Volume 158 — Wisconsin Reports

Lueck, Circuit Judge. This is an action for damages resulting from an assault committed by the defendant’s conductor in charge of its passenger train upon the plaintiff while riding as a passenger on the train. The plaintiff was a man sixty-five years of age and a cripple, caused by affection of his knee joints. He had suffered from arthritis deformans for some time, which lamed him in his knees and slightly enlarged them and bowed his legs.

<p> Highways: Location: User: Width. </p> <p>1. Findings of the trial court as to the location of a highway and that an excavation made by defendant is not within the limits of the highway as laid out and established, are held to have support in the evidence, so that they cannot he disturbed.</p> <p>2. The doctrine that where a highway is opened and used as such for more than twenty years upon a strip which is of the same width but by mistake does- not exactly coincide with the lines of tlie laid-out way, tlie public acquires a right to the strip so used and thereby abandons those portions of the laid-out way not included therein, does not rule this case, the traveled track being within the laid-out highway as claimed by both parties and the dispute being as to whether defendant’s excavation is within the highway as laid out and used.</p> <p>3. The width of the highway in question as laid out not appearing from the record, and its limits not having been definitely marked and being' in dispute, it is helé, upon the evidence, that by adoption and acquiescence of the public it is three rods wide, with the center line as found by the trial court.</p>

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

<p> Statutes: Construction: Taxation: Incomes from sources without the-state. </p> <p>1. A statute should be read and construed as a whole, and the-different provisions should be harmonized if it is reasonably possible to do so. As against this rule, the punctuation has-little significance.</p> <p>2. Under sub. 3 of sec. 1087m — 2, Stats. 1911, the income of a person residing in this state, other than that derived from rentals,, stocks, bonds, securities, or evidences of indebtedness, is taxable only so far as it is derived from sources within the state. Thus, the income received by a resident of the state from a copartnership of which he is a member and which is doing, business and has all its property located outside the state, all the profits distributed being derived from sources without the state, is not taxable under said statute. Language used in the Income Tax Cases, 148 Wis. 456, 516, qualified.</p>

MaNdamus action to compel F. 0. Eschweileb, judge of the circuit court for Milwaukee county, to dismiss the action of Emma Sellers, as administratrix of the estate of Joseph Sellers, deceased, against Forrestal and Downey, pending in said court, and like proceedings for similar relief in the action of William Brey against the same defendants, also pending in said court.

Risjord, Circuit Judge. Error brought to reverse a conviction for perjury.

<p> Foreign judgments: Reversal By appellate court: Jurisdiction: Faith and credit. </p> <p>1. In an action in this state upon an Iowa judgment, where it appears that upon appeal the supreme court of Iowa reversed said judgment and the action in which it was rendered was therefter dismissed, the decision of" the Iowa supreme court that said appeal was not premature must be regarded as conclusive.</p> <p>2. Upon the notice of an appeal to the Iowa supreme court was an admission of service signed by the appellees’ attorneys and, with an additional acknowledgment of security for his fees, by the.clerk of the court appealed from,, and the clerk also signed an indorsement of the filing of the notice. The clerk made due return to the supreme court; the attorneys for the respective parties appeared generally and argued the case therein; and that court reversed the judgment appealed from. In an action in this state upon the judgment so reversed, it is held that there was sufficient service of the notice of the appeal, that the Iowa supreme court acquired jurisdiction of the appeal, and that the reversed judgment is entitled to no faith or credit.</p> <p>3. The highest evidence of what faith and credit a judgment has in the state of its origin is the decisions of the court of last resort of that state.</p> <p>4. Appellate jurisdiction cannot be conferred merely by consent to its exercise. Manufacturers’ & M. I. Bureau v. Bverwear H. Oo. 152 Wis. 73, distinguished.</p>

Ebboe to review a judgment of tlie circuit court for Wau-paca county: ByroN B. Park, Circuit Judge. Tbe plaintiff in error, Caroline Patzer, hereinafter called the defendant, was tried upon an information charging her with murder in the first degree for killing her husband, Albert Patzer, on the 7th day of January, 1913. Caroline Pat-zer was fifty-five years of age and the wife of Albert Patzer, the deceased, who was sixty-five years of age.

0. Esohweilee, Circuit Judge. Action of mandamus by the county treasurer of Milwaukee county in his official capacity as relator against the city treasurer of the city of Milwaukee to compel a return of the income tax collected by the latter as specified in the alternative writ. Plaintiff demurred' to defendant’s return, and the trial court overruled the demurrer, quashed the alternative writ, and dismissed the proceedings.

<p>Appeal from a judgment and an order of the circuit court for Washburn county: Prank A. Ross, Circuit Judge.</p>

0. Ludwig, Circuit Judge. This action was brought to foreclose a mechanieis lien. Tlie respondent, Sands Lumber Company, furnished certain lumber to the contractor, who was engaged in building a reinforced concrete building on the land of appellants. The lumber was used for what is known in the trade as shoring; that is, wooden forms are constructed into which the concrete is poured and in which it remains until it has set, when the' shoring is removed.

Eeitz, Circuit Judge. On June 28, 1910, plaintiff, while in the employ of tbe Simmons Manufacturing Company, suffered an injury to bis left eye. Thereafter he commenced an action against said company to recover damages for the injury sustained. The defendant herein appeared in that action (which is still pending) for the Simmons Manufacturing Company, in accordance with a contract of indemnity- with such company.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: Os cae M. Fkitz, Circuit Judge.</p> <p>On February 28, 1912, plaintiff, while riding as a passenger in an elevator in the office building of the defendant in the city of Milwaukee, was injured by the dropping of the elevator from the fourth floor to the basement. This action was brought to recover damages for injuries sustained. It was a cable-hoisted hydraulic passenger elevator running on guides. The elevator cage was attached to the cables by means of a draw-bolt or king-bolt. The upper end of the draw-bolt contained five eyes or holes. Through these holes three hoisting cables were fastened on one side and two counterweight cables on the other side. The lower end of the bolt passed through a saddle strap, and a nut was screwed onto the thread at the lower end of the bolt and under the saddle strap. The nut was held in place by a cotter-pin which ran through the bolt below the nut, the saddle strap resting on the nut. This strap went around the beam on the top of the elevator cage and in this manner the cage was suspended. The draw-bolt broke off flush with the upper side of the nut, through the threaded portion of the bolt, and this is what caused the elevator to drop.</p> <p>The complaint charged the defendant with negligence for failure to maintain a reasonably safe and suitable elevator for the carriage of passengers; alleged that for a long time prior to the accident the elevator was in an unsafe and dangerous condition and defective ¡.that it was not equipped witli a proper safety device as required by the city ordinance; that the draw-bolt in question was placed in the elevator at the time the elevator was installed, nearly twenty years previous to the accident, and that long usage and the vibration from the elevator when in operation had caused the bolt to become worn and defective and the steel to become crystallized; further, that the bolt was defective at the time it was put in place, having a flaw known as a blow-hole or sand-hole at the place where it broke. The answer of the defendant denied all the material allegations of the complaint. The case was regularly called for trial in branch number 3 of the circuit court for Milwaukee county, and by order of the court it was sent for trial to branch number 2 of said court, where, over defendant’s objection, it was tried. The jury returned the following special verdict:</p> <p>“(1) Was the defendant guilty of negligence in failing to keep the south elevator provided, up to the time plaintiff was injured, with a draw-bolt which was reasonably safe and sufficient for the carriage of passengers ? A. Tes.</p> <p>“(2) If you answer the first question ‘Yes,’ then answer this question: Was such negligence the proximate cause of plaintiff’s injury? A. Yes.</p> <p>“(3) At the time plaintiff was injured, was the safety device on the south elevator in a reasonably safe condition for the purpose for which it was intended ? A. Eo.</p> <p>“(4) If you answer the third question ‘Ho,’ then answer this question: Was the defendant guilty of negligence in failing to keep such safety device in a reasonably safe condition for the purpose for which it was intended ? A. Ho.</p> <p>“(5) If you answer the fourth question ‘Yes,’ then was such negligence the proximate cause of plaintiff’s injury? A. -.</p> <p>“(6) At the time plaintiff was injured, was the guide post on the north side of the south elevator reasonably safe and sufficient for the purposes for which it was intended ? A. Ho.</p> <p>“(7) If you answer the sixth question ‘Ho,’ then answer this question: Was the defendant guilty of negligence in failing to have the guide post at the time of the accident in a reasonably safe and sufficient condition for the purposes for which it was intended ? A. No.</p> <p>“(8) If you answer the seventh question ‘Yes,’ then was such negligence the proximate cause of plaintiffs injury? A. -</p> <p>“(9) If the court should be of the opinion that the plaintiff is entitled to recover, at what sum do you assess the plaintiff’s damages ? A. Three thousand dollars.”</p> <p>Erom a judgment entered in accordance with such verdict defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: W. J. TubNER, Circuit Judge.</p> <p>Action against the receivers of the Chicago & Milwaukee Electric Railroad Company to recover damages for injury to tbe person of plaintiff and to bis wagon and borse, caused by a collision between tbe wagon and a street car operated by defendants.</p> <p>Tbe special verdict found (1) tbe motorman of tbe defendant was not in tbe exercise of ordinary care in tbe operation of tbe car at tbe time it came in collision with plaintiff’s wagon; (2) such failure to exercise ordinary care was tbe proximate cause of tbe injury to plaintiff and bis property; (3) the motorman did not sound tbe bell at such distance from tbe wagon that tbe driver thereof in tbe exercise of ordinary care ought to have beard tbe same and avoided the collision; (4) be did not blow tbe whistle under similar circumstances. Question 6 was not answered. It related to tbe defendants’ version of tbe occurrence and under instruction was to be left unanswered in case tbe jury disbelieved that version; (I) no want of ordinary care on tbe part of tbe plaintiff proximately contributed to bis injury; (8) damages; (9) $983.</p>

<p> G(institutional law: Police power: Erection of billboards: Municipal corporations: Milwaukee city charier: Ordinances: Validity. </p> <p>1. The state in tile exercise of its police power may reasonably regulate billboards; and this power of regulation has been delegated to the city of Milwaukee under the géneral welfare clause of its charter.</p> <p>2. A city council may place billboards in a class by themselves and legislate in reference thereto.</p> <p>3. Where the power to regulate exists, it is only in cases of clear abuse that the courts will declare the manner of its exercise to be violative of constitutional rights.</p> <p>4. In order to support legislation under the police power, a public need therefor must exist, and the act must at least have a tendency to support such need; but such legislation should not he declared to be without justification unless it is clear beyond reasonable controversy that it is so.</p> <p>5. The police power is in this state construed liberally in the interest of the general public, not strictly in favor of the individual.</p> <p>6. An ordinance to regulate signs and billboards in the city of Milwaukee is not oppressive or unreasonable because it requires that the lower edge thereof be not less than two feet from the ground; that whether erected upon the ground or upon the roof or coping of any building, the sides or ends be at least three feet from any building, wall, fence, or other structure or obstruction that would prevent a free passage around the same; that they be so constructed as to withstand a wind pressure of forty pounds per square foot, with a factor of safety of four; that they be not placed nearer than their greatest height to the line of any adjoining street, alley, or navigable waterway; and that within the fire limits they be built of noncombustible material.</p> <p>7. Such an ordinance is not rendered void by a provision that such existing structures as are not in conformity therewith shall within one year be removed or altered so as to comply with the ordinance.</p> <p>8.‘ An ordinance regulating billboards is not rendered void by a provision authorizing the building inspector, an appointive officer, to Avithhold a permit unless he finds that the terms of the ordinance have been complied with.</p>

<p> Municipal corporations: Regulation of billboards, etc.: Ordinance: Construction. </p> <p>1. A municipal ordinance providing that no “sign, billboard, board, fence, or structure of any kind to be used for advertising purposes” shall be maintained in the city, except as therein provided, applies only to such structures as are built to be used for advertising purposes.</p> <p>2. Without complying with the requirements of such ordinance a landowner may permit advertisements to be placed on a fence built around his lot, provided such fence is not built simply for that purpose, and the owners of buildings which are constructed for other purposes may allow advertising matter to be placed thereon.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>Action to annul a decision of the Railroad Commission that a freight rate applied by plaintiffs in transportation transactions with the Rhinelander Paper Company was exorbitant, and authorizing a refund of the difference between such rate and what would have been a proper joint charge on the basis fixed by the Commission at the time of the decision complained of to govern future operations.</p> <p>The order was entered April 12, 1912. It established a joint rate for the haul from Bagdad, Wisconsin, on the Minneapolis, Si. Paul & Sault Ste. Marie line to Eothschild, Wisconsin, on the line of the Chicago, Milwaukee & St. Paul Railway Company. Prior thereto there had been no such rate and shippers paid the sum of two local rates, which as to plaintiffs had been regularly fixed by the Railroad Commission. ETo question of the reasonableness thereof was raised prior to the transactions in question, except incidentally by its being involved in the request for the establishment of a joint rate.</p> <p>The plaintiffs commenced this action to avoid that portion of the order above referred to as to the refund, upon the ground that the Railroad Commission having regularly once adjudicated the question of what was a reasonable rate for the service in question, it had no jurisdiction to make a retroactive order.</p> <p>The circuit court overruled that claim and dismissed the complaint with costs.</p>

<p> Mortgages: Action to redeem: Judgment for costs applicable toward redemption: Assignment: Effect: Interest on judgment: Redemption by one tenant in common: Right to lien. </p> <p>1. In an action to redeem from a mortgage plaintiff bad judgment and it was provided therein that the costs might be applied toward the redemption. The plaintiff then, by warranty deed, conveyed an undivided half interest in the land “free of incum-brances,” and after the recording of that deed assigned the judgment for costs to an innocent purchaser thereof. Defendant paid a part of the judgment for costs to such assignee. Held, that the grantee of the land had the right, nevertheless, in making redemption, to apply thereto the judgment for costs, the assignee having taken title subject to that right.</p> <p>2. Where a judgment provided that redemption might be made from a mortgage by paying a specified sum with interest from the date of the judgment, a payment of that amount into court was sufficient even though the judgment should have provided for the payment of interest from the date of the findings.</p> <p>3. Wliere a half interest in land which was subject to a mortgage was conveyed by warranty deed “free of incumbrances” and the grantee thereafter paid the whole mortgage to protect his undivided half, he was entitled to a lien upon the other undivided half for the amount so paid.</p>

<p>Appeal from a judgment of tbe circuit court for Grant county: Geobge ClemeNtsoN, Circuit Judge.</p> <p>An action for personal injuries sustained by tbe plaintiff while working for tbe defendant as engineer in its mining plant.</p> <p>Tbe defendant, tbe Wisconsin Zinc Company, operated, among other plants, one at Platteville known as tbe Empire plant. It bad not elected to pay compensation under tbe Workmen’s Compensation Act. Tbe power for the plant was supplied by electrical current from without tbe plant to a 100 borse power motor situated in tbe east end of tbe engine room and about twenty-seven inches from tbe south wall. Tbe engine room was 38.3 feet long, running east and west, and seventeen feet wide north and south. It contained besides tbe motor above mentioned a generator, mill motor, compressor motor, steam engine, switchboards, and other articles. Tbe large induction motor was connected to a generator some nineteen feet further east by a large belt of double sole leather one and one-half inches thick and about twenty-two inches wide, built of splices about four feet long. Contact with this belt, it is claimed, caused the injury. The upper half of the belt traveled west and the lower half east. The belt pulley situated on the north side of the motor was eighteen inches in diameter, with a twenty-two and one-half inch face, and the bottom of the pulley was sixteen inches from the floor. The generator pulley was situated on the south side and was nineteen and one-half inches in diameter, twenty-two and one-half inch face, and its bottom was thirty inches from the floor. The belt traveled at the very high rate of speed of between 720 and 900 revolutions per minute, depending on the load thrown upon it. Along tbe south side of the belt and beginning about three feet east of the motor base there was erected a railing constructed of 2 x 4 timber by nailing 2x4 posts to the floor and a 2 x 4 along the top of these posts. The first post was located three feet east of the motor, the second about midway between the motor, and generator, and the third south of the generator. There was an open railing set about fifteen and one-half inches from the belt at the west end and about five inches from it at the east end. The railing was three and one-half feet high, and the belt ran at an angle with the top of the railing, being at the west post, or the one nearest the motor, about six inches below the top of the railing, and at the east post, or nearest the generator, about seven inches, above the railing. Allowing for only a slight sag in the belt, the point where it would be the lowest would be near the west post. The distance between the upper and lower parts of the belt would vary slightly and be about eighteen inches over most of its length. The plaintiff testifies that the lower half of the belt at the place where he stood was about twenty-four inches below the top of the railing.</p> <p>This belt conveyed the power to the generator, which supplied power throughout the entire plant and the mines below for all purposes power was needed. It was kept running night and day except about a twenty-minute stop on Sunday for oiling up the motor- and generator and occasionally when the power from without gave out. The defendant company supplied a substance called “belt-ding” which was used when-the belts slipped and was supposed to be applied warm. This-belt being never at rest except for a few moments, the belt-cling was applied cold with a stick while the belt was running. A half-gallon bucket containing this belt-cling was furnished to the engineers and the plaintiff was instructed to put it on this belt whenever it slipped. On the morning of October 8r 1912, the plaintiff came to work about 7 o’clock, and within a few minutes noticed that this belt was slipping and proceeded to apply the belt-cling. He testified that he is five feet eleven and one-half inches in height; that he stood about six feet east of the motor and outside of the railing; that he reached over the forty-one inch high railing, having a stick dipped in belt-cling in his right hand, and proceeded to apply it to the upper surface of the lower half of the belt, reaching down nearly twenty-four inches so as to hold the stick flat to apply the belt-cling; that he felt a jerk on his arm, was carried over the guard rail, falling over it toward the belt and in contact with it, and the next thing he remembered he was in the hospital. His body was found about six feet northwest of the motor. His arm, torn off at the shoulder, was lying under the belt five or six feet east of the motor. It was manifest that he had been caught between the belt and the pulley on the motor and his arm torn from his body, which had been thrown over the motor, lying on the floor to the west. The arm below the elbow had a piece of skin torn off, but the hand and lower arm were not crushed or injured. The stick, about eight inches long, was found flattened and bent and lay just east of the pulley and bore evidence of having passed between the belt and the pulley. No one saw the accident.</p> <p>The plaintiff’s injuries showed that the principal muscles were all torn out next the sternum; that the collar bone was pulled out, right at the breast bone; the shoulder blade was pulled loose. All of the muscles that come from the back and run over and attach to the anterior part of the arm, the humerus, all of the pectoral muscles, torn across, so that there was nothing over the rib except some blood vessels and nerves.</p> <p>The plaintiff was immediately taken to the hospital and operated upon. Salt solution was forced into his veins for hours to keep him alive, and for a week or more after he was partly under the influence of opiates. The doctors testified that tbe shock to tbe system was severe, and it is clear from tbe evidence that bis injuries were most serious and are permanent in their nature.</p> <p>Upon October 11th Loveland, a man connected with the company, went to see the plaintiff in the hospital and stated that the plaintiff told him that he was applying belricling to the belt; that the stick got caught between the belt and the pulley before he could .draw his hand away. The plaintiff denies such statement. The doctor and nurse testify that the plaintiff at this time had not recovered from the shock of the injury and was still in great pain and under the influence of strong opiates.</p> <p>The defendant contends that the evidence is too indefinite and uncertain to warrant the jury in finding that the belt was not sufficiently guarded and that this was the proximate cause of the injuries, and that the plaintiff was standing close to the motor while applying the belt dressing, and that he was guilty of contributory negligence as a matter of law. The jury returned a special verdict as follows:</p> <p>“(1) Did the plaintiff on October 8, 1912, receive an injury while in defendant’s employ, resulting in the loss of his right arm? A. (by the court). Yes.</p> <p>“(2) Was the plaintiff injured by reason of a pure accident and without negligence on the part of any one? A. No.</p> <p>“(3) Was the plaintiff injured by his right arm being caught by a flap or flaps on the top side of the upper half of the generator belt, and the plaintiff carried over the guard rail while standing outside the guard rail south of said belt and about six feet east of the induction motor ? A. No.</p> <p>“(4) ...</p> <p>“(5)</p> <p>“(6) Was the plaintiff injured by his right arm being drawn in between the pulley and the belt of the induction motor while applying ding-surface to said belt and while standing at or near said motor ? A. No.</p> <p>“(I) Was the belt in question so located as to be dangerous to employees of the defendant in the discharge of their duty ? A. Yes.</p> <p>“(8) Was the belt in question securely guarded or fenced ? A. No.</p> <p>“(9) Was the failure to securely guard or fence said belt the proximate cause of the accident ? A. Tes.</p> <p>“(10) Was there on the part of. the plaintiff any want of ordinary care which contributed to his injury ? A. No.</p> <p>“(11) If the court is of the opinion that the plaintiff is entitled to judgment, at what sum do you assess his damages ? A. $12,500.”</p> <p>The court denied defendant’s motion to change the answers of the jury to certain questions and a motion for a new trial, and awarded judgment in the plaintiff’s favor for the damages in the amount named by the jury and for his costs. This is an appeal from such judgment.</p>

<p>Appeals from a judgment of the circuit court for Portage county: E. 0. EschweileR, Judge.</p>

Croix county: E. 0. TIigbee, Judge. Plaintiff commenced an action in justice’s court against defendant for encroaching on a highway. Defendant answered that, upon the trial, the title to real estate would come in question, complied with the statutory condition for removal in such cases to the circuit court for trial, and asked for such removal. The motion was denied. The cause was thereafter twice tried in justice’s court before a jury, resulting in a disagreement each time.

Rat Stevens, Circuit Judge. Ole O. Skrinsrud died January 31, 1913, leaving a paper purporting, to be his last will and testament, which Was admitted to probate in the county court on April 10, 1913. The will provided that one half of the estate should go to the widow of the deceased and the other half to his son, Ole Skrinsrud, with a provision that the son pay to Susan Schwenn, a daughter of the testator, $100.

Reposted from tbe municipal court of Milwaukee county: A. 0. Bacxus, Judge. On October 31, 1912, on a warrant issued by tbe district court of Milwaukee county on a complaint charging him with obtaining in Milwaukee county $4.50 from one Andrew Jur-gensen by means of false pretenses, tbe defendant was arrested and was brought before tbe district court of said county for trial.

<p> Appeal: Review: Order granting new trial: Bill of exceptions: Witnesses: Experts: Qualification: Opinion evidence: Railroads: Fires: Spark arresters: Special verdict: Form: Burden of proof: Instructions to jury: Harmless errors: Rouble damages: Statute construed: “Negligence." </p> <p>1. An order made at tlie first trial of an action, granting plaintiff a new trial, is not reviewable upon an appeal by defendant from the judgment rendered on the second trial, where no bill of exceptions was settled within thirty days after notice of the entry of such order, and where an appeal directly from such order was dismissed for want of prosecution.</p> <p>2. Under sec. 2876, Stats., to authorize a review of an order granting a new trial there must be a bill of exceptions settled within thirty days after service of a copy of the order with notice of entry thereof, unless an appeal is tafeen and such time extended upon good cause shown.</p> <p>3. It was not improper to ask the general master mechanic of a great railway, who had served in that capacity for twenty years, ■whether certain locomotive appliances were in common use, although his service had been confined to that one road.</p> <p>4. The question whether, with a proper spark arrester on a locomotive in proper condition, a spark will get through and strike the ground at ignition temperature, is an evidential detail proper to he established by opinion evidence, and not an ulti.mate issue of fact within the exclusive province of the jury.</p> <p>5. In an action to recover for destruction of property by a fire set by sparks from a locomotive, a question in the special verdict as to whether the spark arrester on said engine was so constructed of iron or steel wires as to give the most practical protection against the escape of sparks, cinders, or fire from the smokestack, was proper in form, since it described and covered, substantially in the language of the statute, the duty imposed on railway companies.</p> <p>6. Such question presented an inquiry proper for the consideration of the jury, a negative answer thereto being equivalent to a finding of negligence on the part of the company.</p> <p>7. The jury having found that the spark arrester was defective and that this was a proximate cause of the injury complained of, a further finding that the engine was negligently operated was unnecessary to sustain a judgment for plaintiff; and an error in instructing the jury as to the burden of proof on that question was n.ot prejudicial.</p> <p>8. The statute having imposed upon railway companies the duty to equip their engines with a certain described safety appliance, which is necessarily in the interior or at the top of the smokestack and the construction and condition of which are peculiarly within the knowledge of the company, the burden of proof to show a compliance with the statute is upon the company.</p> <p>9. In sec. 1494 — 58, States, (which authorizes recovery of double damages in actions for fires set by locomotive engines, if the fires occurred through “wilfulness, malice or negligence”), the word “negligence” is qualified or modified by the associated words and means such negligence as carries with it an element of wilfulness or malice, — in other words, gross negligence.</p> <p>Winslow, C. J., and Barnes and Vinje, JJ., dissent.</p>

Action for personal injury. On August 6, 1912, the plaintiff was injured by a bullet from a twenty-two caliber ' Stevens rifle found by the jury to have been negligently fired by the defendant Trokey, who was at the time a traveling salesman in the employ of the defendant Marshall-Wells Hardware Company.

Eoss, Circuit Judge. Action to recover compensation for a personal injury, causing, as claimed, tire deatli of plaintiff’s intestate. The complaint contained two causes of action, — one for damages to the deceased and one for damages to his surviving mother. The intestate, December 7, 1911, was an employee of defendant. He was required to operate the levers of a scraping machine so as to cause such machine to do the work of moving coal on the floor of a coal dock.

D. Hastings, Circuit Judge. Action for malpractice. On the 23d of January, 1912, plaintiff, aged fifty-two, by falling from a ladder, sustained a severe Pott’s fracture of the left foot in which the fibula was somewhat splintered and the ligaments of the ankle joint ruptured. He went to the defendant the same day for treatment. Owing to the swelling of the joint and an abrasion of the shin the defendant did not invert the foot for fear of gangrene.

<p> Sunday: Contracts: Validity: Ratification: Performance: Partial payments: New contract: Evidence: Sufficiency: Special verdict: Findings by court, when presumed: Immaterial questions: Settlement: Estoppel: Pleading: Amendment at trial: Trial by same jury: Terms: Discretion. </p> <p>1. A contract made and delivered on Sunday is void and incapable of ratification.</p> <p>2. The performance of labor and services under and in execution of a contract void because made on Sunday, did not create a new contract úpon the same terms as the Sunday contract, where the minds of the parties were not in accord as to the construction of that contract. Mabshall, J., is of the opinion that the acts of the parties in this case did establish a new contract.</p> <p>3. Where, in an action upon express contract which proved to be void because made on Sunday, the complaint, after that fact was disclosed, was amended and the trial proceeded upon quantum meruit, no request being made to submit to the jury the question whether a new contract was made on the terms of the Sunday contract, the trial court was authorized under sec. 2858m, Stats., to find on that subject, and a finding thereon supporting the judgment will be presumed on appeal if there was evidence to support it.</p> <p>4. Partial payments made under a Sunday contract are not sufficient to import a new contract, especially where they are for labor performed, upon monthly estimates which are subject to change.</p> <p>5. In an action to recover for labor and services, a claim by defendant, made for the first time on appeal, that the work was done under a contract based on a telegram antedating the contract sued on-(which was void because made on Sunday), is held not to be sustained by the facts.</p> <p>■6. The fact that, a disagreement having arisen between the parties as to the proper classification of materials being removed under a contract for railroad construction work, the defendant offered to relieve plaintiffs of the balance of the work if they were dissatisfied with defendant’s classification, and that they declined to quit the work, does not show an agreement oh their part to accept such classification. '</p> <p>7. In an action to recover for railroad construction work, where the contract sued on was void because made on Sunday and the trial proceeded on quantum meruit, the court properly refused to submit to the jury a question relating to the classification of materials under such contract, that question being wholly immaterial.</p> <p>‘8. The acceptance by plaintiffs of partial payments for railroad construction work, based upon monthly estimates by the engineers which were subject tp change upon final adjustment, and where defendant understood all the time that they were insisting upon a different classification of the material handled from that upon which such estimates were made, did not operate as a settlement'or as an estoppel of the plaintiffs.</p> <p>9.Nor can defendant, who was himself a subcontractor for such work, urge an estoppel against plaintiffs on the ground that he settled with the principal contractor in reliance upon such estimates and partial payments and plaintiffs’ receipts therefor, especially where such settlement was made after suii brought by plaintiffs and with full knowledge of what they claimed.</p> <p>10. The principle of estoppel cannot be invoked to give life and validity to a Sunday contract.</p> <p>11. No request having been made to submit the question of an accord and satisfaction, based upon the monthly estimates and the corresponding partial payments, that issue, if assumed to be in the case though not specially pleaded, must, under sec. 2858m, Stats., be deemed to have been found by the court' against the appellant, there being ample evidence to support such a finding.</p> <p>12. If there is any credible evidence to support the jury’s finding upon a question of fact, it will not be disturbed on appeal.</p> <p>13. In an action to recover for labor and services upon an express contract, where, after the trial had progressed for eight days, defendant raised the point that the contract was made on Sunday, a fact which was known to its counsel several days before the trial commenced, and the complaint was thereupon amended so as to allege a cause of action on quantum meruit, there was no error in proceeding with the trial before the same jury.</p> <p>14. Whether or not terms should be imposed upon the allowance of • an amendment to the complaint during the trial, changing the cause of action from orfe upon express contract to one on quantum meruit, rests in the sound discretion of the trial court.</p>

Ceoss-appeals from an interlocutory judgment of the circuit court for Milwaukee county: E. 0. Eschweilee, Circuit. Judge. General nature of the action. Tbe action arises out of a contract for the construction of the Grand avenue viaduct in the city of Milwaukee, made October 21, 1908, between the National Engineering & Construction Company and the defendant, pursuant to the provisions of c'h. 444, Laws of 1903.

<p>Apteal from an order of tbe municipal court of Outa-gamie county: JoiiN Goodlaxd, Acting Judge.</p> <p>This is a mandamus action to compel tbe defendants as members of tbe town board of Grand Cbute, "Wisconsin, to levy a tax of $4,800 on tbe taxable property of tbe town to pay tbe town’s share of the estimated cost to improve certain highways according to the provisions of ch.-337, Laws of 1911, and acts amendatory thereto.</p> <p>On August 14, 1913, there were served on the members of the town board of Grand Chute three petitions, signed by three separate groups of freeholders of Outagamie county, requesting and praying for the improvement of three sections of prospective state highways. On this same date there was paid to the town treasurer of Grand Chute, II. C'aliebe, the sum of $4,800, — $1,500 of which was to be applied to the improvement of a portion of a highway known and described as the Maclcville road, $1,800 to be applied to the improvement of a portion of a highway known as the Asylum road, and $1,500 .to be applied on the improvement of the road known and described as the Little Chute road.</p> <p>Clinton Ballard was the chairman of the town and John Merrily and Joe Kohl were supervisors. Three receipts signed by H. Oaliebe, the treasurer of said town, one for $1,800 and two for $1,500 each, were served with the petition upon the members of the town board. This money had been donated by the freeholders of Outagamie county and was fifty per cent, of the estimated cost of the improvement of the three sections of the prospective state highway, heretofore mentioned.</p> <p>It further appears that the defendants, as the members, of the town board, refused to levy a tax on the taxable property of the town with which to pay the town’s share of the improvements. On October 1, 1913, Orrin Carey, the relator, petitioned the court for an alternative writ of mandamus commanding the defendants to levy a tax of $4,800 on the takable property of the town of Grand Chute to pay the town’s share of the estimated cost of the improvements. On the 2d day of October such a writ issued out of the municipal court of Outagamie county, requiring the members of the town board to levy such a tax in conformity with the •statute or to sbow cause before tbe court ou tbe 13tb of October why they should not levy such. tax.</p> <p>Tbe defendants answered tbe writ, setting up as defense that at tbe annual town meeting of said town for tbe year 1913 tbe question of levying a tax for highway improvements under this- statute was submitted to tbe electors and fifty-five voted for and ninety-six against making any appropriation or tax levy. On September 15, 1913, tbe question of levying sucb a tax was again presented at a special town meeting and was again rejected by a large majority. At tbis special meeting resolutions were passed directing tbe town board not to make any tax levy for said purpose and not to petition tbe county board for any allotment to cover tbe county’s share of state aid for improvement of tbe highways in tbe town, and that if proceedings were brought to compel them to levy sucb a tax or to petition tbe county board, tbe town board was directed to defend sucb action. Tbe defendants obeyed tbe instructions of tbe electors of tbe town and did not petition tbe county board or levy any tax under tbe provisions of said act.</p> <p>Tbe relator interposed a demurrer to tbis answer on the grounds (1) that tbe answer did not state facts sufficient to constitute a defense, and (2) that tbe same did not sbow any cause for not obeying tbe writ. Tbe court entered an order sustaining tbe demurrer with leave to amend tbe return. Tbis is an appeal from sucb order.</p> <p>They contended, inter alia, that sub. 3 of sec. 1317 m — 4, Stats., is not invalid as being an unlawful delegation of legislative power. Highways -and bridges are matters of general concern to tbe people of the whole state. State ex rel-Baraboo v. Sauk Go. 70 Wis. 485, 489, 36 N. W. 396; Meade• v.' Dane Go. 155 Wis. 632, 145 N. W. 239, 243; 1 Elliott,. Eoads & S. (3d'ed.) §§ 465, 509, 511; Slate v. Atkin, 64 Kan. 174, 67 Pac. 519; State v. Lake Koen N., R. & I. Go. 63 Kan. 394, 65 Pac. 681. The state could have required- ' every town in the state to improve that portion of the system of prospective state highways within the limits of such town in any way prescribed by it, and to pay the expense of so-doing. Tiedeman, Mun. Corp. § 301; State v. Freeman, 61 Kan. 90, 58 Pac. 959, 47 L. E. A. 67; State v. Shawnee Go. 28 Kan. 431; State v. Williams, 68 Conn. 131, 35 Atl. 24,. 421, 48 L. E. A. 465, affirmed in Williams v. Eggleston, 170 U. S. 304, 18 Sup. Ct. 617. The group of freeholders does not absolutely select the location. The proposed improvement must be upon a portion of the system of prospective state highways. This system is selected by the-county board. Sec. 1317m — 3, sub. 1. It is perfectly proper for the legislature to say to this group of freeholders,, as it has said by this law, if the town does not perform its full duty in providing for the improvement of the system of proposed state highways, then, upon condition of your contributing at least one sixth of the total cost thereof, we will require the improvement next of that portion of our system of highways that you may desire improved. Glendaniel v. Conrad (Del.) 83 Atl. 1036; State ex rel. Park v. Portage-Go. 24 Wis. 49; Pepin Go. v. Prindle, 61 Wis. 301, 21 N. W. 254; Lund v. Chippewa Go. 93 Wis. 640, 67 N. W. 297; Maxcy v. Oshkosh, 144 Wis. 238, 265, 128 N. W. 899, 1138; State ex rel. Curtis v. Geneva, 107 Wis. 1, 82 N. W. 550; Sharpe v. Hasey, 141 Wis. 76, 123 N. W. 647; State ex rel. Bosch v. Ryan, 127 Wis. 599, 106 N. W. 1093; Bloomer v. Bloomer, 128 Wis. 297, 107 N. W. 974. The group of freeholders is not given absolute power. The state highway commission “may refuse to allot state'funds to aid in constructing any road or bridge whenever the work is not, .in tbeir judgment, sufficiently important to justify improvement with state aid.”- Sec. 1317m — 2, sub. 8. The location fixed by tbe group of freeholders is subject to the approval of the state highway commission. If approved by them, they make it their selection, and the power of repeal, -that is of determining adversely upon the proposal to improve, is the real legislative power that is delegated. Sec. 1317m — 7, sub. 1, par. (b) ; Meade v. Dane Go. 155 Wis. 632, 145 N. W. 239, 243. The legislature may properly authorize such a commission to determine when the facts exist ■that under the law require the town to act, Union L. Co. v. Railroad Comm. 144 Wis. 523, 129 N. W. 605 ; Minneapolis, St. P. & S. 'S. M. R. Co. v. Railroad Comm. 136 Wis. 146, 116 N. W. 905. The group of freeholders does not determine the amount of the tax levy. The legislature has determined how much of a tax shall be raised by a town under such circumstances. This is a perfectly legitimate exercise ■of legislative power. State v. Shawnee Co. 28 Kan. 431; State v. Williams, 68 Conn. 131, 35 Atl. 24, 421, 48 L. E. A. 465, affirmed in Williams v. Eggleston, 170 U. S'. 304, 18 Sup. Ot. 617. The town has been represented in fixing such tax by its representatives in the legislature which passed the law. State v. Williams, supra. The character of the improvement is not finally determined by the group of freeholders. All they can do is to start the proceedings — they ■cannot finally determine any of the questions. Hill v. Johnson Co. 82 Kan. 813, 109 P.ac. 163. Nothing that they do can be regarded as the exercise of legislative jfower. Clen-daniel v. Conrad (Del.) 83 Atl. 1036; State v. Minnetonka, 57 Minn. 526, 59 N. W. 972; St. Paul C. Co. v. Sandstone, 73 Minn. 225, 75 N. W. 1050. This court has sustained the validity of sec. 1319, Stats., which requires the county to 'Contribute half the cost of constructing bridges in towns, although, the county board has no voice in choosing the location of the bridge, determining its character, or deciding on the amount to be expended. State ex rel. B'araboo v. Sauk Co. 70 Wis. 485, 36 N. W. 396; State ex rel. Spring Lake v.. Pierce Co. 71 Wis. 321, 37 N. W. 231; State ex rel. PI Paso v. Pierce Co. 71 Wis. 327, 37 N. W. 233; State ex rel. Star Prairie v. St. Croix Co. 83 Wis. 340, 53 N. W. 60S; State-ex rel. Hamburg v. Vernon Co. 145 Wis. 191, 130 N. W. 104. Among other sections of our statutes requiring public bodies to act upon proper petitions being presented to them are the following: Sec. 926 — 8 requires city councils to create or divide wards. Secs. 1275, 1275a, 12756, and 1275m all require the laying out of highways to lands excluded therefrom. Sec. 1299» provides for compelling the laying out of logging highways. If these statutes are constitutional, — and they have at least gone unchallenged for many years, — it is difficult to see wherein the section here involved violates any constitutional provision.</p>

<p>' Appeal from an order of the circuit court for Oneida county: A. H. Reid, Circuit Judge.</p> <p>Ejectment for twelve parcels of land. The action is by a tax-title holder against the original owners. At the trial it was orally stipulated that the plaintiff’s tax titles were good as to six parcels and invalid as to the remaining six. On this stipulation, without the introduction of any evidence on tbe subject of title, tbe court entered an order for judgment March 27, 1912, fixing tbe amount of taxes and interest due tbe plaintiff on tbe six. invalid tax titles and requiring’ tbe deféndants to pay said sums as' a condition of judgment in tbeir favor, and providing that in case of default in sucb payment within ninety days tbe plaintiff should have judgment for tbe entire twelve parcels, but in case of tbe payment being made tbe plaintiff should recover tbe six parcels covered by tbe valid tax deeds and tbe defendants have judgment for tbe remaining six parcels. July 19, 1912, on a showing that tbe sum fixed to redeem tbe taxes bad not been paid, judgment was entered for tbe plaintiff for tbe entire twelve parcels. As matter of fact tbe redemption moneys' bad been seasonably deposited in court without tbe knowledge of tbe parties by a mortgagee of tbe lands, and on this fact appearing on April 4, 1913, tbe judgment was amended as of its date so as to conform to tbe original order awarding six parcels to tbe plaintiff and six to tbe defendants. Immediately thereafter the defendants applied to tbe plaintiff to quitclaim to them tbe six parcels awarded to tbe defendants, and tbe plaintiff consented to do so on payment of $104.80 in addition to tbe amount paid into court, wbicb sum represented tax liens and interest wbicb bad not been brought to tbe attention of tbe court when tbe order for judgment was made. This arrangement was carried out, tbe deed made and tbe moneys paid, but nothing was said about tbe other six parcels. On July 12, 1913, tbe defendants obtained an order under sec. 3092, Stats. 1913, granting a new trial on condition that they pay to the' clerk of tbe court tbe taxed costs of tbe action with interest within- thirty days, and file tbe necessary undertaking within sixty days. Tbe costs were paid into court and tbe undertaking filed within tbe time limited by tbe order but after tbe expiration of a year from tbe rendition of tbe original judgment. Plaintiff then moved to set aside tbe order granting a new trial because tbe costs were not paid nor tlie -undertaking filed witbin the year and because the' right to a second trial had been waived by the acts of the defendants. Simultaneously defendants, on showing that their counsel had advised them that such an order as that of July 12, 1913, would be valid, and that defendants might pay the costs and give the undertaking accordingly, and have a new trial, and that defendants were misled thereby, moved the court to extend the time beyond one year for paying the costs and giving the undertaking and to permit the costs to be paid and an undertaking to be filed as of the date when the acts were in fact done and to allow in other respects the order of July 12, 1913, to stand. The court entered an order extending the time for paying the costs and filing the undertaking for sixty days from July 12, 1913, and further that so much of the order of July 12, 1913,' as vacated that part of the judgment favorable to the plaintiff and granted a new trial of the issues determined thereby be allowed to stand, and so much of the order as vacated that part of the judgment favorable to the defendants and granted a new trial of the issues thereby determined be vacated. Erom this order the plaintiff appeals.</p> <p>Counsel for the appellant contended, inter alia, that the judgment can be vacated only within one year from the time it was perfected, and it cannot be vacated until after the costs have been paid and the undertaking prescribed has been given. These conditions are conditions precedent. Rupiper v. Galloway, 105 Wis. 4, 9, 10, 80 N. W. 916; Marsh v. Elliott, 51 Ind. 547; Crews v. Ross, 44 Ind. 481; Newland v. Morris, 113 Wis. 394, 397, 89 N. W. 179; Haseltine v. Met-calf, 66 Wis. 209, 28 N. W. 337; Iiaseltine v. Simpson, 61 Wis. 427, 434, 21 N. W'. 299, 302; L. A. Shafcman & Go. v. Koch, 93 Wis. 595, 601, 67 N. W. 925; Conan v. Follis, 61 Wis. 224, 20 N. W. 912.</p>

II. Reid, Circuit Judge. Action to recover tbe value of a quantity of lumber claimed to have been wrongfully taken from plaintiff by defendants and converted by tbe latter to tbeir own use. Tbe major question at issue was wbetber tbe lumber passed to defendants under a bill of sale made to them by Theresa Multerer, October 4, 1912. Then they purchased a farm of her and some personal property, located thereon and used in connection therewith. The lumber was then on the place.

IT. Reid, Circuit Judge. This is an action to recover damages for the perpetual use of lands which the appellant alleges he owns and that they were taken by the respondent by overflow of water of the Wisconsin river by means of a dam constructed by respondent below appellant’s lands, and for damages to appellant’s lands not overflowed but injured by this action of the respondent.

B. QuielaN, Judge. This is an action upon an accident indemnity policy to recover the death benefit provided in a policy issued to Arthur A. Pagel, deceased, payable to Johanna K. Pagel, mother of said Arthur A. Pagel, the beneficiary named in said policy.

<p>Appeal from a judgment of the circuit court for Juneau county: James O’Eeill, Circuit Judge.</p>

Eowler, Circuit Judge. Plaintiffs bring this action, to recover from the defendant damages alleged to have been sustained on account of defects in cement purchased from defendant. The complaint sets up two causes of action, one on a carload of cement purchased in July, 1912, and the other on a carload purchased in November, 1912.

A. Eowleb, Circuit Judge. ■ Action for divorce. Plaintiff, aged thirty-three, and defendant, aged thirty-seven, intermarried July 11, 1911, and lived in the same household ostensibly as man and wife till about December 20, 1912, when they separated. In March, 1913, plaintiff began a suit for divorce against her husband alleging cruel and inhuman treatment, and charging him with being afflicted with gonorrhea at the time of the marriage and transmitting the disease to her.

Eowler, Circuit Judge. Mortgage foreclosure. Tbe facts, as found by tbe court upon sufficient evidence, are, tbat in February, 1884, one Stanislaus Wetutzke and Josepba, bis wife, being aged, deeded their farm of 160 acres and the personal property thereon to their son Franz, receiving back an agreement to support them during life and to pay to tbe plaintiff Walen-tine, their only other son, $600 on his attaining the age of twenty-four years, and to the plaintiff Gertrude…

B. BeijdeN, Judge. Action to test tbe competency of defendant to exercise tbe toll-road rights granted by tbe legislature of tbe territory of Wisconsin in 1848, by an act entitled “An act to incorporate tbe Sheboygan and Fond du Lac Road Company,” and confirmed in tbe lessee of such company by cb. 103 of tbe state laws of 1874.

Powleb, Circuit Judge. The appeal is from a judgment in favor of tbe defendant and against tbe relator quashing an alternative writ of mandamus.

Eowles, Circuit Judge. This is an appeal from a judgment for $3,185.26 in favor of the plaintiff for services of plaintiff and his wife rendered to Charles L. Robinson in his lifetime. The jury returned the following verdict: “(1) Was it agreed between Mr. Robinson and the claimant that the claimant should be compensated for the services rendered by him for the deceased ?

<p>Appeal from a judgment of tbe circuit court for Fond du Lac county: Chested. A. Fowled, Circuit Judge.</p>

Eowlee,, Circuit Judge. Tbe plaintiff was born in February, 1891, and when sbe' was eight months old and in tbe custody of her father and mother sbe was surrendered by her parents to Michael McQuade and bis wife, who was plaintiff’s aunt. McQuade died in 1912 and bis wife some time before.

<p> Appealable orders: Receivers: Appointment. </p> <p>1. An order confirming the report of a referee is not appealable.</p> <p>2. In an action by the lessor of a farm for cancellation of the lease, for appointment of a receiver, and for an accounting, a receiver was properly appointed under sub. 1, see. 2787, Stats., upon a showing of substantial breaches of the agreement on the part of the defendant, such as selling live stock and grain without the knowledge or consent of the plaintiff, threatening violence to the plaintiff and thereby preventing him from entering upon the leased premises; and that the relations of the parties were so strained that it was not possible for them to carry out the terms of the lease as to the division of the produce and increase of stock.</p>

B. Quinlan, Circuit Judge. Action on a policy of fire insurance upon a barn and the hay therein. The barn was insured for $200 and the hay for $100, payable sixty days after notice and proof of loss. The barn and hay were totally destroyed by fire November 29, 1912.* Notice was at once given to the company and within a week the officers of the company met the assured at the site-of the fire and attempted to adjust the loss.

<p>Appeal from an order of the circuit court for Oconto county: W. B. QuiNLAN, Circuit Judge.</p> <p>Proceedings to set aside the service of a summons and all proceedings based thereon, including an order of publication of the summons and the'judgment. The plaintiff sought to recover on two promissory notes. One was made payable to the order of George P. Ghase as trustee. A copy thereof was set out in the complaint.</p> <p>The second note was made payable to “George P. Ghase.” A copy of it was set out and there was an allegation as to each note that plaintiff was the lawful owner and holder thereof and that there was due to him thereon from the defendant the sum named and judgment therefor was demanded.</p> <p>The complaint was verified by the plaintiff’s attorney in the following form:</p> <p>“Statu or Wisconsin, }ss. Oconto County. )</p> <p>“Francis X. Morrow, of Oconto, Wisconsin, being first duly sworn on oath, says that he is the attorney for the above named plaintiff in said action; that he has read the foregoing complaint and knows the contents thereof, and that the same is true to his own knowledge, except as to those matters therein stated upon information and belief, and as to those matters he believes it to be true.</p> <p>“And deponent further says that the said action is founded on two certain written instruments for the payment of money only, and that said written instruments are now in his possession as such attorney, and that the reason why this affidavit is not made by the plaintiff is that the said plaintiff resides at Logansport, in the state of Indiana, and is not now within the county in which deponent resides.</p> <p>“FbaNcis X. Morrow.”</p> <p>There was an order, in due form, for service of the summons by publication. It was based on an affidavit in such form and said to have been duly filed. Such order was dated June 29, 1901. Later there was a second order of publication, in due form, based on due proof of a recent effort to obtain service, the filed complaint, and an affidavit in due form. The first publication of the summons was seasonably made, having regard to the second order. The complaint does not show by proper indorsement that it was placed on file prior to the date of the first order, but does that it was so placed before tbe date of tbe second. Tbe trial court granted tbe motion to vacate tbe proceeding upon grounds, in part, found fatal in Olosson v. Chase, post, p. 346, 149 N. W. 26, and particularly because tbe summons was not published within three "months after the date of tbe order therefor as required by sec. 2640, Stats.</p>

<p> Pleading: Verification by attorney: Sufficiency: Service of summons by publication: Attachment of property not essential: Statutes: Validity. </p> <p>1. The verification of a pleading is sufficient if it substantially complies with the statute; and no mere informality or failure to cover literally the statutory requisites will defeat it.</p> <p>2. Where it fairly appears from the whole verification by an agent or attorney that it is made upon belief, and legitimate grounds for such a belief are stated, it should be held a substantial compliance with the statute and valid, even though the affiant states that the pleading is true instead of that he believes it to be true.</p> <p>3. The issuance of á writ of attachment and levy upon property thereunder is not essential to a valid order for service upon a nonresident defendant by publication under sec. 2639, Stats., it being sufficient that he has property in the state and that such fact is duly brought to the attention of the court.</p> <p>4. Sec. 2639, Stats., providing for service of summons by publication when the defendant is a nonresident and has property in this state, is valid.</p>

<p>Appeal from a judgment of the circuit court for Oconto county: W. B. QuihlaN, Circuit Judge.</p> <p>This action was commenced by the plaintiff, and it alleges an agreement between the plaintiff and the defendant Stroud for the sale of the plaintiff’s products by Stroud at prices fixed by the contract, and that the defendants Tillman and Arndt and one Jacob Spies guarantied performance of the contract by Stroud.</p> <p>From the record it appears that in the year 1909 the plaintiff and defendant Stroud entered into an agreement whereby Stroud agreed to devote his entire time to the sale of plaintiff’s products at a price fixed by' the plaintiff, and to pay for them the way specified, and in consideration thereof the plaintiff agreed to sell and deliver to the defendant its products. The defendants Alvin Tillman and A. 0. Arndt, together with one Jacob Spies, guarantied in writing the faithful performance of the contract by Stroud and.the payment of any balance due the plaintiff by the defendant Stroud. In the month of December of the year 1910 a representative of the plaintiff visited Stroud to arrange a settlement. After packing what goods the defendant Stroud had on hand and Stroud receiving credit therefor, the amount of $790 was agreed to as the balance due the plaintiff from Stroud. Tbe representative of tbe plaintiff company made out a note for that amount and tbe defendant Stroud was to procure tbe signatures of tbe guarantors. There is a conflict in tbe testimony of plaintiff’s representative and tbe defendant Stroud as to whether Spies was to sign tbe note;plaintiff’s representative testifying that tbe defendant Stroud told him it would be useless to try and procure Spies’s signature, while defendant Strofid testifies that tbe understanding was that he was to secure tbe signatures of all guarantors to tbe note. Defendant Tillman was the first of tbe guarantors seen by Stroud, who testifies that be saw Tillman and that Tillman stated “be would sign tbe note provided Mr. Arndt and Mr. Spies signed it.” After procuring this signature Stroud and tbe plaintiff’s representative went to see Mr. Arndt. Stroud testifies to the effect that Arndt stated in tbe presence of tbe plaintiff’s representative that be, Arndt, would sign tbe note provided Mr. Spies signed it, and that if Spies would not sign it tbe note was to be returned to him. Plaintiff’s representative testified that be beard no such conversation between Mr. Arndt and Stroud. Directly after obtaining this second signature to tbe note it was turned over to tbe.representative of tbe plaintiff, who gave Stroud a receipt for it and departed.</p> <p>Tbe special verdict of tbe jury found in substance and effect:</p> <p>(1) That it was not understood and agreed between John Stroud’ and A. G. Arndt in tbe presence of Coliman, tbe representative of tbe plaintiff, that if Jacob Spies did not sign tbe note it was not to be delivered to tbe plaintiff company, but should be returned to the defendant Arndt.</p> <p>(2) It was not agreed between Alvin Tillman and John Stroud that Tillman would sign tbe note upon tbe condition that John Stroud would procure tbe signature of Jacob Spies to the same, and if be did not the note was to be returned to Alvin Tillman.</p> <p>(3) Tbe note was not received by tbe plaintiff company with frill knowledge of tbe understanding that it was not to be delivered to it unless signed by Jacob Spies.</p> <p>Tbe court denied tbe defendants’ motions to change tbe answers to tbe special verdict of the jury and for judgment thereon and for a new trial.</p> <p>Tbe court granted plaintiff’s motion for judgment for tbe sum of $790 with interest at six per cent, from tbe 12th day of December, 1910, and for costs and disbursements in this action, from which judgment this appeal is taken.</p>

<p> Statute of frauds: Contract to convey land: Uncertainty in description: Parol evidence: Equity: Specific performance. </p> <p>1. rnder the statute of frauds (sec. 2304, Stats.), all the essential terms of a contract for the conveyance of land must he in writing, including a description of the land to he conveyed; and such an essential element cannot he supplied hy parol evidence.</p> <p>2. A contract, made by stipulation between the contestants of a will and the sole legatee named therein, hy which such legatee agreed to convey one of two forty-acre tracts of land to each of the two heirs of the testator, is so indefinite and uncertain that it cannot he specifically enforced, where it cannot he determined from the stipulation, with the aid of any writings referred to therein or which could he read therewith, which of the two forties was to he conveyed to either heir.</p> <p>3. It having been expressly stipulated that one forty he conveyed to each heir, equity will not make a new contract hy compelling conveyance of both forties to the two heirs in common.</p>

<p>Appeal from a judgment of the circuit court for Racine county: W. J. TueNee, Judge.</p> <p>John S. Hart died in February, 1901. The parties to tbis action are bis sons and daughters. Prior to bis death be owned a thirty-six-acre fruit farm which be conveyed to a corporation. The capital stock of the corporation was $33,000, represented by 330 shares of stock in a corporation known as the ITart-Blake Company. At bis death Mr. Hart owned 274 shares, bis wife 55 shares, and the defendant Elmer W. Hart 1 share. Subsequently the children acquired the stock of the widow on the basis of a valuation of $18,000 on the property of the corporation, and became substantially equal owners of the entire capital stock.. Prior to the father’s death, Elmer W. Hart and the plaintiff, Mrs. Cazier, resided in Chicago, Bands M. Hart in Eacine, and Mrs. Crandall in Minneapolis. Bands M. and Elmer W. Earl and Mrs. Cazier were elected directors of the corporation after the stock was acquired. Bands M. was elected president and Elmer W. manager. Prom the time of his father’s death until November, 1905, Elmer continued to act as manager and was the only stockholder who resided in California. In 1905 negotiations were started which resulted in Elmer acquiring the entire stock in the corporation for an agreed consideration of $21,000, to be paid in stock of another corporation on the basis of such stock being worth double its face value. This stock was in a woolen mill company located in Eacine and managed by Bands M. Hart. All of the parties to this action were the owners of woolen mill company stock acquired through their father.</p> <p>This suit was commenced in 1910 and was brought by the plaintiff to rescind the sale of her stock to the defendant Elmer on the ground that the sale was induqed by fraudulent representations and fraudulent concealments. Mrs. Crandall and Bands M. Earl refused to join as parties plaintiff and were therefore made defendants. The trial resulted in a judgnfent for the defendant Elmer, and plaintiff appeals. The findings, covering as they do twenty-six pages of the case, are so lengthy that a synopsis of them is omitted. Those material to a disposition of the questions presented on tbe appeal will be referred to in tbe opinion.</p>

R QuiNLAN, Judge. Action to recover a penalty under sec. 1791a, Stats. 1918, for failure to furnish plaintiff O’Donnell telephone service. October 27, 1906, O’Donnell entered into a written contract with the defendant wherein the latter agreed to furnish him telephone service at the rate of $2.50 per month payable in advance. The term of service was to be until the last day of October, 1907, and thereafter until terminated by thirty days’ written notice by either party.

Mandamus brought originally in this court to compel the county clerk of Milwaukee county and the board of election commissioners of the city of Milwaukee to prepare printed ballots for use at the general election in November, 1914, and to require them not to use or allow the use of voting machines at said election. The action is brought with the consent of the attorney general on tbp relation of Alvin P. Kletzseh, a resident and voter of Milwaukee.

C. Ludwig, Circuit Judge. This action was brought to restrain tbe collection of a former judgment obtained by defendant against plaintiff in an action between tbe parties to this suit, on tbe ground that tbe written agreement upon which tbe former judgment was entered was not the agreement of tbe parties, and that upon tbe agreement made tbe defendant was not entitled to any judgment against tbe plaintiff.

Appjsau from an order of tbe circuit court for Dane county: E. Ray StevbNS, Circuit Judge. Mandamus action to compel tbe State Highway Commission to act under cb. 586, Laws of 1913. An alternative writ of mandamus was duly sued out of tbe circuit court for Dane county requiring tbe State Highway Commission to proceed under such chapter or show cause why to tbe contrary. Tbe purpose was to test tbe constitutionality of such chapter.

<p> Joint adventure: Ginseng garden: Accounting: Partnership: Homestead: Equitable lien for improvements. </p> <p>1. In an action for an accounting wherein plaintiff sought, among other things, to recover the proceeds of sales of ginseng roots and the value of improvements made upon defendants’ land in connection with growing ginseng thereon, no definite agreement between the parties as to such enterprise being shown, but it appearing that the relation between them was closely analogous to a partnership, the recovery is limited to one half of the crop or of the proceeds thereof and one half the value of the improvements.</p> <p>2. The improvements having been made upon defendants’ homestead, plaintiff cannot have an equitable lien on the land for his share of their value.</p>

B. BeldeN, Circuit Judge. Tbis is an equitable action brought to enjoin tbe defendant from selling any beer upon certain saloon premises in tbe city of Kenosha leased to bim by tbe plaintiff, except sucb beer as is sold by tbe plaintiff, and to recover damages for tbe breach of defendant’s agreement to that effect contained in tbe said lease. Tbe action was tried by tbe court.

ApplicatioN to tbe supreme court by the relator, the attorney general consenting, upon leave given, for an original writ of mandamus to compel the defendants, the Board of Trustees of the Stout Institute, to proceed with the construction and erection of the household arts building, including an auditorium and- offices for tbe administrative work of the Stout Institute. The petition alleges that the relator is a resident, citizen, and taxpayer of this state.

'Appeal from a judgment of the circuit court for Wal-worth county: Geokge Grimm, Judge. This is an action to try’the title to the office of city attorney of the city of Lake Geneva. The relator claims that he was elected to the office April 23, 1912, and the defendant claims that he was elected July 16, 1912. The common council of Lake Geneva consists of the mayor and six aider-men.

<p>Appeat, from a judgment of the circuit court for Racine-county: E. B. BeldeN, Circuit Judge.</p>

• Appeal from a judgment of the circuit court for Racine county: E. U. Beldeh, Circuit Judge. This is an action to recover damages for personal injuries sustained by the plaintiff by reason of a collision between a single buggy in which she was riding and the tongue of a coal wagon. The jury found the defendant negligent and the plaintiff free from contributory negligence and assessed plaintiff’s damages at $500. From a judgment entered on this verdict defendant appeals.

B. Beldeh, Circuit Judge. Plaintiffs’ complaint alleged in substance that they were-copartners in the mechanical engineering business with offices in.Racine, Wisconsin, and Chicago, Illinois; that the defendant was a domestic corporation engaged at Racine in a foundry and general manufacturing business, and that in or about the month of April, 1910, they entered into an oral agreement with the defendant which in June of the same-year was reduced to writing in the form of an…

Halsey, Circuit Judge. Action to recover compensation for personal injury. January 29, 1909, plaintiff, while performing bis duties as an employee of defendant, was injured. He and an associate were carrying a ladle in an iron foundry molding room. They had executed a trip and were on their return. It was dark, except for dim light from the molten iron and electric lights.

0. Esohweilee,, Circuit Judge. Action to recover satisfaction for a personal injury. March 31, 1911, plaintiff, while in the performance of his duties as an employee of the defendant, was severely injured.

TIalset,. Circuit Judge. This is an action for damages. The plaintiff claims that its property has been injured by rain water being discharged from the defendant’s house in such a manner that it percolated through the walls of the plaintiff’s house and caused damage. The plaintiff and defendant own adjoining lots 2 and 3, respectively, in Block A of Hathaway’s subdivision in the First ward of the city of Milwaukee.

J. TueNee, Circuit Judge. This action was brought to recover damages for personal •injuries. Tbe defendant was engaged in tearing down coal sheds, and the plaintiff was in its employ at the time of the injury, June 19, 1911. The answer admitted the corporate ■existence of the defendant, its business, and employment of •plaintiff, and that plaintiff was injured at about the time alleged by falling timbers, and denied all other material allegations of the complaint.

0. Ludwig, Circuit Judge. This action was brought by tbe executors of tbe will of one Leo Roth upon a surety bond given by tbe defendant April 22, 1912, as security for tbe honesty of one Kay Hasselbalch, who then entered tbe employ of Roth as a salesman and collector. Roth was a wholesale tobacconist. He died June 8, 1912. Tbe apiiellants were authorized by tbe county court to continue tbe business after Roth’s death. Hasselbalch remained in their employ.

Fritz, Circuit Judge. The action was to recover the sale price of an automobile. Plaintiff had paid for the machine and sought to recover back because, as claimed, of a breach of warranty and rescission on that account of tbe purchase. The action was tried in the civil court of Milwaukee county, resulting in a judgment of dismissal, which was affirmed on appeal to the circuit court.

C. Ludwig, Circuit Judge. Tbe appeal is from an order granting a new trial upon appeal of tbe defendants from a judgment against them in tbe civil court of Milwaukee county. Tbe action is for tbe recovery of damages sustained by the plaintiff in a collision with a car operated by the defendant company. In tbe evening of February 4, 1912, tbe plaintiff and a companion were in a bob-sled at tbe time of such collision.

Williams, Circuit Judge. ' Tbis action was brought against tbe defendant, city of Milwaukee, to recover damages alleged to bave been caused through tbe negligence of tbe employees of tbe defendant city which resulted in plaintiff’s injury.

<p> Master and servant: 'Workmen’s Compensation Act: Abrogation of , defenses: Assumption of risk: Contributory negligence: Questions for jury: Unsafe working place: Defective stepladder: Simple tools. </p> <p>1. Since the enactment of the Workmen’s Compensation Act, which abrogates the defense of assumption of risk and in certain cases that of contributory negligence, it is more necessary than formerly to distinguish between assumption of risk and contributory negligence.</p> <p>2. The intended and continued use of a known defective appliance or a known unsafe place by the employee in substantially the same way as the employer instructed or intended it should be used is an assumption of risk by such employee, but not contributory negligence.</p> <p>3. Thus, where an employee was directed to wash certain windows and in so doing to use a particular stepladder which was visibly out of repair, defective, and unsafe, his conduct in taking and using such ladder as instructed, notwithstanding its visible defects, constituted assumption of risk and not contributory negligence.</p> <p>4. But where such employee, without being instructed so to do, set the stepladder in the garden of an adjoining lotowner, outside of a wire fence which was parallel with and about two feet distant from the side of the building in which the windows were to be washed, and was injured by the breaking of the ladder while he was using it in that position, his act in so placing the ladder, if it caused or contributed to cause his injury and was of such character that an ordinarily prudent person under like circumstances would not have committed it, constituted contributory negligence; and upon the evidence in this case, the questions whether such act was negligent and whether it contributed to his injury were for the jury.</p> <p>5. Furnishing an employee a stepladder for su.ch a purpose is furnishing him a working place or appliance, and the doctrine as to simple tools is not applicable.</p>

J. TueNee, Circuit Judge. This is an action to recover damages for personal injury. In May, 1909, plaintiff was employed in defendant’s wholesale grocery store. It was part of plaintiff’s duty to convey goods from one floor to another. This was done by means of an electric elevator driven by direct current. The elevator was raised and lowered by means of cables, and was stopped by pulling a rope between the two starting cables and connected therewith.

Williams, Circuit Judge. Action to recover the purchase price of a shipment of two carloads of cabbage from Milwaukee to Kansas City. Held: the place of delivery was Kansas City. The following facts determine the solution of the question involved: On January 2, 1912, the defendant, a commission company located at Kansas City, Missouri, telegraphed the plaintiff, a dealer in Milwaukee, as follows: “Wire lowest strictly first-class Holland free from frost, prompt…

Williams, Circuit Judge. This action was brought in the civil court of Milwaukee county to recover $600 alleged to he due plaintiff under a resolution of the defendant corporation. It was tried without a jury in that court and findings made on which a judgment of $400 was entered, which judgment was affirmed on appeal to the circuit court.

Williams, Circuit Judge. Action to recover $50 paid by plaintiff to defendant to apply on a contract for purchase of a stock of goods. The contract, as claimed, had been rescinded. Judgment was rendered for plaintiff. May 20, 1912, a contract was verbally made for the sale by defendant to plaintiff of a stock of merchandise, in the former’s store in Kaukauna, Wisconsin.

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

0. EschweileR, Circuit Judge. This is an appeal by the defendants from an order and .judgment reversing a judgment in favor of the defendants granted by the civil court of Milwaukee county in an action .to recover the purchase price of goods, wares, and merchandise.

Williams, Circuit Judge. The appeal is from a judgment affirming a judgment of the civil court for $217.50 and costs in favor of the plaintiff. cited, among other cases, Terry v. Bartlett, 158 Wis. 208, 140 N. W. 1133; Bowe v. Gage, 132 Wis. 441, 112 1ST. W. 469; McArthur v. Slauson, 53 Wis. 41, 9 N. W. 784; Ames v. Lamont, 107 Wis. 531, 83 N. W. 780; Smith v. Kimball, 193 Mass. 582,, 79 N. E. 800; Wood v. Smith, 162 Mich. 334, 127 N. W. 277; Wahl v. Tracy, 139 Wis. 668,…

Halsey, Circuit Judge. Plaintiff brought this action in the civil court of Milwaukee county to recover damages for an injury to his eye, sustained by reason of the breaking of an emery wheel on March 15, 1913, while in the employ of the defendant. There ivas a general verdict by which the jury found for the plaintiff and assessed his damages at $1,400. Judgment was entered on this verdict and an appeal taken therefrom.

0. Esohweilbb, Circuit Judge. This action is on an insurance policy, and was begun in tbe civil court and appealed to tbe circuit court. On June 16, 1912, tbe defendant insured property belonging to plaintiff to tbe amount of $2,500 witb tbe privilege on the part of tbe insured to cancel tbe policy upon request. About 11 o’clock in tbe evening of July 3, 1912, tbe property was destroyed by fire. There was co-insurance on the same property.

M. Eeitz, Circuit Judge. Personal injuries. Tbe plaintiff was injured at about 10 o’clock in the evening of March 5, 1913, by being struck by the outward swing of the rear end of a street car as.it was going around a curve at the corner of Brady street (which runs east and west) and Van Bufen street (which runs north and south) in the city of Milwaukee. She was a woman in fair health, in possession of her faculties, who had resided more than twenty years in Milwaukee.

J. TueNEe!, Circuit Judge. Action to recover money claimed to belong to the plaintiff and to have been unlawfully diverted from its proper purpose and converted by defendants to their own use. The following are the material facts stated in the complaint:' During the year 1911 defendant Thompson was the city clerk of the city of Mihvaulcee, Wisconsin, and charged with the duty of making the city tax roll for such year.

.Appeal from a judgment of the circuit court for Milwaukee county: Oscae M. Eeitz, Circuit judge. This is an action to recover damages for personal injuries sustained through the falling down of a small balcony or platform located at the rear of an upper flat. On August 2, 1913, the plaintiff, a widow, with her family of three children occupied the upper flat at 633 Seventh street, in the city of Milwaukee, of. which the defendant Caroline Pauly was the owner.

0. Ludwig, Circuit Judge. • This action was brought to recover damages for the alleged negligence of the defendant. Among other defenses the defendant alleged, as a separate defense, compromise, settlement, and release in full for and on account of the cause of action alleged.

<p> Insurance against fire: Construction of policy: Statutory form: Horses insured, “while contained in” a certain barn “and not elsewhere:” Liability for loss elsewhere: 'Waiver. </p> <p>1. The rule that policies of insurance are to be liberally construed in favor of the insured because the insurer has prepared the contract, is inapplicable so far as the wording of the policy is prescribed by statute; but, under a fundamental rule, in cases of ambiguity a policy should be construed in favor of indemnity to the insured, rather than as useless or nugatory.</p> <p>2. The description of the property, including horses, covered by a fire insurance policy used the words “all while contained in” a certain barn, and the policy also stated, in the form prescribed by statute, that the insurance was against loss or damage to the “described property while located and contained as described herein and not elsewhere.” Held, that there was no ambiguity and that the insurer was not liable for loss of the horses while they were in another building, to which they had been taken for the night because the barn mentioned in the policy was being repaired. Hoyes v. N. W. Nat. Ins. Oo. 64 Wis. 415, and other cases, distinguished.</p> <p>3. In an action upon such policy, a complaint stating that the insurer knew that, as the horses were used in plaintiffs’ business, it was customary, usual, and necessary for them to he in various parts of the city and county, and knew or ought to have known that it might become necessary to house them temporarily in some other place than that described in the policy by reason of some contingency or unforeseen event, and that the repairs on the barn described were such an unforeseen and unanticipated event, and the removal of the horses to the place in which they were burned was necessarily incident to their use by plaintiffs, does not allege anything which would make the policy enforceable by waiver on the part of the insurer. The scope of the policy cannot in such a case be extended by waiver.</p>

Williams, Circuit Judge. Tbe defendants filed a petition in tbe county court of Milwaukee county praying that a judicial inquiry be made as to tbe sanity of tbe plaintiff. Upon sncb petition tbe court made an order for tbe examination of tbe plaintiff’s mental condition. Two physicians were appointed to conduct such examination, and they reported tbe plaintiff sane, whereupon tbe proceeding was dismissed.

Appeals from a judgment of the circuit court for Milwaukee county: E. 0. Eschweileb, Circuit Judge. Action to recover from tlie Gity and County of Mihvauleee the clear proceeds of all fines and penalties collected by the city for the years 1898 to 1908 inclusive. The case has been here twice before and will be found reported in 145 Wis. 131, 129 N. W. 1101, and in 152 Wis. 228, 138 N. W. 1006.

J. TueNek, Circuit Judge. Tbe appeal is from an order sustaining a general demurrer to tbe complaint.

Williams, Circuit Judge. Action for personal injury. On July 6, 1910, the plaintiff, aged forty-four, and a carpenter by trade for over twenty-five years past, was assisting a crew of men in raising joists in a building being constructed by the defendant. The joists were raised by means of a hoisting device called a “horse” to the third floor, about forty-three feet from the ground, where they were set into long, heavy girders fourteen inches wide and twelve inches thick.

J. Tubkeb, Circuit Judge. Action to recover compensation for a personal injury which happened to plaintiff August 24, 1911, while he was performing his duties as an employee of defendant, which was carrying on a manufacturing business in the city of Milwaukee, Wisconsin.

0. Run wig, Circuit Judge. Tbe appeal is from an order overruling a demurrer to defendants’ answer- Tbe action was brought 'by plaintiff as administratrix of tbe estate of her deceased husband, Jonathan D. Steuerwald, for tbe recovery of money bad and received by tbe defendants to tbe plaintiff’s use. Tbe plaintiff demurred to tbe defendants’ answer for that it did not state facts ■ sufficient to constitute a defense.

<p>Appeal from orders of tbe circuit court for Milwaukee •county: F. C. Eschweilee, Circuit Judge.</p>

C. Ludwig, Circuit Judge. Action to recover $790.50 upon a policy of life insurance issued December 4, 1902, by tbe defendant upon tbe life of Dan E. Ziebell, tbe husband of plaintiff. Plaintiff was tbe beneficiary named in tbe policy sued upon, and it was in full force and effect on tbe 20th day of September, 1912, when Dan E. Ziebell died.

<p> Taxation: Income tax: Crediting personal property tax. </p> <p>Upon payment of a tax assessed in 1913 for personal property omitted from tlie tax rolls in 1910 and 1911 through no fault of the taxpayer, he is entitled, under sec. 1087m — 26, Stats., to have the amount so paid credited on his income tax assessed during 1913.</p>

J. Tuefee, Circuit Judge. This is an action against the defendant Jerry J. Shea and the Wisconsin Trust Company, as executor and trustee of the will of Kate Shea, deceased, to charge the property in the possession of such trustee with a lien to satisfy the demands of the plaintiff against Jerry J. Shea, and to foreclose a mortgage given by Jerry J. Shea on his interest in the lands of Kate Shea, deceased, to secure payment of $350 according to the condition of a promissory…

M. Ebitz, Circuit Judge. Annette Flood, an infant, by her guardian ad litem brought this action to recover for personal injuries alleged to have been received .by said infant through the negligence of the defendants. There was a 'demurrer to the complaint by the defendant Pabst Brewing Company on the ground that it did not state facts sufficient to constitute a cause of action, which was overruled and the defendant Pabst Brewing Company, a corporation, appealed.

J. Tubnee, Circuit Judge. Under a sufficient complaint, after hearing the evidence, instructions, and arguments, the jury by special verdict found •as follows: “(1) Was the grab used by said defendant on the day of -said injury in connection with said crane a reasonably safe appliance in the manner and for the purpose for which the •same was used ?

<p>Appeal from an order of the circuit court for Milwaukee county: Oscar M. Fritz, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Milwau-kée county: AY. J. Tubhee, Circuit Judge.</p> <p>Action for damages for death caused by an' automobile. Eleventh and Rational avenues in the city of Milwaukee intersect one another, the former running north and south and the latter east and west. Defendant was driving his car south on Eleventh avenue. There was a street car standing on the south track on Rational avenue and somewhat to the west of the west line of Eleventh avenue. One Gertzke was standing near the southwest corner of the block bounded by the north line of National avenue and the east line of Eleventh avenue. He started in a southwesterly direction on a fast walk or run to catch the street car. When at a place not far from the point of intersection of the center lines of the two streets, defendant observed Gertzke, and, realizing that a collision was imminent, and in an endeavor to avoid it, swung his car to the right. The collision was not avoided, however. Defendant ap]iarently lost his head, and, failing to apply his brake, the car proceeded in a semicircular route toward the corner diagonally across from the one at which Gertzke stood. The left front wheel passed over the curb and the car ran into a pole located inside of and close to the curb and nearly on a line with the west boundary of Eleventh avenue. The decedent was apparently leaning against the'pole and was crushed between it and the front end of the automobile. Iiis executor brings this action in behalf of his heirs to recover damages for the loss sustained by his death. The jury returned the following vérdict:</p> <p>“(1) Was the defendant guilty of negligence in the operation of his car at the time and place stated in the complaint when it struck the deceased, James IVIehegan? A. Yes.</p> <p>“(2) If you answer the first question ‘Yes/ was such negligence a proximate cause of the death of the deceased ? A. Yes.</p> <p>“(3) Was Gertzke in the exercise of ordinary care at the time he was struck by defendant’s automobile? A. No.</p> <p>“(4) If you answer question 3 ‘No/ was the failure of Gertzke to exercise ordinary care a proximate cause of the death of the deceased? A. Yes.</p> <p>“(5) What sum will reasonably compensate the plaintiff as executor for the death of the deceased ? A. $2,000.”</p> <p>The court set aside the answer to the fourth question in the special verdict on the ground that the element of reasonable anticipation was wholly wanting, and awarded judgment for plaintiff on the verdict as amended. Defendant appeals.</p>

<p> Oorporations: Officers: Vice-president: Apparent authority: Contracts: Validity: Statute of frauds: Surrender of leasehold interest: Preliminary agreement, when takes effect. </p> <p>1. When a private corporation allows its managing officer to so conduct himself in his dealings and transactions on behalf of the company as to lead the public or those dealing with him to reasonably believe he possesses certain powers, the company will not be allowed to question such apparent authority as against one relying in good faith on the same.</p> <p>2. One of the vice-presidents of a large Pennsylvania corporation, who was its only officer in Wisconsin and had complete charge of a department store conducted by it in this state, and whose predecessor in such office had executed, on behalf of the corporation, leases of business property owned by it adjoining the store and intended to be used ultimately for enlargement of the business, and had afterwards executed the written consents to the subletting of such property, is held to have had implied or apparent authority to make a binding agreement on behalf of the corporation with respect to the surrender to it of such leases.</p> <p>3. A statement by such vice-president, when a written offer was made to him-with respect to the surrender of the leases, that he wished to send it Bast to place before one of the officers of the corporation before acceptance, might well be understood as simply a wish to obtain advice and was not notice to the lessees that he had no authority to act in the matter, especially where, on receiving his reply from, the East, he affirmatively claimed authority and assumed to close the contract.</p> <p>4. A leasehold interest in lands for an unexpired term, not exceeding one year, may be surrendered by parol under the terms of sec. 2302, Stats.</p> <p>5. An informal agreement, complete in its terms, will take effect if the parties so intend, though a more formal contract is expected to be afterwards made, provided that the formal contract is not to contain material provisions not contained in or to be inferred from the preliminary informal agreement.</p>

<p> ' Conspiracy: Malicious prosecution of taxpayer’s action: Probable cause: Advice of counsel. </p> <p>1. A taxpayer who suspected that a contract for the purchase of land by the county was tainted with fraud employed an attorney to investigate and report as to the facts and the law. ■ Upon a report' from such attorney advising him that the contract was probably fraudulent and illegal he commenced a taxpayer’s action to prevent the purchase, and the district attorney of the county afterwards joined in the prosecution of such action. Upon trial the action was dismissed on the ground that, although the price to be paid was exorbitant, the contract was not illegal and the evidence waS not sufficient to establish fraud. In an action by the vendor of the land against the taxpayer and the attorneys for conspiracy to injure and for malicious prosecution of the taxpayer’s action, it is held that such dismissal of the taxpayer’s action did not show that there was a want of probable cause for commencing it.</p> <p>. 2. It appearing affirmatively in said action by the vendor that the taxpayer had probable cause for his action and that he acted under advice of counsel, and there being no evidence of ulterior purpose or that defendants had colluded together to injure the vendor, the Court properly directed a verdict for defendants.</p>

J. Tüeneb, Circuit Judge. The action is to recover damages for personal injuries due to an elevator accident. The case was presented to this court on a former hearing on the appeal of a codefendant, Lederer, and is reported as Smith v. Lederer, 157 Wis. 479, 146 1ST. W. 888.

<p> Highways: Construction of viaduct: Injury to abutting property: Liability of county: Measure of damages: Special' verdict: Deflection of trdde or travel: Interest. </p> <p>1. Where the construction by Milwaukee county of the viaduct authorized by ch. 444, Laws of 1903, resulted in injury to land abutting upon the highway partially occupied by the viaduct, the landowner had a right, under sec. 1296a, Stats., and sec. 3 of said act of 1903, to recover damages from the county; and such right is not analogous to, nor subject to the same conditions as, the right to recover damages for a ¡change of grade.</p> <p>2. The measure of damages in such case is the difference between the market value of the property before and its market value after the construction of the viaduct, so far as the diminution in such value is caused by the construction.</p> <p>3. A special verdict finding market value before and after such construction is held, in view of the evidence and instructions, to find the depreciation due to the construction, exclusive of other causes; and a further finding that a certain part of such depreciation was caused by diversion of trafile from the old route to the new does not call for a reduction of the recovery.</p> <p>4. Although loss of trade by deflection of travel is not in itself a ground of recovery, because of the uncertain and speculative character of such damages, yet where a deflection of travel with consequent loss of existing prospective patronage has actually diminished the market value of the abutting property, the owner may recover for subh diminution.</p> <p>5. Interest upon the amount of the depreciation of plaintiff’s property is recoverable in such case from the time of the loss, i. e. from the completion of the viaduct.</p>

Eritz, Circuit Judge. Action to recover reasonable value of services as architects in preparing plans and specifications for an addition to defendant’s sanitarium. Defenses: (1) Preliminary sketches only were furnished under an agreement that they were not to be paid for unless adopted and used, and they were not adopted and used. (2) Nugent, the officer of defendant with whom the transaction took place, had no authority to bind the corporation.