Volume 157 — Wisconsin Reports

<p> Public utilities: Construction of statutes: Indeterminate permits: Abrogation of existing franchises: Constitutional law: Impairment of contracts: Estoppel: Right of city to do commercial lighting■: Certificate of convenience and necessity, when required. </p> <p>1. The Public Utilities Law was framed upon the theory that the duplication of plants for the carrying on of certain kinds of business was undesirable because it resulted in economic waste, the loss from which in the end usually fell upon the consumer; and in construing the act the apparent purpose of the legislature should be kept in mind.</p> <p>2. Ch. 596, Laws of 1911, — which provided that every franchise theretofore granted to a public utility by the state or any municipality was so altered'as to constitute and be an indeterminate permit within the terms and meaning of secs. 1797m — 1 to 1797m — 108, Stats., and subject to all the terms, provisions, conditions, and limitations of said sections, — had the effect to abrogate a pre-existing franchise granted to a public utility by a city, at, least so far as the provisions of the sections referred to were inconsistent therewith.</p> <p>3. By force of said act of 1911, sub. 3 of sec. 1797m — 74, Stats.,— which prohibits any municipality from constructing a competing plant where there is a public utility already in operation under an indeterminate permit, engaged in similar service in such municipality, without first obtaining a certificate of necessity from the railroad commission, — became part and parcel of the franchise of a public utility then operating under authority of a municipality; and a provision in the municipal franchise whereby the city reserved-to itself the right to do a commercial lighting business was abrogated.</p> <p>4. The abrogation of such provision did not violate the constitutional inhibition against impairing the obligation of contracts, and was valid.</p> <p>6.The legislature having power to enact such statute, the public utility is not estopped by anything contained in its former franchise, or by any waiver contained in its acceptance thereof, from claiming the benefit of any rights given by the substituted franchise.</p> <p>6. A city in lighting its streets and public buildings performs a governmental function, while in supplying light to private consumers it performs a proprietary or private function. The two hinds of business are separate and distinct.</p> <p>7. Where a city was engaged in the business of public lighting only when ch. 596, Laws of 1911, went into effect, and another public utility was at the time engaged in the business of commercial lighting under a municipal franchise which reserved to the city the right to do a commercial lighting business whenever it chose, the city could not thereafter avail itself of such reserved right without first obtaining a certificate of convenience and necessity from the railroad commission, under sec. 1797m — 74, Stats.</p> <p>8. The mere fact that the city had furnished a few lights to one private store building and one residence for a short time, the service being then discontinued because the city was unable to generate the necessary current, did not make the city a public utility doing a commercial lighting business, so as to exempt it from the provisions of sec. 1797m — 74, Stats., where it had wholly ceased to do any private lighting for more than three years before the passage of the act of 1911.</p> <p>9. The facts that the city, when it constructed its street lighting system, intended at some future time to embark in the business of commercial lighting, that some part of the equipment (such as the poles) could be used in that business, and that prior to the passage of ch. 596, Laws of 1911, it had declared its purpose to enlarge its plant so as to enter that field, no funds having yet been provided or expense incurred therefor, did not take the case out of the statute so as to render a certificate from the railroad commission unnecessary. Neacy v. Milwaukee, 151 Wis. 504, distinguished.</p> <p>Timlin and Kehwin, JJ., dissent.</p>

J. Turnee, Circuit Judge. The plaintiff sues in ejectment and claims through paper title. The defendants claim title by adverse possession for twenty years prior to June 30, 1897, the time of commencement of this action. The jury returned the following verdict : “(1) Did Hering or Hering and wife enter upon and occupy the premises described in the complaint actually and continuously until they sold .to Socha, under claim of title exclusive of any other right?

<p>Fraud: Conveyances of land: Bona fide purchaser: Husband and wife: Principal and agent: Imputed Knowledge: Evidence: Relevancy and materiality: Forgery: Pleading: Amendment: Reopening case: Notice of lis pendens.</p> <p>1. Exclusion of preliminary questions intended to lead up to proof that a deed to one of the defendants was forged was not error where the purpose of such questions was not indicated and no issue of forgery was raised by the pleadings.</p> <p>2. The denial of a motion, made during the trial, to amend the complaint so as to allege forgery of a deed to one of the defendants, was not an abuse of discretion, where the statements of fact in the supporting affidavit, if taken as true, had little tendency to prove the commission of a forgery, and a statement therein that the plaintiff expected to prove that one of the signers did not acknowledge the deed was not corroborated by affidavit of such signer, although he was plaintiff’s principal witness on the trial and admittedly hostile to the defendants.</p> <p>5. A motion to reopen the case, long after the parties had submitted their proofs, to enable plaintiff to offer newly discovered evidence upon the question whether one of the defendants was a bona fide purchaser of the land in question, is held to have been properly denied upon the showing made.</p> <p>4. A transaction by which a married woman acquires title, ostensibly in the character of a bona fide purchaser, to land which her husband had previously secured from another by fraud, is naturally and properly viewed with suspicion by the courts.</p> <p>6. But in this case, it appearing that the wife had a separate estate, and nearly all the direct evidence tending to show that she paid full value for the land to a corporation in which the title had been vested, and that she had no knowledge of the fraud, it is held that a finding of the trial court to the effect that she was a dona fide purchaser should not he set aside unless knowledge of the fraud was chargeable to her as a matter of law.</p> <p>6. The trial court having in substance found upon sufficient evidence that the husband did not act as his wife’s agent in the transaction in question, there is no conclusive presumption that she had knowledge of his fraudulent acts affecting such transaction.</p> <p>7. Where the information which an agent has of previous transactions and his relation thereto are of such a character that he would not disclose to his principal a fraud which had been perpetrated by him therein, notice of such fraud is not imputable to the principal as a matter of law.</p> <p>$. The question being whether a defendant was a dona fide purchaser of certain land conveyed to her before the action was commenced, evidence of the filing of notice of Us pendens before her conveyance was recorded was immaterial.</p>

<p> Corn shredders: Safety devices: Removal by owner: Liability of seller: Proximate cause of injury. </p> <p>1. Under sec. 1636' — 131, Stats. 1911, the seller of a corn shredder is required to provide it with safety or automatic feeding devices, not only in front of the snapping rollers, hut also in front of the husking rollers, so that the material, once fed into the machine, will be automatically carried along and taken care of, unassisted by the operator of the machine.</p> <p>2. Said sec. 1636' — 131 makes it the absolute duty of the seller to equip the machine with the specified safety devices, and of the owner or operator to maintain them; and such devices must be reasonably adequate and efficient to perform the functions required of them.</p> <p>3. The duty to maintain being as absolute as the duty to equip, the owner or operator cannot detach the safety devices and, under a claim that they were useless, render the seller liable for an injury thereafter resulting.</p> <p>4. In an action against the seller of a corn shredder for an injury to an employee of the purchaser, whose hand was drawn between the husking rollers when he attempted to dislodge ears of corn and refuse which had become clogged in the automatic feed to such rollers, it appearing that an automatic agitator, which was intended to stir up the material and align the ears as they dropped from the snapping rollers down upon said automatic feed, had become broken-and had been removed by the purchaser, a verdict for the defendant was properly directed, even though it was claimed that such agitator was useless and even though its insufficiency be conceded, since, not being in use, its insufficiency cannot be said to have been the proximate cause of the injury.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: Epanic A. Ross, Circuit Judge.</p> <p>Action to recover the reasonable value of services alleged to iave been rendered by tbe plaintiff for and at tbe request of tbe defendant, which services were alleged to consist of legal work and advice and expert advice with reference to tbe exploring and leasing of iron mining lands on tbe Cuyuna ranges in Minnesota. There was some dispute on the trial as to. tbe actual facts and very serious dispute as to tbe inferences of fact to be drawn therefrom. Tbe plaintiff was and is an attorney at law in active practice at Superior, and was shown to have bad much experience in mining business and litigation, in negotiating options on mining lands, drawing mining leases and options, and was also shown to have studied tbe iron formations in the Superior district and on tbe range in question.</p> <p>In Eebruary, 1908, and prior thereto, one Thomas Keating owned three forty-acre tracts of land on tbe range in question, and tbe defendant owned one forty immediately north thereof. In February, 1908, Gaylord & Guitb, drilling contractors, having discovered iron ore upon certain lands east of tbe lands of Keating and Healy, came to Keating and Healy for tbe purpose of making arrangements if possible to drill for iron ore on their lands, in consideration of an interest therein. They came to tbe plaintiff’s office with Keating, February 29, 1908, and a contract was then entered into between them and Keating, whereby they were to make drill-ings on bis land in consideration of a conveyance of a one-fourth interest therein. This contract was drawn by tbe plaintiff, as attorney for Keating, and its terms were substantially influenced by plaintiff’s advice to Keating. Drilling commenced on Keating’s land immediately and iron ore was struck about the 17 th of March. Keating bad instructed plaintiff not to inform Healy of tbe contents of tbe drilling contract, and when Healy met plaintiff on tbe street a short time after tbe contract was drawn Healy asked plaintiff about tbe terms of tbe contract and plaintiff informed him of bis instructions, and declined to give him tbe information. According to plaintiff’s testimony, plaintiff then told defendant that he would advise him with reference to his lands if he would call at his office and he (Healy) promised to do so, but this was denied by Healy. On the 31st of March defendant entered into a contract with the same drilling firm to drill his land, the terms of which contract followed so closely the terms of the Keating contract that there can he little doubt that the Keating contract was used as its basis. This contract was not, however, drawn by plaintiff, nor did he know of its execution at the time. Drilling proceeded on the lands'of both Keating and Healy during the summer and fall. Blue prints and monthly reports of the drillings were furnished by the drillers to Keating and samples of the rock. These blue prints, reports, and samples were submitted by Keating to the plaintiff as furnished. After ore had been found on Healy’s land and after Keating had begun to consider the question of making a contract for the mining of the ore, Healy told Keating, in substance, that he could take his (Healy’s) samples of ore, and that whatever he (Keating) got for his ore he could deal the same way with his (Healy’s). There is no direct proof of any broader agency than this on the part of Keating. Late in October or early in November, 1908, Keating made an oral arrangement with one Crosby to take mining leases of both his and Healy’s land at a royalty of twenty-five cents per ton. The plaintiff claims that before this took place he had met Healy at his (Brennan’s) office at Superior by appointment, and that Healy had brought him, at his (Brennan’s) request, a blue print of the drilling on his forty, and that he (Brennan) then advised him (Healy) not to accept an offer of eighteen and three-fourths cents per ton made by Crosby, and that he promised not to do so. This interview is absolutely denied by Healy. On November 11th Keating came to Superior and he and Healy arranged to go to Crosby’s office at Duluth to close the contracts with Crosby. At Keating’s house there was a difference of opinion as to whether they should take a lawyer with them to help them in their negotiations with Crosby. Keating and Healy did not wish to do so, hut Mrs. Keating said, “So long as they were paying Brennan they might as well take him.” Keating and Healy finally agreed and went to Brennans office, and all three went to Crosby’s office. Brennan assisted actively in the preparation of the necessary leases, deeds, and contracts on that day and the following, and the arrangement with Crosby by both Keating and Healy was finally closed.</p> <p>The charge of the court to the jury is vehemently complained of as a mistake of the real issues, and it seems to become necessary to set it forth in some detail. The charge begins as follows:</p> <p>“The plaintiff by his complaint in this action claims that during the time from February 29, 1908, to December 1, 1908, he was in the employ of the defendant as an attorney and as an expert in the matter of developing, exploring for iron upon and dealing with reference to forty acres of land on the Cuyuna iron range, in Crow Wing county, Minnesota, described in the complaint; that pursuant to such employment he rendered services to the defendant, and that such services were reasonably worth ten thousand dollars. Plaintiff does not claim that such employment resulted from any conversation or dealing had by him with the defendant personally, but claims that he was employed to render the services sued for by one Thomas Keating, whom he claims acted and was authorized to act in the matter as the agent of the defendant.</p> <p>“The defendant to rebut the plaintiff’s claim denies that Keating was authorized by him to employ plaintiff, denies that plaintiff was employed, denies that plaintiff rendered him any services for which claim is made, and denies that any service rendered for him by plaintiff, if rendered, was of any value.</p> <p>“You are instructed that as to each claim made by the plaintiff the burden is upon him to satisfy you by a preponderance of the evidence and to a reasonable certainty as to his contention with reference thereto. As to the question whether or not Keating was authorized by defendant to employ plaintiff, and as to the nature of the service for which he was authorized to employ him, you are instructed that you may he satisfied that such authority was in fact given by defendant to Keating, either from direct evidence to that effect or from proof of such facts and circumstances that such authority may reasonably be inferred therefrom, and you are instructed that such authority may be inferred from facts and circumstances proven in the case, if such facts and circumstances are of such a nature as to reasonably warrant such inference therefrom.</p> <p>“You are instructed, also, that as to whether or not a contract of service existed between the plaintiff and defendant, that if you find that Keating was authorized by'defendant to employ the plaintiff in his behalf, that then the claim that a contract existed may be established by proof of express employment, or by proof of such facts and circumstances that the existence of a contract of employment may reasonably be inferred therefrom, and that you have a right in considering this question to draw such inference from facts and circumstances proven as their nature reasonably warrants.</p> <p>“If you find that Keating was authorized by defendant to employ the plaintiff, and that Keating in fact did employ plaintiff on defendant’s behalf, you will then consider the question as to whether or not the plaintiff rendered services to the defendant pursuant to such employment, and the kind and amount of such service so rendered, if any.”</p> <p>The court then proceeds to state in substance that a contract may be established by proof of express employment or by proof of such facts and circumstances that the existence of a. contract may be reasonably inferred; that if Keating was authorized to employ plaintiff and did in fact employ him, the question whether services were in fact rendered pursuant to the employment and the kind and amount of the services so rendered must be considered; that there were two kinds of services claimed, namely, services as an attorney and legal adviser, and services as an expert in drilling, exploring, developing, and dealing with mining lands; that it was undisputed that plaintiff was in Keating’s employ as an attorney, but that there was a dispute whether he was in Keating’s employ as an expert in matters relating to iron mining lands. The charge then proceeds as follows:</p> <p>“This contention would he unimportant and wholly immaterial in this case except for the contention on the plaintiff’s part that during the time in question he was employed by Keating as defendant’s agent to render similar services to the defendant as to the defendant’s lands, and that he did in fact render to the defendant services of that nature pursuant to such employment. The situation requires careful consideration on the part of the jury of the evidence hearing upon the question as to whether the minds of Keating and the plaintiff met on the matter of plaintiff being employed by Keating to render service for defendant. You are instructed that in order for you to find that plaintiff was so employed, you must find from the evidence, and by a preponderance of the evidence, that the minds of Keating as agent of defendant, if he was his agent, and plaintiff met upon that proposition, and in view of the fact that the plaintiff was serving Keating personally as his attorney, the evidence, in order to justify a finding that plaintiff was employed to render service in the capacity of an expert in mining matters, should be clear and convincing; this in view of the fact that it is a matter of common knowledge that business men who employ lawyers frequently discuss business matters with such lawyers, and that such discussion is customarily not made the subject of a charge by the lawyer separate from his charge for legal sendees, so that to justify you in finding that the minds of the parties to this action met upon a contract for services by which plaintiff was to receive compensation for services as an expert in mining matters, over and above his charge fox-services as a lawyer, the evidence upon that point should be clear and convincing.</p> <p>“You are further instructed that if you find from the evidence that Thomas Keating was the agent of the defendant in relation to the handling, exploring, developing, and leasing of the Healy property, Keating’s authority included whatever was necessary to effect the main purpose of the agency, including the employment of a subagent, and the defendant is bound by such employment even though not expressly authorized by him.</p> <p>“The court further instructs you that no express employment is necessary to charge defendant with liability to the plaintiff for services, which you find were performed by plaintiff for defendant in respect to the property in question, but that an agreement in fact creating such obligation may be implied or presumed from the acts and conducts of the parties; and further, that if you find that plaintiff did in fact perform services for defendant with his knowledge, defendant is liable to plaintiff for the same, unless you further find that such services were intended by the plaintiff to be gratuitous, or that they were performed under such circumstances that the defendant was warranted in believing and did believe that they were intended to be gratuitous.”</p> <p>“If the jury finds from the evidence that the plaintiff is entitled to recover from the defendant, then you are instructed that he is entitled to recover the reasonable value of his services, and in estimating said value you have the right to allow him for all services performed, whether it consisted of both legal services and information, business and expert advice with respect to the handling of the defendant’s mineral lands and ore, and the exploring, developing, and leasing of the same, or of only one kind of services, according to what you shall find in that regard.</p> <p>“You are further instructed that in estimating the reasonable value of plaintiff’s services which you find he performed for defendant, you should take into consideration the value of the Healy property and the financial benefits, if any, reasonably to have been anticipated by the parties at the time the services were rendered as resulting to the defendant from, such services.</p> <p>“You are further instructed that if plaintiff performed services at the request, express or implied, of Thomas Keat-ing, and a part of such services were in fact- performed for the defendant, with his knowledge, defendant is liable to plaintiff for the reasonable value of that portion of such services which were so performed for him and of which he received the benefit.</p> <p>“You are further instructed that i-f, as the agent of the defendant, Thomas Keating employed plaintiff to perform services which were beneficial to defendant in respect to the property in question, the defendant is liable to the plaintiff for the reasonable value of suck services, whether or not Keat-ing informed plaintiff that the services were in whole or in part for the benefit of defendant.”</p> <p>The jury having returned a general verdict for the defendant, the plaintiff appeals from judgment thereon.</p>

Luece, Circuit Judge. Action upon a contract of indemnity executed and delivered by tbe defendant to tbe plaintiff October 30, 1908.

Appeals from a judgment of the circuit court for Milwaukee county: E. 0. Eschweilee, Circuit Judge. Action to recover tbe value of a quantity of lumber alleged to bave belonged to plaintiff and wrongfully converted by the defendant to its own use; also to recover the amount of a sidewalk tax, alleged by the plaintiff to have been wrongfully assessed upon his property and paid by him under protest.

<p>Appeal from a judgment of tbe circuit court for Manito-woc county: BteoN B. Pabe, Judge.</p>

MaNdamus action to compel the Northern Pacific Railway Company to file with, tbe secretary of state duly authenticated papers showing an increase of its capital stock made Inly 1, 1896, from $5,000,000 to $155,000,000, and a second such increase, made the 7th day of January, 1907, from $155,000,000 to $250,000,000.

J. Tuehee, Circuit Judge. Tbis action was brought to recover damages occasioned by the death of a ten-year-old boy who was hilled in a crossing accident at the intersection of Twelfth and Wells streets in the city of Milwaukee. At the time of the accident the boy was riding with bis grandfather in a buggy going south on Twelfth street, and a west-bound street car on the defendant’s north track on Wells street collided with the buggy.

<p> Infanta: Liability for torts of employees: Contracts: Validity: Necessaries. </p> <p>1. An infant owner of property is not liable respondeat superior for the negligent act of a person in his employment and in charge of the property, where the infant in no way personally participated in such act.</p> <p>2. An infant cannot make a valid contract appointing an agent or employing a servant.</p> <p>3. A contract under which a person was employed by an infant as janitor to care for the infant’s store building Tías not a contract for necessaries under which a liability could be enforced not for the benefit of the infant.</p>

<p>Appeal from an order of tbe circuit court for Milwaukee county: F. 0. Esohweileb, Circuit Judge.</p> <p>Tbe appeal is from an order overruling a demurrer to a return to an alternative writ of mandamus.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: E. 0. Eschweileb, Circuit Judge.</p> <p>The appeal is from an order overruling a demurrer to the respondent’s return to an alternative writ of mandamus.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: Oscar M. Fritz, Circuit Judge.</p> <p>This action was brought to enforce specific performance of an alleged agreement to enter into a ninety-nine year lease, and resulted in a judgment for tbe plaintiffs. On October 16, 1909, tbe plaintiffs and tbe defendant 8. A. Tolman entered into tbe following agreement:</p> <p>■ “This preliminary agreement certifies tbat S. A. Tolman, party of tbe first part, and James A. Silver, Max Goldstine and Gustave E. Kahn, parties of tbe second part; tbat party of the first part agrees to lease the property south of the alley facing on Third and Sycamore streets in Milwaukee, Wis., owned by first party, to. parties of tbe second part for ninety-nine years on tbe usual terms as applied to a ninety-nine year lease, leasing tbe property for tbe first fifteen years at $22,500 per year, balance of eighty-four years at $23,500 per year, payable monthly in advance, first party agreeing to rebate the first year during building, $5,000 from tbe rental parties of tbe second part are to pay as here specified. Parties of tbe second part agree to put up a fire-proof building which shall be put up with foundations sufficient to carry ten or more story building and walls to carry tbat height also, and party of tbe second part shall give good and sufficient security that they will put up a building to cost not less than $200,000 and any more money required to complete tbe building they are to furnish. Party of the first part agrees to loan party of the second part $100,000 for five years at five per cent, per annum. After five years second parties to have option to have loan continued and pay $10,000 on the principal annually until it is paid. Interest on money loaned by said first party payable monthly in advance. Parties of the second part are to have plans and specifications drawn and submit same to the party of the first part for his approval, and no building shall be put up wdthout his approval and he puts in this $100,000 after party of the second part have put in theirs and he as fast as architect’s certificates and mechanic’s liens are furnished. Parties of the second part shall have the right to purchase the property any time within ten years at $550,000. Parties of the second part shall insure the property at least eighty per cent, of the value of the buildings and in case of fire the same shall he paid to the first party as his interest may appear, and this insurance on the property shall continue to his benefit during the life of the lease, and at the end of the lease term, buildings shall go free to the party owning the fee simple. Party of the second part hereby pays $250 for the payment of attorneys’ fees, providing this lease is not merged into an actual agreement and new lease. If it is, they are to have credit for $250. Date of this lease to take effect on the 1st of January, 1910. Parties of the second part having all signed this agreement and are to continue to be responsible to party of the first part for the lease up to the time of full payment of money advanced for the building. Parties of the second part have the right to form a holding company with sufficient responsibility to carry on and make them responsible for the rental of the property and carry out this preliminary agreement; parties of the second part personally signing the notes and lease and being personally responsible to the end of the time when the payment is fully made for money loaned by party of the first part. Lease must be completed and signed not later than November 5, 1909.”</p> <p>On October 20, 1909, the following supplementary agreement was made:</p> <p>“This agreement, made between 8. A. Tolman of the city • of Chicago, Cook county, Illinois, party of the first part, and James A. Silver, Max Goldstine and Gustave E. Kahn, parties of tbe second part, and as supplemental to tbe preliminary agreement entered into by said parties on tbe 16tb day of October, 1909, and as, tbougb fully incorporated therein.</p> <p>“Tbe said S. A. Tolman agrees to and witb tbe parties of tbe second part that tbe said long-term lease shall contain a provision that in case of default of tbe lessees under said lease, lessees shall be entitled to thirty days’ notice.</p> <p>“And tbe said parties of tbe second part agree to furnish a good and sufficient bond acceptable to party of tbe first part, equivalent to tbe moneys actually required and to be put in said building in the erection thereof by tbe parties of tbe second part.</p> <p>“And tbe said first party further agrees to pay tbe taxes and all assessments for the year 1909.</p> <p>“And it is mutually agreed between tbe parties hereto that tbe building on tbe said premises to be erected shall be of tbe construction known as reinforced concrete and acceptable to party of tbe first part.</p> <p>, “And tbe parties of tbe second part agree to pay all taxes, insurance -premiums and charges of every nature which may accrue after January 1, 1910, it being agreed and understood by and between tbe parties hereto that tbe rentals provided shall be net to said party of tbe first part without discount or deduction, excepting, however, tbe $5,000 which shall be rebated tbe first year during tbe erection of tbe building.</p> <p>“Said party of tbe first part agrees that in addition to tbe property described in tbe agreement of October 16th, be agrees to lease to tbe parties of tbe second part whatever rights be may have in the alley north of tbe said premises belonging to and attaching to the said premises south of "the alley.</p> <p>“Said parties of tbe second part agree, on January 1, 1910, to accept tbe leases now on and affecting tbe said premises.”</p> <p>In pursuance of these agreements the defendant 8. A. Tol-man tendered a form of lease to tbe plaintiffs under date of October 28, 1909. Tbe lease tendered was not satisfactory, and on November 5th tbe plaintiffs prepared and tendered to Tolman a lease which they claimed conformed to tbe agreement of tbe parties. Tbis lease was accompanied by a form of bond. Tbis form of lease was not satisfactory to Tolman and be refused to execute it. Thereafter considerable negotiations were carried on, personally and by' correspondence, in an endeavor to agree upon tbe terms of tbe lease. On or about February 28, 1910, Tolman prepared and submitted a second lease wbicb modified to some extent tbe terms of tbe one first presented, and offered to execute tbe same. Tbis lease was not satisfactory to tbe'plaintiffs and they in turn prepared and on April 16, 1910, presented to Tolman a second lease, modifying to some extent tbe terms contained in tbe lease wbicb they first presented, and demanded of Tol-man tbat be execute tbe same. Tbis be refused to do, and tbe negotiations between tbe parties practically ceased at tbis time. Tbe premises covered by these agreements .were occupied by seven different tenants when tbe agreements were made. Tbe leases held by six of them expired on May 1, 1910, and after tbe negotiations bad practically come to an end and on April 15, 1910, Tolman proceeded to renew tbe leases of bis tenants. Part of tbe property covered by tbe proposed leases consisted of tbe Davidson Theater and tbe Plotel Davidson. It was necessary to make repairs on these buildings, and tbe sum of $26,840 was expended in making such repairs. Some attempt was made by tbe plaintiffs to renew negotiations during tbe summer of 1911, but nothing came of it. On October 10, 1911, tbe defendant Tolman leased tbe same premises to bis codefendant Stone for a period of ninety-nine years.</p> <p>In addition to tbe facts recited, tbe circuit court found (1) tbat tbe expression, “on tbe usual terms as applied to a ninety-nine year lease,” wbicb appeared in tbe contract of October 16th, was used and intended by tbe parties to mean those terms wbicb were usually applied to a lease for ninety-nine years in tbe city of Chicago at tbat time; (2) tbat Tol-man directed bis attorneys to draw a lease wbicb, in addition to the matters expressly provided, for in the two preliminary agreements, should contain the usual terms applied to a lease for ninety-nine years in the city of Chicago; (3) that in the lease so prepared, bearing date October 29th, there are the usual terms as applied to a ninety-nine year lease in said city, but that certain provisions which related to matters expressly agreed' upon in the preliminary agreements were not in accordance with the terms of these agreements; (4) that prior to November 5, 1909, plaintiffs did not propose any sufficient sureties or acceptable bond to said S. A. Tolman under said preliminary agreements, and that no contract' or arrangement had been made with any sureties by the plaintiffs for the signature of the bond form tendered by the plaintiffs on November 5, 1909; (5) that during the months of August and September, 1911, the defendant Stone negotiated with the agent of the defendant Tolman for a lease of the property; that on or about September 7th the form of the lease was agreed upon and on October 11, 1911, the same was reduced to writing, executed, and delivered; (6) that at the time the defendants began their negotiations and thereafter they believed that whatever rights the plaintiffs had under the preliminary agreements had terminated; (V) that the failure of Tolman to execute and deliver to the plaintiffs a lease of the premises in question was not caused by or due to any act of the defendant Stone; (8) that the said lease which was entered into between the defendants was made and entered into in good faith and without intent or design to injure, cheat, or defraud the plaintiffs; that there was no conspiracy or agreement between the defendants to cheat or defraud the plaintiffs or any or either of them; (9) that the defendant Stone took possession of the "premises under said lease as of October 1, 191Í, and has since that time been in possession thereof; (10) that plaintiffs at all times since the preliminary agreements were made have been ready, able, and willing to perform the said agreements and to execute a lease of the premises conformable with and correctly expressing the terms of said agreements, and that the defendant Tolman at all times since the making of said preliminary agreements has refused to enter into a lease conformable with and correctly expressing the terms of said written agreements.</p> <p>The court also found that there were some provisions in the leases tendered by the plaintiffs on November 5, 1909, and on April 16, 1910, which were not in accordance with some of the terms of the preliminary agreements. The court also found that the same was true of the forms of lease tendered by Tolman.</p> <p>As conclusions of law the court found (1) that it was the duty of the defendant Tolman to prepare and tender to the plaintiffs for execution a lease in accordance with the terms of the preliminary contracts, and that he failed to prepare and tender to the plaintiffs such a form of lease; (2) that plaintiff Goldstine was entitled to specific performance of the preliminary agreements; (3) that the lease made to Stone on October 10, 1911, should be canceled and adjudged to be of no effect.</p> <p>The only testimony in the case relied on by respondents and bearing on what were the “usual terms of a ninety-nine year lease” was the following: Mr. Tolman testified that he presented the matter to his attorney, Mr. Ashcraft, for him to draw a lease in conformity to the preliminary agreement and that he believed his attorney drew such a lease and sent it to Milwaukee. He also said that he requested his attorney to prepare a lease under the usual terms that a ninety-nine year lease is drawn in Chicago and that he believed such a lease was drawn and sent to Milwaukee. The defendants’ evidence showed that in 1909 and 1910 there were a great variety of forms of ninety-nine year leases in Milwaukee and that the material portions of such leases were very varied.</p> <p>The trial court prepared a form of lease which he conceived ' correctly set forth the agreement upon which the minds of the parties met. In preparing such lease he included, or at least endeavored to include, all of the terms and conditions contained in the lease as drawn by Mr. Tolman s attorneys, excepting only where he found such terms and conditions to be in conflict with the provisions of the preliminary agreements.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: W. J. Tue.NER, Circuit Judge.</p> <p>Action to recover damages to plaintiff’s property claimed to have been caused by an illegal change of grade of a street in the defendant city upon which, at the point in question, the plaintiff’s lot abuts.</p> <p>The complaint was to the effect that defendant trespassed upon its premises by participating with the Chicago, Milwaukee & St. Paul Eailway Company in cutting down that part of Kinnickinnic avenue upon which its land abuts to correspond to an alleged re-established grade of such street, the street having been prior thereto duly shaped to an established grade which had not been legally changed. The claim of the defendant was that the acts complained of were committed wholly by the railway company to enable it to comply with an ordinance of the defendant as to elevating the railway tracks so that ordinary travel upon the street could pass under such track and that plaintiff failed to protest against such acts for such length of time as to preclude it from using any remedy to recover compensation for injury to its lands by reason of such acts other than the statutory remedy under sec. 1852, Stats.</p> <p>These facts were established: A long time prior to the occurrence complained of the street in question was duly worked to an established grade, as claimed by plaintiff. The regrading of the street involved a very material physical change thereof. No efficient proceedings were taken by the defendant to change the legal grade of the street. Plaintiff knew of the intention to lower the street in front of its land a considerable length of time before it occurred, knew of the purpose thereof, knew of the operations to that end as they progressed, and did not make any complaint until some time after the city ceased actively to make a legal change of grade.</p> <p>At.the close of the evidence defendant’s counsel moved for a dismissal upon the ground that it appeared from the evidence, as matter of law, that plaintiff’s sole remedy for the taking of its property was against the railway company under the eminent domain statute.</p> <p>The motion was denied. The court then submitted the question of damages to the jury, resulting in a verdict assessing such damages at $1,000. Judgment was rendered for plaintiff accordingly.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>Ernest Koenig, an employee of the plaintiff, was injured on March 5, 1912, by reason of a particle of. steel entering one of his eyes. The piece of steel was removed by a magnet, hut the employee was incapacitated from working for a considerable length of time. He was paid for his loss of time while unable to work, and doctors’ bills, as provided in the Workmen’s Compensation Act. The sight of the eye was not destroyed, but it was materially impaired, and the employee instituted this proceeding against the employer to recover compensation for alleged permanent partial disability. The Industrial Commission found that the applicant was totally disabled from performing work for ten weeks and four days, and that he was partially disabled thereafter, to the extent of a permanent loss of weekly wage of fifteen per cent.; that the average annual earnings of the applicant at the time of the injury amounted to $150'; that the applicant’s loss of wage because of his permanent partial disability amounts to $2.16 per week. The employer was ordered to pay the applicant $58.42 for compensation to March 10, 1913, and to pay him thereafter the sum of $1.41 per week until the expiration of the period of fifteen years from March 5, 1912. Other facts will be sufficiently stated in the opinion. The plaintiff brought an action in the circuit court for Dane county to set aside the award. In that court the award of the Industrial Commission was sustained, and plai ut-iff appeals to this court.</p>

<p> ■Street railways: Negligence: Injury to person on trade: Oontridutory negligence: Demurrer: Order for judgment. </p> <p>1. In an action for personal injuries alleged to have been caused by defendant’s negligence, where the complaint shows that plaintiff’s automobile stopped on the east track of the defendant’s street railway; that in attempting to adjust the mechanism so as to start it plaintiff stood on the west side of the automobile so near the west track that a car thereon could not pass without striking him; that there was nothing to prevent him from seeing an approaching car or from stepping aside to avoid it; and that as he stood facing south, a car on the west track coming from the north struck and injured him, — it is held that a demurrer to the complaint was properly sustained on the ground that plaintiff was guilty of contributory negligence.</p> <p>2. Where, upon overruling a demurrer to the complaint, it was ordered that plaintiff “have judgment thereon, but with leave to the defendant to answer,” this did not mean that upon defendant’s failure to answer plaintiff could have judgment otherwise than according to law, i. ‘e. after making due proof of the alleged cause of action.</p>

Feitz,'Circuit Judge. The appeal is from an order of the circuit court, which order affirmed an order of the civil court of Milwaukee •county vacating a default judgment of the latter court.

M. Feitz, Circuit Judge. Action for personal injury. On August 31, 1912, plaintiff was riding on a car of tbe defendant, and be claims tbat, as be stood on tbe step ready to aligbt, tbe car suddenly started forward witb a jerk and threw bim off. Tbe defendant claims tbat plaintiff voluntarily alighted while the car was in motion and thus sustained bis injuries.

Williams, Circuit Judge. Action for personal injuries received by plaintiff while in defendant’s employ, November 18, 1911. The plaintiff was a stationary engineer and had been for some years in charge of the gas engine used in the appellant’s lithographing establishment, which was operated by gas from the city gas mains.

0. Ludwig, Circuit Judge. Action to recover on a beneficiary right. The facts as found are these: 1. Plaintiff is the widow of Robert J. Anderson. 2. Defendant is a corporation organized under the laws of this state. 3. Plaintiff’s deceased husband became a member of the fire department of the city of Milwaukee May 17, 1904.

Eeitz, Circuit Judge. This is an appeal from a judgment of nonsuit. The plaintiff brought this action to recover damages for the injuries he sustained [on October 2, 1911] from the loss of a part of his left arm, in consequence of coming in contact with the knives on the cylinder of a Leidgen unhairing machine which he was operating in the defendant’s tannery.

G. Ludwig, Circuit Judge. The appellant commenced an action in the civil court of Milwaukee county for personal injuries received by him while employed in defendant’s shop.

Appeals from a judgment and from an order of tbe circuit court for Milwaukee county: LaweeNce W. Halsey, Circuit Judge.

H. Reid, Judge. This is an action for money had and received commenced by the city of Milwaukee against the defendants to recover moneys disbursed by the defendant Peter F. Leuch as city-clerk, and… Held: the position of committee clerk and stenographer at a salary of $1,500 per year.

<p> Appealable orders: Suppressing examination of adverse party. </p> <p>An order of the circuit court affirming an order of the Milwaukee civil court suppressing an examination of the defendant under sec. 4096, Stats., until after the service and filing of the complaint, is not appealable.</p>

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

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

<p> Pleading: Demurrer: Sufficiency of complaint: Misjoinder of causes: Defect of parties: Equity: Quieting title to securities: Preventing multiplicity of actions: Proper and necessary parties. </p> <p>1. A general demurrer will not lie to a complaint which, states any cause of action, legal or equitable.</p> <p>2. To make a cause of action there must be a right in the plaintiff and a violation of such right by the defendant.</p> <p>3. A complaint alleging that one of the defendants, a piano company, sold pianos to various persons on credit, taking promissory notes therefor secured by collateral agreements, which notes and agreements (about forty-eight in number) it sold and delivered to plaintiff; that afterward it sold duplicate and triplicate copies of such collateral agreements to other defendants, who assert a paramount claim thereto, have collected money thereon, and have notified the purchasers not to pay the plaintiff; and that in some instances it has taken back the pianos, resold them, and taken new notes and securities which it has disposed of to still other defendants, is held to state a cause of action in équity to determine the title to the securities and to adjust the rights and equities of the parties in respect thereto and to the moneys collected thereon.</p> <p>4. The prevention of a multiplicity of actions is sufficient to justify the resort to equity in such a case, the title of the parties, except the piano company, being derived from a common source, the matters in dispute being of the same nature and having a connection with each other, and all the parties being more or less concerned in the result.</p> <p>5. Such complaint states a single cause of action and is not open to the objection that several causes of action are improperly united, even though greater relief may be asked for than plaintiff is entitled to.</p> <p>6. A demurrer to such complaint on the ground that there is a defect of parties defendant in that the several makers of the contracts sold to plaintiff are not made parties, sufficiently particularizes the defect relied on, under sec. 2651, Stats., since plaintiff could readily ascertain from the contracts the names of such omitted parties.</p> <p>7. When a final judgment is entered in the action determining and quieting the title to the securities, the debtors may safely act thereon and make payment to such parties as the court decides are entitled thereto, and the defeated claimants will be estopped from asserting any rights against them. There is, therefore, no apparent necessity for such debtors to be made parties.</p> <p>8. The necessity of joining such parties not appearing on the face of the complaint, the defect, if there be one in that respect, should be taken advantage of by answer, as provided in sec. 2653, Stats.</p>

W. BubNELl, Circuit Judge. This action was brought to recover $1,450 which was the consideration named in an executory contract for the sale of certain real estate made between the plaintiff’s intestate, as vendee, and the defendant Hoenig, as vendor.

<p> Husband and wife: Antenuptial agreements: Validity: Burden of proof: Construction. </p> <p>1. There is nothing inherently suspicious about antenuptial contracts, and in the absence of unfair characterizing circumstances they are to be regarded with favor rather than disfavor.</p> <p>2. In general, the burden is upon the one impeaching such a ¿contract to show its invalidity; but if there is anything about it, considering all the circumstances, indicating that the intended wife was unduly influenced to make it, that will overcome its prima facie validity.</p> <p>•3. In this case an antenuptial contract between a widower sixty-eight years of age and a widow of sixty-two, each of whom had a family of grown-up children and a substantial fortune and was thoroughly capable of managing all personal affairs, by the terms of which each was to retain ownership, control, and the right to dispose of his or her own property the same as if unmarried, is held, upon the evidence, to have been fairly and understanding^ made and not to be impeached by any circumstance.</p> <p>■4. The fact that such contract expressly provided that in case either party should die intestate the property of such party should gp to his or her own descendants the same as if no marriage had taken place, does not permit a construction rendering the agreement ineffective in case of the testacy of the husband and entitling the widow in such case to claim statutory rights in his estate — that being contrary to the plain purpose of the contract.</p> <p>■6. The intention of the parties at the time such contract is made is to be taken as its legal meaning if it can be found expressed in the language used. If such intention is clearly expressed, rules for construction are unnecessary; but where there is uncertainty as to which of two or more reasonable meanings the minds of the parties met upon, that one should be taken which is most favorable' to the woman from the point of view of the parties when it was made.</p>

J. TurNee, Judge. The complaint in this action alleges in substance that the plaintiff employed the defendant to obtain a divorce for her from her husband, George Miller, and to recover a sum of money; that in such action judgment for divorce was rendered and said Miller required to pay plaintiff $3,500.

On October 10, 1912, tbe plaintiff was injured while in tbe employment of defendant operating a grooving saw.

<p> Master and servant: Elevators: negligent maintenance: Injury to servant: Contributory negligence: Special verdict:.Harmless errors: Instructions to jury: Excessive damages. </p> <p>1. In an action for injuries to an employee in a toy factory — upon evidence showing, among other things, that he was a Greek, nineteen years old, not long in this country, of average intelligence, but not familiar with the construction and operation of elevators; that he- had not been instructed how :to use the elevator or warned of any danger; that, with a truck load of materials which he had been ordered to move from one floor to another by the elevator, he came to the opening in the shaft and, there being no bell to call the operator and no tell-tale chains or other means of telling where the elevator was, put his head over the gate' and was immediately struck by the elevator descending upon him; and that the gate was less than four feet high, instead of five and one-half feet as required by an order of the industrial commission, — the question of his contributory negligence is held to have been one for the jury.</p> <p>2. Where certain of the findings-in a special verdict are sufficient to support the judgment, alleged errors relating to other findings are immaterial.</p> <p>S. Defendant’s negligence being conceded, the fact that the court answered the question relating thereto in the special verdict did not constitute error on the ground that such answer indicated to the jury that they should find plaintiff not guilty of contributory negligence.</p> <p>4. Defining correctly, in the charge, a word used in a question of the special verdict, so as to inform the jury of the true meaning of such, question, is not error even though it informs the jury of the effect of their answer to the question.</p> <p>5. In charging the jury upon the question of contributory negligence it is proper to call their attention to the concrete situation and to instruct them to take into consideration all the facts and circumstances disclosed by the evidence, including plaintiff’s specific conduct. The charge upon that subject in this case, though not strictly accurate, is held not to have been misleading.</p> <p>6. Plaintiff having, as the result of his injury, lost the sense of hearing in one ear and partially in the other, had ten teeth and part of one jaw knocked out, and the septum of the nose crowded to one side so as to totally close one opening, and having been unconscious for a long time, in the hospital for twenty-two days, and subject since to spells of dizziness when working, an award of $5,000 was not excessive.</p>

Ray StevbNS, Circuit Judge. This is an action brought under sec. 1797 — 16, Stats., to. vacate an order of the Railroad Commission requiring the appellant railway to establish a milk station at a crossing called Omdoll’s Grossing, about half way between Whitewater and Palmyra, and stop its morning train at said place.

<p>Appeals from a judgment of tbe circuit court for Winnebago county: Geo. W. RueNbll, Circuit Judge.</p> <p>Tbis action is brought to recover damages for breach of a written contract by which the defendant, as owner of lands, gave the plaintiffs the exclusive agency from date of the contract, April 5, 1909, until January 1, 1911, for the sale of the lands included in the contract. The quantity of land was 17,340 acres in Ontonagon county and adjoining counties in Michigan. The defendant agreed to pay the plaintiffs a commission of $1.50 per acre upon all lands sold by them under the contract. This commission was to be deducted from the purchase moneys received on such sales, and all other purchase moneys and securities to be taken in the defendant’s name were to be turned over to the defendant. It was agreed that the prices and terms of sale of lands by the plaintiffs were to be made by and subject to the approval of the defendant; and the plaintiffs were required to advertise the lands for sale at their own expense and continually endeavor to sell them, and they were to bear a.11 the expenses of marketing the land. The defendant also gave the plaintiffs an option to purchase the lands or those remaining unsold on or at any time before January 1, 1911, at the uniform priee of $6 per acre. It was agreed that of the moneys and the face value of securities received by the defendant upon sales made by the plaintiffs, all above $6 per acre “shall be credited to Sixta \_Sixta and Martin] and considered a payment upon the purchase price of the lands which Sixta shall elect to purchase.” The defendant reserved the right and was not to be prevented-</p> <p>“from making sales of said real estate at any time or to any person; but the Land Company agrees not to sell any such land for a less sum thanNen ($10) dollars per acre. On sales made by the Land Company no commission shall be paid Sixta, but if he shall exercise the option hereby given him, the Land Company agrees to credit Sixta upon such purchase, all sums over and above six ($6) dollars per acre received by it upon sales made by itself.”</p> <p>It appears that the plaintiffs, immediately after the contract was made, commenced advertising and selling the lands, and-by June, 1910, had sold 1,380 acres at an average price of $14.48 per acre.</p> <p>On May 23, 1910, the defendánt conveyed by statutory warranty deed all the unsold lands, being 16,360 acres, to the W. J. Hess Company at the rate of $6 per acre. This deed contained the provision:</p> <p>“This conveyance is made subject to all the rights of L. C. Sixta and James Q. Martin under an option and agency contract executed by them and said grantor and dated April 5, 1909, a copy of which contract has this day been delivered to said grantee and the receipt of such copy is acknowledged by the acceptance of this conveyance, and the grantee herein covenants and agrees to perform all the terms and conditions of said contract imposed on the grantor as to all lands described in this conveyance.”</p> <p>The plaintiffs obtained information of this conveyance June 24, 1910, and soon thereafter protested to the defendant’s officers, claiming the defendant had no right to make such transfer and sale at a price of less than $10 per acre.</p> <p>It also appears that the defendant, on the day of executing tbis deed to tbe Hess Company, made a formal assignment of tbis agency and option contract between tbe plaintiffs and tbe defendant, and tbe Hess Company agreed to perform and complete tbe contract as was required of tbe defendantthat as to tbe lands theretofore sold by tbe plaintiffs tbe defendant reserved tbe right and assumed tbe duty to settle and adjust tbe matter with tbe plaintiffs, and tbis contract of assignment stipulated that it was particularly understood and agreed between tbe defendant and tbe Hess Company that no title to tbe lands embraced in tbe deed to tbe Hess Company should pass to tbe Hess Company, and tbe deed should not be effectual to convey title until aft§r tbe option given tbe plaintiffs expired and tbe plaintiffs refused to exercise their rights under it; and that if tbe plaintiffs exercised their rights under tbe option tbe Hess Company agreed to join tbe Land Company in a deed to tbe plaintiffs for tbe purpose of issuing to tbe plaintiffs a good title to tbe lands. On June 25, 1910, tbe Hess Company, by warranty deed in form and context like tbe deed from tbe defendant to tbe Hess Company, conveyed all tbe lands to tbe Ontonagon Valley Settlement Company. On June 27th tbe plaintiffs reported by letter to tbe defendant sales of parcels of land to Wallen and to Bernhardt, inclosing cash payment and terms of sale. On July 9th tbe defendant replied thereto, acknowledging receipt, and stated:</p> <p>“As we personally advised you, we have sold our interest in tbe contract with you covering our Ontonagon Valley lands to tbe W. J. Hess Company of this city. We are advised by them that they have since transferred tbe land to tbe Ontona-gon Valley Settlement Company. We have therefore turned tbe checks and your correspondence over to-the Ontonagon Valley Settlement Company, who will give tbe matter their prompt attention.”</p> <p>Tbe plaintiffs on August 2, 1910, replied thereto, stating that they expected tbe defendant to carry out its contract with them; that they bad spent considerable money and time advertising the lands and developed an interest in their sale; that they had many prospective purchasers and intended to exercise their option; that the defendant’s action rendered it impossible to do anything further under the contract, and demanded that the defendant make good to them their losses resulting from the defendant’s breach of the contract. The president, Lindstedt, of the defendant company, and the secretary, Mr. Nash, after the plaintiffs were informed of the Hess transfer and assignment, in conversations pertaining to these, matters asserted to the plaintiffs that they could proceed and continue under their contract, — that the conveyance and assignment to the Hess Company did not affect their rights. The plaintiffs did not continue to make sales after those made to Wallen and Bernhardt, nor did they exercise their option. The defendant’s officers were not applied to to fix prices or specify terms on any other sales by the plaintiffs except as shown by the transaction here involved.</p> <p>The court found there was a nominal breach of the contract, but that no damages were proven as resulting from the agency part of the contract, and that only nominal damages resulted to the plaintiffs from the breach of the contract, and awarded them judgment for six cents and for their costs of action. Both parties appeal from this judgment.</p> <p>They argued, among other things, that the contract was personal and nonassignable, and was also entire and indivisible. Johnson v. Vichers, 189 Wis. 145, 120 N. W. 837; Arkansas Valley 8. Go. v. Belden M. Go. 127 U. S. 379, 387, 8 Sup. Ot. 1308; Boston Ice Go. v. Potter, 123 Mass. 28; 8warts v. Narragansett H. L. Go. 26 R. I. 388, 59 Atl. 77; Campbell v. Sumner, 64 Kan. 376, 67 Pac. 866; Edison v. Bablca, 111 Mich. 235, 69 N. W. 499; Winchester v. Davis P. Go. 67 Eed. 45; Worden v. G. & N. W. B. Co. 82 Iowa, 735, 48 N. W. 71; Craig v. Miller, 6 Ky. 440; 4 Cyc. 22, 23; Delatuare v. Diebold 8. & L. Co. 133 IT. S. 473, 10 Sup. Ct. 399, 33 L. ed. 674; Burch v. Taylor, 152 U. S. 634, 14 Sup. Ct. 696, 38 L. ed. 578; American C. Co. v. Continental C. Co. 188 TJ. S. 108, 23 Sup. Ct. 265, 47 L. ed. 404; New York B. N. Co. v. Hamilton B. N. E. & P. Co. 180 N. Y. 280, 73 N. E. 48; Eastern A. Co. v. Mc-Gaw, 89 Md. 72, 42 Atl. 923; Globe & B. F. Ins. Co. v. Jones, 129 Micb. 664, 98 N. W. 580; Sloan v. 'Williams, 138 Ill. 43, 27 N. E. 531; Pike v. Waltham, 168 Mass. 581, 47 N. E. 437; Linn County A. Co. v. Beechley, 124 Iowa, 146, 99 N. W. 702. By disposing of the lands defendant had disabled itself from performing its contract and rendered it impossible for plaintiffs to do anything further under it, and. plaintiffs were entitled to treat the contract as breached and to recover damages. Richey v. Union Cent. L. Ins. Co. 140 Wis. 486, 122 N. W. 1030; Merrick v. Northwestern Nat. L. Ins. Co. 124 Wis. 221, 102 N. W. 593; Lovell v. 8t. Louis Mut. L. Ins. Co. Ill U. S. 264, 4 Sup. Ct. 390; Kelley, M. & Co. v. La Crosse C. Co. 120 Wis. 84, 97 N. W. 674.</p> <p>They contended, inter alia, that the contract with and conveyance to the Hess Company did not affect plaintiffs’ contract or place the lands beyond their reach. Sizer v. Clark, 116 Wis. 534, 93 N. W. 539 ; Sixta v. Ontonar gon Valley L. Co. 148 Wis. 186, 134 N. W. 341; Foster v. Lowe, 131 Wis. 54, 110 N. W. 829. The title did not pass by the Hess deed. Jones v. Caird, 153 Wis. 384, 141 N. W. 228; Rowell v. Barber, 142 Wis. 304, 125 N. W, 937; Ferguson v. Mason, 60 Wis. 377, 19 N. W. 420; 2 Devlin, Deeds (3d ed.) § 958. The Sixta contract was assignable. New England I. Co. v. Gilbert E. R. Co. 91 N. Y. 153; New York B. N. Co. v. Hamilton B. N. E. & P. Co. 180 N. Y. 280, 73 N. E. 48; Northwestern C. & L. Co. v. Byers, 133 Mich. 534, 95 N. W. 529; American B. & T. Co. v. B. & O. 8. W. B. Co. 124 Eed. 866; Dorr v. Alford, 111 Iowa, 278, 82 N. W. 189; Devlin v. Mayor, 63 N. T. 8; Parsons v. Woodward, 22 N. J. Law, 196; Groot v. Story, 41,Vt. 533. If it was not assignable, then the unauthorized assignment was a nullity, of which fact plaintiffs were bound to take notice. Brush E. Go. v. California E. L. Go. 52 Eed. 945, 964; New England I. Go. v. Gilbert E. B. Go. 91 N. Y. 153.</p>

In the year 1911 the assessor of the city of Two Rivers placed a valuation of $163,500 on the personal property of the Hamilton Manufacturing Company. That company appeared before the board of review and objected to the assessment as being excessive and offered some testimony which it claims tended to sustain its contention. The board of review, deeming such evidence sufficient to warrant a reduction of the assessor’s valuation, did in fact reduce it in the sum of $20,000.

<p> Replevin: 'Nonsuit: Judgment not a bar to another action: Milwaukee civil court: Appeal: New trial. </p> <p>1. Where, in an action of replevin in the Milwaukee civil court, the-record shows that the issues were not tried upon evidence and that judgment of dismissal was awarded on the ground that plaintiff had not proven a cause of action, such judgment constituted a nonsuit and was not a bar to another action upon the same cause.</p> <p>2. Under sub. 3, sec. 28, ch. 549, Laws of 1909, where a judgment of the Milwaukee civil court is reversed by the circuit court and a new trial ordered, such trial should be had in the circuit court.</p>

<p> New trial: Newly discovered, evidence: Diligence: Cumulative or impeaching evidence: Discretion. </p> <p>1. An affidavit by defendant in support of a motion for a new trial on tbe ground of newly discovered evidence as to a certain conversation between tbe parties, stating that affiant did not know of tbe existence of sucb evidence until after tbe term of court because tbe persons present bad, most of them, moved away and “none of them bad ever informed affiant of. tbe facts as to sucb conversation until recently,” did not sufficiently show tbe diligence required of tbe moving party in sucb a case.</p> <p>2. Tbe refusal of a new trial upon newly discovered evidence wbicb is cumulative or impeaching in character rests largely in tbe discretion of tbe trial court.</p>

<p>Appeal from a judgment of the circuit court for Crawford ■county: Geobge ClbmbNtsoN, Circuit Judge.</p>

<p>Appeal from a judgment of tbe circuit court for Crawford county: George ClemeNtsoN, Circuit Judge.</p>

3. Sec. 925 — 58, Stats., providing that no action shall he maintained against a city “upon any claim or demand of any kind or character whatsoever” until the claim or demand shall first have been presented to the council and disallowed, does not apply to an action for equitable relief, even though full relief therein will include money damages. Appeal from an order of tbe circuit court for Grant county: Geobgb ClemeNtsoN, Circuit Judge.

Proceeding for tbe construction of tbe will of William J. Mitchell, deceased. Tbe will was made December 7, 1894. Tbe testator bad eight children. Tbe oldest was about fifty-five and tbe youngest forty years of age. He bad forty grandchildren. One of his sons, — William Henry Mitchell, — in his forty-seventh year and on May 10, 1892, married a woman aged forty-fonr years. Neither had been married before. She was forty-seven when the will was made.

<p>Appeal from an order of the circuit court for Grant county: Geoege Clementson, Circuit Judge.</p>

John Hemphill died testate June 17, 1903. He named in his will, which was admitted to probate, one Samuel I. Stein, of La Payette county, Wisconsin, executor. Stein resigned the trust, and Grant Hemphill, son of John Hemphill, deceased, was appointed and qualified as administrator with the will annexed.

To tie point tlat tie trial court erred in tie instruction as to tie burden of proof, tley cited Button v. Metcalf, 80 Wis. 193, 49 N. W. 809, '810; Allen v. Murray, 87 Wis. 41, 57 N. W. 979, 981; III.

O. TIigbee, Circuit Judge. Eor more than fifteen years tbe plaintiff corporation has-been engaged in the business of selling coal to customers in the city of Sparta, and for that purpose maintains sheds and yards for the storage of coal.

C. Higbee, Circuit Judge. This is a mandamus action brought to compel the county ¡highway commissioner of La Grosse County to repair a certain highway two miles in length in the town' of Holland, known as the McGilvary road. The petitioners are property owners along the highway who are unable to reach their property on account of the impassable condition of the road.

M. Webb, Circuit Judge. Action for a personal injury. Plaintiff, a boy of seventeen years of age, while in tbe employ of defendant, received a personal injury by bis band colliding with a circular saw at wbicb be was working.

Pare, Circuit Judge. This action was brought for the purpose of declaring an instrument, on its face a deed, a mortgage, given as security for a debt, and to redeem the mortgaged premises. The facts, involved sufficiently appear from the findings of the court below, which are substantially as follows: “That on and prior to January 1, 1907, the plaintiff John.

Paek, Circuit Judge. The., defendant was a corporation controlled by E. W. Sellers with headquarters at Stevens Point, Wisconsin. It owned land in Northern Wisconsin which it desired to sell. The plaintiff was a real-estate agent residing at Park Falls, Wisconsin. The defendant employed the plaintiff as its agent to procure a purchaser for its lands generally at $10 per acre, or such other price down to $8 per acre as might be satisfactory to defendant.

H. Reid, Judge. This is an action for trespass. The complaint alleged that between April 20, 1906, and October 20, 1910, plaintiffs were tbe owners in common and in possession of tbe following described premises: “All of lots 1 and 2 and tbe north four and six-tenths acres of lot 3, and tbe northwest quarter of tbe southeast quarter, all in section 15, township 24 north, of range 7 east, excepting a strip of land one rod wide along tbe meandered shore bordering on tbe…

Parm, Circuit Judge. Action by the executors of the estate of Frank Pomain-ville, deceased, to set aside special assessments amounting to $297.39 levied against the property of said estate on account of the widening of Oak street in the defendant city.

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

Ray Stevens, Circuit Judge. This is an action to foreclose a jmechanic’s lien on account of materials furnished to tbe contractor, tbe Muskegon Construction & Engineering Company, and used in tbe construction of a building for tbe owner, O. F. De Longe. Tbe contractor and tbe Illinois Surety Company entered into a bond tbat tbe contractor would faithfully comply witb all the terms and conditions of the construction contract.

<p> Municipal corporations: Baraboo city charter: Appeal from police justice: Affidavit of good faith. </p> <p>Under sec. 10, ch. VII, of the Baraboo city charter (Laws of 1882, ch. 21), upon appeal by the defendant from a judgment of the police justice of that city, an affidavit of good faith is not necessary.</p>

<p>Railroads: Negligence in “poling” car: Death of switchman: Contributory negligence: Evidence: Questions for jury: Assumption of rislc: Federal Employer's Liability Act: Procedure in state courts: Damages: Instructions to jury: Harmless errors.</p> <p>1. In an action against a railway company for the death of a switchman, which occurred in the operation of “poling” a freight car, the evidence is held sufficient to sustain a finding of negligence on the part of the foreman in not directing the operation to he performed in the usual and ordinary way by stopping the engine as soon as the pole or timber was firmly braced between the engine and the car to be moved, so as to permit the man holding it to get out of the way, and by omitting to signal the engineer to stop when the timber was so braced.</p> <p>2. The fact that a subordinate employee did not give directions to his foreman as to the manner of performing a switching operation in which both were engaged, cannot be regarded as affirmative proof of contributory negligence.</p> <p>3. The deceased cannot in this case be held to have been guilty of contributory negligence as a matter of law, either because he rode upon the engine instead of taking a position upon the ground while holding the timber with which the operation was to be performed, or because he selected for the purpose a timber which was only thirty-four inches in length.</p> <p>4. Under the federal Employer’s Liability Act, an employee does not assume the risk of a fellow-servant’s negligence.</p> <p>5. In an action under the federal Employer’s Liability Act to recover for the death of an employee, for the benefit of the widow and a dependent child, there was no error in instructing the jury that in fixing the amount of the damages they Should include the value of the “support and protection” such widow and child would have received during the time the deceased would probably have lived,- — the word “protection” being evidently used in the sense of pecuniary protection from want or penury.</p> <p>6. In fixing the amount of damages for the death of an employee, under said act, the jury may take into consideration the ordinary probabilities in respect to future pecuniary benefits and support which apply generally in human relations, including reasonable expectation of benefits from gifts or inheritance.</p> <p>7. Where an act of Congress commits to the state courts the duty of trying cases arising thereunder, such cases may be tried according to the state rules of procedure.</p> <p>8. Where a railway employee, fifty-two years of age, sober and industrious, who had accumulated only a homestead valued at $2,000, had customarily contributed from $90 to $100 a month to the support of his wife, aged forty-nine, and a dependent daughter aged twenty-two, an award of $4,000 to the widow and $1,000 to the dependent child was less than the real value of the support and maintenance of which they were deprived, so that the jury could not be presumed to have allowed anything on account of prospective gifts or inheritance, even if (because of there being no basis in the testimony to justify it) it was error to instruct them that they might consider prospective benefits of that nature.</p>

. Appeals from a judgment of the circuit court for Outa-,gamie county: Johw Goodlamd, Circuit Judge.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: Femee: A. Ross, Judge.</p> <p>This is an action of quo warranto by tbe relator to oust tbe defendant from tbe office of inspector of buildings of tbe city of Milwaukee and demanding that relator be reinstated in this office, from which be claims to have been unlawfully excluded and wrongfully deprived of tbe privileges and emoluments thereof.</p> <p>Upon trial of the action tlie circuit court made findings of fact upon the evidence adduced and determined that relator had been unlawfully excluded from his office and deprived of its privileges and emoluments. The court awarded judgment in his favor and against the defendant. This is an appeal from such judgment.</p>

<p>Appeal from an order of tbe circuit court for Outagamie county: JohN G-oodlaNd, Circuit Judge.</p> <p>Tbe plaintiff, a married woman seventy-three years of age, brings this action in equity to set aside a conveyance of a farm of 120 acres of land and tbe personal property thereon made by her husband and herself in favor of the defendant Frank Young (her son) and Dell Young, his wife. The plaintiff’s husband, Tréffiey Young, is made a defendant. The defendants demurred (1) for defect of parties and (2) for insufficiency of facts, and the demurrer was sustained on both grounds.</p> <p>The complaint alleges the making of the conveyance (which includes the homestead of the parties) in consideration of an agreement to support and care for the plaintiff and her husband during their natural lives at the homestead or at some other convenient place if the grantors became dissatisfied. The contract also requires the grantees to pay certain sums of money to six other children of the grantors at certain specified times, which payments are made a charge upon the real estate. The complaint alleges serious ill-treatment on the part of the grantees and failure to carry out the contract in many ways and to such an extent as to seriously impair the plaintiff’s health. It is also alleged that the plaintiff’s husband refuses to join in the action as a plaintiff and he is therefore made a party defendant. The plaintiff prays for a reconveyance of the property and for other relief in the alternative.</p>

Action to recover on a contract of employment. Plaintiff claimed he was employed by defendant for one year at a salary of $1,200, payable in monthly instalments of $100, and that before expiration of such period he was discharged without cause and damages to the extent of the wages he might otherwise have earned. Refendant claimed plaintiff was discharged for good cause, and that the balance due up to the time of such discharge was duly tendered.

This action was brought for divorce by the plaintiff husband against the defendant wife on the ground of cruel and inhuman treatment. The defendant denied the material allegations respecting cruel and inhuman treatment and set up affirmative matter by way of defense and charged the plaintiff with cruel and inhuman treatment, and demanded that the plaintiff’s complaint he dismissed.

<p>Appeal from a judgment of the municipal court of Outa-gamie county: Thomas H. Ryan, Judge.</p>

<p> Police power: Health regulations: Validity: Requiring landlord to-provide garbage receptacles: Statutes: Partial invalidity. </p> <p>1. In tlie exercise of its police power the state may enact reasonable health regulations, and only when the power has been clearly-abused will the courts declare such regulations void.</p> <p>2. A statute (sec. 1636 — 151, Stats. 1911) providing that “the owner of every apartment house, tenement house, lodging or boarding house, shall furnish suitable covered receptacles for garbage, ashes and rubbish,” was not invalid as being unreasonable and oppressive, nor because of indefiniteness in that it failed to define specifically the kind of receptacles to be provided.</p> <p>3. Such a provision contained in a health statute should not be held void merely because some other provision of the statute, dealing with a different subject, might be invalid.</p>

<p>EkROR, to review a judgment of tbe circuit court for Eorest county: W. B. QuiNLAN, Circuit Judge.</p> <p>Tbe plaintiff in error was convicted of selling intoxicating liquors without a valid license, and brings bis writ of error to reverse tbe judgment. Tbe facts were not in dispute. Tbe premises on wbicb tbe plaintiff in error was conducting a saloon business at tbe time of tbe alleged illegal sale, viz. September 8, 1913, are situated in tbe town of Wabeno, Eor-est county, and were used for saloon purposes by one Krueger under a valid license June 30, 1907. Tbey ceased to be so used on tbe following day, remained vacant for a time, were used for a year for a general store, and on January 24, 1911, were again used for saloon purposes. At tbis time tbe plaintiff in error, wbo bad not theretofore been engaged in such business, obtained a license from tbe town authorities for that purpose, rented tbe premises, and commenced to use them for saloon purposes. At tbe time tbis license was issued there bad been theretofore granted by tbe town saloon licenses in excess of tbe ratio limit prescribed by sec. 1565<£, Stats. How long business was done under tbis license does not appear. On June 16, 1913, tbe town board granted ten saloon licenses, tbe population of tbe town being but 1,877. On tbe following day tbe board in form granted a license to the plaintiff in error. He did not take it out of tbe clerk’s office until September 5th following.</p>

<p> Criminal law: False pretenses: Information: Sufficiency: Instructions-to jury. </p> <p>1. An information charging in substance, among other things, that defendants designedly and with intent to defraud obtained from, one R. certain personal property, and also obtained his signature to a bill of sale thereof and to a deed conveying his farm to one of the defendants, by means of false pretenses and representations that said grantee was a man of great wealth, worth more than $60,000, and -of high standing and credit, that two. notes and a mortgage given by said defendant to R. were good, and sufficient security for the purchase price of said farm and property, and that said mortgage conveyed and was a lien upon said farm and was given tó secure the purchase price thereof,, is held to state an offense under sec. 4423, Stats.</p> <p>2. The representations so alleged were of existing facts, not mere. promises or expressions of opinion, except the statement as to. the sufficiency of the notes and mortgage as security, and the-jury having been properly instructed that that statement did not constitute false pretenses in any view, there was no prejudicial error.</p>

J. TubNee, Circuit Judge. Action by the personal representative of John Sadowski, deceased, to recover compensation for his death. The deceased, while in the employ of the defendant, came to his end by a large quantity of iron ore, compacted by freezing into a hard mass, rolling down from the top of a bank, at the foot of which he was working. His duties required him to assist in transferring iron ore from a large mound thereof by wheeled vehicles to a furnace.

Lueck, Circuit Judge. This is an action to recover damages for the death of the plaintiff’s testator, Christ Hanson, who was a bridge foreman in charge of all bridge repairs on the Superior division of the defendant railway, which division extends from Northern Michigan to Milwaukee.

• Appeal from a judgment of the circuit court for Juneau county: James O’Neill, Circuit Judge. W. P. Hyde and T. E. Powers were named as executors in the will of Thomas Hyde, deceased. There was a contest over the submission of the will to probate which was carried to this court. The case is reported in volume 141 of our Reports on page 41 (122 N. W. 774). The contest on the will was not sustained.

Fowler, Circuit Judge. This is an appeal by the defendant Theresa Haas from a judgment rendered upon the pleadings and admitted facts in an action brought by a creditor of John Haas, deceased husband of defendant Theresa Haas, in which the complaint prays that the conveyances made by John Haas during his lifetime of real estate to his wife be set aside and declared void as being made in fraud of plaintiff and other creditors.

Bake, Judge. Action for personal injuries. The plaintiff, while driving a single horse and wagon westward on Atkinson avenue in the city of Milwaukee on the evening of January 13, 1912, at a few minutes before 6 o’clock, was run into from tbe rear by one of the defendant’s urban street cars, thrown from his wagon, and seriously injured.

J. TueNee,, Circuit Judge. Action for a personal injury. The evidence, as to the issues raised by the pleadings, is to this effect: Plaintiff, a drayman, was employed by defendant Lederer to convey a load of wall paper, from the latter’s store room on the third floor of a building, to his retail place, a short distance away. The building was possessed by the Acme Ground Rent Company, of which defendant John DeWolf was president. Led-erer was a tenant as to the store room.

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

<p> Public utilities: Railroad commission: Orders, when set aside: Evidence: Telephone companies: When engaged in furnishing local service. </p> <p>1. An order of tlie railroad commission should not he set aside in an action brought under sec. 1797 — 16, Stats. 1913, unless it is-shown by clear and satisfactory evidence to be unlawful or unreasonable.</p> <p>2. A finding by the railroad commission to the effect that the local service rendered by a certain telephone company in the city of Eau Claire was incidental to its rural and toll-line service and did not constitute it a public utility engaged in furnishing local telephone service to subscribers in that city, within the meaning of sec. 1797m — 74, Stats., is held to be supported by the evidence.</p>

II. Keid, Judge. Proceedings to remove the relator, Louis A. Arnold, from the office of tax commissioner of the city of Milwaukee, which •office he held for a definite, fixed term.

<p> Nonsuit: Affirmance on appeal: Power to grant new trial. </p> <p>Affirmance, on appeal, of a judgment of nonsuit does not affect the power of the trial court to entertain and decide an application for a new trial on the ground of newly discovered evidence.</p>

<p> Assault and battery by watchman upon trespasser: Justification: Special verdict: Evidence: Damages. </p> <p>1. In an action for assault and battery by a watchman upon a trespasser upon defendant’s property, it being claimed by defendant that the watchman acted at first in protection of defendant’s property and later in self-defense, and that he did not use unnecessary force in either instance, it was error, after rejecting questions proposed by defendant relating to both branches of the justification, to submit in the special verdict only the question whether the watchman “aggressively and otherwise than in self-defense” used “force upon plaintiff.”</p> <p>2. Testimony offered by defendant in such case tending to show that the watchman did not use excessive force, that his hand was wounded by a knife carried by plaintiff, that plaintiff had several times taken wood and coal from defendant’s yards, and that he had been at one time arrested by another watchman for stealing wood, was erroneously excluded.</p> <p>3. If at the time of the first assault upon him plaintiff was engaged in stealing the property of the defendant, the damages recoverable by him under the evidence in this case should not exceed $500.</p>

<p>Appeal from a judgment of the circuit court for Barron county: FeaNk A. Ross, Circuit Judge.</p> <p>This is an action to recover damages because of false and fraudulent representations in the sale of 160 acres of land alleged to have been sold by the defendant to the plaintiffs. A trial was had before the court and a jury, and it appeared that in August, 1909, the defendant (who was a woodsman and cruiser) suggested to the plaintiffs that a good investment could be made by purchasing a certain 160 acres of land at $5 an acre, and also suggested that the plaintiffs should furnish the money to buy it, they taking a two-thirds interest and he a one-third interest. The parties went to see the land. By mistake they inspected the wrong quarter-section. The plaintiffs claim that defendant pointed out the land to them and was solely responsible for the mistake. The defendant claims that they took a map and all three acted in locating the land from the map, and that there was an error in the location of a highway on the map, which error caused the mistake. In any event a mistake was made, and the parties examined a valuable and well-wooded quarter-section, while the quarter-section which was in fact for sale was on the other side of the highway and was rough and rocky. After the examination the plaintiffs agreed to defendant’s proposition and furnished the defendant $400 with which to make the first payment, and-afterwards furnished $400 more to complete the purchase. The defendant procured a deed of the less valuable parcel from the owners (who lived in St. Paul) and deeded an undivided two-thirds to the plaintiffs. The mistake was not discovered by either party for more than a year. In December, 1910, the plaintiffs purchased of the defendant his undivided one-third for $154.50. Some time after this sale the mistake was discovered and this action was brought, claiming that the defendant fraudulently showed the plaintiffs the wrong lands. The trial court submitted to the jury a special verdict composed of two questions: (1) What was the value of the land actually conveyed at the date of the conveyance, viz. September 22, 1909 ? and (2) What was the value of the lands which the parties looked over at that time ? In answer to the first question the jury said $400, and to the second question $1,200. Neither party asked for the submission of any other questions. The plaintiffs moved to 'change the answer to the second question from $1,2001 to $1,920, and, in case the motion was denied, for a new trial. Neither motion was granted. Subsequently the trial judge made findings of fact to the effect that the defendant did not agree to sell the lands to the plaintiffs, but that plaintiffs and defendant purchased the lands from the owners as a joint adventure; that by mistake honestly made, resulting from an erroneous map, the defendant misled the plaintiffs into the mistaken purchase; that the lands actually purchased were of materially less value than the lands which the parties looked over; and that at the time of the purchase by the plaintiffs of the defendant’s undivided one-third the parties were still in ignorance of the mistake. Upon these findings the trial court dismissed the complaint. No exceptions were taken to the findings. The plaintiffs appeal.</p>

<p>Appbae from a judgment of the circuit court for Polk county: FeaNK A. Ross, Circuit Judge.</p> <p>This is an action for replevin brought by Henry Christensen as administrator of the estate of Neis Christensen, deceased, to secure property from the defendant upon the ground that she unlawfully held and detained certificates of deposit, the property of the plaintiff as administrator of the estate of the deceased. Judgment was rendered in favor of the defendant for six cents damages and for costs. This is an appeal from such judgment.</p>

This is an action brought by the plaintiff to recover from the defendant the money the plaintiff paid defendant on a contract for the purchase of a lot. ■ It is shown that the defendant, on March 11, 1911, as agent for the owner of the lot, made an agreement with the plaintiff to sell him a five-acre lot of land and that the plaintiff paid the sum of $125 of the purchase price; that the plaintiff received a receipt which embraced the agreements of the parties, by which a…

Ross, Circuit Judge. On September 4, 1912, while plaintiff was standing at the southwesterly intersection of Tower avenue and North Twelfth street, in the city of Superior, between the curb and the street-car track, waiting to board a south-bound car on Tower avenue, he was run down by an automobile driven by one Knutson, an employee of the defendant, and this action was brought to recover damages for injuries sustained.

Ross, Circuit Judge. Action of replevin. December 28, 1912, tbe plaintiff sold on credit 1,000 pounds of yarn to tbe Superior Knitting Mills, which was delivered in January, 1913. March 19, 1913, tbe plaintiff brought this action on tbe ground that tbe sale bad been induced by false and fraudulent representations as to tbe financial standing of tbe Superior Knitting Mills. .April 3, 1913, tbe latter was declared a bankrupt and &. II.

Ross, Circuit Judge. Tbe plaintiff, a boy thirteen years of age, came into collision witb an automobile operated by the defendant’s agent and servant, on Belknap street 'in tbe city of Superior, at .about 5» o’clock p. m. February 26, 1913, and was injured. He was returning home from school and was proceeding westward on Belknap street.

Ross, Circuit Judge. Action to recover for personal injury wbicb happened to plaintiff March 29, 1913. On tbe occasion in question plaintiff and an associate, employees of defendant in tbe course of their duties as sucb, were engaged in repairing an ore car. They were required to raise one end of tbe car with jack-screws free from tbe truck at sucb end, roll tbe truck back- and rest the end of tbe car on a horse, and, after making tbe necessary repairs, replace tbe truck.

Ross, Circuit Judge. This is an action by the plaintiff to recover damages for an alleged unlawful and wilful assault by the defendant upon the plaintiff without excuse or justificátion. The plaintiff claims that he was seriously injured by a shot in his back from a revolver discharged by the defendant, to his' damage in the sum of $2,500.

This action was brought to recover damages for the death of George Belstner, the husband of the plaintiff, whose death is claimed to have been caused by injuries resulting from a fall from a wagon while riding on a defective highway in the defendant town. The deceased was sitting on the rear seat of a milk wagon at the time of the accident. The wagon struck a ledge of rock in the highway and the deceased was thrown backward to the ground, striking on his head.

<p> Husband and wife: Alienation of wife’s affections: Justification:' Right of brother to advise her: Pleading: Presumptions: Burden of proving malice: Evidence: Competency: Communications to brother by physician and attorney: Instructions tO' jury: Harmless errors. </p> <p>. 1. A brother has tbe right to advise a married sister to discontinue-her marital relations with her husband if he honestly believes that conditions are such as to demand separation, provided he acts in good faith and has substantial reasons for believing that the advice given is proper.</p> <p>2. If in such a case separation ensues and the husband brings an-action for alienation of his wife’s affections, he must allege,, and the burden is upon him to show, that the advice which tended to bring about the separation was given maliciously and in bad faith.</p> <p>3. Where in such a case plaintiff alleged and attempted to prove-that the defendant brother acted in bad faith and from malicious motives, defendant had the right to prove facts in justification under the rule above stated, although he did not plead justification.</p> <p>4. Defendant was properly permitted in such a case to testify to-communications made to him, before he advised the separation, by a physician and a lawyer whom his sister had consulted in the matter. The admissibility of such testimony does not involve any question as to whether such physician or lawyer would be a competent witness upon the trial, nor as to the accuracy or correctness of the information given by them to defendant, provided it was such that he might reasonably rely thereon.</p> <p>5. In an instruction to the jury, in such case, that the mere fact that defendant “induced or enticed” his sister “to live apart from her husband, and that they had previously lived happily together, is not sufficient to make him liable or to raise a presumption that his motive was malicious, as would be the case if he were a stranger to” the wife, the use of the word “enticed” was -unfortunate, but when the quoted sentence is taken in connection with what preceded and what followed it, the instruction was not likely to he misleading; and in view of the evidence the error, if any, was not prejudicial.</p> <p>6. Requested instructions in such case, to the effect that it is not necessary to the right of action that defendant’s conduct he the sole cause of the alienation, but it is sufficient if his conduct was the controlling cause, and that evidence of indifference or cruelty of the husband to the wife prior to the alienation and of the unhappiness of their domestic relations only goes to the mitigation of damages and not to a justification of a malicious act of the defendant in causing the separation, were correct and might properly have been given; hut, the evidence that defendant acted either maliciously or in bad faith being very slight, the refusal of such instructions was not prejudicial error.</p>

<p>Appeal from an order of tlie circuit court for Washington •county: Martie L. Lueck, Circuit Judge.</p> <p>The defendant, a foreign corporation, made a motion after a judgment of default had been entered against it to set aside the service of the summons in the action and all proceedings subsequent thereto on the ground that the service was void. Erom an order denying the motion it appealed.</p>

<p>Appeal from a judgment of the circuit court for Wauke-sha county: Maetikt L. Lueok, Circuit Judge.</p> <p>This is a claim for contribution brought by one partner against the estate of his deceased copartner. The essential facts were not disputed. Ryan, Merton] and Newbury were lawyers at Waukesha, and acted as attorneys for certain contestants in the matter of the will of the late John A. Rice, Mr. Ryan being actively in charge of the litigation. That gentleman devised and carried out an. agreement by which the contest was settled, the will admitted to probate, and the estate distributed between all parties interested in a manner quite different from that provided, by the will, and by which also the said firm was to receive .$7,500 for their services in the whole litigation. This agreement was given effect by both the county and circuit courts of Waukesha county, and $5,000 was paid to the firm in August, 1907, and $2,500 in December, 1908, each payment being distributed to the three partners in shares according to tEeir rights in the partnership business. The firm was dissolved April 1, 1910, and a new partner, Mr. Jacobson, was taken in. Mr. Ryan died July 13, 1911. The Rice estate litigation came by appeal to this court and was decided October 12, 1912 (Will of Bice: Cowie v. Strohmeyer, 150 Wis. 401, 136 N. W. 956, 137 N. W. 778), and it was held that the settlement agreement was invalid and that the sums received by the firm of Ryan, Merton & Newbury under the agreement must be paid back to the trustee of the estate. This decision was followed by a judgment of the circuit court for Waukesha county, December 16, 1912, in accordance with its terms, and subsequently Mr. Merton, the claimant, paid to the trustee the sum of $7,627.06, of which one half, i. e. $3,813.53, was Mr. Ryan’s share. On December 23d following Mr. Merton presented his claim for the last named sum against the estate of Mr. Ryan, although the time limited for presentation of claims against that estate had expired January 25, 1912. The claim was allowed in the county court and on appeal by the circuit court, and the executor appeals from such allowance.</p>

<p> Master and servant: Injury to elevator operator: Contributory negligence: Unauthorised placing of another person in charge: Scope of employment: Disobedience of orders: Evidence: Safety of worlcing place. </p> <p>1. Plaintiff, an elevator man in defendant’s employ, while cleaning the pit of the elevator was struck and injured by the descending car which he, without authority, had placed in the temporary charge of another person. Upon the evidence, findings by the jury to the effect that plaintiff supposed and had reason to suppose that he was authorized to place such other person in charge of the elevator, and that such person in operating it was within the scope of his employment, are held to be wholly unsupported.</p> <p>2. It further appearing conclusively that plaintiff had been expressly instructed not to go into the pit without first tying the brake rope so that the car could not be moved and that he wil-fully violated such instruction; a finding by the jury that he was free from contributory negligence was clearly contrary to the evidence.</p> <p>3. Plaintiff’s testimony that he did not know how to tie the rope and that “it wasn’t up to me to ask,” did not show a sufficient excuse for his violation of express orders, defendant’s superintendent having the right, in view of plaintiff’s experience and familiarity with elevators, to suppose that he understood his instructions or, if not, would at least make his ignorance known.</p> <p>4. Plaintiff’s working place and the appliances connected therewith, as he was ordered to use them, being safe, and he having wil-fully and inexcusably violated his instructions without 'defendant’s knowledge, the defendant is not liable for the consequent injuries.</p>

<p> Municipal corporations: Public improvements: Paving: Acceptance: Substantial performance: Compromise or adjustment with contractor: Special assessments: Validity. </p> <p>1. Where the board of public works of a city at first refused to accept a street pavement because not in compliance with the contract, hut afterward, upon investigation and report by the city engineer, accepted it with a deduction of $2,400 to make good the difference in value between the pavement as laid and as contracted for, to which deduction the contractor agreed, this was a sufficient acceptance of the work upon which to base a special assessment against the abutting property.</p> <p>2. The power vested in the board of public works to pass upon the question of performance of a contract for street paving necessarily gives to it authority to decide whether there has been substantial performance; and where there has been substantial performance acceptance of the work does not change the contract.</p> <p>3. Adjustments with a contractor for public work upon the basis of substantial performance, allowances being made for departures from literal compliance, are not compromises in the' ordinary sense of the term, but are equitable and just and are binding where full benefits have been received under them.</p> <p>4. The validity of an acceptance of street paving by the board of public works is not affected by the fact that it was first recommended by the common council.</p> <p>5. Chippewa B. Co. v. Durand, 122 Wis. 85, and other cases relating to contracts made in violation of law, distinguished.</p>

<p>Appeal from a judgment of the circuit court for Brown county: S. D. Hastings, Circuit Judge.</p>

<p> Interstate commerce: Contracts: Construction: Validity: Restraint of trade: Statutes construed: Federal and state statute's: Combinations, when unlawful: Sales: Remedies of vendor: Pleading: Demurrer. </p> <p>1. A contract to furnish a manufacturer in this state with pulp wood coming from Wisconsin, Minnesota, Michigan, and the Dominion of Canada involves interstate commerce, and the question whether it is illegal because of being in restraint of trade is to be determined by the federal rather than the state statute.</p> <p>2. A contract which contravenes public law is void and no recovery can be had thereon.</p> <p>3. Where the sufficiency of a complaint is challenged by demurrer every reasonable intendment must he made in favor of the pleading.</p> <p>4. Where a contract is fairly open to two constructions, by one of which it would be lawful and by the other unlawful, the former must be adopted.</p> <p>5. The words “restraint of trade” as used in the federal anti-trust statute have the same meaning as at common law and in the law of this country at the time of its passage, and embrace only acts, contracts, agreements, or combinations which operate to the prejudice of the public interests by unduly restricting competition or by unduly obstructing the due course of trade.</p> <p>6. Whether or not a particular contract contravenes the law depends on the extent to which competition has been restricted or trade has been obstructed, and this must be determined from the existing facts; when the facts are ascertained the question whether the restraint is reasonable or otherwise becomes one of law.</p> <p>7. There is nothing in itself unlawful in two or more persons appointing a common agent to purchase a commodity which they require and in giving such agent the exclusive right to do the buying.</p> <p>8. Such an arrangement becomes unlawful when it injuriously affects the public, that is, when it unduly restricts competition or restrains trade, and this must ordinarily be made to appear from facts outside of the contract.</p> <p>9. The producer of a commodity is entitled to protection against combinations which unreasonably depress the price of such commodity, even though the general public might to some extent benefit by the depression.</p> <p>.10. A contract which contemplated the supplying of pulp wood by plaintiff to twelve large paper manufacturers who used about twelve per cent, of the entire supply of pulp wood in the particular territory, — the season’s requirements of each being estimated, — and which bound the defendant to buy pulp wood of no other person, is not, upon its face, unduly restrictive of trade, and hence not to be pronounced illegal upon demurrer to the complaint in an action brought thereon.</p> <p>11. Where a complaint attempts to state several causes of action and defendant demurs generally to the whole complaint, if any good cause of action is stated the demurrer must be overruled.</p> <p>12. The mere fact that a vendor corporation is an unlawful combination will not relieve the vendee from paying for goods purchased from it, provided the contract of purchase is not in itself unlawful.</p> <p>13. Sec. 1747e, Stats., is substantially a copy of the federal antitrust statute, restricted in operation to this state and with a lesser penalty, and it should receive the same interpretation that has been placed upon the federal act by the supreme court of the United States.</p>

<p> Master and, servant: Injuries: Defective appliances: Unsafe place: Contributory negligence: Questions for jury. </p> <p>In an action for injuries to an employee who, while engaged in loading buckets of coal in the hold of a vessel, was struck by a piece of coal from a loaded bucket which unexpectedly dumped as it was being hoisted, it was a question for the jury, under the evidence, whether or not he was guilty of contributory negligence in stepping from the shelter of the deck out under the hatchway to resume his work before the bucket had in fact passed safely beyond the hatchway.</p>

<p> Divorce: Division of property: Discretion of trial court: Proportion to be awarded to wife: Unnecessary appeal: Costs. </p> <p>1. The division of property upon the granting of a divorce is peculiarly a matter resting in the discretion of the trial court, subject to such rules as have been established by the supreme court.</p> <p>2. In general, a clear third of the whole property to be divided is a liberal allowance to the wife, subject to be increased or decreased according to special circumstances.</p> <p>3. In this case the trial court, after giving due weight to all matters proper to be considered, having divided the property about equally between the husband and wife, such division is held to be obviously fair to the wife.</p> <p>4. Under such circumstances, there being no good reason why the wife should have appealed to the supreme court, the husband is not, as he would be in ordinary cases, charged with her costs, other than clerk’s fees, upon affirmance of the judgment.</p>

<p>Apkeal from a judgment and an order of tbe circuit court for Brown county: S'. D. HastiNgs, Circuit Judge.</p> <p>This is a garnishment action begun in justice’s court and appealed to the circuit court. The action in circuit court was tried to the court, which found that the funds sought to be impounded were not liable to garnishment and awarded judgment accordingly. The material facts are not disputed.</p> <p>It appears that the plaintiff, A. L. Thomas, of Green Bay, Wisconsin, purchased of the Peninsula Produce Exchange of Maryland two carloads of potatoes. On the day of shipment the Produce Exchange drew its draft upon the plaintiff in favor of the Citizens National Bank of Pocomoke City, Maryland. This bank at the direction of the Produce Exchange requested a guaranty of the draft, and the McOartney Bank of Green Bay had by telegram to the Citizens Bank of Poco-moke guarantied payment of this draft, and thereafter the Citizens Bank received the following draft dated July 12, 1910, at Pocomoke City:</p> <p>“At sight pay to the order of Citizens Nai’l Bank four hundred and thirty-six and 80/100 dollars, value received, and charge the same to account of Peninsula Produce Exchange of Md. W. C. CuuLeN, Sect. & Treas.</p> <p>“To the Thomas Produce Co., Green Bay, Wis.”</p> <p>One of tbe indorsements on tbe back is as follows: “Eor deposit to tbe credit of tbe Peninsula Produce Exchange of lid. W. O'. Cullen, Sect. & Treas.” Tbe Citizens Bank sent tbe draft through its correspondents to tbe Kellogg National Bank at Creen Bay and it was páid by tbe McCartney Bank, which bank bad previously received a check from Thomas for tbe amount of tbe draft. Before tbe money was sent Thomas commenced an action to recover damages for failure of tbe Produce Exchange to ship potatoes of good ■quality and garnished tbe Kellogg. National Bank. In justice’s court Thomas recovered judgment for damages against tbe Produce Exchange for $161.80. Tbe Citizens Bank intervened in tbe garnishment action, claiming that it owned tbe proceeds of tbe draft. Tbe amount paid by tbe plaintiff ■to tbe Kellogg Bank was paid into court to abide tbe result of tbe action. Tbe trial court found that tbe money paid on tbe draft to tbe Kellogg Bank at tbe time it was garnished was tbe property of the Citizens National Bank of Pocomoke City and that tbe Kellogg Bank bad no property in its possession belonging to tbe Produce Exchange and that tbe garnishee was in no way indebted to it. Tbe court awarded judgment against tbe plaintiff and in favor of tbe inter-pleaded defendant, tbe Citizens National Bank of Pocomoke •City, Maryland, for costs, and reversed tbe judgment of tbe justice’s court, and after judgment entered an order directing tbe plaintiff to restore to tbe Citizens. National Bank of Poco-moke City $169.03 with interest from January 21, 1911, tbe ■amount which tbe plaintiff bad received of tbe funds garnished under order of tbe justice’s court. This is an appeal from tbe judgment and order entered by tbe circuit court.</p> <p>contended, inter alia, that garnishment is ordinarily an equitable proceeding. It takes tbe place of tbe former creditors’ action, and amounts to an equitable levy. La Crosse Nat. Bank v. Wilson, 74 Wis. 391, 43 N. W. 153; Delaney v. Hartwig, 91 Wis. 412, 64 N. W. 1036; Bragg v. Gay nor, 85 Wis. 468, 55 N. W. 919. The impleaded defendant having under sec. 3723b, Stats., stepped into the shoes of the garnishee defendant and asserted a claim to this money, at the same time being indebted for the identical money to the Produce Exchange, it is liable as garnishee. The court erred in ordering plaintiff to restore to the Citizens Banlc the property theretofore received by him. Domestic creditors will be protected to the extent of not allowing property or the funds of a nonresident debtor to be withdrawn from the state before such domestic creditors have been paid. Every country will first protect its own citizens. Woodward v. Broolcs, 128 Ill. 222, 20 N. E. 685; Gat-lin v. Wilcox 8. P. Co. 123 Ind. 477, 24 N. E. 250; Chafee v. Fourth Nat. Banlc, 71 Me. 514, 36 Am. Eep. 345; Dis-canto Gesellschaft v. Umbreit, 127 Wis. 651, 106 N. W. 821.</p>