Volume 156 — Wisconsin Reports

The plaintiff, an employee of the Antigo Lumber Company, commenced an action against said company to recover $3,000 damages for a personal injury received in the course of his employment. Later a motion was made tQ amend the complaint.

RyaN, Judge. Action for personal injury. January 24, 1912, plaintiff, while in the discharge of his duty as member of a crane crew, consisting of more than four persons, was injured by slipping upon a flat car, upon which the defendant, who had not elected to come in under the Workmen’s Compensation Act of 1911, operated a steam crane.

Tbe plaintiff sued Komp, a general merchant at Black Creek, Wisconsin, and garnished Riehl. Judgment was rendered against Komp on the main action for $416.73 and costs.

Action to - recover the body of a wolf said to have been mortally wounded by plaintiffs and reduced to possession thereafter by defendant. The evidence, as viewed by the trial court, was to this effect: Plaintiffs mortally wounded the wolf and had so followed up their attack on the animal as to substantially have it in their possession. They had it where and in such condition and circumstances that escape was improbable, if not impossible.

<p>Mechanics' liens: Foreclosure: Lis pendens: Laches: Waiver of lien as to subsequent purchasers: Actions affecting title to land: Constructive notice: Filing of complaint.</p> <p>1. One claiming a mechanic’s lien is hound to prosecute his foreclosure action in good faith and with reasonable diligence in order to preserve his lien against subsequent purchasers in good faith, for value, without notice of his claim.</p> <p>2. An action to foreclose a mechanic’s lien was commenced on December 7, 1908, about ten days before the end of the year limited therefor, but nothing further was done therein until May 8, 1909, when the summons and complaint were filed, and on December 2, 1910, a notice of lis pendens was filed. On May 3, 1909, the land was conveyed for full value to purchasers in good faith, without actual notice of plaintiff’s claim, and they in turn, on September 20, 1909, sold to other purchasers in good faith, without notice, who also paid full value. Held, that by his laches in not promptly prosecuting his claim and filing notice of lis pendens plaintiff had waived his lien as to said purchasers.</p> <p>3. The provision in sec. 3324, Stats., that the judgment in an action to foreclose a lien shall direct a sale of the interest of the owner or any interest which may have been acquired by any person claiming under him after the commencement of the work or the furnishing of materials, does not prevent such a waiver.</p> <p>4. The filing of the summons and complaint in an action affecting the title to real estate, without the filing of notice of Us pendens as provided in sec. 3187, Stats., is not constructive notice to subsequent purchasers or incumbrancers.</p>

<p> Gifts: Evidence: Witnesses: Competency: Transaction with person since deceased: Executors and administrators: Actions: Setoff. </p> <p>1. In replevin against the father of plaintiff’s deceased husband, the question being whether or not defendant gave the property in question to the deceased, plaintiff was not incompetent to testify that, when defendant brought the property to the farm on which she and her husband resided, he said he gave it to them and they could do what they liked with it — - there being no showing that the deceased was present when that statement was made or that it was any part of any communication or transaction between the defendant and the deceased or between the witness and the deceased.</p> <p>2. A creditor of a decedent cannot take possession of personal property of the estate after the death of the owner and then, in the consequent replevin action by the administrator, offset his demand against the deceased. Sec. 3847, Stats., does not apply to such a case.</p>

<p> Partnership: Acceptance of note of one partner for firm debt: Discharge of other partners: Contracts: Consideration: Waiver of claim: Questions for jury. </p> <p>1. Where a creditor accepts an evidence of indebtedness from one of two persons jointly liable and informs the debtor who gives such evidence that he accepts him for the debt, a jury may reasonably draw the inference that the creditor intends to release the other debtor.</p> <p>2. Where a due-bill or note of one partner for the amount of a firm debt is accepted by the creditor, and the latter at the same time expressly agrees to accept such partner alone for the debt, such acceptance and agreement make a valid contract which operates to discharge the other partner or partJ ners.</p> <p>3. "Even if it should be conceded that such an agreement is not supported by any valid consideration, yet if it was made by the creditor with full knowledge of the facts it may be found that he thereby waived his claim' against the other partners, especially where there are equitable considerations which might well have induced him to do so.</p>

<p> Wxecutors and administrators: Accounting: Claim against adminis-tratrix allowed against estate: Appeal: Harmless errors. </p> <p>1. Where an administratrix continued the business of her decedent and in so doing bought goods which were necessary for the preservation of the estate, she was entitled to reimbursement in her final settlement.</p> <p>2. Although in such case the indebtedness for the goods was one due from the administratrix and not from the estate, the allowance of the vendor’s claim when filed against the estate ■was not a prejudicial error, "where the administratrix "was also the sole heir, the estate was solvent, and all parties interested were before the court.</p> <p>3. Violations of established rules or methods of procedure become material on appeal only when it is evident that they have impaired a party’s right to a fair and impartial trial on the merits.</p>

Action to recover for two young stallions which escaped on to the highway and from the highway on to the defendant’s right of way over a defective cattle-guard, and were there struck by a train.

<p>Appeal from a judgment of the municipal court of Out-agamie county: Thomas H. RyaN, Judge.</p> <p>Action to cancel the record of a mortgage, a $2,200 note on the ground of fraud and to declare the same and the note given therewith void.</p> <p>Charles S. Spaulding, in the town of Maine, Outagamie county, Wisconsin, in 1904, died intestate, possessed of title to lands covered by the mortgage sought to be canceled. He left surviving, his widow, Icybinda Spaulding, who was a second wife and defendant Hiram A. Spaulding, a son by a former marriage. Mr. Spaulding had not seen his son for many years. Administration of his estate was, in due form, and time, granted to the widow, she representing that the stepson had not been heard of for some ten years. In due course she filed her final account and secured a final order, in form, continuing title in her to said lands. Such order was entered upon her representations that Hiram was last heard from in British Oolumbia, some ten years theretofore: that her deceased husband neither saw nor heard from his son but once after the latter’s boyhood, that being by letter which was answered, and that the general belief was that he was dead since no one, so far as known, had seen or heard from him in over ten years. The final order was duly recorded in the office of the register of deeds of Outagamie county, Wisconsin. Hiram was then thirty-nine years of age, had been married some ten years, and was the father of several children, photographs of which were in possession of Mrs. Spaulding before her death, if not before she made the representations aforesaid.' All the facts stated were as well known to defendant Addie Morris, who was a sister of Mrs. Spaulding, as to the latter. Mrs. Spaulding owned a tract of land adjoining that in question, both of which tracts were occupied by her as a home and were so occupied in the lifetime of her husband. Eebruary 28, 1910, she sold both tracts and conveyed the same by deed with full covenants to plaintiffs; the consideration being $3,100, $1,500 being paid at the time of the transfer and payment of the balance being evidenced by the note and secured on the land by the mortgage in question. The mortgage was duly recorded. Three thousand seven hundred dollars was the reasonable value of all the land and $2,200 of the tract which Mrs. Spaulding obtained through her deceased husband. She, in the transaction with plaintiffs, acted wholly through Mrs. Morris, who represented in the negotiations, that Mr. Spaulding’s son was adjudged in the county court proceedings aforesaid to be dead; that Mrs. Spaulding had and could convey a good title. Plaintiffs, in making the purchase, relied on such representations and the order of the county court. October 6, 1910, Mrs. Spaulding assigned the note and mortgage to Mrs. Morris in consideration of $1 and other good and valuable considerations. Mrs. Spaulding had other property but it' all came to the possession and under the control of her sister Addie. Thereafter Mrs. Spaulding died, intestate. No consideration was in fact given by Mrs. Morris for the note and mortgage. When she took the assignment she knew all the facts affecting the title to the land covered by it and was as guilty as Mrs. Spaulding as regards making false representations respecting the existence of Hiram. She was not a tona fide purchaser of the note and mortgage. Plaintiffs’ title to the Charles S. Spaulding land wholly failed by reason of it appearing that such land belonged to Hiram. They have been damaged thereby in the sum of $2,200. Before the commencement of this action Hiram appeared and demanded possession of his land. The total damage to plaintiffs by the failure of the title is $2,494.80.</p> <p>On such findings it was held that, as matter of law, Hiram Spaulding was the owner of the land covered by the mortgage, free from any incumbrance created thereby, notwithstanding the order of the county court giving Mrs. Spaulding the appearance of having come into a good title thereto; that a frarrd was committed on Hiram Spaulding and upon plaintiffs in which Mrs. Spaulding and Mrs. Morris were participants; that the note and mortgage are void and should be canceled.</p> <p>Judgment was rendered accordingly.</p>

<p>Appeal from a judgment of tbe circuit court for Shawano county: JohN GoodlaND, Circuit Judge.</p> <p>This action was brought to recover tbe value of a feed mill delivered to tbe defendant for carriage and wbicb was lost in transit. Tbe only issue in tbe case was tbe amount of damages. Tbe court after tbe evidence was in directed a verdict for tbe plaintiff for $50.' Judgment was entered for plaintiff on tbe verdict and tbe defendant appealed.</p>

Rat SteveNS, Circuit Judge. Tbey contended, inter alia, that it appeared from the findings of the court, as well as from the record of the hearing before the Commission, that the Commission considered, in addition to the evidence introduced, its own knowledge and facts ascertained by its own investigations but not introduced in evidence or made a part of the records.

<p> Master and servant: "When relation exists: Hours of employment:Injury when walking to place of work: Workmen’s Compensation Act: Municipal corporations: Liability to city employee: Defective sidewalk. </p> <p>1. The relation of master and servant may extend beyond the hours the servant is actually required to labor, and in some instances to places other than the premises where the servant is employed.</p> <p>2. When a city employee reported to his foreman, received his instructions for the day, and proceeded to carry out such instructions by starting for the place where he was to work, the relation of master and servant commenced, and in walking to the place of work he was “performing service growing out of and incidental to his employment,” within the meaning of sec. 2394 — 4, Stats, 1911.</p> <p>3. Where at a time when he is “performing service growing out of and incidental to his employment,” a city employee is injured by reason of a defective sidewalk, the liability provided for by the Workmen’s Compensation Act is in lieu of any other liability whatsoever, and his remedy against the city is under that section and not under sec. 1339, Stats.</p>

<p>Appeals from orders of tbe circuit court for Milwaukee county: E. C. Eschweileb, Circuit Judge.</p> <p>Actions for the appointment of trustees. Defendants demurred t'o the complaints. The allegations of the complaints in the three cases, so far as they are material to the point raised by the demurrers, are these: That on October 2, 1913, the commissioner of banking took possession of all the property ef the Citizens Savings & Trust Company under the banking laws of this state, claiming that it was insolvent, and has still held possession of the same and claims the right so to do. That, in the Sullivan ease, among the assets that came into his hands through the Citizens Savings S-Trust Company was a trust deed executed by the Clark Realty Company to secure certificates issued by it; that plaintiff, Sullivan, had left money with the Citizens Savings- & Trust Company to be invested in good, safe, interest-bearing securities to be selected by it, but that, instead of investing the money as directed, it had purchased Clark Realty Company certificates for the same; that the Clark Realty Company was owned and controlled by the owners of the Citizens Savings & Trust Company, was insolvent, and that the security was inadequate. In the Wright case the allegations are that the Citizens Savings & Trust Company was appointed by the county court of Milwaukee county trustee under the will of one Luscombe, and that, as such trustee, it invested money belonging to the trust estate in Clark Realty Company bonds secured by a trust deed, followed by allegations of the insolvency of the Clark Realty Company and inadequacy of security, as in the Sullivan case. In the Westernhagen case it is alleged that plaintiff, as executor, owns a bond of the Kaukauna Gas, Electric Light & Power Company, secured by a trust deed or mortgage executed by it to the Citizens Savings & Trust Company; that the security is inadequate; and that, as plaintiff is informed and believes, the Kaukauna Gas, Electric Light & Power Company is insolvent.</p> <p>Each complaint alleges the insolvency of the Citizens Savings & Trust Company; that the cestuis que trustent are numerous and scattered; and that the defendant Kuolt, as such commissioner of banking, claims that he is entitled to administer the trusts under the trust deeds or mortgages mentioned, as the successor in trust of the said Citizens Savings. & Trust Company, and each prays that the court remove the Citizens Savings & Trust Company as trustee, adjudge that Kuolt, as such commissioner of banking, has no right to administer said trusts, and that another suitable trustee be appointed.</p> <p>To each, complaint the defendant Kuolt and the Citizens Savings & Trust Company separately demurred. Each demurrer of the defendant Kuolt was sustained and each demurrer of the Citizens Savings & Trust Company was overruled. Each plaintiff appealed from the order sustaining the defendant Kuolt’s demurrer, and the defendant the Citizens Savings & Trust Company appealed from each order overruling its demurrer.</p>

<p> Criminal law :■ Possession of burglarious “machine, tool or implement:” 'Nitroglycerine: Construction of statutes. </p> <p>1. A bottle of nitroglycerine and a fuse and detonating cap, though not actually in combination when found in tbe possession of a person, constituted a “machine, tool or implement designed and adapted for . . . forcing or breaking open any building, room, vault, safe or other depository,” -within the meaning of sec. 4411a, Stats. 1898. The contrary is not shown by the mere fact that said section was afterwards amended (ch. :88, Laws of 1911) so as to expressly include “nitroglycerine or other explosive.”</p> <p>2. Like all other rules of construction, the rule that laws of a penal character are to be strictly construed is not to be applied unless obscurity of meaning in a statute calls for construction.</p> <p>3. The dominating purpose of all construction being to arrive at the legislative intent, words should be read sensibly, and sometimes a liberal construction is required even in respect to a penal statute.</p> <p>4. If the legislative purpose in a penal statute is uncertain and the words used may mean one thing or another according to the intent with which they were used, they should be read, ordinarily, so as to minimize rather than extend their penal character.</p>

<p> Street railways: Franchises: Validity: State only may question: Right to use streets not yet opened: Commencement of term of franchise: Acceptance. </p> <p>1. In granting a franchise to a street railway company under see. 1862, Stats., a city acts as the agent of the state; and only the state, by an action of quo warranto, can question the validity of such franchise.</p> <p>2. It seems that a city may grant to a street railway company a franchise to use, “when opened,” streets for the opening of which proceedings are then pending.</p> <p>3. Where the resolution granting' a franchise to use certain streets fixed a certain date for the commencement of the term of such franchise, without requiring acceptance thereof, it seems that such provision governs, although the resolution also provided that “the rights hereby conferred shall be subject to all the terms and conditions set forth in” a previous franchise ordinance, which provided that the term thereof should commence upon the passage and publication of the ordinance and acceptance thereof.</p>

<p> Railroads: Injury to person at street crossing: Excessive speed of train: Evidence: Opinions: Changing jury’s finding. </p> <p>1. Any estimate of speed by a witness is in one sense opinion, but it may not be opinion evidence witbin the legal meaning of that term.</p> <p>2. The question being whether the speed of a train exceeded the lawful rate of twelve miles per hour, the testimony of a witness who had but a momentary view of the train at a time when he was excited and otherwise engrossed, fixing the speed at about sixteen or seventeen miles per hour, was opinion evidence.</p> <p>3. Where such testimony, standing alone, was opposed by the un-controverted fact that the train stopped within thirty feet after signal, and the positive testimony of five trainmen that the speed was from four to seven miles per hour, one comparing the speed to that of a man walking at a fair gait, the trial court was justified in changing the jury’s finding that the speed exceeded twelve miles per hour.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: E. 0. Escecweiler, Circuit Judge.</p> <p>Suit in equity to reform a building contract and to enjoin, pending the suit, the prosecution by the defendant of an action previously brought by him on the same contract in the civil court of Milwaukee county to recover a balance claimed to be due him for the construction of the building. Plaintiff intended to erect a building for its manufacturing plant on a lot on Rational avenue in the city of Milwaukee, and plans and specifications therefor were prepared by its ar-cbitect, J. H. Esser. Later tbe plaintiff abandoned its intention to build on tbe National avenue lot, and proceeded to erect its building at tbe corner of Sontb Pierce street and Eleventh avenue on a lot of a different shape and size. Tbe plans for the National avenue building contemplated tbe placing of tbe boiler bouse inside of tbe main building. Tbe proposed plans for tbe new site provided for tbe lengthening of tbe building sixteen feet, for a boiler house outside of tbe main building, and for tbe substitution of a concrete floor in place of a floor of mill construction for tbe. first floor of said building. Eor additional facts see Danielson v. Garage E. M. Co. 151 Wis. 492, 139 N. W. 443.</p> <p>Tbe court found that on or about tbe 26th day of March, 1910, tbe plaintiff and defendant entered into an oral agreement whereby defendant agreed to erect tbe building according to a change in tbe plans as above stated; that such agreement was at or about said date reduced to writing, but that by mutual mistake of tbe parties thereto it referred to plans and specifications “signed by tbe parties” when none were in fact signed by them, and by mutual mistake it referred t'o tbe original plans without specifying tbe changes agreed upon. Tbe judgment corrected tbe contract' by striking from paragraph numbered 1 thereof tbe words “which plans, drawings, and specifications are identified by tbe signatures of tbe parties hereto,” and inserting in tbe place thereof tbe words “'subject to certain modifications to be made therein by tbe architect, which shall consist in tbe lengthening of tbe factory building herein referred to from a depth of 140 feet to a depth of 156 feet, tbe construction of tbe boiler room outside instead of inside of tbe main lines of said building, and tbe substitution in tbe first floor of said building of a floor of concrete construction in tbe place of a floor of mill construction.” Tbe contract was further ordered amended in other portions thereof to make it conformable to tbe changes above indicated.</p> <p>Erom a judgment entered accordingly, and which also vacated the temporary order restraining the defendant from prosecuting the action brought in the civil court, the defendant appealed.</p>

C. Ludwig, Circuit Judge. Action to recover on two promissory notes made by Albert J. Kringel, deceased. The claim was presented in county court and allowed. It was contested upon the ground of Mr. Kringel being insane and wholly incompetent to do business at the date of the notes. On appeal to the circuit court the judgment of the county court was reversed; the claim of incompetency being sustained.

<p> Receivers: Judicial sale of leasehold interest: Obligations assumed by purchaser: Statute of frauds: Purchase by one for benefit of others: Landlord and tenant: Assignment of lease: Liability of assignee: Consent of lessor: Surrender and re-entry: Giving option to purchase: Actions: Election of remedies: Estoppel: Waiver: Evidence: Competency: Witnesses: Transactions with persons since deceased: Parol evidence to explain judicial order: Appeal: Error must affirmatively appear. </p> <p>1. An order for the sale by a receiver of the interest of an insolvent corporation in a lease of an amusement park provided that upon the sale being made and confirmed the purchaser should execute a contract assuming the obligations of the lease and agreeing to pay the rent reserved therein; the notice of sale stated that the “interest and liability as lessee” of such corporation would be sold; and the receiver’s report of sale and the order of confirmation recited that the sale had been made in conformity to the order of sale. Held, that the purchaser at the sale, being chargeable through his attorneys, if not personally, with knowledge of the contents of such order and notice of sale, was liable for the rent thereafter accruing on the lease, he haying taken possession of the premises and assigned the lease to a corporation, although he did not execute any contract assuming the obligation of the lease and neither the report of sale nor the order of confirmation made any specific reference to such condition or requirement.</p> <p>2. The fact that the receiver’s report of sale stated that he had executed a deed to the purchaser before confirmation, which was contrary to the order of sale, and that such report was confirmed, would not relieve such purchaser from the liability assumed when he made the purchase; nor could the purchaser escape the burdens then assumed by obtaining possession of the deed and then refusing to enter into a contract as directed by the order of sale. The statute of frauds has no application to such a situation.</p> <p>3. Although a lease in terms requires the lessor’s consent to an assignment thereof, such consent is not required where the assignment is by operation of law, as in the case of a judicial sale.</p> <p>4. Where a lease provided that an assignment should not release the party assigning, though consented to by the lessor, but that in such case both assignor and assignee should be liable, a statement by the lessor, at a receiver’s sale of the leasehold interest, that he had no objection to the sale but would do nothing to jeopardize his claim against the stockholders of the corporation whose assets were being sold, could not be construed as a refusal to consent to the transfer.</p> <p>5. The lessor having been given no opportunity to accept the written obligation of the purchaser, a mere statement by him after the sale that he would be a fool to take such obligation when he had an opinion from his attorney that wealthy men, stockholders in said corporation, were liable to him, would not amount to a refusal to assent to the transfer, especially when made in ignorance of the fact that the men referred to were among the real purchasers.</p> <p>6. The:remedy, if any, against stockholders of the insolvent lessee was not inconsistent with holding the subsequent assignees or purchasers of the lease for the rent; hence there was no election by the lessor between inconsistent remedies.</p> <p>7. Where by the terms of a receiver’s sale of corporate property, including a leasehold interest in land, the purchaser was required to assume the obligations of the lease, and one stockholder, pursuant to a reorganization agreement, purchased the property for the benefit of himself and other stockholders, all of such associates became hound by the obligation assumed.</p> <p>8. A change of position by one person in reliance upon the conduct of another is essential to an estoppel in pais.</p> <p>9. Waiver is the intentional relinquishment of a known right, benefit, or advantage.</p> <p>10. Where the facts and circumstances relating to the subject are admitted or clearly established, waiver becomes a question of law, but if different inferences may be drawn from the evidence a question of fact is presented.</p> <p>11. Acts of the lessors of property, after a receiver’s sale of the lease, nominally to an individual purchaser who in fact represented responsible associates, evincing an unwillingness to recognize such nominal purchaser as tenant, all of which acts were done in ignorance of their claim against such associates, do not amount to a waiver of such claim.</p> <p>12. In an action to charge the real purchasers of a leasehold with the rent reserved in the lease, the legal proceedings in which the sale was ordered, the agreement between the nominal purchaser and the other defendants, and their organization of a corporation to take over the lease, were all competent evidence.</p> <p>13. In an action by heirs of a lessor to recover rent from alleged assignees of the lease, a defendant who took the assignment in his own name though in fact for the benefit of himself and his codefendants, all of whom were stockholders in a corporation which they sought thereby to reorganize, and who, in turn, transferred the same to a new corporation organized by them,— was incompetent under sec. 4069, Stats., to testify to a conversation with the deceased- lessor, although he claimed to hold his stock merely as agent of a lumber company of which he was a stockholder and officer.</p> <p>14. In such action, statements made by the attorney of the deceased lessor to one of the defendants in the presence of the lessor, would be immaterial unless concurred in by the client, and if concurred in that fact could not be shown by such defendant.</p> <p>15. Under sec. 3072m, Stats., error to justify reversal must affirmatively appear to have been prejudicial to the appellant, and this does not appear from the exclusion of evidence, when the court is not advised what was intended to be shown by the witness nor how it would affect the rights of the parties.</p> <p>16. An order of court cannot be explained by evidence of a conversation between an attorney of one of the parties and the presiding judge.</p> <p>17. Where the assignee of a lease became insolvent and failed to pay the rent, the leasing of the premises hy the lessors to a third person at a reduced rental before the expiration of the term, under an agreement with the assignors that it should not “prejudice or affect in any way the rights or claims of the lessors against any of the parties liable upon or under the original lease” if any liability existed thereunder, did not amount to a surrender of the lease or a re-entry of the lessors and did not release the parties so liable, but they were entitled to credit for the rent received.</p> <p>18. An option to purchase the leased premises given hy the lessor to a third person, without any mention of the lease, which option was never accepted and never became a binding contract, did not constitute a re-entry so as to relieve the lessee from the payment of rent.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Oscar M. Feitz, Circuit Judge.</p> <p>The appeal is from a judgment reversing upon certiorari the action of the board of review of the city of Milwaukee refusing to set aside certain assessments made against the re-lators as trustees of the estate of Nathan Hamburger.</p> <p>They contended, inter alia, that the words “in this state” in the tax-exemption statute limited it to domestic corporations. Corporations have their residence and being and are located only in the states of their creation. Bank of Augusta v. Earle, 13 Pet. 519; Shaw v. Quincy M. Go. 145 U. S. 444, 12 Sup. Ct. 935; Galveston, M. & 8. A. B. Go. v. Gonzales, 151 U. S. 496, 14 Sup. Ot. 401; St. Louis v. Wiggins F. Go. 11 Wall. 423; Comm. v. Standard Oil Go. 101 Pa. St. 119; Humph-reys v. State, TO Ohio St. 61, TO N. E. 951, 65 L. R. A. 116; Rhode Island II. T. Go. v. Tax Assessors, 25 R. I. 355, 55 Atl. 811; Slate v. Branin, 23 N. J. Law, 484. Foreign corporations domiciled in Wisconsin are not required to pay taxes in the same manner as individuals. The statute means individuals in this state. These pay taxes on credits regardless of where th|y arise or whether due from residents of the state or elsewhere. Foreign corporations do not. State ex rel. Dwinnell v. Gaylord, 13 Wis. 316, 41 N. W. 521; Buck v. Beach, 206 U. S. 392, 21 Sup. Ct. 112; Foster-Gherry 0. Go. v. Gashey, 66 Kan. 600, 72 Pac. 268; Chicago •& N. W. B. Go. v. State, 128 Wis. 553, 108 ÜST. W. 557.</p>

Williams, Circuit Judge. Action for personal injury. Tbe defendants, wbo were engaged in mason work in Milwaukee, shortly before they quit work on August 1, 1911, filled a mortar box with lime and water, oyer which they spread a covering of about two inches of sand, and left it in that condition uncovered and ■unguarded. It stood on a private lot near a building that was being erected.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: Osoae M. Eeitz, Circuit Judge.</p>

<p> Highways: Fstoppel of town to deny existence: Temporary discontinuance: Notice: Barriers: Duty of town: Injury to traveler: Contributory negligence. </p> <p>1. Where, after an order was made laying out a highway, it was worked and traveled so that there was a heaten track over it, and public money was expended upon it, the town is estopped to deny that it was a public highway, even though there had been no award of damages and no order opening the road.</p> <p>2. In such case, if any part of the road became defective so that it was necessary that travel thereon be discontinued while such defective condition existed, it was the duty of the town to give such notice or warning or erect such barriers as would prevent its use by travelers by night as well as by day, and in the absence of such notice travelers had the right to presume that it had not been discontinued or obstructed.</p> <p>3. In an action to recover for personal injuries caused by a defective highway, evidence showing, among other things, that plaintiff’s driver was driving slowly, that it was dark, and that he could not see the defect -which caused the accident, is held to sustain a finding that plaintiff was not guilty of contributory' negligence.</p>

Appeals from a judgment and an order of tbe circuit court for Douglas county: EísaNK A. Ross, Circuit Judge.

<p>Appeal from a judgment of tbe circuit court for Douglas county: Frank A. Ross, Circuit Judge.</p> <p>Action for a personal injury. On August 13, 1912, defendants were engaged in tbe work of paving and’repairing streets in tbe city of Superior, and plaintiff, a stationary engineer, was employed ¡by tbem to operate a machine for making concrete. Tbe machine was mounted upon four wheels and a framework extending from front to back. Tbe right-hand side of the machine, facing toward the front, was the engineer’s side. The material was mixed in a revolving drum, which was about four feet three inches long. Around its center was a band gear or cog-wheel. Above the center of the drum there was a revolving shaft, seven and one-half feet from the ground, carrying a ten-inch gear wheel which meshed with the gearing on the drum. The distance from the frame, or rail of the frame, up to the gearing where it meshed with the cogs on the band of the drum was. about five feet. On top of the machine, toward the front end thereof, was a tank from which water was discharged into the drum, in such quantities as was needed, by means of a'chain which hung down on the engineer’s side, outside of the drum and over the shaft, where he could reach it ‘from the ground. This chain hung ten inches toward the forward end of the machine from the gearing in question. On the other side of the 'machine, at the immediate rear end, there was a framework suitable to he used as a ladder for reaching the top of the machine. The width of the machine from one side of the frame to the other was about four feet six'inches, and the diameter of the drum was about four feet. The rear wheel on which the machine was mounted was three feet high and its ’top was twenty-two inches back from where the chain hung down. This chain broke near the gearing, and the plaintiff, without stopping the machine, got up on top of the rear wheel, on the engineer’s side, for the purpose of mending it. In doing so he in some way got his left hand drawn into the gearings, whose con-tactual surfaces revolved away from him, and'received the injuries complained of.</p> <p>By special verdict the jury found (1) that the gearing'in question was so located as to be dangerous to employees in the discharge 'of their duties; (2) that the absence of any guard over the gearing was the proximate cause of the injury; (3) that the plaintiff was guilty of a want'of ordinary care that contributed proximately to produce his injury; (4) that the plaintiff prior to the injury was instructed not to go upon the machine on the side where the gearing was located, when the machine was running; and (5) damages $1,000. Erom a judgment entered upon such verdict in favor of defendants the plaintiff appealed.</p>

<p> Ejectment: Pleading: Equitable counterclaim: Adequate legal defense: Demurrer: Costs upon failure to plead over. </p> <p>1. In ejectment a counterclaim for equitable relief cannot be sustained if the cause of action alleged therein constitutes a good legal defense and the defendant has a complete and adequate remedy at law as efficient as in equity.</p> <p>2. In a proper case an equitable defense may be made in an action of ejectment where the defense at law is not adequate and a good cause of action in equity is pleaded.</p> <p>3. Where, upon overruling a demurrer to a counterclaim, $10 costs of motion were imposed solely as a condition of plaintiff’s right to serve a reply, but no reply was served, it was error to include such costs in a judgment against plaintiff.</p>

<p>Appeal from au order of the circuit court for Douglas county: Fsank A. Ross, Circuit Judge.</p> <p>This action was brought by the plaintiff, a municipal corporation, in the circuit court for Douglas county to recover the amount of the income tax of 1912 assessed against the defendant. The complaint alleges that the tax was assessed against the defendant and placed upon the tax roll of plaintiff for the year 1912; that the tax roll and warrant were delivered to the treasurer of the plaintiff, City of Superior, for collection; that demand of payment was made and refused. The defendant demurred to the complaint on three grounds: (a) Uo jurisdiction; (b) plaintiff not a proper party plaintiff ; and (c) want of facts sufficient to constitute a cause of action.</p>

<p> Libel: Pleading: Conclusions not admitted by demurrer: Statements made in legal proceedings: Privilege: Relevancy. </p> <p>1. A demurrer to a complaint for libel based upon certain statements contained in an affidavit for a new 'trial does not admit mere conclusions of the pleader, such as that the affidavit and its contents were irrelevant to the motion.</p> <p>2. The fact that the court to which the affidavit was presented disapproved of and refused to consider it and denied the motion for a new trial, is not conclusive that it was in fact irrelevant or improper.</p> <p>3. Public interest demands that complainants and suitors and their lawful representatives be at liberty to urge, before any legal tribunal having authority to decide', all matters relevant to the questions to be decided.</p> <p>• 4. In order to bring a witness, counsel, -or party in a litigation within the rule of absolute privilege, it is only necessary to show that the alleged slanderous or libelous words, at the time when made or published, were clearly relevant to the pending legal inquiry:in which they were uttered or used.</p> <p>5. In a complaint for libel based upon statements in an affidavit used by defendant upon a motion for a new trial in another action, allegations charging defendant with bad faith in presenting such affidavit, with lack of reasonable belief in the truth thereof, and with knowledge' that it was false and malicious, do not suffice to deprive defendant of the defense of absolute privilege if the affidavit was in fact relevant to such motion.</p> <p>6. In legal proceedings, if the matter be relevant but false in fact, the law undertakes to punish for perjury, but civil damages are not recoverable. If irrelevant, false, and uttered or published with express malice or without any bona fide belief in its truth or relevancy, damages may be recovered in a civil action.</p> <p>7. Where, in an action against a railway company by the widow of an employee whose death is alleged to have been caused by negligence, plaintiff recovered a verdict based largely upon the testimony of one man, an affidavit .for-a new trial impugning the character of the. plaintiff for chastity, particularly in respect to her relations with such' witness, was relevant as tending to show a motive on his part for falsifying, and, whether or not it was falsey or presented in had faith, was absolutely privileged.</p>

<p> Ejectment: Judgment: "When is on the merits: New trial: Notice of motion: Undertaking: Approval: Service of copy: Justification of sureties. </p> <p>1. In ejectment, defendant set up title in himself and demanded judgment that the title and right of possession were in him. The cause was tried hy the court. At the close of plaintiffs’ testimony defendant moved for judgment dismissing the complaint because plaintiffs had failed to establish title in themselves. The court granted the motion and found as a conclusion of law that defendant was entitled to judgment dismissing the action upon the merits, and judgment was entered accordingly in that form. Held, that the judgment was one on the merits and was proper. Comstock v. Boyle, 134 Wis. 613, distinguished.</p> <p>2. Plaintiffs in ejectment being entitled to a new trial as a matter of right under see. 3092, Stats., it was immaterial that the notice of motion therefor was not served on defendant.</p> <p>3. An order for a new trial in ejectment, granted under sec. 3092, Stats., becomes effective upon payment of the statutory costs and the filing of an undertaking which in form complies with the statute and the order.</p> <p>4. The statute does not, in such case, require the court to approve the undertaking. Dickinson v. Smith, 139 Wis. 1, distinguished.</p> <p>5. Nor is the provision in sec. 2702, Stats., relating to the service of a certified copy of the undertaking, applicable to actions of ejectment.</p> <p>6. The sureties in the undertaking are, under sec. 3092, Stats., required to justify only in case objection is made to their sufficiency. Defendant has the right to make such objection and tp have proceedings stayed until the sureties justify; and if they fail to do so and plaintiff fails to furnish a new and sufficient undertaking, defendant is entitled to have the order vacating the judgment set aside as a matter of course.</p>

<p> Unlawful search: Wilful wrong: Damages: Mental suffering: Puni-tory damages: Evidence: Consent to search. </p> <p>1. Where employees of the defendant railway company, without warrant or authority of law, at midnight, when plaintiff, a widow, Was alone in her dwelling house, without her consent entered and searched the house for the avowed purpose of obtaining information or evidence to he used in an effort to convict her son of burglary, there was a wilful wrong affecting her personal security and she is entitled to damages for her mental suffering caused thereby. It was error, therefore, to exclude evidence showing how the entry and search affected her feelings and health, her nervous system, sleep, and appetite.</p> <p>2. Evidence in such case that plaintiff walked around with a lamp after defendant’s employees while they were making the search, and said they were welcome to any information they might find in her house, did not establish that she consented to the search, in face of direct testimony that she objected thereto and where the trial court excluded evidence offered to show that after one of said employees showed his star she was afraid to make further resistance.</p> <p>3. Punitory damages were not recoverable under the evidence in this case.</p>

Ross, Circuit Judge. This is a mandamus proceeding brought to compel the city council of the city of Superior to transfer a license from one locality to another during the period covered by it.

<p> Master and servant: Negligence: Injury to servant: Contributory negligence: Evidence: Special verdict: Excessive damages. </p> <p>1. For tke purpose of demonstrating the efficiency of its fire-extinguishing system, defendant’s superintendent directed plaintiff, a blacksmith in defendant’s employ, to hold a nozzle, about eighteen inches long, attached to twenty-five feet of fire hose. When the water was turned on, the nozzle was jerked out of his hands by the pressure, and struck and injured his shin. The evidence as to the knowledge which the superintendent and plaintiff respectively had as to the conditions, the power to be applied, and the natural action of the water, is held to sustain findings by .the jury that the superintendent was negligent in directing plaintiff to hold the nozzle alone, and that plaintiff was not guilty of contributory negligence.</p> <p>2. Refusal to submit a particular question in a special verdict was not error where one of the questions submitted, together with the instructions thereon, sufficiently covered the material fact in issue.</p> <p>3. It appearing that plaintiff’s injuries' were painful; that the wound became infected and resulted in an ulcer, although there was no permanent substantial injury except a sensitive scar; that he was unable to work for three or four months; that he was earning from $3 to $3.50 per day; and that his médical expenses amounted to $65, damages in the amount of $900 are not excessive.</p>

<p> Sales: Refusal of vendee to accept: Remedies of vendor: Election: Measure of damages: Time of breach: Market value: Evidence. </p> <p>1. Under an executory contract for tlie sale, at a stipulated price, of a specific article of personal property to fie delivered at a particular place and at a time determinable fiy tlie vendor, if tlie vendee, upon being notified of tbe time for delivery, either refuses to accept the property unless upon a material condition not named in the contract, or fiy neglecting to make any provision for accepting manifests an intention not to accept, the vendor may choose between three courses of action: He may (1) hold the property for the executory vendee and sue for the purchase price and expenses of caring for it; or (2) sell the property as agent for the vendee and recover the difference between the contract price and the fair market value of the property at the place of delivery and time of the breach; or (3) keep the property and recover the difference between the contract price and the fair market value at the time-' and place for delivery. .</p> <p>2. Having .once chosen one of such courses of action, either actually or constructively, the vendor’s rights must fie vindicated by that method.</p> <p>3. But where the contract does not relate to specific articles which can he treated as the property of the executory vendee before or at the time of the breach, the vendor’s only remedy is to recover the excess, if any, of the contract price over the fail-market value at the agreed time and place of delivery.</p> <p>4. Where plaintiff sold cheese to he delivered at,, a certain railway station when marketably matured, and thereafter notified the vendees that delivery would be made on a certain date, but the vendees before that date gave notice that they would not accept the cheese until they had first inspected it at the place to which it was to be shipped from said station, and on the date named failed to attend at said station or receive the cheese, there was a breach of the contract on or before said date.</p> <p>5. If in such case there was no market value for the cheese at the time and place for delivery, the market value at advantageous points for dealing in such property, in connection with necessary expenses in reaching such markets, would be proper evidence of fair value.</p> <p>6. A sale of the cheese by plaintiff five months after the breach, to which the vendees were not made parties by notice and which was not characterized by any of the essentials to give it evidentiary value, was in this case without probative force upon the question of damages.</p>

This action was brought by a taxpayer on behalf of himself and other taxpayers to set aside contracts entered into by the officers of the defendant town of Milton, for building cement sidewalks and lighting streets. The case was here before (141 Wis. 388, 123 N. W. 253) and the contracts held void. This appeal is from a judgment entered upon the mandate of this court on the former appeal.

ApbeiAÍ from a judgment of the circuit court for Dodge county: MaRtiít L. Lueoe:, Circuit Judge.

Lueck, Circuit Judge. Tbe plaintiff contracted to furnish and put in place for tbe defendants certain machinery and equipment for a' malting plant, tbe alleged reasonable value of which material and labor was $9,283.76. It was averred, in tbe complaint that plaintiff bad pei’formed and that there was paid on account all of this sum except $597.89, for which judgment was .asked.

Luece, Circuit Judge. Action to recover damages sustained in tbe purchase of a farm by reason of false and fraudulent representations claimed to bave been made by tbe defendants as to tbe quantity of plowable land contained therein. It appears from tbe testimony that tbe defendants bad an option on tbe farm in question, which contained 120 acres.

Lueok, Circuit Judge. Plaintiff, who owns twenty acres of marsh land, sued the defendants for the destruction of the hay and grass thereon, resulting from a fire which was started by the defendants on the adjoining land and which afterwards escaped to plaintiff’s land.

Fowlee, Judge. Proceedings by tbe attorney for petitioners under tbe drainage law, after tbe dismissal of tbeir petition for insufficiency with taxable costs against them in favor of remonstrants, to have the reasonable value of his services and that of others and all liabilities incurred and expenditures made in their behalf in the proceedings, determined, and for judgment in favor of remonstrants against them for the benefit of the several claimants, the amounts to be…

Luecx, Circuit Judge. This action was brought against the defendant William Woodard and his son, John Woodard, a boy between thirteen and fourteen years of age. Each defendant demurred •separately. Tbe demurrer of tbe defendant' William Woodard was sustained and tbe complaint dismissed as to bim. Tbe demurrer of John Woodard was overruled, and from the order overruling tbe said demurrer this appeal was taken.

<p> Slander: Complaint: Innuendo: Demurrer. </p> <p>Upon demurrer to a complaint for slander it is sufficient that the words alleged to have been spoken are in popular usage fairly capable of expressing and conveying to others the slanderous meaning attributed to them by the innuendo, the sense in which they were intended and in which they were understood by the hearers being a question of fact for the jury.</p>

This is an action for personal injuries brought for an injury received by the plaintiff while riding on the front foot-board of a switch engine owned and operated by the Great Northern Railway Company, which was running into the appellant’s factory yard at Superior for the purpose of taking out two freight cars loaded with chairs.

LuecK, Circuit Judge. This is an appeal from an order overruling a demurrer to the amended complaint in the action.

<p>Akpeal from a judgment of tbe circuit court for Dodge county: Maetin L. Luece, Circuit Judge.</p>

Ltteck, Circuit Judge. Action of trespass. The complaint' alleges the incorporation of the plaintiff; that on the 24th day of September, 1911, it was lawfully in possession of section 19 in the town of Williamstown, Dodge county, Wisconsin, and was the owner of the exclusive right and title to the hunting and shooting privileges upon said section.

<p>Appeal from a judgment of the circuit court for Dodge county: Maetist L. Lueck, Circuit Judge.</p> <p>This is an action arising out of a dispute over the location of a line fence .dividing the property of the plaintiff on the north from that of the defendant's Maas and Fehrman on the south. Prior to the 9th of December, 1908, a fence existed dividing the property of the plaintiff from that of the defendants. In the fall of 1908 plaintiff had a survey made and such survey located the dividing line to the south of the existing fence, the strip between the old fence and the newly established line being 79.53 feet at its greatest width and narrowing down until it met the old line at' the west boundary of the Fehrman property and to a width of about forty-one feet at the east boundary of the Maas property. In December following plaintiff moved the old fence to the south to the line established by the surveyor as the proper dividing line between his property and that' of the defendant Maas, and in May, 1909, moved that part of the old fence which separated his property from that of Fehrman to the line established by the surveyor. In October, 1909, the above named defendants, together with their codefendants, whom they employed to assist them, removed the old fence from where it had been placed by the plaintiff and carried the posts and wires back onto the lands of the plaintiff north of the line of the old fence. Plaintiff began this action in justice’s court, alleging trespass. Tbe defendant's set up tbe necessary facts to show that tbe title to land would come in question and gave tbe necessary bond and tbe case was certified to tbe county court of Dodge county. Tbe defendants Maas and Fehrman then answered separately, setting up title by adverse possession to tbe respective portions of tbe strip of land in dispute adjoining tbe parcels of land wbicb tbey owned and also counterclaimed for damages for trespass. Tbe action was thereafter removed to tbe circuit court by reason of tbe filing of an affidavit of prejudice. At tbe close of tbe trial tbe court directed a verdict to tbe effect tbat tbe true boundary line between tbe property of tbe plaintiff and tbat of tbe defendants was along tbe north line of tbe strip in dispute and tbat tbe defendants bad tbe right to take down and remove the fence to tbe place where it formerly stood. By its answers to questions submitted on a special verdict the jury awarded damages to tbe defendants, and in accordance therewith judgment was entered dismissing plaintiff’s complaint and awarding damages to the defendants on their counterclaims. From such judgment plaintiff appeals.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: E. 0. Eschweilee, Circuit Judge.</p> <p>The appeal is hy A. B. Kuolt, Commissioner of Banking, from an order requiring him to permit, in hehalf of the Mil-ivaulcee National Bank of Wisconsin, an examination of the hooks and accounts of the Citizens Savings & Trust Company, and of the securities and property belonging to said company and the documents relating thereto, in the hands of said commissioner of hanking.</p>

<p>Appeal from au order of the circuit court for Milwaukee county: E. C. Eschweilee, Circuit Judge.</p> <p>The appeal is from an order quashing an alternative writ of mandamus.</p> <p>Tbe alternative writ was issued to compel tbe comptroller of tbe city of Milwaukee to proceed under cb. 71, Laws of 1901, now secs. 926 — 135 to 926 — 138, Stats., by accepting, filing, and including in bis statement of special assessments to be placed in tbe next tax roll of tbe city of Milwaukee a special assessment certificate issued to tbe relator, a contractor, after the special assessment evidenced by such certificate bad been placed upon tbe assessment roll, levied against tbe property benefited, and carried into tbe tax roll for collection under tbe provisions of tbe city charter.</p>

<p>Appeal from a judgment of the circuit court for Forest county: W. B. Quinlan, Circuit Judge,</p> <p>Upon the question of incompetency, they cited Maitland v. Gilbert P. Go. 98 Wis. 495, 72 N. W. 1124; Kliefoth v. Northwestern I. Go. 98 Wis. 495, 74 N. W. 356; Kamp v. Goxe Bros. & Go. 122 Wis. 206, 99 N. W. 366; Johnson v. St. Paul & W. 0. Go. 126 Wis. 492, 105 N. W. 1048; Hamann v. Milwaulcee B. Go. 127 Wis. 550, 106 N. W. 1081; Odegard v. North Wis. L. Go. 180 Wis. 659, 110 N. W. 809; Young v. Milwaukee G. L. Go. 133 Wis. 9, 113 N. W. 59; Zabawa v. Ober-beck Bros. Mfg. Go. 146 Wis. 621, 131 N. W. 826; Ludvig-son v. Superior S. B. Go. 147 Wis. 34, 132 N. W. 621; Freeman v. Dells P. & P. Go. 150 Wis. 93, 135 N. W. 540.</p>

<p>(1-4, 10) Wills: Trusts: Construction: “Net income:” Division of receipts between income and corpus of estate: Powers of executors and trustees: Dividends on corporate stock: Earnings added to surplus: Discretion of directors: “Capital invested” and capital stock. (5, 6) Apportionment of fees and expenses: Value of services: Opinion evidence not binding on court. (7, 8) Ponds bought or held at premium: What part of interest is net income: Sinking fund. (9) Final accounting of executors: Questions considered: Appeal to circuit court. (11, 12) Guardians ad litem: Compensation: Excessive allowances.</p> <p>1. A will, which, clearly evinced the intent of the testator that the principal or corpus of his large estate should he carefully conserved and kept intact for many years after his death, devised the estate to executors and trustees to hold during the term of two lives and nineteen years thereafter, and vested in such trustees unusually broad and comprehensive powers. Among other things, it directed them to pay over the “net annual income” of the estate to certain beneficiaries, and further directed that in determining such income for any year “only such portion of any dividend received upon any stock in any corporation belonging to my estate, shall be considered as the income of my estate as shall be paid by such corporation out of its net annual earnings for that year, and that all such portions of any dividend received upon any such stock as shall be paid by such corporation from the sale of its property, shall be considered by my 1 said executors and trustees, respectively; as principal and as merely a division among the stockholders of the property of the corporation.” Testator further directed that the judgment and decision of said executors and trustees "shall be final in ascertaining how much of every dividend received upon any shares of capital stock shall be considered as income received from the profits of the corporation for that year upon the capital invested,” and that “only such portion of any dividend as shall be determined by my said executors or trustees, respectively, to be the annual profits of the corporation for that year upon its capital invested, shall be paid out as the net annual income for that year of my estate or of any share thereof,” and that the portion of any and every dividend determined by said executors or trustees to be the proceeds of the sale of the property of the corporation shall be reinvested by them, as a mere change in the form of the investment of that portion of the estate. Held, that the corporations referred to were not corporations which the executors were by the will directed or authorized to create, but were corporations in which the testator owned stock at the time of • his-death; that the words “capital invested” did not mean capital stock, but the property or means of the corporation; and that the direction as to division of dividends wras not limited to cases where the corporation had made sale of some large portion or the whole of its property and had formally or practically divided the proceeds among the stockholders.</p> <p>2. Where a testator establishes a trust in corporate stock for the benefit of a life tenant, with remainder over to another, dividends on the stock which are not paid out of the earnings but are really divisions of the capital of the corporation constitute a part of the principal of the trust and should not be treated as income, unless the testator intended that they should be so treated.</p> <p>3. The capital of a corporation is the property or means which the corporation owns, and it may vary in amount, while the capital stock is fixed, and represents the interests of the stockhold-holders and is their property.</p> <p>4. Under the provision of the will above stated, the determination of the executors and trustees as to the apportionment of dividends between income and corpus of the estate must be deemed final and conclusive on every beneficiary, in the absence of bad faith, fraud, or mere arbitrary action.</p> <p>5. The fees and expenses of the executors in matters relating purely to the administration of the estate being properly chargeable to corpus, and their fees and expenses as trustees in the management of the trust property being properly chargeable against the income, the apportionment of such fees and expenses made by the trial court is affirmed, not being against the preponderance of the evidence.</p> <p>6. As to the value of the services of the executors and the proportionate amount chargeable against the two funds, the trial court was entitled to exercise its own judgment and was not bound by the testimony of witnesses.</p> <p>7. Where a trust is created in funds of which the income is to be paid to certain beneficiaries for life and the principal to others on the termination of the life estate, and the trustees invest a part of the funds in securities at a premium, the trustees should take from the annual income and add to the corpus such sum as will under established rules at the maturity of the securities repay to the corpus the amount paid as premium, and pay to the life tenant the balance only of the annual in- ' come.</p> <p>8. Whether there is any logical difference in the rules of law which should apply to securities held by the testator at a premium and to securities purchased by the executors at a premium, is not decided in this case. It being clear that the testator intended primarily that the principal or corpus of the estate should at all hazards be preserved intact, it is held that, as to both classes of securities above mentioned, sinking funds were properly created by setting aside a portion of the annual interest received thereon, and that such sinking funds should remain in the corpus of the estate notwithstanding the subsequent sale of some of the securities at a price which left a small balance in tlie sinking fund.</p> <p>9. In a proceeding for the settlement of the final account of executors, the whole subject of their handling of the estate is open for consideration in the county court and also, de novo, upon appeal to the circuit court; hence the mere fact that certain matters properly within the scope of the proceeding were not suggested or considered in the county court does not preclude consideration thereof and action thereon in the circuit court; and no special petition for consideration of such matters is necessary.</p> <p>10. Courts will not, in the absence of fraud, bad faith, or wilful abuse of discretionary power, interfere with the discretion of corporate directors and compel the declaration of a dividend; hence, although in this case the executors as individuals owned stock in certain corporations, which together with the stock owned by the estate constituted a majority of the stock, and did not compel an annual distribution of the earnings of such corporation but permitted such earnings to be added to the surplus account, thus enhancing the value of the stock, the court should not, in the absence of bad faith or fraud, surcharge the executors’ account by taking from the corpus of the estate the amount of such enhancement and treating it as income.</p> <p>11. Guardians ad litem are public officers of justice. Their work is primarily and chiefly the performance of a duty imposed by the court .upon its own officers to aid it in the administration of the law; and the “compensation” which, under sec. 4041&, Stats., may be allowed to them means a-reasonable charge, not measured by the high salaries or rewards for services which large establishments and wealthy clients may voluntarily pay to lawyers of their choice, but measured more nearly by the compensation which the law allows to. public officers having similar duties.</p> <p>12. Allowances to guardians ad litem, in this case amounting to about $33 per day for days spent in court, and $17.50 per day for days spent out of court, are held to be too large by about fifty per cent.</p>

<p>Appeal from a judgment of the circuit court for Chippewa county: James Wicki-iam, Circuit Judge.</p> <p>Action for personal injuries. The negligence alleged is in effect that the defendant Chippewa Sugar Company failed to furnish plaintiff a reasonably safe place to work and failed to promulgate rules for the warning of men working upon the tracks where cars were being shunted in. The alleged negligence on the part of the railway company is failure to keep a lookout when moving cars, and failure to give warning of the movements of cars.</p> <p>A special verdict was returned as follows:</p> <p>“(1) Did the defendant Chippewa Sugar Company fail to furnish the plaintiff with a reasonably safe place in which to perform his work? A. Yes.</p> <p>“(2) If you answer question 1 ‘Yes,’ then did the said defendant Chippewa Sugar Company fail to exercise ordinary care in failing to furnish the plaintiff with a reasonably safe place in which to perform his work? A. Yes.</p> <p>“(3) If you answer question No. 2 ‘Yes,’ then was said failure of the said defendant Sugar Company to exercise ordinary care the proximate cause of the plaintiff’s injury? A. Yes.</p> <p>“(4) During all the time that plaintiff was working in the beet shed and prior to the occasion of his injury, whenever the servants of the defendant railway company were about Lo move the train of cars into the alley in said shed where men were picking up beets, did there exist on the part of the railway employees a custom always to notify said men so working in said alley of the approach of said cars? A. Yes.</p> <p>“(5) Did James Hedrington inform the plaintiff, before the time when the plaintiff was injured, that said railway company’s servants always followed tbe custom mentioned in question No. 4 ? A. Yes.</p> <p>“(5-|) If you answer question No. 5 ‘Yes,’ did plaintiff, up to the time of his injury, rely upon said information and believe it to be true? A. Yes.</p> <p>“(6) Did the defendant Sugar Company, prior to the time the plaintiff was injured, fail to provide and put into practice any rule for giving warning to persons who were at work in the alleys picking up beets, of the approach of trains of cars whenever such cars were about to be moved into said alleys where said persons were working? A. Yes.</p> <p>“(1) If you answer question No. 6 ‘Yes,’ then did the defendant Sugar Company fail to exercise ordinary care in failing to provide and put into practice such rule for warning such persons of the approach of said train? A. Yes.</p> <p>“(8) If you answer question No. 1 ‘Yes,’ then was such failure of the defendant Sugar Company to exercise ordinary care the proximate cause of the plaintiff’s injury? A. Yes.</p> <p>“(9) When the servants of the railway company moved the train of cars into the alley where the plaintiff was working, just before the time of his injury, did said servants who had charge of said train fail to give reasonable warning to all persons who might be in said alley of the approach of said train ? A. Yes.</p> <p>“(10) If you answer question No. 9 ‘Yes,’ then did said railway servants fail to exercise ordinary care in failing to give such warning? A. Yes.</p> <p>“(11) If you answer question No. 10 ‘Yes,’ then was such failure of said railway servants to exercise ordinary care in failing to give such warning the proximate cause of plaintiff’s injury? A. Yes.</p> <p>“(12) Did said railway servants, who had charge of the movement of the cars just before the time of the plaintiff’s injury, all fail to keep a reasonable lookout in the direction in which said cars were moving to prevent injury to persons who might be on and near the railway tracks ? A. Yes.</p> <p>“(13) If you answer question No. 12 ‘Yes,’ then did such railway servants fail to exercise ordinary care in failing to keep such lookout ? A. Yes:</p> <p>“(14) If you answer question No. 13 ‘Yes,’ then was said failure of said railway servants to exercise ordinary care in failing to keep sucb lookout tbe proximate cause of tbe plaintiffs injury? A. Tes.</p> <p>“(15) Was tbe danger of tbe plaintiff getting injured by tbe cars while working in tbe alley under tbe conditions as they existed, sucb that tbe plaintiff by tbe exercise of ordinary care should have known and appreciated such danger before tbe time of bis injury ? A. No.</p> <p>“(16) Did any want of ordinary care on tbe part of the plaintiff proximately contribute to bis injury ? A. No.</p> <p>“(17) If tbe court should determine that tbe plaintiff is entitled to judgment on this verdict, then at what sum do you assess tbe plaintiff’s damages? A. $1,500.”</p> <p>On motions made after verdict tbe court changed tbe answer to tbe sixteenth question from “No” to “Yes” and found plaintiff guilty of contributory negligence, and ordered judgment dismissing tbe complaint. Judgment was entered accordingly, from which this appeal was taken.</p> <p>upon tbe question of ■ contributory negligence, cited, among other authorities, Bailey, Pers. Inj. sec. 1433; 3 Labatt, Mast. & Serv. (2d ed.) sec. 1266; 3 Elliott, Railroads (2d ed.) §§ 1265&, 1315c; 81. Louis, I. M. ■& 8. R. Go. v. Jackson, 78 Ark. 100, 93 S. W. 746; Egan v. Southern P. Go. 15 Cal. App. 766, 115 Pac. 939 ; St. Louis, A. & T. II. B. Go. v. Egg-mami, 161 Ill. 155, 43 N. E. 620; Shoner v. Pennsylvania Go. 130 Ind. 170, 28 N. E. 616, 29 N. E. 775; Baltimore & O. 8. W. R. Go. v. Peterson, 156 Ind. 364, 59 N. E. 1044; Pittsburgh, O., O. & 8t. L. R. Go. v. Rogers, 45 .Ind. App. 230, 87 N. E. 28; Crowley v. B., O. R. ■& N. R. Go. 65 Iowa, 658, 20 N. W. 467, 22 N. W. 918; Comstock v. U. P. R. Go. 56 Kan. 228, 42 Pac. 724; Dowell v. O., R. I. •& P. R. Go. 83 Kan. 562, 112 Pac. 136; Pittsburgh, G., 0. & St. L. R. Go. v. 8chaub, 136 Ky. 652, 124 S. W. 885; Heaney v. Boston E. R. Go. 211 Mass. 467, 98 N. E. 89; Gornell v. G. N. R. Go. 112 Minn. 341, 128 N. W. 22; Schoen v. G., St. P., M. •& O. R. Co. 112 Minn. 38, 127' N. W. 433; Albanese v. O. B. Co. 70 1ST. J. Law, 241, 57 Atl. 447; Mullin v. G. B. Go. 77 1ST. J". Law, 241, 72 Atl. 426; Schultz v. G. & N. W. B. Go. 44 Wis. 638; Ditbemer v. G., M. '& St. P. B. Go. 47 Wis. 138, 2 1ST. W. 69; Promer v. M., L. S. & W. B. Go. 90 Wis. 215, 63 1ST. W. 90; Bain v. N. P. B. Go. 120 Wis. 412, 98 1ST. W. 241; Turtenwald v. Wis. Lakes I. ■& G. Co. 121 Wis. 65, 98 1ST. W. 948; Sparks v. Wis. Gent. B. Go. 139 Wis. 108, 120 R. W. 858; Hendrickson v. Wis. Gent. B. Go. 143 Wis. 179, 122 R. W. 758, 126 1ST.- W. 686; McHolm v. Philadelphia & B. G. & I. Go. 147 Wis. 381, 132 R. W. 585; Gollins v. G. & N. W. B. Go. 150 Wis. 305, 136 R. W. 628; Slam v. L. S. T. d? T. B. Co. 152 Wis. 426, 140 R. W. 30; Gray v. 0. & N. W. B. Go. 153 Wis. 637, 142 R. W. 505.</p> <p>They cited, inter, alia, Goodrich v. Ghippewa Valley JE. B. Go. 108 Wis. 329, 84 R. W. 419; McCadden v. Abbot, 92 Wis. 551, 66 R. W. 694; Guhl v. Whitcomb, 109 Wis. 69, 85 R. W. 142; Aerkfetz v. Humphreys, 145 17. S. 418, 12 Sup. Ot. 835; Keefe v. G. & N. W. B. Go. 92 Iowa, 182, 60 R. W. 503; Tomko v. C. B. Go. 1 App. Div. 289, 37 R. Y. Supp. 144; Grand Trunk B. Go. v. Baird, 94 Eed. 946; Carlson v. G. S. & M. B. Co. 120 Mich. 481, 79 R. W. 688; Daly v. Detroit Gity St. B. Go. 105 Mich. 193, 63 R. W. 73; Schmolze v. O., M. & St. P. B. Go. 83 Wis. 659, 53 R. W. 743, 54 R. W. 106; Sours v. G. N. B. Go. 88 Minn. 504, 93 R. W. 517; Lynch v. B. & A. B. Go. 159 Mass. 536, 34 R. E. 1072.</p> <p>They cited the following additional cases: Bothe v. M. •& St. P. B. Go. 21 Wis. 256; Lofdahl v. M., St. P. & S. S. M. B. Go. 88 Wis. 421, 60 R. W. 795; Wilber v. Wis. Gent. B. Go. 86 Wis. 535, 57 N. W. 356; Schlimgen v. O., M. é St. P. B. Go. 90 Wis. 186, 62 N. W. 1045; Nolan v. M.j L. S. & W. B. Go. 91 Wis. 16, 64 N. W. 319; Ilanson v. G. V. ■& N. B. Go. 150 Wis. 104,135 N. W. 488; Montague v. G., M. & St. P. B. Go. 82 Fed. 787; Chicago ■& W. I. B. Go. v. Beicheri, 69 Ill. App. 91; Spaven v. L. S. & M. S. B. Go. 130 Mich. 579, 90 N. W. 325.</p>

<p>Appeal from a judgment of the circuit court for Yernon county: E. C. TIigbeb, Circuit Judge.</p> <p>■ The defendant is a wholesale dealer in garden and field seeds. It advertised its seeds quite extensively, such advertisements suggesting to prospective purchasers of seeds that they send for defendant’s catalogue and also advise it of the name of the prospective purchaser’s local dealer. The plaintiff is a farmer who in the spring of 1911 was intending to plant about twenty acres of tobacco. He saw one of defendant’s catalogues in which was advertised “Comstock Spanish Tobacco Seed.” He desired to raise the variety of tobacco produced from this seed and called on three local dealers in Yiroqua in the spring of 1911 to purchase the same. None of these dealers had any of this seed in stock, so he called on a fourth dealer, one Morton, who also advised him that he did not have any of this seed on hand. The plaintiff then stated that he would himself order the seed from the defendant. Morton then informed him that he was handling some seeds of the defendant and would send and get the tobacco seed for him, and it was finally arranged between them that Morton should order one pound of this variety of tobacco seed. The order was dated on March 27th. When the order was received, the defendant did not have any of this particular variety of seed on hand and sent to Virginia for it. This order apparently was promptly filled, except that the tobacco seed which was sent in response thereto was not Comstock Spanish tobacco seed. It was not possible to tell from an examination of the seed itself that it was not of the variety ordered. The defendant shipped this seed to Morton on April 8, 1911,.who thereafter notified the plaintiff of its arrival. The seed was taken by the plaintiff and planted by him and proved to be an inferior variety of tobacco, or one which w'as not adapted to the soil in which it was planted. The defendant did not know of the circumstances under which the seed was ordered and so sold the same to Morton, in the ordinary course of business. Plaintiff brought action against the defendant to recover damages for breach of warranty. Other facts essential to an understanding of the issues in the ease will be found in the opinion. The jury returned the following special verdict:</p> <p>“(1) Was the sale of the package of tobacco-seed in question sold by the defendants to the plaintiff ? A. Yes.</p> <p>“(2) Was there at the time of said sale a general custom in the Northwest, including Wisconsin, among seedsmen such as the defendants, to refuse to warrant seeds ? A. Yes.</p> <p>“(3) If you answer question 2 ‘Yes,’ then did the plaintiff have knowledge of the same at the time he purchased said seed? A. No.</p> <p>“(4) Was there a disclaimer printed upon the bag in which the seed was delivered to the plaintiff? A. No.</p> <p>“(5) Was the seed in question 'Comstock Spanish’ tobacco seed? A. No.</p> <p>“(6) Did the plaintiff at or before the time of purchase of the seed in. question have knowledge or information of the disclaimer printed in the defendant’s catalogue or upon any of its literature or packages ? A. No.</p> <p>“(7) If you answer question 5 ‘No/ then what would have been the reasonable and probable value of plaintiff’s 1911 crop had the seed in question been Comstock Spanish tobacco seed ? A. $2,000.</p> <p>“(8) What was the reasonable value of plaintiff’s 1911 crop as raised ? A. $985.”</p> <p>Judgment was entered on this verdict in favor of the plaintiff, and defendant appeals therefrom.</p> <p>They argued, inter alia, that defendant was not liable to plaintiff because there was no privity of contract between them. 7 Am. & Eng. Ency. of Law (2d ed.) 104; Woods v. Ayres, 39 Mich. 345; 1 Harvard Law Rev. 226; Lawrence v. Fox, 20 N. Y. 268; Mellen v. Whipple, 1 Gray, 317; 44 Cent. L. J. 93; Davidson v. Nichols, 11 Allen, 517; Roddy v. M. P. R. Go. 104 Mo. 234, 15 S. W. 1112; Thomas v. Winchester, 6 N. Y. 377; Ware v. Brown, 2 Bond, 267; Fends v. Carson. W. Go. 16 Nev. 44, 40 Am. Rep. 405; Fowler v. Athens W. W. Go. 83 Ga. 219, 9 S. E. 673; Becker v. Keokuk W. W. 79 Iowa, 419, 44 N. W. 694, 18 Am. St. Rep. 377; Phoenix Ins. Co. v. Trenton W. Go. 42 Mo. App. 118; Necker v. Harvey, 49 Mich. 517, 14 N. W. 503; Hasbrouck v. Armour & Go. 139 Wis. 357,121 N. W. 157; Williston, Sales, § 244; Nelson v. Armour P. Go. 76 Ark. 352, 90 S. W. 288; Smith v. Williams, 117 Ga. 782, 45 S. E. 394; Prater, v. Campbell, 110 Ky. 23, 60 S. W. 918; Lebourdais v. Vitrified W. Go. 194 Mass. 341, 80 N. E. 382; Tomlinson v. Armour & Go. 74 N. J. Law, 274, 65 Atl. 883; 2 Mechem, Sales, § 1834; Dukes v. Nelson, 27 Ga. 457; Farrell v. Manhattan M. Go. 198 Mass. 271, 84 N. E. 481; Nixa 0. Go. v. Lehmann-Hig-ginson Go. 70 Kan. 664, 79 Pac. 141. Plaintiff was bound by tbe general custom of seedsmen not to warrant seeds. Leonard 8. Go. v. Grary 0. Go. 147 Wis. 166, 132 N. W. 902; Blizzard Bros. v. Growers3 G. Go. 152 Iowa, 257, 132 N. W. 66; Hewitt v. John Week L. Go. 77 Wis. 548, 46 N. W. 822; Shores L. Go. v. Stitt, 102 Wis. 450, 78 N. W. 562; Gehl v. Milwaukee P. Go. 105 Wis. 573, 580, 81 N. W. 666; Mooney v. Howard Ins. Go. 138 Mass. 375; Smith v. Clews, 114 N. Y. 190, 21 N. E. 160; Taylor v. Bailey169 Ill. 181, 48 N. E. 200; Austrian v. Springer94 Micb. 343, 54 N. W. 50. Defendant was not liable upon an implied warranty, not being a grower or producer of the seed. 55 'Cent. L. J. 465; Shisler v. Baxter, 109 Pa. St. 443; Lovegrove v. Fisher, 2 Post. & Pin. 128; Lord v. Grow, 39 Pa. St'. 88, 80 Am. Dec. 504; Kircher vr Conrad, 9 Mont. 191, 23 Pac. 74, 7 L. R. A. 471; Galhoon v. Brinker, 17 Ohio Dec. N. P. 705.</p> <p>They cited, among other cases, Hoffman v. Dixon, 105 Wis. 315, 81 N. W. 491; Fuhrman v. Interior W. Go. 64 Wash. 159, 116 Pac. 666, 37 L. R. A. N. s. 89; Leonard S. Go. v. Grary C. Go.. 147 Wis. 166, 132 N. W. 902, 37 L, R. A. N. s. 79; Vaughans S. Store v. StringfelloWj 56 Pla. 708, 48 South. 417.</p>

<p> Garnishment: Requisites of affidavit in tort action. </p> <p>An affidavit for garnishment under sec. 2753, Stats., in an action sounding in tort, must state all those things which are required by sec. 2731 to be stated in an affidavit for an attachment in such an action. Marshall, J., Winslow, C. J., and Vinje, J., dissent.</p>

<p>Appeal from a judgment of tbe circuit court for Sauk county: E. Rat SteveNS, Circuit Judge.</p> <p>Action for breach of contract.</p> <p>Plaintiff’s claim was tbat tbe individual defendants, in their bebalf and of tbe corporation defendant, tbe Iiuerth-Schaefer Auto Company, of 'which, they were the proprietors,, sold to him an automobile, talcing an old machine in part payment and his note for the deferred amount, $839, the note to' be left in the State Banlc of Sauk City, Wisconsin, to await a trial of the machine in respect to whether it would fill specified requirements so as to enable him to do his work therewith and if not the sale to he off and the note to he returned; that the machine wholly failed to come up to the guaranty made hy defendants and on the faith of which it was purchased, whereupon plaintiff tendered it back and demanded a return of his note, which was refused; that the note, instead of being held subject to a test of the machine as agreed, was put in circulation whereby it, for a valuable consideration in due course, came to the ownership of a party to whom plaintiff was compelled to pay it, to his damage in the amount so paid.</p> <p>The claim of defendants was that they, as agents for the Monona Motor Oar Company and in no other capacity, sold the car to plaintiff; that the entire sale contract was embodied in a written agreement between their principal and plaintiff and contained no such guaranty as that claimed by him, and none other than as agents, and that the machine was in all respects according to the calls of such contract. The return of the machine and negotiation and payment of the note were admitted. Upon the trial the cause was opened to the jury on plaintiff’s part upon the-theory that the issue to be tried was whether defendants, for themselves, made an agreement in respect to the character of the machine as claimed in the complaint,' and on defendants’ part, upon the theory that they did not make any such contract nor any other except as agents, nor other than the one embodied in the writing.</p> <p>Evidence was produced to support the two theories, — ■ court and jury understanding that the wrong which plaintiff complained of was a breach of a contract made by defendants in their own behalf to induce plaintiff to make the written contract. There was evidence to the effect that, in the negotiations for the purchase of the machine, plaintiff was assured that if it did not prove satisfactory it would he taken hack and, as a test, plaintiff exacted and obtained assurance from defendants, personally, that it would go up a particular hill. It was established that the machine, in plaintiff’s hands, would not perform satisfactorily by going up such hill. There was some conflicting evidence as to whether the failure was owing to fault in the machine or in operating it.</p> <p>To maintain the defense the written sales contract was produced in evidence and proof was made tending to show that it was the only agreement respecting the machine.</p> <p>At the close .the conflicts were as to whether defendants made the contract claimed by plaintiff, agreeing that the test of capacity of the machine should be whether it would perform satisfactorily in respect to going up the particular hill, or whether the sole contract was the written agreement with the company for which defendants were agents. The court prepared this form of a special verdict upon the theory, at least as the parties supposed, that it covered all disputed matters in the case which were vital:</p> <p>“(1) Did the defendants, or either of them, at any time during the negotiations for the sale of the car in question say that if the car was not satisfactory to the plaintiff there would be no sale ?</p> <p>“(2) Did the defendants, or either of them, at any time during the negotiations for the sale of the car in question, guarantee that this car would go up Yankee Hill ?</p> <p>“(3) If you answer questions Ho. 1 and Ho. 2, or either of them, ‘Yes,’ then name the defendant, or defendants, that made such statement.</p> <p>“(4) If you answer questions Ho. 1 and Ho. 2, or either of them, ‘Yes,’ was the plaintiff induced to buy the automobile in question because of his belief in and reliance upon the truth of such statements ?</p> <p>“(5) Was the trouble with the car here in question caused by the failure of the plaintiff to properly operate or care for the car?</p> <p>“(6) Did tbe plaintiff, at tbe time be returned tbe car to tbe defendants, demand that they return tbe consideration wbicb be gave for tbe same ?”</p> <p>Counsel for plaintiff did not ask submission of any other question, assuming that question 1 was framed to cover tbe disputed matter of whether defendants made tbe agreement be claimed. That was tbe basis of tbe cause of action plaintiff supposed himself to have, tbe one to wbicb all tbe evidence bad been directed, and tbe one stated to tbe jury to enable them to understand tbe evidence.</p> <p>Plaintiff’s counsel requested an instruction which embodied tbe precise claim of plaintiff, but tbe same was not given. Tbe court instructed tbe jury, briefly, as to each question, without saying anything to indicate that tbe form for verdict did not cover tbe precise matter of dispute, to wit, whether defendants, for themselves, made tbe agreement claimed to induce plaintiff to take tbe machine under tbe written contract.</p> <p>All questions of tbe special verdict were answered in plaintiff’s favor. Thereupon bis counsel moved for judgment and counsel for defendants moved tbe court for judgment on tbe verdict and, as an alternative, for a change of answers so as to shape tbe verdict in defendants’ favor and for judgment accordingly.</p> <p>Both motions were denied and judgment was rendered in defendants’ favor upon tbe theory that tbe vital question of whether defendants contracted, for themselves, with plaintiff, as be claimed was not covered by tbe verdict, that there was no evidence to warrant a finding, on that matter in bis favor, and that tbe court, in any event, could make tbe finding as to such matter in defendants’ favor under tbe statute, sec. 2858m.</p> <p>Counsel for plaintiff moved to set tbe judgment aside upon tbe ground of surprise; in that tbe only question in tbe case was whether defendants, for themselves, made tbe contract as claimed; that such question was tbe only one tried and required to be submitted to tbe jury, and that they were led to believe from the trend of proceedings up to the time of the announcement of the decision on the motions for judgment that the evidence produced raised a jury question in respect to the matter and that the court submitted question 1 to cover such matter. The motion was denied.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Rat SteveNS, Circuit Judge.</p> <p>Action to recover of defendant the cost of paving that portion' of a street between its railway tracks and one foot outside the rails.</p> <p>The question was whether-defendant’s franchise required it to-bear the expense of the pavement in the particular region. Erom the time of its- organization up to 1892, defendant operated under a franchise containing the' following provision:</p> <p>“Section 3. Whenever any street upon which any of said tracks may be located shall hereafter be paved or macadamized, the said railway company shall-pave or macadamize the roadbed between and one foot on either side on the outside of .the rails of the track of their said'road, and shall at all times make and keep the track between and one foot on either side on the outside of the rails thereof equally as good as the streets shall be outside of their tracks, and shall correspond in surface and improvements with said street outside of said track.”</p> <p>That franchise was in existence when the paving in question was done, unless repealed by a franchise granted défend-ant in 1892 under which it was operating when such work was done. The new franchise was complete, in itself, being so framed as to cover all features'of street railway construction, maintenance, and operation. It was granted to authorize displacement of the old horse-car system by a modem electric system, and contained this repealing language:</p> <p>“All ordinances or portions thereof, heretofore adopted which conflict with the provisions of this ordinance are hereby repealed.”</p> <p>The new franchise, in general, was worded the same as the old one with such changes as would make it adaptable to the use of electricity as a motive power. It differed in sufficient respects to be, as a whole, in conflict with tbe old franchise, though by far the greater part was substantially a reenactment of the existing ordinance. The provision before quoted from the old franchise with reference to paving between the tracks was not carried into the new one. The language of the old franchise preceding the particular clause, and the language following, were substantially reproduced in the new one leaving the particular clause wholly absent from the latter. The remaining language which, without material difference, is common to both franchises, is as follows:</p> <p>“(b) It shall be the duty of said company to repair any and all damages done to the streets, macadamized curbs, cross or sidewalks, gutters or other public or private property by the construction or repairing of the tracks along the streets as herein provided for; and further to protect and save harmless the city of Madison against all claims for damages arising from the construction, operation or management of the railway provided for herein.”</p> <p>In 1910 the common council of plaintiff, by due proceedings, determined to pave University avenue between Charter street and Park street with asphalt on a concrete foundation, and by ordinance passed June 10, 1910, ordered the defendant to likewise pave that portion of the street between its tracks and for one foot outside its rails. Defendant denied liability in that regard. Whereupon it was agreed that plaintiff should incur the expense of paving the entire street and then test its claim against the defendant by an action to recover the reasonable value of the work done within the railway zone. Such proceedings were duly had pursuant thereto that judgment was recovered against defendant for $4,567.64.</p> <p>The pleadings and evidence show the facts stated. These additional matters are covered by the findings: The right of defendant to use the streets of plaintiff is referable to the franchise of 1892 requiring it to “keep the space between the rails of each track and for the space of one foot on the outside in proper repair so as not to interfere with travel over tbe same.” Prior to tbe paving in question tbe particular street bad not been permanently improved. Portions thereof bad been covered witb crushed stone and defendant bad likewise filled that part occupied by its tracks. Tbe use of tbe street was such, prior to tbe paving in question being ordered, as to render tbe existing macadam unsuitable. Prior to July 11, 1910, tbe street within tbe railway zone was so out of repair as to render it unfitted for use by traveling across tbe tracks. A macadam made of crushed stone is not a proper pavement for tbe particular street under tbe circumstances existing. In case of tbe railway zone being so paved tbe surface would wear down between tbe tracks so that travel across tbe same would cause injury to tbe pavement outside such zone by disintegration of tbe unsuitable macadam pavement and parts thereof being deposited on tbe asphalt surface.</p> <p>Tbe provision of tbe franchise particularly referred to in tbe findings is a re-enactment of tbe old ordinance. It is in these words:</p> <p>“(a) And said company shall keep tbe space between tbe rails of each track and for tbe space of one foot on tbe outside in proper repair so as not to interfere witb travel over tbe same, and shall keep tbe same in proper order and cleanliness at its own cost and expense.”</p> <p>Tbe later ordinance contained a new provision making tbe granted privilege conditioned in that it should be “subject to all general provisions of statute law now in force and applicable thereto and to such reasonable rules and regulations respecting such streets and highways and operation of cars as tbe said council may from time to time enact.”</p> <p>On the facts found as indicated judgment was rendered in favor of plaintiff.</p> <p>To tbe point that a provision in a street railway franchise requiring tbe railway company to repair tbe space between the rails and one foot on the outside thereof “so as not to interfere with travel over the same” does not obligate the company to pave or repave the streets, they cited 3 Dillon, Mun. Corp. (5th ed.) § 1276; Chicago v. Sheldon, 9 Wall. SO; State ex rel. Kansas City v. Corrigan C. St. B. Co. 85 Mo. 263, 55 Am. St. Rep. 361; Kansas City v. Corrigan, 86 Mo. 67; Williamsport v. Williamsport P. B. Co. 206 Pa. St. 65, 55 Atl. 51; Western P. & S. Co. v. Citizens’ St. B. Co. 128 Ind. 525, 26 N. E. 188, 28 N. E. 88; Philadelphia v. II., M. & F. P. B. Co. 177 Pa. St. 371, 35 Atl. 718.</p> <p>in support of the claim that the obligation in the 1892 franchise includes the paving of the railway zone, cited Broolclyn v. Broolclyn City B. Co. 47 N. Y. 475, 7 Am. Rep. 469; Binghamton v. Binghamton & P. D. B. Co. 61 Hun, 479, 16 N. Y. Supp. 225; Conway v. Bochester, 157 N. Y. 33, 51 N. E. 395; People ex rel. Bus-sell v. Utica, 45 App. Div. 356, 61 N. Y. Supp. 31; Mechan-icsville v. Stillwater & M. St. B. Co. 35 Mise. 513, 71 N. Y. Supp. 1102, affirmed 67 App. Div. 628, 74 N. Y. Supp. 1149, reaffirmed 174 N. Y. 507, 66 N. E. 1117; Binninger v. New Yorlc, 177 N. Y. 199, 69 N. E. 390; Bochester v. Bochester B. Co. 182 N. Y. 99, 74 N. E. 953; Neiv Yorlc v. II. B., M. & F. B. Co. 186 N. Y. 304, 78 N. E. 1072; Schuster v. Forty-second Si., M. <& St. N. A. B. Co. 118 App. Div. 197, 102 N. Y. Supp. 1054; New Yorlc v. New Yorlc City B. Co. 60 Mise. 487, 113 N. Y. Supp. 869, affirmed 132 App. Div. 156, 116 N. Y. Supp. 939; New Yorlc v. Broadway & S. A. B. Co. 130 App. Div. 834, 115 N. Y. Supp. 872; New Yorlc v. Ninth Ave. B. Co. 130 App. Div. 839, 115 N. Y. Supp. 876; New Yorlc v. Metropolitan St. B. Co. 130 App. Div. 842, 115 N. Y. Supp. 878; Harrisburg v. Harrisburg P. B. Co. 1 Pears. 298; Bidge Ave. P. B. Co. v. Philadelphia, 124 Pa. St. 219, 16 Atl. 741; Philadelphia v. Bidge Ave. P. B. Oo. 143 Pa. St. 444, 22 Atl. 965; McKeesport v. McKeesport P. B. Oo. 158 Pa. St. 447, 27 Atl. 1006; Philadelphia v. Thirteenth & F. Sts. P. B. Oo. 169 Pa. St. 269, 33 Atl. 126; Beading v. United T. Oo. 202 Pa. St. 571, 52 Atl. 106; Beading v. Beading & S. W. St. B. Oo. 215 Pa. St. 132, 64 Atl. 335; Beading v. United T. Oo. 215 Pa. St. 250, 64 Atl. 446; Columbus St. B. <& L. Go. v. Golumbus, 43 Ind. App. 265, 86 N. E. 83; State ex rel. New Orleans v. New Orleans & O. B. Oo. 52 La. Arm. 1570, 28 South. Ill; Dan-ville v. Danville B. & E. Oo. 114 Va. 382, 76 S. E. 913; 27 Am. & Eng. Ency. of Law (2d ed.) 41; 36 Cyc. 1403-1405; Elliott, Roads & S. (3d ed.) §§ 985-989.</p>

<p> Railroads: Injury to employee: Interstate commerce: Waiver of objection that federal statute governs: Child labor law: Violar tion: “Track repairing:’’ Liability of employer: Contributory negligence not a defense: Appeal: Verdict upheld: Expert testimony: Hypothetical questions. </p> <p>1. In an acticin by a railway employee for personal injuries, the objection that the plaintiff was employed in interstate commerce and hence that the case is governed by the federal statute, if not' raised' before or during the trial, is waived and cannot be raised for the first time on appeal.</p> <p>2. Where a boy under the age of eighteen, employed as member of a section crew, was injured while riding on a handcar to a point where he and the other members of the crew were to . move a switch track so as to facilitate the loading of cars from an ore pile, he was in every substantial sense employed in “track repairing” within the meaning of secs. 1728/, 1728k., Stats. 1911, which prohibit and make a misdemeanor the employment of a child under eighteen years of age in such work.</p> <p>3. The ‘purpose of the statute being beneficent, it should be liber- - ally construed to accomplish the end for which it was designed.</p> <p>4. The violation of the statute, being made a misdemeanor, results in liability for consequent injuries to the infant employee, regardless of the question of contributory negligence.</p> <p>5. The expert testimony being conflicting, and nearly evenly divided as to number of witnesses, upon the question whether plaintiff was rendered imbecile as the result of his injury, or was merely suffering from hysteria, the verdict of the jury in that regard will not be disturbed on appeal.</p> <p>6." The evidence of a physician that he based his diagnosis of a fracture at the base of the brain, in the case of a patient who was unconscious, delirious, and suffering from severe injuries, lacerations, and contusions of the face, in part upon the history of the accident told him by some person, did not render his opinion incompetent on the ground that such history was not shown to have been truthful, especially where he was not asked to detail the history so given to him.</p> <p>7. It being competent for tbe physician in such case to testify that in his judgment there was a fracture at the base of the brain, it was competent to include that fact in a hypothetical question addressed to other medical experts.</p>

<p>Appeal from a judgment of tbe circuit court for Douglas county: EeaNk A. Ross, Circuit Judge.</p>

Agnew, Judge. Action to recover on two written contracts, whereby plaintiff became obligated to plant a stipulated number of acres to sugar beets, cultivate and harvest the same in good husband-like manner, and deliver the matured crop to the defendant in .good condition. The latter, .in consideration of performance ■on plaintiff’s part, agreed to pay him at a stipulated rate for beets delivered.

<p>Appeal from a judgment of tide county court of Waukesha county: David W. Agnew, Judge.</p> <p>Action to recover on contract. Judgment was in due form for $344.71.</p>

Lueck, Circuit Judge. This action was brought by the plaintiffs Gustav Prochnow .and Matilda Prochnow, his wife, to recover damages for the maintenance of an alleged nuisance and to abate the same. 'The action was commenced September 16, 1911. October 10, 1911, the defendant answered.

<p>Appeal from a judgment of tbe circuit court for Ashland county: G. N. Risjoed, Circuit Judge.</p> <p>This is an action to recover damages for personal injuries received by the plaintiff while working for the defendant in its paper mill at Menasha.</p> <p>The plaintiff, Joseph Langos, had been a mechanic for fifteen years. Eor a number of years preceding the accident he had been doing the work of a fireman and engineer on stationary engines. He entered the defendant’s employment as fireman and worked at that for about á month, and in February, 1911, he began work as millwright in defendant’s mill, which was his first engagement at work of the nature incident to this employment. He continued as millwright until he was injured June 10, 1912. His duties were to look after the machinery and see that all was in proper operative shape, and if there was anything wrong to fix it or to see to it that it was fixed. For this work he received $2.25 per day. He was under the control of the superintendent and was subject to his control and commands.</p> <p>On the morning of June 10, 1912, after the mill had been started, about 1:30 o’clock a wooden guide which conducted the felt over the drier rolls in the drying machine was found to be broken. The defendant’s superintendent, Torsrud, directed the plaintiff to make the repair by replacing the broken guide with a new one. The drier machine consists of a double tier of large heated rolls arranged in parallel lines in a long iron framework. This machine was operated with the general power by means of a separate clutch thrown in and out by a lever. Over the rolls was stretched a piece of canvas called tbe drier felt, over which the paper ran. as it went through the machine. The felt on the rollers was held in place by small counter rolls between the large rolls. A large open framework covered the sides of the machine, and in this framework were the journals for the hubs of the rolls. The machine stood east and west in a room 120' by 40 feet, with a considerable space to the north side. It was necessary for the plaintiff, in fixing this broken stick, to measure its length. To do this he procured a- small stick about nine feet long and one-fourth inch by three-eighths inch thick. The machine stands about eighty-four inches high and is about 104 inches across. The drier rolls are eighty-eight inches long and are placed five and one-half inches apart. . Between these are the felt or counter rolls, which are ninety-six inches long, four and one-half inches in diameter, and the space between these and the drier rolls is about one inch. The guide stick which the plaintiff was to measure and replace was about five inches above the frame and ninety inches from the floor, and extends across the machine.</p> <p>At the time of the accident the machine was running, but no- paper was going through it. After being told to fix the broken guide the plaintiff procured the above described stick and mounted.the frame of the machine to take the measurement of the length of the broken guide stick. He called to one of the men working on the other side of the machine to help him take the measurement. This man mounted a platform which ran along on the south side of the machine and took the stick as plaintiff passed it to him and placed it flush with the end of the broken guide, while the plaintiff marked the length of it at the other end. The plaintiff was standing with his right foot on the frame of the machine at the point marked 5 in the accompanying illustration, his left foot on the journal of the roll just below the point 5 and thirty-six inches from the floor, his left hand and arm thrown over the top of</p> <p> </p> <p>tbe frame marked at A, and was taking tbe measurement of tbe guide stick marked 1. After tbe plaintiff bad marked tbe length of tbe stick with bis finger be told bis helper to push tbe stick back and let go. Tbe helper did so, and as be let go tbe stick dropped down onto tbe felt running under tbe counter rolls, snapped off near tbe end plaintiff held, leaving a piece about nine inches long in bis band, and tbe balance of tbe stick went in between tbe counter and drier rolls and broke into small pieces. Langos then turned to tbe right and took bis right foot from its position on the frame and placed it on tbe projection of tbe frame some twenty-seven inches from the floor. He then turned and was looking for a place to put bis left foot, which be bad removed to a banging position. He would, while looking for a place for bis left foot, naturally turn to tbe left in so doing. While in this position bis band and arm came in contact with tbe moving felt and were drawn into tbe space between the counter roll and tbe hot drier roll at tbe point marked D in tbe illustration, and so injured him as to necessitate amputation above tbe elbow. Plaintiff cried out as be was injured, and Mr. Smith, tbe manager, and a Mr. Jensen, a machine tender, seized the lever and shut down tbe machine. Torsrud, tbe superintendent, removed tbe journal of tbe counter roll and freed bis arm.</p> <p>Tbe three machine men and tbe superintendent were the only persons having authority to stop tbe machine for repairs or any other purpose, and upon call from tbe plaintiff to stop tbe machine it was their duty to do so. Tbe machine was running when Torsrud, tbe superintendent, told Langos to fix the stick, and neither Torsrud nor any one else stopped tbe machine while tbe repairs were being made. Tbe manager, Mr. Smith, was near tbe place where plaintiff came to mount tbe frame and remained there up to tbe time of tbe accident. Tbe plaintiff bad spoken to tbe superintendent about building a platform on tbe north side of the machine upon which to stand while doing any work about tbe machine, but was told it was not necessary. There was in tbe room, and not far from tbe plaintiff at tbe time be mounted tbe machine frame to make tbe repair, a saw borse tbirty-seven and one-half inches high, made of 4 x 4, and a crossbar made of 4 x 6, and tbe top face was four inches wide. Tbe spread of tbe legs is less than forty-five degrees. Tbe defendant claims that it would have been practicable for tbe plaintiff to have used this borse in making this measurement, while tbe plaintiff claims it would have been impossible to balance one’s self and reach in over tbe top off the frame from the top of this horse; and that this borse was never used for any such purpose and that no suggestion for such use of it was ever made to him.</p> <p>Tbe plaintiff was confined to tbe hospital for some four weeks and suffered great pain and agony from this injury, and has ever since been obliged to go to tbe hospital for treatment and cannot follow his occupation as millwright. His wife and three children, aged four, six, and fourteen years respectively, are dependent on him for support.</p> <p>Tbe questions of tbe special verdict put to tbe jury and answered by them were as follows:</p> <p>“(1) Did tbe defendant furnish Langos a place of employment in which to perform bis duties which was safe ? A. No.</p> <p>“(2) If you answer question No. 1 ‘No,’ then was the failure of the defendant to furnish a place which was safe the proximate cause of plaintiff’s injuries ? A. Yes.</p> <p>“(3) Was tbe plaintiff guilty of any want of ordinary care which contributed proximately to bis injuries ? A. No.</p> <p>“(4) What sum will reasonably compensate plaintiff for the injuries be received ? A. $4,500.”</p> <p>Judgment was entered on tbe verdict in favor of tbe plaintiff and against the defendant for the sum of $4,655.26 damages and costs, from which judgment the defendant appeals.</p> <p>As to defendant’s duty and liability, they cited Tallman v. Chippewa S. Co. 155 Wis. 36, 143 N. W. 1054; Sparrow v. Menasha P. Co. 154 Wis. 459,. 143 N. W. 317; Lueckel v. Preston, 154 Wis. 429, 143 N. W. 173; Priebe v. Kirsch, 155 Wis. 181, 144 N. W. 287; Montevilla v. Northern F. Go. 153 Wis. 292, 141 N. W. 279; Johnson v. Webster Mfg. Go. 139 Wis. 181, 120 N. W. 832; and other cases. And upon the question of plaintiff’s contributory negligence: Kart v. Neillsville, 141 Wis. 3, 123 N. W. 125; Schultz v.'C., M. & St. P. B. Go. 116 Wis. 31, 92 N. W. 377; Kansen v. Milwaukee G. & G. Go. 155 Wis. 235, 144 N. W. 289; Pierson v. Gitizens'’ T. & T. Go. 141 Wis. 117,123 N. W. 642; Schultz v. G. G. Thompson L. Go. 91 Wis. 626, 65 N. W. 498; Gossens v. Mattoon ■ Mfg. Go. 104 Wis. 406, 80 N. W. 589; Bigelow v. Danielson, 102 Wis. 470, 78 N. W. 599; Gardner v. Paine L. Go. 124 Wis. 338, 101 N. W. 700; Kynes v. Kolt L. Go. 147 Wis. 172, 132 N. W. 889; Koug v. Girard L. Go. 144 Wis. 337, 129 N. W. 633; Noetzel v. A. George Schulz: Co. 148 Wis. 106, 134 N. W. 381.</p>

<p> Trespass: Unoccupied land: Proof of title: Conveyance of standing timber: Wrongful cutting: Damages: Appeal: Harmless error. </p> <p>1. If tlie plaintiff in an action for trespass on land was not in possession lie must prove his title; and a trespasser on unoccupied land can he made to respond in damages to the owner only.</p> <p>2. A written contract whereby the owner of land granted the right to buy, cut, and remove standing timber thereon, and the grantee agreed to buy, cut, and remove such timber within a certain time and to pay a certain purchase price for the right granted, was, when executed and the purchase price paid, a conveyance of the title to the standing timber and hence a conveyance of an interest in land; and a transferee of the interest of such grantee was entitled to maintain an action under sec. 4269, Stats., against one who wrongfully cut the timber. Brete v. B. Connor Go. 140 Wis. 269; Golden v. Gloch, 57 Wis. 118, and other cases, distinguished.</p> <p>3. A judgment will not he reversed because the damages recovered by the appellant were fixed upon a wrong theory, if they are as large as they would have been had they been assessed upon the proper basis.</p>

N. Risjoed, Circuit Judge. Tbe appeal is from a judgment and.from an order denying a motion to vacate this judgment and grant a new trial.

N. Risjoed, Circuit Judge. In May, 1906, C. H. Flynn and Phillip Guthmiller executed a hail bond as sureties in a criminal action then pending against one Lizzie Lebare. Flynn was then the owner of the southeast quarter of the northeast quarter of section 8, township 49 north, of range 4 west, in Bayfield county.

<p> Sale of standing timber: Time for removal: Option for extension, when to be exercised: Reasonable time. </p> <p>1. In a conveyance of standing timber the purchaser was given the right to remove the timber within a certain time. After-wards, by a contract with a grantee of the purchaser, the landowner agreed that the time for removal might, at the option of the said grantee, he extended yearly until the timber was removed, upon payment of $50 per year; and said grantee agreed to pay all taxes on the land until notice of removal of the timber should he given to the landowner. Held, that such option, being coupled with the obligation to pay taxes, was not a mere naked option, and since no time for its exercise was specified it might be exercised and the money paid within a reasonable time after the expiration of the right to remove.</p> <p>2. An exercise of such option within eleven days after the expiration of the right to remove the timber was within a reasonable time.</p>

N. Risjord, Circuit Judge. Action for an accounting and full relief in respect to a contract plaintiff claims to bave made witb A. E. Appleyard. Tbe latter was made defendant witb others alleged to be aiders and abettors in depriving plaintiff of bis rights.

H. Reid, Circuit Judge. Action to recover compensation for a personal injury. The accident happened Eebruary 2, 1911. Assumption of the risk and contributory negligence were then available defenses in such cases. Plaintiff, while working for defendant as a mason tender, slipped and fell on an elevated uncovered passageway between two buildings and rolled or slipped from the surface of the way, fell to the ground, and was injured.

<p>Appeal from a judgment of the circuit court for Marathon county: A. II. Reid, Circuit Judge.</p> <p>This is an action to quiet title to six forties of land in Langlade county. The following, taken from the trial judge’s’opinion, states the material facts of the case:</p> <p>“Plaintiff claims title under tax deed to W. II. Lord dated and recorded May 31, 1890, and based upon the tax sale of 1887. By sundry mesne conveyances this tax title became vested in E. A. Bassett November 26, 1906. The original title had become vested in the Bray & Choate Land Company. In May, 1891, that company in addition thereto had obtained from S. E. Leslie a quitclaim deed of two tax titles on the northeast of the northeast 2 — 34—12, both dated and recorded July 15, 1893, and being based respectively on the tax sales of 1889 and 1890. That company had also obtained directly to itself a tax deed of all lands here involved, dated and recorded November 4, 1895, and based upon the tax sale of 1891. Bray & Choate Land. Company conveyed to Iola Land Company all of the lands by warranty deed dated and recorded in 1902.</p> <p>“In this state of the record, on December 26, 1906, Bassett brought an action in the circuit court of the county in which the land was located against Iola Land Company to establish and quiet plaintiff’s title to the land and duly filed a notice of lis pendens in that action on December 24, 1906.</p> <p>“Prior to the commencement of that action defendants in the action at bar had bona fide purchased the lands here involved and held an unrecorded warranty deed thereof from the Iola Land Company dated May 31, 1906, but delivered at some later date prior to December 1, 1906. There is no evidence that- Bassett or the Langlade Realty Company, for which Bassett really held title in trust, had any knowledge of the unrecorded deed of the defendants, until February 11, 1907, when the lola Land Company served an answer in the Bassett case disclaiming title in itself and setting up such unrecorded conveyance.</p> <p>“Bassett moved for judgment upon the pleadings, and judgment was rendered March 5, 1907, establishing Bassett’s title and barring the lola Land Company and all persons claiming under it. This judgment was filed in the clerk of the court’s -office March 7, 1907, and a certified copy recorded in the register’s office March 9, 1907.</p> <p>“The deed of the lola Land Company to the defendants herein was recorded March 6, 1907. Thereafter, before the commencement of this action, Bassett’s title was conveyed to plaintiff. Plaintiff does not claim any greater rights than Bassett had when he conveyed to it.”</p> <p>And stating further from the record:</p> <p>“This action was commenced in January, 1911, up to which time the defendants had taken no steps to obtain relief from the said Bassett judgment.”</p> <p>Among the conclusions of law found by the trial judge is the following: that this delay constitutes laches on the part of defendants, since they should have vacated such judgment.</p> <p>The action having come to issue and having been tried, the trial court ordered a judgment in favor of the plaintiff quieting its title and for costs against the defendants. This is an appeal from such judgment.</p>

H. Reid, Circuit Judge. This is an action for slander., Tbe jury returned tbe following verdict: “(1) Did tbe defendant on or about July 27, 1911, in tbe presence of George A. Bullion, speak of and concerning tbe plaintiff in bis position of cashier of Wisconsin Valley Trust Company, substantially tbe words: ‘The cashier in there is crooked. He beat me out of a couple of hundred dollars?’ A. (by tbe court).

<p>Appeal from a judgment of the circuit court for Oneida county: A. H. Reid, Circuit Judge.</p> <p>This action was brought for breach of a contract by which the plaintiff agreed to do all the work and furnish all the materials except the steel superstructure in the construction of a bridge, for which he was to receive $450. The appellant was to furnish the steel delivered at a station called Bradley, and the plaintiff to take it from there and put it in the bridge. The answer averred that some such contract was attempted, but that the plaintiff was required to enter into a written contract and give bond for its performance. Without waiting for the execution of the contract to be completed he began work, doing the work in an unworkmanlike and improper manner, whereupon he was notified that his work would not be accepted. He abandoned the work and the contract was made with another person at an enlarged expense. It is also claimed that $81 was paid to the plaintiff to apply on his work. There was a special verdict, and in answer to the first question the court found that the parties made a valid oral contract to the effect aforesaid oR or about December 27, 1912, and .also that the plaintiff agreed to enter into a written contract and to furnish a bond for the faithful performance thereof. The jury found that the town board and county commissioners acting with them, after making said oral contract with the plaintiff, directed him to proceed with the construction of the bridge without waiting for the making of the written contract and bond. This was a litigated question of fact.</p> <p>By the third question of the special verdict the jury found that the town did not deliver the steel under such circumstances that the plaintiff could take the same and complete the bridge within the contract period. In answer to the fourth question, that the plaintiff so far as he proceeded with the contract substantially complied with the terms thereof. In answer to the fifth question, that it would have cost the plaintiff $60' to complete the construction of the bridge according to contract had he received the steel. In answer to the sixth question, that the reasonable value of the materials furnished and work done by the plaintiff in partial construction of the bridge was $390. It was not seriously disputed that the plaintiff was prevented- from proceeding with the construction of the bridge, the claim of the defendant being that the town was justified in so doing because of improper work, nor that the plaintiff received the $81. Plaintiff was awarded judgment for $309 damages, being the $390 above mentioned less the $81 received.</p> <p>The appellant assigns error, first, in the ruling of the trial court that there was no evidence to support an estoppel of the plaintiff; second, instructing the jury that they should take the value of the planks furnished by plaintiff into consideration in answering the sixth question; third, error in denying defendant’s motion to change the answers to the second, third, and fourth questions of the special verdict, and other errors based upon the last mentioned.</p>

<p>Appeal from a judgment of the circuit court for Eond du Lac county: Cuestes A. Eowlee., Circuit Judge.</p> <p>Action to recover money paid hy the city for a pavement under a void and fraudulent contract. Eurther facts appear in McMillan v. Fond du Lac, 139 Wis. 367, 120 N. W. 240, and in McMillan v. Barber A. P. Go. 151 Wis. 48, 138 N. W. 94. ■ The trial court held the plaintiff was entitled to recover, and from a judgment entered accordingly the defendant appealed.</p>

A. Eowlee, Circuit Judge. Action of replevin to recover a note and mortgage for $6,800, executed by one Hinn, March 11, 1910, payable five years from its date with interest at five per cent. The action was tried by the court.

Eowlee, Circuit Judge. The plaintiff as administratrix of her husband’s estate brought this action to recover damages caused by the defendant’s alleged negligence in causing the death of her husband while on the railroad track of the defendant and appellant in the village of Westfield, Marquette county, Wisconsin, on the evening of January 16, 1912. The plaintiff bases her right of action upon negligence in failing to maintain a fence as required by sec. 1810, Stats.

The plaintiff brought this action against the appellant and W. C. Smith and John Lockins (Lokken) for personal injuries. On August 13, 1912, she was in her house, which was about 147 feet southwest of a highway grade crossing of the appellant railway.

B. QuinlaN, Circuit Judge. This is an action for damages for personal injury. The plaintiff was a passenger on a freight train and claimed to have been injured by falling from her seat in the caboose to the floor of the car. The failure of duty charged to the defendant was the negligent manner in which the train was stopped.

B. Quinxae-, Circuit Judge. Action for false imprisonment. Two years before its commencement Zierath and Magnin caused the plaintiff to be arrested on a civil warrant and brought before the defendant Van Vuren, who was a justice of the peace. The defendant Mars acted as attorney for Zierath and Magrvin, and the defendant Lucas was a constable, who arrested the plaintiff and brought him before the justice.

<p>Dogs: Injury to person: Viciousness: Scienter: Pleading.</p> <p>1. Sec. 1620, Stats., makes allegation and proof of scienter unnecessary as well in case of injuries to persons as in case of injuries to cattle by dogs.</p> <p>2. A complaint which alleges that a dog attacked and wounded a person who at the time was where he might lawfully be and in the exercise of ordinary care, is sufficient without alleging that the dog was vicious and mischievous. The law no longer “allows a dog his first bite.”</p>

<p>Appeal from a judgment of the circuit court for Oconto ■ county: W. B. Quietlah, Circuit Judge.</p> <p>Action to recover possession of personal property.</p> <p>One Matilda Hannon owned and possessed a hotel property in the city of Oconto having the usual accessories to accommodate and attract customers, such as a saloon and, in the street in front just outside the curb line, a pair of platform hay scales. The scales were set in the ordinary way and had the appearance of being permanently affixed to the realty as a part of the hotel property. It was a valuable part, thereof both as an inducement to people to patronize the hotel and as a direct source of profit. The situation was so represented to plaintiff during negotiations between her and the owner respecting a purchase thereof by the former with the furniture and other personalty in the building, for use and in use by the proprietor in the hotel business, which was somewhat intermixed with other personalty. All except the latter was the subject of the negotiations. The result was that plaintiff bargained, verbally, to pay for the entirety, $4,000, possession to be delivered to her July 1, 1912. Pursuant to the verbal agreement the property was, by warranty deed, conveyed to plaintiff April 5, 1912, the deed specifying the date for delivery of possession and, in order to enable the purchaser to identify and separate her personal property in the house from that not owned by the seller, an old list which the latter had was attached to the deed and referred to in these words, following the description of the hotel premises: “known as the Richards House, together with all the personal property contained in seventeen rooms, kitchen, dining room and pantry in said house as per inventory hereto attached.” Thereafter and, while the vendor was yet in possession she verbally sold the scales to a third party. Without disturbing them the purchaser resold. Plaintiff thereafter took possession. The scales were in place then as in the beginning and were being used, as commonly, as part of the hotel property. Plaintiff continued such use for some two weeks without disturbance or notice that an attempt had been made to deprive her of the scales. In the meantime the second purchaser verbally resold the scales to the Oconto Water Supply Company. Thereafter its employees, the defendants, against plaintiff’s protest, detached the scales from this land to which the same were fixed. She then commenced this action to recover possession.</p> <p>The evidence established, or tended to establish, all matters above stated and this further, though under objection on behalf of defendant that the recitals in the deed were conclusive as to the entire subject of the sale to plaintiff; during the negotiations leading up to the sale and which resulted in the verbal contract, plaintiff inquired about the scales and Mrs._ Noel said they went with the property. The trade was verbally closed with that understanding. Later the deed was delivered and consideration paid, plaintiff relying upon Mrs. Noel’s representation as to the status of the scales.</p> <p>During the trial it was taken for granted with the court’s approval that the scales, before removal by defendants, were personal property.</p> <p>The jury found, specially, that, at the time of the verbal ■contract which resulted in the conveyance by deed being made, it was agreed and understood that the title to the scales would pass as part of the consideration for the $4,000, and found in plaintiff’s favor as to all other matters requisite to entitle her to judgment, which was accordingly entered.'</p>

B. Belden, Circuit Judge. On September 19, 1911, Fred L. Rogers, husband of Martba A. Rogers, commenced, an action for divorce against bis wife, said Martba A. Rogers.

<p> Railroads: Killing of traveler at highway crossing: Signals: Positive and negative testimony: Contributory negligence: Failure to looh. </p> <p>1. In an action for the killing of a person by a railway train at' a highway crossing, the positive testimony of the trainmen, corroborated by that of four disinterested witnesses, that the engine hell was rung continuously as the law requires, is held to establish that fact conclusively, as against the negative testimony of witnesses who were not giving their attention to the observation of that fact, hut to other matters.</p> <p>2. Evidence in such case that the deceased had ample opportunity to observe the approaching train as he drove his team toward the track from a point 133 feet distant therefrom, his view being intercepted only for a small part of that distance before reaching a point forty-five feet from the track, from which latter point he had a continuous, clear, open view of the train, and that he neither stopped, looked, nor gave any attention to the train while driving from said point-to the track, but manifested the heedlessness of an intoxicated person, — is held to show, as matter of law, that his want of ordinary care proximately contributed to cause his death.</p>

Ohesteb A. Eowlee, Circuit Judge. This action was brought to recover on two alleged causes of action, $1,000 on the first and $500 on the second, alleged to have been procured from the plaintiffs hy fraud in the sale of a portion of the capital stock of the Bates-Oden-brett Automobile Company, a corporation. The sale was made by one Bates, and it is claimed that he was acting as the agent of defendant Foster in making such sale.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: W. J. TubNbb, Circuit Judge.</p> <p>Action for personal injuries sustained October 25, 1911. Defendant was engaged in tbe coal business, and in order to facilitate tbe loading of coal it was elevated by means of conveyors into bins or hoppers supported by heavy upright timbers. Adjacent to where plaintiff was hurt was a passageway for teams used in loading coal into wagons which were driven close to the upright timbers supporting the elevated bins. Just inside one of such upright timbers, and running at right angles to the passageway, was a revolving shaft about thirty inches above ground, one end of- which rested on a horizontal timber placed parallel with the passageway just inside the upright ones and had an oil box on top of it. A little to the east of the oil.box was a grease cup. The passageway ran east and west and the revolving shaft north and south. A short distance south of the horizontal timber and near the ground was a conveyor running east and west. On the day of the accident plaintiff, for the purpose of filling the oil box and grease cup, stepped south over the horizontal timber just west of the revolving shaft and stood facing the shaft, in a small space bounded on the north by the horizontal timber, on the south by the conveyor, on the west by a timber supporting the conveyor and extending north nearly to the horizontal timber, and on the east or in front of him there was the revolving shaft, which, a few inches south of the grease box, had a set-screw projecting nearly an inch from the collar. The shaft revolved twenty times per minute. The upright timber, opposite the center of which was located the grease box, was about fourteen inches in diameter. As plaintiff was reaching for the grease cup his clothing was caught by the revolving set-screw and he was injured. The place where plaintiff stood was called point 12 in the special verdict.</p> <p>The jury found (1) that the shaft was so located as to be dangerous to any employee of the defendant who was in the discharge of his duty; (2) that Kleppe instructed the plaintiff to screw down the grease cup while standing at point 12, as shown on plaintiff’s exhibit 6; (3) that the plaintiff was accustomed to stand at point 12 as shown on plaintiff’s exhibit 6 when screwing down the grease cup; (4) that the employees of the defendant who had the control and direction of the plaintiff in the performance of his duties knew that the plaintiff was accustomed to screw down the grease cup while standing at point 12, as shown on plaintiff’s exhibit 6; (5) that the defendant ought reasonably to have anticipated that the plaintiff would, in attempting to turn down the grease cup west of the hard-coal elevator, stand at the point marked 12 in plaintiff’s exhibit 6; (6) that no want of ordinary care on the part of the plaintiff proximately contributed to his injury; and (7) damages $8,000.</p> <p>From a judgment for plaintiff entered upon the verdict the defendant appealed.</p>

<p>Certiorari brought under sec. 926g, Stats., to review a judgment of the circuit court for Milwaukee county condemning land for public use: W. J. Turner, Circuit Judge.</p>

<p> Master and servant: Unguarded machinery: Duty to put guard in place: Practicability for worlc in question: Questions for jury: Unwarranted finding of negligence. </p> <p>1. In an action for injuries sustained by an employee while making samples upon a creasing machine in a paper-box factory, a finding by tbe jury to the effect that it was not the plaintiff’s duty, but that of some other employee, to place upon the machine the guard which defendant had provided but which was not in place at the time of the accident, is held not to be contrary' to such an overwhelming weight of evidence as would justify this court in setting it aside.</p> <p>2. But the evidence that it was not reasonably practicable to use the machine for making samples with the guard upon it, is held to be of such weight and* so reinforced by the physical facts and the reasonable probabilities and inferences, that it is overwhelming; and a finding of the jury to the effect that defendant was negligent in requiring the plaintiff to use the machine for that purpose without a guard was unwarranted and should be set aside.</p>

Halsey, Circuit Judge. Proceedings involving construction of the will of Margaret E. Rose, which so far as needs to be examined is as follows: “Fourth.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Oscab M. Ebitz, Circuit Judge.</p>

<p> Negligence: Injury to child: Duty to protect from danger. </p> <p>1. If a person lawfully conducts operations in a place and manner liable to imperil the safety of children of tender years rightfully in the vicinity, and such children are or may be reasonably expected to be lawfully there, he owes to them the duty of exercising ordinary care to protect them from such peril.</p> <p>2. Defendant’s servants, by means of a rope and tackle operated by horses, were raising sacks of oats from a wagon standing in an alleyway to the third story of a barn. Plaintiff, about eight years old, and other boys had been playing with the rope and had been ordered away, but remained near by. A kink having formed in the rope, plaintiff was told by the driver of the horses to straighten it aut. As he took hold of the rope near a pulley, the driver negligently started the horses and plaintiff’s hand was drawn into the pulley and injured. The jury found that defendant’s servants did not exercise ordinary care to prevent plaintiff from incurring danger from handling the rope. Held, that the defendant was liable for the injury.</p>

<p> Master and servant: Workmen's Compensation Act: Cause of action against third person: Assignment to and by employer. </p> <p>Wliere, under sec. 2394 — 25, Stats. 1913, an employer becomes tbe owner of a cause of action in tort which, an injured employee “may have against any other party for such injury,” the employee may assign such causé of action and the assignee, as the real party in interest, may sue thereon. The provision in said section that “such employer may enforce in his own name the liability of such other party” was not intended to render the cause of action nonassignable.</p>

J. Tuehee, Circuit Judge. The complaint in this action charged the defendant with liability for wrongful and malicious assault upon the plaintiff by a street-car conductor in the defendant’s employ while plaintiff was riding as a passenger on one of its cars in the city of Milwaukee. Upon service of the complaint the defendant moved the court for an order requiring plaintiff to make the conductor who committed the assault a party defendant.

C. Backus, Judge. The defendant was arrested for committing an assault and battery upon one Minzer, July 25, 1912, in violation of a city ordinance. He was tried in the district court and at the close of the trial the court directed a verdict of not guilty. The city appealed to the municipal court, where a like result followed. From a judgment entered on a verdict directed in •favor of the defendant the plaintiff appealed.

Halsey, Circuit Judge. This was an action brought by vendor against vendee to recover damages for the breach of two contracts for the sale and delivery of gasoline. A verdict for the plaintiffs was directed, and the defendant appeals.

0. Ludwig, Circuit Judge. Action to restrain enforcement of a city ordinance upon the ground of its being unconstitutional. The following is such ordinance: “Section JL. Held: or ball or academy in which classes in dancing are held and instruction in dancing given for hire. “Sec. 2.

Eritz, Circuit Judge. This is an action to recover damages for the death of Gordon William Inglehardt, seven, years of age, the son of the plaintiff, who died as a result of a four-section, 255-pound radiator falling on him. The radiator was attached to the wall of the entrance of an apartment building in which decedent and his parents lived.

Williams, Circuit Judge. Action for unlawful detainer, tried in the civil court of Milwaukee county without a jury, a jury having been waived, where judgment went for the plaintiff, appellant here, and on appeal to the circuit court a new trial was ordered. The appeal here is from the order of the circuit court granting a new trial.

J. TukNeb, Circuit Judge. On November 25, 1911, at about 9:30 o’clock in tbe evening, John W. McOabe, then forty-eight years of age, was struck aud killed by one of the defendant’s north-bound cars at tbe intersection of Third and Wright streets in the city of Milwaukee. The plaintiff bases her right of action upon the wilful misconduct of the defendant’s motorman in charge of said car.

0. Ludwig, Circuit Judge. The appeal is from an order granting.a new trial in a case appealed to the circuit court from the civil court of Milwaukee county.

<p>Appeal from a juc[gment of the circuit court for Milwaukee county: Laweeuce W. IIalset, Circuit Judge.</p>

0. Escuiweilee, Circuit Judge. The appeal is from a judgment affirming, on certiorari, assessments made by the hoard of review of the city of Milwaukee against relators as executrices of the will of Edward Bradley, deceased, for property omitted from taxation in said city in the years 1910 and 1911, during the lifetime of the testator.

0. Ludwig, Circuit Judge. Action of replevin brought against the city and its officers to recover two forty-five horse power engines, two generators, and a switchboard. Judgment for the plaintiff was rendered in the civil court, which was affirmed in the circuit court, and the defendants appealed.

Williams, Circuit Judge. Action to recover for an alleged negligent injury to plaintiff’s automobile. Plaintiff’s machine, while being operated by her employee, was considerably injured by a collision between it and one of defendant’s street cars. The occurrence took place in the early part of an evening in September, 1910. The street car, as it approached the point of collision, was a conspicuous object by reason of a headlight thereon and other lights therein.

C. Ludwig, Circuit Judge. This is one of a series of so-called illegal change-of-grade-viaduct cases growing out of the erection of the Sixth-street Eirst-avenue viaduct in the city of Milwaukee, several of which cases have been before this court at various times. Pabst B. Go. v. Milwaukee, 148 Wis. 582, 133 N. W. 1112; Joseph Schlitz B. Go. v. Milwaukee, 148 Wis. 582,133 N. W. 1112; Gross 0. Co. v. Milwaukee, 148 Wis.

Halsey, Circuit Judge. This action was brought by the plaintiff against the Milwaukee Electric Eailway & Light Company, charging in separate counts negligence and gross negligence of the latter, resulting-in personal injury to the plaintiff. The next step in the action was to bring in the appellant as a party defendant.

<p>Appeal from an order of the circuit court for Rock county: George GriMM, Circuit Judge.</p> <p>Plaintiff began a suit in equity to restrain the defendants from prosecuting a proceeding pending before the railroad commission of Wisconsin for the valuation of. plaintiffs waterworks under the Public Utility Law of this state and for a purchase by the defendant city of said waterworks. A temporary injunction was secured from a court commissioner, which the circuit court for Rock county dissolved after a hearing before it. This is an appeal by plaintiff from the order dissolving the temporary injunction.</p>

Fowlee., Judge. Action in equity brought against Racine County and certain contractors to obtain a perpetual injunction enjoining the erection of a county courthouse at the city of Racine, for the building of which contracts had already been entered into between the county and the defendant contractors. General demurrers to the complaint were overruled, and the defendants appeal.