence a nuisance.. The city is not liable, therefore, for injuries to a child who followed the wagon and, just as the driver dumped the load, came in contact with the chains constituting a part of the dumping device. Kelly v. Southern Wis. R. Co. 152 Wis. 328, distinguished.</p>

Babe, Circuit Judge. Action by the administrator of tbe estate of John Drella, deceased, to recover damages for the death of said deceased, which occurred on January 6, 1909, and claimed to have been caused by tbe negligence of the defendant. Near thq bottom of the westerly slope of a hill about twenty-five feet bigb stood a maple tree twenty-two inches in diameter, about ninety feet high, fifty-three feet thereof being the top. It leaned slightly towards the west.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p> <p>Certiorari to reverse tbe action of' tbe board of review of tbe city of Milwaukee in tbe year 1912 in assessing tbe shares of capital stock of tbe respondent bank. Said bank is incorporated under tbe laws of tbe state and bas 10,000 shares of stock with a par value of $100 each. It appeared "that tbe bant bas one main banking bouse and two branch offices for tbe receiving of deposits in Milwaukee, and owns tbe real estate on wbicb they stand. In 1912 tbe bank was rebuilding its main banking bouse (wbicb it bad occupied for some years) and was temporarily occupying rented quarters while tbe rebuilding was going on. Tbe assessor assessed tbe value of tbe bank stock at $150 per share, but' refused to deduct fipm tbe gross sum the assessed valuation of tbe real estate on wbicb tbe main banking bouse and the branch offices are situated. Tbe respondent bank appeared before tbe board of review and objected to tbe assessment of tbe bank stock on tb© ground that tbe gross value of tbe said lands and buildings should have been deducted therefrom. Tbe board of review refused to make any deduction, but affirmed tbe assessment made by tbe assessor, whereupon tbe bank brought this action. Tbe circuit court reversed the action of tbe board and held that tbe value of tbe lands and buildings should be deducted from tbe gross value of tbe stock, and from that judgment this appeal is taken.</p>

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

C. Ludwig, Circuit Judge. This is an action of certiorari brought to reverse the action of the board of review of the city of Milwaukee for the year 1913 in refusing to deduct from the gross valuation of the capital stock of the bank the value of the building in which the bank conducts a branch office and the land on which it stands (said building and land being owned by the bank in fee), as well as the value of the land on which the main banking house of the bank is…

Ebitz, Circuit Judge. Action to recover damages sustained by reason of the bursting of water pipes above plaintiff’s premises resulting-in damage to goods contained therein. On the 18th day of June, 1911, the plaintiff leased from the defendant for a period of two years from May 1, 1911, the first floor and part of the basement of a three-story building situated in the city of Milwaukee.

Ebitz, Circuit-Judge. An action was brought’ by E. J. Wildes to dissolve the partnership known as the Juneau Hotel Company under articles signed by himself and one Oscar A. Strauss. The complaint in addition to dissolution and accounting demanded the appointment' of a receiver and a receiver was appointed.

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

<p>Appeal from an order of the municipal court of Racine county; Wm. Smiebiwg, Jb., Judge.</p>

<p>Appeal from a judgment of tbe circuit court for Mani-towoc county: Michael KibwaN, Circuit Judge.</p> <p>Action on contract.</p> <p>Tbe cause was tried as a court case. These are tbe facts-found, so far as material to be stated:</p> <p>In Tennessee, July 15, 1909, plaintiff and defendant mutually, orally contracted for tbe latter to sell tbe former a quantity of cbeese, at a stipulated price, free on board cars-at Manitowoc, Wisconsin. Tbe amount involved exceeded tbe legitimate scope of an executory oral contract under tbe laws of Wisconsin. Tbe contract was executory in all respects. ' It was understood that it should be reduced to writing, but that was not’ made a condition, postponing tbe closing of tbe matter. Such understanding was not carried out. In due time plaintiff demanded performance on tbe part of defendant, which was refused. Because of such refusal, plaintiff was required to purchase an equivalent of cheese at a cost of $15,697.12. Tbe cbeese contracted for was worth, when it should have been delivered, $1,250 more than the-contract' price.</p> <p>On such facts tbe court concluded that tbe place of the-contract was Wisconsin because tbe parties contemplated performance therein, and that, as such an agreement is not enforceable by tbe laws of this state, judgment was awarded dismissing tbe cause with costs.</p> <p>They contended,. inter alia, that as between tbe law of tbe place where tbe parties were when tbe contract was made and tbe law of the place of performance thereof, tbe latter governs tbe question of its validity, unless it clearly appears that tbe parties intended to be governed by tbe law of tbe place of making. Newman v. Kershaw, 10 Wis. 333.*--340; Smith v. C. & N. W. B. Go. 23 Wis. 267; Shores L. Go. v. Stilt, 102 Wis. 450, 78 N. W. 562; Bartlett v. Collins, 109 Wis. 477, 481, 85 N. W. 703; Brown v. Gates, 120 Wis. 349, 97 N. W. 221, 98 N. W. 205; International H. Go. v. McAdam, 142 Wis. 114, 118, 124 N. W. 1042;' Emery v. Burbank, 163 Mass. 326, 39 N. E. 1026; Orcutt v. Nelson, 1 Gray, 536; First Nat. Bank v. Shaw, 109 Tenn. 237, 70 S.-W. 807, 97 Am. St. Eep. 840; Ileaton v. Eldridge, 56 Ohio St. 87, 46 N.- E. 957, 60 Am. St. Eep. 737, 36 L. E. A. 817; Pittsburg, G., G. <& St. L. B. Go. v. Sheppard, -56 Ohio St. 68, 46 N. E. 957, 60-Am. St. Eep. 732; Southern Exp. Go. v. Gibbs. 155 Ala. 303, 46 South. 465, 130 Am. St. Eep. 24; Swedish Am. Nat. Bank v. First Nat. Bank, 89 Minn. 98, 113, 94 N. W. 218, 99 Am. St. Eep. 549, 558; Feet v. Hatcher, 112 Ala. 514, 21 South. 711, 57 Am. St. Eep. 45; Miller v. Tiffany, 1 Wall. 298; Bedford v. Eastern B. ■& L. Asso. 181 TJ. S. 227, 242, 21 Sup. Ct. 597; Dickinson v. Edwards, 77 N. Y. 573, 577, 578; Story, Conflict of Laws (8th ed.) sec. 280.</p>

<p>’Highways: Laying out: Place of meeting of supervisors: Appeals: Proceedings on reversal: Mandamus: Evidence.</p> <p>1. The mere fact that town supervisors, for shelter or convenience, met at a house ten or twelve rods from the mathematical point designated in the notice of their meeting to decide upon an application for the laying out of a highway, did not de.prive them of jurisdiction, such place being in substantial accord with the notice.</p> <p>2. One who, under sec. 1276, Stats., has appealed to a justice of the peace from the decision of town supervisors in the matter of laying out a highway, may subsequently, under sec. 1281, Stats., appeal to the county judge for the appointment of commissioners to review the determination of the commissioners appointed by the justice.</p> <p>3. When the determination of town supervisors refusing to lay out a highway has been finally reversed by commissioners upon appeal, the supervisors have no further discretion in the matter, but must lay out the road; and in mandamus proceedings to compel them to lay it out, evidence as to the character of the country through which the road would pass, and as to the wishes of the people, is irrelevant.</p>

<p>Appeal from a judgment of the circuit court for St. Croix county: James O’Neill, Judge.</p> <p>In. August, 1906, the plaintiff and ber husband, since deceased, leased a farm owned by the plaintiff to one Grimes for the term of five years from October 1, 1906.' The lessee agreed to pay an annual rental of $300, to be paid from the produce raised on the farm. There was a slightly different provision made for the payment of rent during the first year from that' relating to the subsequent years. As to the latter years, after reciting that the lessors should be entitled to proceeds derived from the sale of cream, the lease provided that the lessors “shall own, and sell in their own names, at such times as shall be selected by the party of the second part [the lessee], sufficient of the hay and grain grown on said premises in each of said years to pay the remainder of the rent due them on said premises for such year, after deducting the amount received by them for cream, as aforesaid, over and above the expenses which may be incurred by them in making each such sales, provided that the said times to be selected by the party of the second part for making such sale shall not be later than the first day of February following the summer in which such crops are grown.”</p> <p>Tbe rent for tbe year ending October 1, 1911, was not paid and tbe tenant proceeded to sell a'portion of tbe grain raised on tbe farm during tbe year 1911 to tbe New Richmond Roller Mills 'Company. Tbe defendant Stout acted as buyer for-this company and purchased tbe grain in question for it. Tbere -is substantially no dispute in tbe evidence wbicb tends to and does show that Stout was advised by tbe plaintiff that sbe claimed to bave tbe title to tbe gr;ain raised on tbe farm or that sbe forbade Stout to purchase from tbe tenant except on condition that tbe proceeds derived from tbe sale of tbe grain be paid her up to an amount sufficient to pay what was -due for rent. Neither is there any doubt that such claims were made known before tbe grain was purchased. Part of the proceeds of tbe sale was paid directly to tbe tenant. Tbe tenant was indebted to tbe Olear Lake Mercantile Company for goods purchased at' its store, and Stout was an officer of this corporation. He induced tbe tenant to direct tbe purchaser of tbe grain to pay $250 of tbe purchase price thereof 'to said Mercantile Company. Plaintiff brought an • action for conversion against Stout, tbe Clear Lake Mercantile Com-panyand Grimes. At tbe close of the testimony tbe court directed a verdict against tbe Mercantile• Company and its codefendants for $250 damages, and against Grimes and Stout for tbe additional sum of $8.85. - These amounts with the sum paid on tbe sale of cream made up tbe $300 rental. Stout testified that in addition to tbe amount paid tbe Mercantile Company be paid other bills from tbe proceeds of tbe sale .of tbe grain amounting to $49, and that in February, 1912, be delivered checks to Grimes for tbe balance due on tbe salé of grain, amounting to $222. Defendants appeal from a judgment' entered on this verdict..</p>

<p>Appeal from a judgment of the circuit court for St. Croix county: James O’Neill, Judge.</p> <p>Action for partition of real estate. Plaintiff alleges that he is a tenant in common with the defendants in certain described lands and, as such, prays for a partition thereof. The evidence shows that in 1882 one Mathias Ross was the owner of the lands in question and that he then made a will reading, “I hereby give and bequeath to my wife, Katie Ross, all my real and personal property (after the payment of my just debts) to have and to hold during her natural life. After her death the said property to be divided equally between my children.” He died shortly after executing the will, and it was admitted to probate July 5, 1882. Katie Ross, his widow, died intestate June 16, 1910. In September, 1905, Margaret Ross, who was a daughter of testator, married plaintiff, and in October, 1905, she died, without issue, leaving plaintiff her sole heir. At the close of plaintiff’s evidence the court granted a judgment of nonsuit, and' the plaintiff appealed.</p>

Croix county: E. W. Helms, Circuit Judge. Action for specific performance of a land contract.

<p> Conveyances: Fraud: Undue influence: Degree of proof required: Presumptions: Burden of proof: Right to dispose of property as against heirs: Evidence: Sufficiency: Witnesses: Competency: Husband and wife: Appeal: Findings of fact based on misconception of law. </p> <p>1. He who obtains property by will or otherwise through undue influence or consciously taking advantage of incompetency of the owner, commits a fraud of most serious character.</p> <p>2. The common rule as to certainty of the existence of facts constituting fraud, applies, emphatically, in case of the wrong being that of obtaining property by undue influence or taking advantage of incompetency of the owner, — such facts are required to be established by clear and satisfactory evidence.</p> <p>Z. In a controversy as to whether property was obtained by undue influence, there is an evidentiary presumption in favor of the person charged, the same as in all cases sounding in fraud, that he did not perpetrate the wrong.</p> <p>4. The charge of obtaining property by undue influence may be circumstantially, prima facie, established; but that requires these essentials: proof of a subject unquestionably susceptible to undue influence and clear and satisfactory evidence of opportunity to exercise such influence, a disposition to exercise such influence, and indication that it was in fact exercised.</p> <p>5. Upon a prima facie case of undue influence having been circumstantially or otherwise established, there is no shifting of the burden of proof upon the accused more than in any other case where plaintiff’s evidence, unexplained or uncontradicted, would entitle him to judgment.</p> <p>6. In case of a charge of obtaining property by undue influence, prima facie or otherwise established, the defendant must meet such prima facie case to such extent, at least, that there is no longer clear and satisfactory proof of the facts constituting the charge of fraud.</p> <p>7. The common evidentiary presumption in favor of judicially found facts does not exist where such findings are the result of misconception of law.</p> <p>8. A person, however old, so long as he retains appreciation of his possessions and relations to others, may dispose of his property m any lawful way he sees fit, and regardless of whether his children or any one else may be pleased therewith.</p> <p>9.The heirs at law of a person have no right to his property, except subject to his pleasure, — he is not bound to consult them or be influenced by their wishes, nor have they any right in the matter except that he be left free to exercise his own will.</p> <p>10. A person having acted in the exercise of his right to dispose of his property upon his own judgment, it is not within the judicial function to disturb such disposal or do otherwise with reference thereto then to conserve his intention.</p> <p>11. If a person makes a disposition of his property in contemplation of death and survives for a considerable period thereafter in such mental condition as to appreciate what he has done, and gives no sign that such disposition was not his free intelligent act, such circumstances are strongly evidentiary of a disposition free from undue influence or incompetency.</p> <p>12. A married woman, by direction of her husband, having written a letter to another, she is competent to prove the contents of such letter in case of that being material in a judicial investigation and satisfactory excuse being given for not producing the writing.</p> <p>[Syllabus by Makshall, J.]</p>

<p> Oral contracts: Validity: Statute of frauds: Indivisible contract: Performance by one party. </p> <p>'1. An oral contract by wbicb defendant agreed tbat, if plaintiffs would purchase the interest of their partners in a bus line for conveying passengers to defendant’s sanatorium, he would extend, for four years his existing contract with said bus line and would not during said term treat at said sanatorium any person other than those brought thereto by said bus line, and that if anything should occur to interrupt' said business during said term he would protect plaintiffs against any loss by reason of the purchase, was an entire contract, not divisible.</p> <p>2. Such oral contract, since it purported to bind defendant for four years, was void under sec. 2307, Stats., as a contract which by its terms was not to be performed within one year from the mailing thereof.</p> <p>3. The fact that plaintiffs agreed to the terms and to the continuance of the existing contract between the bus line and defendant and proceeded to purchase their partners’ interest in the bus line, did not constitute full performance on their part of the oral contract in suit or take it out of the statute of frauds.</p>

<p> Appeal: Reversal: Errors, when prejudicial: Assault and battery: Excessive damages: Mitigation: Evidence: Relevancy: New trial: Discretion.' </p> <p>1. Where in the opinion both oí the trial judge and of this court the damages found by the jury were much too large, this court, even when it cannot hold that the refusal to grant a new trial was an abije of discretion, may reverse the judgment because of e ^’ors in the admission and exclusion of evidence bearing upen the amount of damages which might otherwise have been passed as nonprejudicial.</p> <p>2. In an action for false imprisonment and assault and battery, where there was evidence on behalf of defendant tending to show that he caught the plaintiff stealing tobacco in his store and moderately “spanked” him, although plaintiff denied the theft and testified to a more serious assault, a ruling by which the jury were told that the question of larceny was “absolutely of no importance” in the case was erroneous because, though not a justification, the larceny, if proven, would have an important bearing in mitigation of damages both compensatory and punitory.</p> <p>3. So, also, the exclusion of evidence offered to show that about two months after the affair in question plaintiff was found in a store and was taken by the sheriff to the county jail, was erroneous because such evidence bore directly on the probable degree of shame and humiliation which plaintiff suffered from defendant’s conduct, and so affected the amount to be recovered.</p> <p>4. Such errors having intervened at the trial, and the damages awarded being much too large in the opinion both of the trial judge and of this court, and there having been, on a motion for a new trial, a showing of newly discovered evidence to disprove the chief element of damage claimed by plaintiff, a new trial should have been granted; and the judgment for plaintiff is accordingly reversed.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Raw SteveNS, Circuit Judge.</p> <p>This is an action for slander. It was charged in the complaint that the defendant stated to one Julius Lewer and his wife and son that plaintiff set' fire to a certain cheese factory and burned it. Defendant denied that the conversation’ alleged in the complaint took place. The answer also set forth facts tending to show that any communications made by defendant to Fewer were privileged. After the factory burned,, the farmers in the vicinity decided to erect a neAV one, and some meetings were had between the proposed stockholders to make the necessary arrangements. At these meetings the advisability of not taking in the plaintiff was discussed, and he was left out apparently because he had caused considerable trouble while he ivas a member of the old company and because there was a strong suspicion that he had burned the old factory because of such trouble. Fewer ivas a newcomer and it was the purpose of the promoters of the new scheme to interest him in it. The defendant admitted that he might have communicated the rumors that were afloat in regard to plaintiff to Fewer and others at' some of the meetings had for the purpose of perfecting the organization of the new company. The plaintiff’s evidence tended to show that the alleged slanderous words were spoken to Fewer at or near his house and that the latter then called his wife and fourteen-year-old son to the jflace where he and defendant were talking and requested the defendant to repeat the statement in their presence, which he did. There was no evidence tending to show malice. The jury returned a general verdict for the defendant. The plaintiff appeals and assigns three errors, two on the admission of evidence and one on an instruction given to the jury.</p>

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Eay SteveNS, Circuit Judge.</p> <p>Plaintiff was tbe defendant in an action in justice’s court wherein a borse was replevied. Tbe defendant, wbo was a constable, served tbe papers in tbe action and took possession of tbe borse and left it witb one Dorn pending tbe suit, who kept' it for thirty days. Judgment went against tbe plaintiff, and be filed a notice of appeal, but did not perfect his appeal, and the case was settled, whereupon tbe justice taxed costs against him and, among other items, made an allowance of $16.50 in favor'of the defendant as and for his trouble and expense in keeping tbe horse, pursuant to sec. 3152, Stats. Tbe constable presented no itemized statement of disbursements for keeping the horse and made no specific claim of any amount to tbe justice at tbe time tbe allowance of $16.50 was made. Tbe justice in circuit court testified that' be considered fifty-five cents a day a reasonable allowance for the trouble and expense of keeping tbe borse and for tbe legal responsibility involved. After tbe case was settled and tbe $16.50 paid to tbe defendant, be tendered tbe money to Dorn, wbo refused to take it, stating that be did not intend to charge for keeping tbe borse. It appears from tbe evidence that at tbe time the allowance was made by the justice the defendant did not know that Dorn would not charge him for the keep of the horse. Plaintiff, learning that the defendant received «$16.50 for the keep of the horse and that Dorn had made no charge therefor, brought an action for money had and received in justice’s court for the amount of $16.50, and judgment was rendered against the defendant for that' amount. From this judgment defendant appealed to the circuit court, and plaintiff was there given leave to amend the complaint by alleging a cause of action under secs. 2955 — 2957, Stats. 1911, for the sum of $25 penalty and $16.50 damages. The circuit court found that the defendant collected from the plaintiff the sum of $16.50; that' he had no trouble and incurred no expense in keeping and maintaining the horse during the pend-ency of the replevin action, and that he rendered no service for which he was entitled to receive the sum of $16.50, or any part thereof, as compensation, and held that plaintiff was entitled to judgment against defendant for the sum of $16.50 actual damages and $25 penalty under sec. 2957, together with his costs and disbursements. From a judgment entered accordingly the defendant appealed.</p>

<p>• Appeak from an order of the circuit court for Dane county: E. Eat Stevers, Circuit Judge.</p> <p>The action was brought to compel an accounting for moneys collected on a lot of open accounts which plaintiff turned over to the defendant for collection. By the answer it is alleged that the accounts were turned over to the defendant under the agreement that the bant might collect the same and apply the proceeds so far as necessary to pay the debt of one Kehl, tbe plaintiff’s son-in-law, and in consideration the promise of the bank (which was afterwards fully carried out) that it would dismiss a certain lawsuit then pending against Kehl to recover a part of the debt and refrain from entering judgment upon a judgment note given by Kehl for the remainder of his debt; that there has been collected $513.89 upon the accounts, all of which has been applied upon Kehl’s debt, leaving $40.58 still unpaid thereon. The bank claims the right to hold the accounts and collect enough thereon to pay the balance of Kehl’s debt. A general demurrer to the answer was overruled, and plaintiff appeals.</p>

<p> Appeal: Harmless errors: Questions considered: Form of exoep-tions: Briefs: Judgment: XJpon whom binding: Agency: Authority to bring suit: Partnership: Pleading: Reply: Instructions to jury: Evidence: Unsigned agreement: Conclusions: Witnesses: Competency: Transactions with person since deceased. </p> <p>1. Slight inaccuracies in the statement of the issues in a case by the court to the jury are immaterial errors and will he disregarded on appeal.</p> <p>2. One who is a party to an action by his authority, given beforehand or by subsequent ratification, is hound by the result.</p> <p>3. In the brief for appellant counsel should particularly point out and discuss in an orderly way the errors relied upon, and should not, upon a mere reference to the exceptions, ask this court to review the trial court’s charge to the jury.</p> <p>4. Exceptions to the charge of the trial court to the jury Should consist of concise paragraphs, pointing out specifically particular detail portions of the instructions, each covering a single matter, as contrary to law and not warranted by the evidence.</p> <p>5. Whenever it appears probable that injustice might otherwise be done to a party on appeal, the court will disregard technicalities and rigid rules of practice and will review the record notwithstanding shortcomings of counsel in presenting the case.</p> <p>6. In an action upon the judgment of a court of another state, an answer that the action in which such judgment was rendered was brought in defendant’s name without authority is purely defensive and a reply is not required.</p> <p>7. There being evidence tending to show that a person who caused an action to be brought in defendant’s name was either his agent or his partner , in the business to which such action was related, instructions submitting to the jury the questions whether such person had express authority “as agent or in any other capacity,” and whether he was a partner and as such had the right to bring the action without express authority, were proper, where the court also instructed as to the essential facts of a partnership and left it to the jury to determine whether or not such facts existed.</p> <p>S. An unsigned paper purporting to embody an agreement between certain parties named thereifi, is admissible in evidence against one of such parties to prove the relations existing between them, when offered in connection with evidentiary admissions by him that it does indicate the actual arrangement subsisting between the persons named.</p> <p>9. Persons not parties to the action and from, through, or under whom plaintiff does not in any way derive his interest or title, are not incompetent under sec. 4070, Stats., to testify as. to conversations and transactions which they had with a deceased partner of defendant, in an action brought against him as surviving partner.</p> <p>10. In an action to enforce a judgment rendered against defendant in an action of replevin instituted in his name in another state by direction of an alleged agent, questions put to the defendant by his counsel as to whether he ever made claim to< any property in the possession of the defendant in replevin or ever authorized that action, were properly ruled out as calling for mere conclusions of the witness.</p>

<p> Appeal: Review of evidence: Motion for new trial after judgment: General verdict: Several grounds of liability: Presumption on appeal: Circumstantial evidence: Sufficiency: Proximate cause: Railroads: Defective crossing: Injury: Husband and wife: Damages. </p> <p>1. Where a motion for a new trial is made promptly and in ignorance of the fact that judgment has been entered on the verdict, and the circuit court treats the motion as one made before judgment, and the opposing counsel acquiesce by accepting the advantages of the order made, an exception will be made to the rule that where the motion for a new trial was made after judgment the sufficiency of the evidence to support the verdict will not be considered on appeal from the judgment.</p> <p>2. Where the evidence tends to establish several grounds- of liability, all growing out of the same transaction, which are submitted to the jury for a general verdict, there is no error in the fact that it is impossible to tell upon which ground the verdict is based; and the presumption after judgment is that all the jurors agreed upon some one or all of the several grounds.</p> <p>3. If in such case there was no request for a special verdict nor for proper instructions which would have eliminated any alleged ground of liability which was insufficiently supported by evidence, the verdict will be deemed to rest upon those grounds of liability which are supported.</p> <p>4. There must be a basis of fact for countervailing hypotheses before they can be brought forward to weaken or destroy the effect of circumstantial evidence.</p> <p>5. Where a child fell between the rails at the crossing of a railway track and a sidewalk, evidence of a defective condition of the crossing efficient to cause such a fall would warrant an inference that the fall was caused by such condition; and where a woman attempted to rescue the child and succeeded in throwing it from the track, but in so doing fell in front Of an approaching train and was injured, the same considerations would justify a finding that the defective condition of the crossing was the proximate cause of the injury.</p> <p>6. In an action by a husband to recover for loss of services and for expenses, etc., caused by an injury to his wife, who was struck by a railway train, an award of $467 (reduced by the trial court from $1,067) is held not excessive.</p>

<p> Ejectment: Lease: Evidence. </p> <p>In an action of ejectment, findings of the trial court to the effect that the lease under which defendant justified had not been abrogated, that defendant had exercised an option to continue the lease in force beyond the original term, and that plaintiff had purchased the premises with notice of the lease, are held to be supported by the evidence.</p>

<p>Appeal from an order of the circuit court for Sauk county: W. B. QuietlaN, Judge.</p> <p>Action for partition of real estate. In 1810 A. W. Starks died testate devising tbe land in question to bis daughter, Mary Jane Greeney, for life, remainder to her children. The plaintiff married Charles Greeney, a son of the life tenant, and subsequently his interest in the land, if any, was conveyed to her by a judgment of divorce. It does not appear that Charles Greeney is dead, though his place' of residence was unknown to his children for more than a year previous to the trial of the case. Mary Jane Greeney, the life tenant, is still alive. The trial court found that plaintiff had a one-fifth interest in the land, subject to the life estate of Mary Jane Greeney, and that the defendants each had a specified fractional like interest therein; also that the interest of each remainderman was subject to be divested by bis dying prior to tbe death of the life tenant. The court also found that partition could not be made without prejudice to the rights of the owners, and ordered a sale of the land subject to the life estate, and the proceeds of the sale, less costs and attorneys’ fees, to be deposited in the Bank of Baraboo to draw current rate of interest, and there to remain till the death of Mary Jane Greeney, unless the court shall otherwise direct. From such order the defendants, who are children or lineal descendants of Mary Jane Greeney, appealed.</p>

Rat Stevens, Circuit Judge. Action to recover damages for breach of contract.

Ray SteveNS, Circuit Judge. Action to recover for personal injuries. The plaintiff, on October 17, 1911, while operating a jointer machine and in the employ of the defendants, was injured. The negligence alleged is that'the defendants failed to furnish a safe place for plaintiff to work, failed to keep such place safe, and failed to guard said machinery.

Tbe plaintiff, a resident and taxpayer of Dane County, brought this action in bebalf of himself and all other taxpayers of the county against said county and Robert W. Davis, county treasurer thereof, William Pierstorff, the chairman of the board „of supervisors, and also against William Dreger and his wife, from whom the county intends to purchase land.