Volume 161 — Wisconsin Reports

Byan, Judge. Action to recover $377.82 upon an account for legal services and disbursements. Tbe plaintiff is tbe assignee of tbe firm of Cady, 'Streblow & Jasepb, wbicb performed tbe services. Tbe account consists of twenty-nine items, all relating to a single action and covering a period from May 16 until June 26, 1913.

Defendant Lochery leased to Cornelius Van Laarboven a farm and some live stock thereon with the right to purchase the same. No reservation was made of the increase of the stock. There was such increase. The lessee mortgaged the same as his own. Lochery commenced an action against his lessee and attached the property. Then the mortgagee commenced an action of replevin against the officer who had possession of the property under the writ of attachment.

Basic, Judge. This is an action by the plaintiff for a divorce from' bed and board from the defendant upon the grounds of cruel and inhuman treatment. It appears from the testimony that the plaintiff and defendant were married in 1902 at the city of Superior and that they have lived there continuously since that time.

<p>Appeal from a judgment of the county court of Jefferson county: Ohaeles B. Eogees, Judge.</p> <p>This action was brought to recover damages on account of a collision between the plaintiff’s horse and buggy and the defendant W. B. Sproesser’s automobile. It is charged in the complaint that the defendant Jacob Sproesser carelessly and negligently ran into the horse and carriage of plaintiff, which horse was being driven with due care by the minor son of the plaintiff. The damages claimed to the plaintiff’s horse and carriage are $138.52.</p> <p>The defendants denied negligence and set up a counterclaim to the effect that the defendants exercised due care and that the minor son of the plaintiff acted with authority of the plaintiff and carelessly and wilfully drove the plaintiff’s horse and carriage in front of defendants’ automobile and brought said horse and carriage to a sudden standstill, causing the carriage to collide with the lamps and fender of said automobile, causing damage in the sum of $39.50.</p> <p>The jury returned the following verdict:</p> <p>“(1) Was the defendant Jacob Sproesser guilty of negligence or want of ordinary care in the management of the automobile at the time and place in question ? A. Eo.</p> <p>“If you answer tbe above question ‘Tes/ then answer tbis one:</p> <p>“(2) Was sucb want of ordinary care tbe proximate cause of tbe accident ? A. -.</p> <p>“(3) Was Eranz Koenig, tbe son of plaintiff, guilty of negligence or want of ordinary care in tbe management of plaintiff’s borse and buggy at tbe time and place in question ? A. No.</p> <p>“If you answer tbe above question Wes,’ then answer tbis one:</p> <p>“(4) Was sucb want of ordinary care tbe proximate cause of tbe accident ? A. -.</p> <p>“(5) Wbat amount of damages, if any, estimated in money, did tbe plaintiff, R. P. Koenig, sustain in consequence of tbe accident ? 1. To bis borse. A. None. 2. To bis buggy. A. None.</p> <p>“(6) Wbat amount of damages, if any, estimated in money, did tbe defendant W. D. Sproesser sustain to bis automobile in consequence of tbe accident? A. None.”</p>

<p>Highways: Defeat causing injury or death: Evidence: Competency: Condition of road five days after accident: Contributory negligence: Law of the road: Municipal ordinance: Damages: Amendment of complaint: Special verdict: Separate submission of issues: Appeal: Harmless errors: Setting aside verdict. .</p> <p>1. In an action for death, of a person alleged to have been caused by a bole in the street on which be was driving, there being evidence of the existence of the bole at the time of the accident and evidence tending to show that there was no material change in conditions for a long time thereafter, the testimony of a surveyor as to measurements of the hole made by him five days after • the accident was competent.</p> <p>2. The law of the road as established by statutes and decisions in this state deals with the duties of travelers at street and highway intersections, or when meeting one another, or when one wishes to pass another going in the same direction, but does not affect the question of contributory negligence in a ease where a person was injured by a defect in the street while driving on the left side thereof and the evidence tended to show that he had necessarily veered to the left because teams were lined up on the right side.</p> <p>®. The exclusion, as evidence in such case, of a municipal ordinance relating to the rule of the road but not shown to differ from the statute and common law, cannot be held error.</p> <p>4. The complaint in an action for death of a person alleged to have been caused by a defect in a highway asked $5,000 as damages, but at the trial an amendment changing the amount to $10,000 was allowed. Upon the argument to the jury plaintiffs counsel stated that there might be some question as to the right to re- . cover more than $5,000, and that plaintiff would be content with that sum. Objection to such argument being sustained, plaintiff was allowed to amend the complaint again so as to reduce the amount claimed to $5,000. Held, that the first amendment was properly allowed, and the allowance of the second was not prejudicial to the defendant.</p> <p>5. Having pleaded as a separate defense that at the time of the accident the decedent’s horses were more than momentarily beyond his control and were actually running away, defendant was fairly entitled to have that issue directly and specifically submitted to the jury in the special verdict; but the jury having been instructed that if they found such loss of control over the horses existed and was responsible for the injury, then they must find that the defect in the street was not the proximate cause of such injury, the refusal to submit the issue in a separate question cannot be held prejudicial error, although the practice pursued is disapproved.</p> <p>6. Where a party is entitled to have an issue submitted separately in the special verdict, the fact that the question or questions proposed by him do not fully cover that issue does not excuse refusal of the court to submit appropriate questions.</p> <p>7. This court will not reverse a judgment merely because in its opinion the verdict was against the preponderance of the evidence, where the trial court refused to set aside the verdict on that ground.</p>

<p>Appeals from a judgment of tbe circuit court for Rock •county; Geokoe Geimm, Circuit Judge.</p> <p>Action to recover an alleged unpaid portion of a legacy under a will and to declare tbe amount recovered a lien upon real estate. On January 12, 1892, Joseph M. Donahoe died testate leaving his widow, Bridget Donahoe, his only son, Joseph E. Donahoe, and two daughters, Katie E. Donahoe and Margaret V. Donahoe (now Nolan). At the time of his death he owned a farm of eighty acres in the town of Plymouth, Rock county, on which he lived, and also another parcel of land in the same town, some land in Nebraska, and. personal property. He made bequests of money to his widow and to each of his daughters and also to some other relatives. His land in Nebraska was devised in equal shares to his. daughters. The ninth paragraph of the will read:</p> <p>“I give, devise and bequeath all the rest, residue and remainder of my real estate to my son, Joseph Donahoe, charged, however, with and subject to the payment of the bequests above mentioned to my said wife and to my said daughters, and further, charged with and subject to the comfortable support and maintenance in health and in sickness of my said wife by my said son at the homestead portion of my real estate as long as my said wife shall live and desire to remain at said homestead, and further charged with and subject to the payment of the sum of three hundred dollars annually to my said wife any year or years when she may for-any reason reside elsewhere than with my said son, and shall personally require of my said son, Joseph, the payment thereof in lieu of support and maintenance.”</p> <p>His son Joseph was named executor in the will and he-qualified and acted as such. The legacies to the widow (except as to maintenance) and to the daughters are admitted to have been paid by Joseph. Since the action was originally begun both Bridget Donahoe and Joseph E. Donahoe have died, and John F. Nolan as administrator of the estate of Bridget Donahoe was substituted as plaintiff, and Kathryn L. Donahoe as administratrix of the estate of Joseph E. Dona-hoe was substituted for Joseph E. Donahoe as defendant. The First National Banh of Janesville claims a mortgage-lien on the land sought to be charged with the unpaid legacy in excess of its value and it alone of tbe defendants appeared and answered.</p> <p>It is claimed that Bridget Fonaboe chose to reside elsewhere than at the son’s home and that she did so for seven or eight years. She was paid by her son $686 for the time she did not reside with him, but it is claimed there is still due from his estate the sum of $1,579 with interest. This sum is sought to be recovered and to be declared a lien on the land devised to the son prior to that of the mortgage of the defendant First National Banh.</p> <p>Final judgment in the estate of Joseph M. Donahoe was entered February 13, 1906, assigning the lands in question to Joseph F. Donahoe charged with the support of his mother as provided for in the ninth paragraph of the will and discharging the executor. The trial court found that prior to February 13, 1906, Bridget Donahoe had elected to reside with her daughter Margaret Nolan for different periods, amounting in all to about seventy-four months, and had been paid by her son at various times prior to February 13, 1906, various amounts aggregating $686, but that she did not at any time require him to pay the full sum of $300 per year.</p> <p>Since February 13, 1906, Bridget Donahoe resided with her son except for three months in 1906, four months in 1907, three months in 1908, one and one-half months in 1909, two months in 1910, one month in 1911, and four and one-sixth months in 1913. This action was begun August 13, 1913, and the residence of Bridget Donahoe with her daughter in 1906 and for two months of 1907 was more than six years prior to the commencement of this action, leaving fourteen and two-thirds months of residence away from her son within six years of its commencement, which at the rate of $300 per year amounted to $366.67. Bridget Donahoe personally requested Joseph F. Donahoe to pay her money for the purpose of compensating Margaret Nolan. The court held that claims growing out of residence away from the son accruing sis years or more prior to the commencement of the action were barred by the statute of limitations; that for the months above specified accruing within six years of its commencement plaintiff was entitled to recover, and that the sums so adjudged due with interest and costs were a lien upon the lands devised prior to that of the First National Bank. Judgment was entered accordingly. The plaintiff appealed from that part of the judgment which held claims accruing six years or more prior to the commencement of the action were barred by the statute of limitations, and the defendant First National Bank appealed from that part of the judgment which allowed recovery for fourteen and two-thirds months’ residence with the daughter during the years mentioned.</p>

<p> Fraud: Pleading: Sufficiency of complaint: Gotispiracy: Vendor and purchaser of land: False representations. </p> <p>1. A complaint alleging in substance that defendants, in accordance with, a prearranged plan of action for their mutual profit, induced plaintiff to buy 320 acres of land in a distant state at $40 per acre, by false representations that it was worth more and that a third person, whose written offer was shown to plaintiff, stood ready to purchase it at once for $47.50 per acre, when as matter of fact the land was not worth to exceed $7 per acre, the letter was a fiction, and the alleged bidder did not exist, — is held, on demurrer, to state a good cause of action.</p> <p>2. The action in such case is not for conspiracy, but to recover damages for a wrong committed by a number of persons who agreed to act together to that end, the conspiracy being alleged merely to connect all the defendants with the overt acts of each individual.</p> <p>3. The representation that there was a prospective purchaser for the land who had already made a bona, fide offer of an increased price was a representation of fact, as distinguished from a promise or an opinion.</p> <p>4. A mere expression of opinion as to the value of property will not ' constitute fraud, hut trick or artifice must not he resorted to in order to throw the purchaser off his guard or prevent inquiry, especially where the property is in a distant state.</p>

Action to set aside an assignment of a nóte and mortgage-on the ground that it was obtained by fraud and undue influence. The facts, so far as necessary to present the questions involved here, were stated by the trial court in concluding the-case, as follows: Magdalena Molthen deceased, testate, June 23, 1910. Her will was duly admitted to probate. She left surviving several adult children and, among them, defendant John Molthen. Her husband predeceased her several years.

<p> Municipal corporations: Street improvements: Changing flow of surface water. </p> <p>A city bias the right to change the natural course of surface water by improvements on its streets, even though the flow of such water to and upon adjoining lands is thereby changed.</p>

<p>Appeal from a judgment of the circuit court for Wauke-sha county: Mabtikt L. Lueck, Circuit Judge.</p> <p>Action for damages and for a permanent injunction restraining the defendant, who operated a roller skating rink opposite plaintiff’s hotel, from causing or permitting noises usually attendant upon the operation of the rink. As facts the court found:</p> <p>(1) “That plaintiff is, and was at the times alleged in said complaint, the proprietor and manager of the Hotel Wau-kesha, a commercial hotel situated on the corner of Main street and Gaspar street in the city of Waukesha, Wisconsin, under a written lease and contract to purchase said property; that both of said streets are paved with a vitrified brick pavement, and said hotel is one block from ‘Rive Points,’ the business center of said city.</p> <p>(2) “That the defendant, during the summer of 1913, conducted and operated a roller skating rink nearly opposite the hotel of the plaintiff and on the northerly side of said Main street, beginning on the 7th day of June, 1913, and continuing until the 8th day of September, 1913, when he was restrained by a temporary injunctional order issued in this action.</p> <p>(3) “That defendant used, in connection with the actual operation of said roller skating rink, a mechanically-operated organ, and the plaintiff also had in the dining room of said hotel a mechanically-operated instrument that produced music of somewhat the same general character as the instrument of the defendant, but not so loud or shrill as that produced in the rink of the defendant, and was started by dropping a coin, or metal slug, in a slot connected with said, instrument.</p> <p>(4) “That the instrument in the hotel of the plaintiff was frequently played by those visiting the hotel, the plaintiff ordering the playing of said instrument to be discontinued at 10 o’clock in the evening, and his orders in this respect were generally heeded.</p> <p>(5) “That the roller skating rink of the defendant, together with the organ operated in connection therewith, was open and operated up to 10:30 o’clock, and sometimes later, on the evening of each day of the week, except.Sunday, and on Tuesdays and Saturdays the said rink was open until 11 o’clock in the evening and sometimes as late as 11:30.</p> <p>(6) “That the hotel of the plaintiff is a three-story building, the walls, of which are constructed of cut quarry limestone, and has a saloon business run in connection with it, from which drinks were furnished and served in the dining room of said hotel until 12-o’clock at night.</p> <p>(7) “That the dimensions of the roller skating rink operated by the defendant is 75 feet wide and 150 feet long, with a hardwood floor laid in sections, covered over with a heavy canvas, and was an orderly and well-managed place for physical exercise and amusement, good order being always maintained, and boisterous and disorderly conduct was not allowed.</p> <p>(8) “That the operation of said roller skating rink during reasonable hours, as conducted by the defendant, was not physically annoying to the plaintiff, or to any other person or persons of ordinary sensibilities, living in or resorting at said hotel; but that it was an unreasonable use of his property for the defendant to operate the rink beyond the hour of 10 o’clock at night.</p> <p>(9) “That the immediate neighborhood in which said roller rink was operated is thickly populated, and that the operation of said rink as conducted by the defendant was not physically annoying to any of the permanent residents of ordinary sensibilities in the neighborhood; and that the homes of nearly all of the permanent residents in the neighborhood are so situated that the noise and music emanating from said rink would have the same or similar effect upon the persons in said homes as it would have on persons in the hotel of the plaintiff.”</p> <p>As conclusions of law the court found:</p> <p>(1) “That the roller skating rink of the defendant, as operated and conducted by him on Main street in said city of Waukesha in the summer of 1913, was not and did not constitute a public nuisance.</p> <p>(2) “That the operation of said roller skating rink by the defendant in the summer of 1913 was not and did not constitute a nuisance to the plaintiff or to his business and property, but that it was an unreasonable use of his property by the defendant to operate the rink later than 10 o’clock at night.</p> <p>(3) “Tbat tbe plaintiff is not entitled to a permanent injunction absolutely enjoining tbe defendant from tbe operation of said roller skating rink opposite bis place of business on Main street in tbe said city of Waukesba, but tbat be is entitled to a judgment enjoining tbe operation of said skating rink after tbe hour of 10 o’clock at nigbt and enjoining tbe practice of shooting blank -cartridges in starting races.</p> <p>(4) “Tbat if it shall be finally decided, upon tbe appeal from tbe findings and judgment to be filed and entered in this action, tbat tbe plaintiff is not entitled to tbe injunction and relief prayed for in bis complaint, or tbe plaintiff has failed to take and perfect bis appeal, then tbe defendant, upon application to tbe court, shall be entitled to have tbe damages, if any, be may have sustained by reason of tbe temporary injunction issued at tbe instance of tbe plaintiff herein, ascertained by a referee or otherwise, as tbe court shall direct and determine, and as otherwise provided by tbe statutes in such cases and under tbe rules and practices of tbe court.</p> <p>(5) “Tbat tbe judgment in this action will be entered without cost to either party, except tbat tbe defendant shall pay tbe fees of tbe clerk of this court.”</p> <p>From a judgment entered accordingly tbe plaintiff appealed.</p> <p>They cited Snyder v. 0obeli, 29 W. Va. 48, 1 S. E. 241; 6 Lawson, Rights, R. & P. §§ 3002, 3007; Walker v. Brewster, 17 Law Times, 135; Pennoyer v. Allen, 56 Wis. 502, 14 N. W. 609; Stadler v. Grieben, 61 Wis. 500, 21 N. W. 629; Middlestadt v. Waupaca S. & P. Co. 93 Wis. 1, 66 N. W. 713; Tiede v. Schneidt, 105 Wis. 470, 81 N. W. 826; Price v. Oakfield H. C. Co. 87 Wis. 536, 540, 58 N. W. 1039; Wickham v. C. & N. W. B. Co. 95 Wis. 23, 69 N. W. 982; Hildman v. Phil-lipSj, 106 Wis. 611, 82 N. W. 566.</p> <p>Tbey cited McCann v. Strang, 91 Wis. 551, 72 N. W. 1117; Johnson v. Philadelphia, 94 Miss. 34, 47 South. 526.</p>

<p>Appeal from a judgment of the circuit court for Dane county; E. Ray Steyens, Circuit Judge.</p> <p>Action to impeach an award of the Industrial Commission. While in the employ of plaintiff, George Ganzer was so injured as to proximately cause his death under circumstances rendering the employer liable to his dependents under the-Workmen’s Compensation Act. líe was an unmarried man, twenty-one years of age, working away from the parental home. He left home, took employment at $10 per week, and worked about a month before he was injured. In the meantime he visited home twice and turned over to his mother some $18 or $20. She used it for family support. He had been accustomed to turn his earnings over to his mother and obtain money back as he needed it. The parents owned a home valued at about $2,275, incumbered for $1,300, also a small amount of personal property. The father had an earning capacity of about $65 per month and was in fair working health, as was also the mother. George purposed saving to buy a farm and made his mother his banker; but without thought that she should keep the particular money he turned over to her. She took and used it 'as she had money he earned before he was of age. She estimated that he had been accustomed to turn over to her $15 per month more than he drew and said she spent the residue for family expenses.</p> <p>The Commission found that the parents of deceased were partially dependent on him for support, fixed the amount at $180 per year, and the whole they were entitled to at $720. On the statutory appeal to the circuit court that was affirmed.</p> <p>contended, inter alia, that it is the actual need of the support that determines the question of partial dependency. Jackson v. Brie R. Co. (N. J.) 91 Atl. 1035. The parents must have been dependent upon the deceased son in a material degree for support or maintenance or assistance and the obligation of such deceased son to furnish it must have rested upon some moral or legal or equitable ground, and not upon his purely voluntary or charitable impulses or disposition, McCarthy v. Supreme Lodge N. E. 0. P. 153 Mass. 314, 318, 26 N. E. 866, 867; Ballou v. die, 50 Wis. 614, 619, 7 N. W. 561; Plislca v. Hatton L. Co. 1 Bulletins Ind. Comm. Wis. 95; Dazy v. Appounaug Co. 36 R. I. 81, 89 Atl. 160; Reardon v. P. & R. R. Co. 85 1ST. J. Law, 90, 88 Atl. 970; Bortle v. N. P. R. Co. 60 Wash. 552, 111 Pac. 788; Kanton v. Kelly, 65 Wash. 614, 118 Pac. 890, 121 Pac. 833; Main C. Co. v. Davies, 16 T. L. Rep. 460, 2 Workm. O. O. 108; Andrzejeiuski v. Northwestern F. Co. 158 Wis. 170, 148 N. W. 37.</p> <p>They argued, among other things, that the test of dependency is laid down by tbe statute itself, and is not tbe actual need of tbe alleged dependent, but tbe amount devoted by tbe deceased to bis or ber support. Tbis is in accord with wbat is believed to be tbe better reasoned judicial decisions, under somewhat different statutes. No decisions under statutory provisions like ours bave been found. They cited, among other cases, Main G. Go. v. Davies, 16 T. L. Rep. 460, 2 Workm. O. C. 108; Howells v. Vivian & Sons, 85 Law Times, 529, 4 Workm. C. C. 106; French v. Underwood, 19 T. L. Rep. 416, 5 W'orkm. C. C. 119; Turner v. Miller, 3 Butterworth’s Workm. C. C. 305; Robertson v. Hall Bros. S. Go. 3 Butter-worth’s Workm. C. C. 368; Hodgson v. West Stanley Colliery, 102 Law Times, 194, 26 T. L. Rep. 333, 3 Butterwortb’s Workm. C. C. 260, overruling Senior v.~ Fountains, [1901] 2 K. B. 563, 23 T. L. Rep. 634, 9 Workm. O. C. 116; McLean v. Moss Bay I. & S. Go. [1910] App. Cas. 229, 3 Butter-wortb’s Workm. C. C. 402, reversing [1909] 2 K. B. 521, 2 Butterwortb’s Workm. C. 0. 282; R. Legget & Sons v. Burke, 39 Scot. Law Rep. 448; 18 Cent. Law Jour. 256; In re Herrick, 211 Mass. Ill, 104 N. E. 432, 433; Appeal of Hotel Bond Go. (Conn.) 93 Atl. 245; Pliska v. Hatton L. Go. 1 Bulletins Ind. Comm,. Wis. 95; Dougherty v. State, id. 99; Dojak v. M., St.. P. & S. S. M. R. Go. 2d Ann. Rep. Ind. Comm. Wis. 47; Julien v. Milwaukee F. R. & L. Go. id. 65; Wangreen v. Milwaukee F. R. & L. Go. id. 68; Ostrenga v. Menominee & M. L. & T. Go. id. 77; Mans v. Gonsolidated W. P. & P. Go. id. 79; Grendahl v. Brunet Falls Mfg. Go. 3 id. 50; Johnston v. Milwaukee F. R. & L. Go. id. 68.</p>

Fowler, Judge. Petition by Rosa Schultz, before the Industrial Commission of Wisconsin, for an award of compensation, against the Heileman Brewing Company, for the death of her husband, F. J. Schultz, while in the employ of the Brewing Company. Tbe Commission made an award in favor of tbe petitioner and tbe Brewing Company appealed to tbe circuit court, wbicb court confirmed tbe award of tbe Commission.

Ross, Circuit Judge. Tbe judgment provides, among other things, that plaintiff recover upon the first cause of action stated in the complaint the sum of $6,546.36 damages and $46.31 costs and disbursements, in all the sum of $6,592.67, and that plaintiff have execution therefor and all other remedies usual upon personal judgments; that there is due plaintiff upon the note and secured by the fnortgage for principal, interest, and taxes paid, the sum of $6,546.36 principal,…

Risjobd, Circuit Judge. Action for personal injury originally begun by Ernest Samida to recover damages for injuries sustained by him on January 21, 1913, while employed by the defendant in unloading and piling spouts belonging to an ore dock that was being repaired. On March 8, 1913, Samida died as a result' of his injuries and the action was thereafter revived in the name of plaintiff as executor of the will of Samida.

Action to recover for personal'injuries sustained as a result of a collision between a gasoline motor car and the rear end of a passenger train. On September 4, 1912, plaintiff was in the employ of the defendant company, and in the performance of his duties was required to travel from place to place over the tracks of the Chicago, St. Paul, Minneapolis & Omaha Railway Company on a motor car owned by the defendant.

Lueck, Judge. The plaintiffs, as copartners, brought action against the Equitable Surety Company upon a bond, which bond had been given in a previous action against defendant Johnson-Carey Company. Both parties are nonresidents. The previous action was brought first upon a complaint alleging an express contract entered into by the plaintiffs and the Johnson-Carey Company. This was later amended to one of quantum meruit.

C. EsoiiweileR, Circuit Judge. This is an appeal from a judgment in favor of the plaintiff for $8,500, which was entered on the following special verdict: “(1) Did the defendant furnish to the deceased a place of employment as free from danger to life and safety as the nature of the employment would reasonably permit?

<p> Mechanics' liens: Subcontractors: Right to lien for materials: Improper use by principal contractor: Condemnation of building: Inchoate dower right. </p> <p>1. Where the principal contractor for the basement walls of a building purchased suitable materials from subcontractors, but constructed such walls therefrom in so improper and unsafe a manner xhat the walls were condemned by the building inspector and had to be torn out, the subcontractors were nevertheless entitled to liens under sec. 3315, Stats. Soulahan v. Ciarte, 110 Wis. 43, distinguished.</p> <p>2. The principal contractor was in such case the agent of the owner and acted within the scope of his authority in purchasing the materials, and his default in improperly using them — even though it might deprive him of the right to enforce a lien — did not affect the rights of the subcontractors in that respect any more than if the owner himself had improperly used such materials.</p> <p>3. The mechanic’s lien statute does not authorize the cutting off of the inchoate dower right of the wife of the owner of the premises, where she did not know of or consent to the making of the improvements thereon.</p> <p>Kebwin and Siebeckek, JJ., dissent.</p>

<p>[Appeal 'from a judgment of the circuit court for Milwaukee county; W. B. Quinlan, Judge.</p> <p>Action for personal injury sustained by being struck by defendant’s automobile. Upon a former appeal an order of the circuit court setting aside a verdict in favor of plaintiff on the ground that it was perverse and granting a new trial was affirmed. See Parlces v. Lindenmann, 148 Wis. 89, 133 N. W. 580.</p> <p>When the ease was called for trial the defendant moved to dismiss on the ground that it had not been brought to trial within the year as required by sec. 3072, Stats. 1913. The motion was denied and the case tried. There is very little dispute as to the facts. On November 21, 1908, at about 1 o’clock in the afternoon of a clear day at Milwaukee, the plaintiff, a woman about fifty-five years of age, was struck by defendant’s automobile, a Buick weighing about 2,000 pounds, while waiting for an east-bound street car on the east side of Sixth avenue where it intersects National avenue. Sixth avenue runs north and south. National avenue runs east and west and has two street-car tracks on it. Plaintiff stood on a line with the east sidewalk of Sixth avenue and about two or three feet south of the south rail of the south car track waiting for a car from the west which was approaching and which she had signaled to stop. The defendant came north about in the center of Sixth avenue, and when just about at the intersection of the south line of National avenue exclusive of the sidewalk space he first saw plaintiff waiting for the east-bound car. lie then continued in a northeasterly direction át a speed of from four to six miles per hour and would have passed to the left and in front of plaintiff at a distance of from three to seven feet had she remained standing where he first saw her. When he was within ten feet of her she for. the first time, apparently, saw the automobile, though the evidence is that defendant had several times blown his horn as he approached National avenue. Upon seeing the automobile she stepped to the north and upon the south car track, whereupon he turned his automobile to the southeast to pass behind her. When she reached the middle of the car track she immediately made a few quick steps to the south in front of the moving automobile and was struck by the right fender of the car before defendant stopped it. Tbe jury found (1) that defendant ought in tbe exercise of ordinary care, in taking tbe line be took to pass to tbe north of plaintiff, to have anticipated that plaintiff would become startled and probably move in front of bis automobile; (2) that tbe plaintiff moved to tbe north from tbe place where she was waiting for tbe street car in consequence of becoming startled by reason of tbe northeasterly direction taken by defendant’s automobile; (3) that defendant failed to exercise ordinary care for tbe purpose of stopping bis car after it became apparent to him that plaintiff would move to tbe south and enter tbe path of bis car; (4) that defendant failed to exercise ordinary care in tbe handling of bis automobile when it became apparent to him that tbe plaintiff would move to tbe south; (5) that tbe defendant’s want of ordinary care as found was a proximate cause of plaintiff’s injury; (6) that plaintiff exercised ordinary care for tbe purpose of ascertaining if any eastbound automobile or other vehicle was dangerously near when she stepped towards and upon tbe car track; (T) that tbe plaintiff exercised ordinary care for tbe purpose of ascertaining if there was any east-bound automobile or other vehicle dangerously near when she moved to tbe south from upon tbe car track; (8) that a person of ordinary care would not have anticipated that as a result of moving to tbe south in front of tbe automobile, under tbe circumstances shown by tbe testimony, a collision with tbe automobile would probably result; (9) that no want of ordinary care on tbe part of tbe plaintiff proximately contributed to her injury; and (10) damages in tbe sum of $4,000. From a judgment entered upon tbe verdict in favor of plaintiff tbe defendant appealed.</p>

<p> Taxation: Constitutional law: Incomes and property distinct: Limitar tions on taxing power: Incomes of nonresidents: Situs: “Derived from sources within the state:” Interest on corporate bonds: Action to question validity of tax: Parties: "When partial invalidity avoids whole tax. </p> <p>1. Under see. 1, art. VIII, Const., as amended, the taxation of property and the taxation of incomes are to be considered as two separate and distinct things.</p> <p>2. The taxing power of a state does not extend beyond its territorial limits, but within such limits it may tax persons, property, incomes, or business.</p> <p>3. If an interest in property is taxed, the situs of either the property or interest must be found within the state. If an income be taxed, the recipient thereof must have a domicile within the state or the property or business out of which the income issues must be situated within the state so that the income may be said to have a situs therein. [Whether an income may have a situs for taxing purposes different from that of its recipient is not determined.]</p> <p>4. The situs of the security for a debt is not necessarily the situs of the evidence of the indebtedness.</p> <p>5. The Income Tax Law does not seek to reach property or an interest in property as such, but to reach incomes having a situs within the state or growing out of a privilege exercised or occupation conducted within the state, and sub. 3, sec. 1087m — 2, Stats. 1911, levying an income tax upon nonresidents “upon such income as is derived from sources within the state or within its jurisdiction,” must be construed to mean such income as issues directly from property or business located within the state, and not income from loans made therein, though secured by a trust deed upon property situated within the state.</p> <p>6. The purchase of a bond issued by a domestic corporation is the making of a loan of money to the obligor; its purchase by a nonresident does not constitute any business carried on within the state, and its situs remains at the domicile of the bondholder. Interest on such a bond, paid to a nonresident, is therefore not income “derived from sources within the state,” within the meaning of sub. 3, sec. 1087m — 2, Stats. 1911.</p> <p>7. A corporation whose property was by sub. (b), sec. 1087m — 3, 'Stats. 1911, made liable for the income tax upon the interest paid to its bondholders if the latter failed to "pay such tax, may maintain an action questioning the validity of the tax. .</p> <p>8. Where a part of a tax is invalid and the amount of the illegal portion is not capable of ascertainment, the whole tax fails.</p>

<p> Master and,' servant: Action for services. </p> <p>In an action to recover for services, a judgment for plaintiff in tlie civil court, affirmed "by the circuit court, is held to he sustained by the evidence.</p>

<p>MaNdamus to tbe Hon. G. N. Risjobd, Judge of tbe Cir-. -cuit Court for Ashland county.</p> <p>Tbe Bretting Manufacturing Company is a corporation organized and existing under tbe laws of tbe state of Wisconsin, having its place of business in the city of Ashland, Ashland county, Wisconsin. The relator, the Gurney Lumber Company, is a corporation organized and existing under the laws of the state of Wisconsin and has its place of business at Gurney, in Iron county, Wisconsin. The Bretting Manufacturing Company did repair work on a locomotive of the Gurney Lumber Company. These repairs were made at its shops in the city of Ashland. After the locomotive had been repaired it was delivered to the Gurney Lumber Company in the city of Ashland. The Gurney Company has not paid the bill for repairs. The Bretting Manufacturing Company commenced an action against the Gurney Lumber Company to recover the amount due for such labor and material. The action was commenced in the circuit court for Ashland county. The Gurney Company served notice upon the Bretting Manufacturing Company demanding a change of venue to the circuit court for Iron county. The Bretting Company did not consent to such demand for the change of the place of trial of the case. On the 31st day of March the relator obtained an order to show cause in the Ashland county circuit court to. secure such change of venue of the action. After the hearing of said order the court made an order denying the application.</p> <p>This is an application to this court to compel by mandamus the judge of the circuit court for Ashland county to change the venue in the action of the Bretting Manufacturing Company against the relator, the Gurney Lumber Company, from Ashland county to Iron county.</p>

<p> Public utilities: Purchase by cities: Valuation: Elements of value: Investment: Earnings: Going value: Reproduction cost: Water pipes laid before paving: Decision by railroad commission: When set aside: Action: Finding by court: Bxirden and degree of proof: Outstanding bonds: Premium: Order for payment: Taxes assessed before purchase, by whom payable: Constitutional law: Provision for annual tax: Harmless error. </p> <p>1. In the valuation of a public utility for condemnation or sale purposes, the essential elements usually to he considered are the present value of its physical property, the present and prospective reasonable earnings of its business, the going value thereof, and the amount of money presently needed to put the plant in good condition.</p> <p>2. In determining the value of the physical property due regard should be had to the original cost thereof, the reproduction cost, the amount of depreciation, and the amount of obsolescence.</p> <p>3. The “going value” of a utility is that part of its value due to its having an existing established business. In fixing its amount the actual cost of establishing the utility in question as modified by what under all the circumstances ought to have been its reasonable cost, as well as the reasonable cost of establishing like enterprises under similar conditions, may be considered.</p> <p>4. Since the valuation of a utility cannot be reduced to absolutely fixed rules or to the mere appraisal of parts whose sum equals its value, but involves the exercise of sound and competent business judgment upon many elements of uncertain and debatable value, grave errors in arriving at and seriously affecting the final result must be shown before a valuation by the railroad commission will be set aside.</p> <p>5. In determining the value of a utility a consideration of reproduction cost is profitable and proper only in so far as it will aid in determining the ultimate fact to be ascertained, namely, the just present value of the utility as an entity.</p> <p>6. Generally, cost less depreciation will fairly represent value; for that reason cost is an important element in determining value, and reproduction cost is also important, but there may be elements that enter into both cost and reproduction cost that do not enhance value.</p> <p>7. Thus, in determining the value of waterworks, the extra cost of reproducing under paved streets water pipes- which were laid before the paving was done, was in this case properly disregarded.</p> <p>8. The original investment is a valuable aid in determining the present value of a utility, but it is not controlling.</p> <p>9. Earnings, if derived from a reasonable rate, are important factors-in determining the value of a utility, but are not in themselves conclusive.</p> <p>10. In an action under sec. 1797m — 83, Stats. 1913, to review an order of the railroad commission fixing the compensation to be paid by a city for the taking of the property of a public utility, the finding by the trial court that the compensation fixed by the commission is “lawful” is a'finding that it is just and adequate, and shows that the court passed upon the question of value.as-an original question of fact.</p> <p>11. Under sec. 1797m — 84, the compensation fixed by the commission must stand unless the plaintiff “shall establish to the full satisfaction of the court . . . that -such compensation is unlawful,” etc., and this does more than merely throw the burden of proof upon plaintiff, since it requires more than a preponderance of the evidence.</p> <p>12. It is the property of a utility which is to be purchased by a city, not a mere equity of redemption therein; and where bonds secured by a trust deed of the property were outstanding when the compensation was fixed, but might be called at any time upon payment of a premium, and the compensation fixed was more than sufficient to pay the full amount of the bonds including the premium, the railroad commission properly ordered the company to call in and cancel the bonds and turn the utility over to the city free from all liens.</p> <p>13. No rights of the bondholders being adversely affected by such order, they were not necessary parties to the proceeding.</p> <p>14. The company in such a case is not entitled to receive the compensation without calling in the bonds. When it accepted an indeterminate permit it agreed to sell to the city at any time the latter might elect; and the city is under no obligation to assume the company’s obligations or to pay anything more than the full value of the utility.</p> <p>15. The property of a waterworks company being, under sec. 51.43 (p. 845) Stats. 1913, deemed personal property for purposes of taxation, the taxes thereon based upon the assessment made on May 1st were properly payable by the company, not by the city, although the city purchased the property and took possession thereof in the following October.</p> <p>16. The provision of sec. 3, art. XI, Const., that a city acquiring a public utility shall provide for the collection of a direct annual tax to pay therefor, is for the protection of the utility; and when it appears that the city has the money on hand and has made lawful tender thereof to the utility, a noncompliance with the provision becomes a harmless error.</p>

<p> Husband and wife: Liability of wife for torts: Bills and notes. </p> <p>A married woman is responsible for a tort committed by her when not under coercion by ber husband, and may give a valid note in settlement of an action brought against her therefor.</p>

<p> Municipal corporations: Public improvements: Sewers: Special assessments: Restraining enforcement: Adoption of part of general charter: Validity: Limitation of actions: Statutes construed: Taxpayers’ action: Protection of individual rights of parties: Judgment construed and restricted. </p> <p>1. Special assessments for public improvements cannot be levied upon private property unless by "legislative authority and unless the prescribed method be followed in all substantial particulars.</p> <p>2. A city incorporated by special act may adopt substantially the whole of the general charter plan relating to sewers (subch. XX, ch. 40a, Stats.), but has no power to adopt less.</p> <p>3. Sec. 926 — 15, Stats., — providing that in cities of the third and fourth classes where the whole or any part of the cost of a sewer is to be paid by special assessments, certain proceedings shall be had, — does not contain a grant of power, but is' a mere regulation of the exercise of power where it already exists.</p> <p>4. Sec. 926a, Stats., — providing that no assumed adoption of the whole or any part of the general charter law shall be called in question or held invalid except in an action or proceeding brought directly for that purpose within three months after such assumed adoption, — relates to defects in the exercise of power, but does not apply where, as in this case, there is an absolute Want of power.</p> <p>5. A general taxpayers’ action to enforce the right and duty of a city to refuse to pay public money upon an illegal contract for improvements may be maintained even though some of the plaintiffs have, by their conduct or laches, estopped themselves from asking relief as to their private rights.</p> <p>6. If no estoppel is shown, the court may in such action deal with and protect also the individual rights of the parties to the record; but it should not restrain enforcement of special assessments against property of persons not before the court, and a judgment in general terms affecting such assessments may be construed and restricted so as not to apply to private property other than that of the parties. ■</p>

<p> Mechanics' liens: Architects: Continuity of service: Time for filing claim: Mortgages: Priority. </p> <p>Architects were employed in 1908 to furnish plans for a dwelling, superintend the construction, and issue certificates for work performed thereon. The building was practically completed so that the owner moved into it in September, 1910. In 1912 the architects made a charge of $11.80 for a drawing, and in June, 1913, a charge of $9.90 for inspection of the heating plant, which had been in use since 1910, but had never been settled for nor formally approved. After said inspection a certificate for a certain amount was issued to the heating contractor, but no final certificate of approval of the heating plant was ever issued. Eelcl, that the continuity of the service of the architects had been interrupted, that the owner had obviously accepted the building before June, 1913, and that any service rendered by the architects after such acceptance was not within the original contract of employment. They were therefore not entitled to a lien for services under that contract upon a claim not filed until October, 1913, — especially since the owner had in October, 1910, and again in August, 1913, mortgaged the premises to other persons.</p>

N. Eisjobd, Circuit Judge. Action by plaintiff as executrix of tbe estate of her deceased husband for a cancellation of certain conveyances and for a partnership accounting.

<p>Appeal from a judgment of the circuit court for Bayfield county: Q-. N. Rxsjobd, Circuit Judge.</p> <p>Action upon three negotiable promissory notes dated October 23, 1907, given to the Dakota Town Lot Company in part payment for the town site of the village of Carlyle, South Dakota, which was then purchased by the defendants Peavey and Ward of said company. These notes, with others of the-series amounting in all to $4,300, were secured by mortgage^ upon the real estate. As lots in the town site were sold the mortgage was released from the parcel sold. In March, 1908, the defendant and appellant, Peavey, sold his interest in the town site to one Kenderdine and deeded the property to Kenderdine and defendant Ward, who continued the business. The deed contained an agreement that Kenderdine assumed and agreed to pay the mortgage indebtedness. There-was evidence that the Town Lot Company assented to the arrangement, orally agreed to accept the liability of Kenderdine for the liability of Peavey, and released Peavey from liability. The Dakota Town Lot Company was very closely related in. a business way with the Minnesota, Dakota & Pacific Railway Company, which was building a railroad. The Town Lot Company owned undivided interests with the railway company in certain town sites on the line, and in the course of selling lots received moneys belonging to the railway company. The railway company also advanced from time to time certain sums in payment for right of way through public lands, properly chargeable to the Town Lot Company, and from these transactions there resulted a considerable indebtedness from the Town Lot Company to the railway company, which on January 14, 1908, amounted to more than $11,000. On that day the Town Lot Company indorsed the notes in blank, guaranteed them, and delivered them to the railway company as collateral security for said existing indebtedness and for indebtedness thereafter to be contracted, it being agreed that said existing indebtedness (then represented by a demand note) should be carried along and payment should not be called for until such time as the town-lot business and the right-of-way settlements reached a point where it would be possible for the Town Lot Company to pay. On February 23, 1909, the railway company sold and delivered the notes without further indorsement to the plaintiff, who paid $3,093.10 for notes the principal of which aggregated $3,500, and upon which some interest had accrued. Neither of the notes bad matured at tbe time of tbe transfers. Tbe trial court beld tbat tbe plaintiff was a bolder in due course and directed a verdict for tbe plaintiff for tbe amount due., Judgment being entered upon tbe verdict, tbe defendant. Peavey appeals.</p>

<p> Dismissal and nonsuit: Right to dismiss or discontinue: Discretion of court: Counterclaim: Judgment. </p> <p>1. The trial court may refuse to permit plaintiff to dismiss or discontinue the action, even though such dismissal, or discontinuance would not interfere with defendants’ right to the trial of the issue on a counterclaim.</p> <p>2. There is no practical difference between a voluntary dismissal and a discontinuance so far as plaintiff’s right to bring another action is concerned.</p> <p>3. Where there is a real controversy and issue has been duly joined, plaintiff may be compelled to proceed or take a dismissal which will preclude another action for the same cause.</p> <p>4. Defendants having alleged that it was agreed that performance of a second contract upon which they based their counterclaim should extinguish the plaintiff’s claim for damages under the contract sued on, failure to produce evidence in support of such allegation did not preclude defendants from proving their counterclaim and not only recovering the amount due thereon but putting at rest plaintiff’s adverse claim.</p>

<p> Highways: Duty of town: Injury to pedestrian on side path: Absence of railing at embankment: Sidewalks: Evidence: Harmless error. </p> <p>1. Towns are not required to keep country roads in suitable condition for travel for tbeir whole width, nor are they required to build sidewalks thereon.</p> <p>2. A cut having been made through a hill and the traveled track of the highway being through such cut, one who, while walking at night on a footpath which went over the hill within the limits of the highway, was injured by falling down the embankment to the road below, cannot recover from the town for such injury.</p> <p>3. The traveled track through the cut being reasonably safe, sufficient, and suitable for travelers op foot or by vehicle, and the footpath being obviously outside of the traveled track, the town was not bound to maintain a guard or railing along the top of the embankment to protect persons using such path.</p> <p>4. The exclusion of evidence as to the action of the town board upon a petition for the laying of a sidewalk along said highway was not prejudicial error, it appearing that the town did not lay the sidewalk and that it did not extend to the place in question.</p>

<p>Appeal from a judgment of the circuit court for Price county: Gr. N. Risjobd, Circuit Judge.</p> <p>Action to recover for personal injury. The complaint is ‘based upon failure to furnish a safe working place. The plaintiff was employed as a common laborer assisting in loading logs on cars, and in the performance of his duties it be•came necessary for him to be upon a certain car then being loaded for the purpose of adjusting the logs being hoisted in bunches upon said car by means of a mechanical device known ;as a steam jammer or loader. It is alleged in the complaint that the defendant negligently and carelessly failed to provide plaintiff with either safe employment or a safe place of •employment, and failed to promulgate rules for the safety -and protection of plaintiff and other employees engaged, and failed to warn plaintiff of the dangers, and failed to furnish proper appliances used in hoisting logs, in consequence of which plaintiff was seriously injured.</p> <p>The defendant answered admitting its corporate existence .and that the plaintiff was injured while in its employ on May 15, 1913, and denied all other allegations of the complaint, and alleged that the plaintiff contributed to said injury by his own negligence, and that the injury was not occasioned by the negligence of the defendant. The jury returned the following verdict:</p> <p>“(1) Did the defendant fail to furnish plaintiff a place of 'employment which was as free from danger as the nature of the employment reasonably permitted ? A. Yes.</p> <p>“(2) If you answer the first question ‘Tes,’ then was suck failure tbe proximate cause of plaintiff’s injuries ? A. Yes.</p> <p>“(3) Was plaintiff guilty of any want of ordinary care-which contributed to produce his injuries ? A. No.</p> <p>“(4) At what sum do you assess plaintiff’s damages?' A. $6,500.”</p> <p>Judgment was entered in favor of the plaintiff upon the-verdict, from which this appeal was taken.</p>

<p> Taxation: Action to set aside taxes: Parties: Rights of holder of tax certificate: Illegal taxes: Compromise: Redemption from tax sale. </p> <p>1. In an action to set aside taxes ior which land has been sold the holder of the tax certificate is a proper party, hut the county is the real party in interest.</p> <p>2. In an action directly attacking the validity of a tax certificate, or where a substantial part of the relief sought is the cancellation of a tax certificate, the certificate holder is a necessary party.</p> <p>3. Although holders of tax certificates have certain rights of which they cannot be deprived without their day in 'court, they are not particularly favored in the law, a purchaser at a tax sale not being a purchaser in good faith for value.</p> <p>4. Where, after action brought to set aside as illegal taxes for which land has been sold, a compromise is made with plaintiff by the county officers pursuant to sec. 121 Og, Stats., payment by plaintiff of the amount thereby agreed upon constitutes a redemption from the tax sale and is binding upon the holder of the tax certificate, although he was not a party to the action and did not participate in the settlement.</p>

<p> Official donds: Omissions: Effect: Amount of penalty: School district officers: Treasurer: Vacancy. </p> <p>1. Where the intent is clear and undisputed, a mere omission to insert words intended and authorized to he inserted cannot he held to defeat an official bond which all parties have treated as valid.</p> <p>2. In the bond of a school district treasurer, duly executed by him and by his sureties and duly filed and approved, the amount of the penalty was not inserted, the proper amount not yet having been determined; hut said treasurer and sureties intended to give and believed they gave the statutory bond, and they expected and authorized the director and clerk of the district to ascertain the proper amount as required by law and to insert the same in the blank space left therefor in the bond. Held,, that the failure of the director and clerk so to do did not defeat the bond or prevent the treasurer from duly qualifying.</p>

<p>Appeal from a judgment of tbe circuit court for Lincoln county: A. H. Reid, Circuit Judge.</p> <p>Highway injury. On tbe 9th of March, 1913, at about 9 o’clock in the evening, the plaintiff was riding in a two-horse sleigh on a north and south highway in the defendant town and was thrown out and injured. The testimony tended to prove that the sleigh tipped over by reason of the fact that there was a deep drift' of snow extending from the west line of the highway and covering a large part of the traveled portion thereof, which made it necessary for teams to travel on the extreme east edge of the turnpike, thus throwing the east runner of the sleigh into a hole or depression on that side of the turnpike. There was evidence that this condition had existed for more than three weeks before the accident. There was also evidence that about two weeks before the accident some men working for the defendant Gillette, who were hauling boom-sticks, left a large boom-stick some thirty feet in length on the east side of the highway several feet east of the spot where the accident happened, and that the plaintiff’s head struck the boom-stick when the sleigh was overturned. There was no evidence that the boom-stick had anything to do with causing the accident. Gillette was made a defendant because of the presence of the boom-stick at the place of the accident.</p> <p>A verdict was directed in favor of tbe defendant Gillette and tbe following special verdict rendered on tbe issues between tbe plaintiff and the town of Bradley, viz.:</p> <p>“(1) Was that part of tbe highway where plaintiff was injured reasonably safe for public travel at tbe time of hér injury? A. No.</p> <p>“(2) If you answer tbe first question ‘No’’ then answer this: Did tbe same lack of reasonable safety exist for three weeks continuously immediately before plaintiff’s injury? A. Yes.</p> <p>“(3) If you answer tbe first question ‘No,’ then answer this: Did tbe chairman of tbe defendant town know of said lack of reasonable safety at such time that by reasonable diligence be could have made said highway reasonably safe before plaintiff was injured? A. Yes.</p> <p>“(4) If you answer tbe first question ‘No,’ then answer this: Did said lack of reasonable safety exist for such length of time that tbe officers of tbe defendant town, if they bad exercised reasonable diligence, would have known of tbe same in time to have made said highway reasonably safe before plaintiff was injured? A. Yes.</p> <p>“(5) If you answer tbe first question ‘No,’ then answer this: Was the same lack of reasonable safety of tbe highway tbe proximate cause of plaintiff’s said injury? A.' Yes.</p> <p>“(6) Did George Henderson fail to use ordinary care in driving tbe team at tbe time of tbe accident and thereby proximately contribute to produce said injury ? A. No.</p> <p>“(7) What sum of money would fairly compensate the plaintiff for tbe said injuries which she received? A. $1,200.” .</p> <p>Judgment being rendered on tbe verdict, tbe town of Bradley appeals.</p>

IT. Reid, Circuit Judge. Action to restrain commission of waste. The complaint was to this effect: April 12, 1913, plaintiff contracted in writing to sell a particular farm and some live stock thereon for $4,500, of which $500 was paid down, the balance was agreed to be paid in specified instalments, and a promissory note conditioned accordingly was given.

Abbeal from a judgment of tbe circuit court for Brown county: UeNey Gbaass, Circuit Judge. This action was brought by the plaintiff against the defendant for divorce from the bonds of matrimony, but before trial the prayer of the complaint was amended so as to demand a divorce from bed and board.

MaNdam:us action commenced in this court to compel tbe secretary of state to audit orders of tbe commissioners of public lands for payment to Ashland county of $253.04 for tax claims on mineral rights acquired, in form, by tbe state under cb. 367, Laws 1913. The petition stated all tbe facts necessary to a cause of action for tbe relief prayed for, if tbe act of 1913 aforesaid be constitutional.

This is an action to restrain the defendants from tearing. down or interfering with a party wall on the third story of the plaintiff’s building constructed on the. land adjacent to defendants’ lot. A temporary injunction was entered against the defendants pending the action. The defendants put in issue the material allegations of the complaint and set up several counterclaims.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: J. C. Ludwig, Circuit Judge.</p> <p>Tbe plaintiff brought tbis action to recover tbe sum of $2,835.88 with interest from January 29, 1913. Plaintiff, under protest, paid tbis sum to defendant as income tax and claims it was in excess of tbe amount lawfully due from it as. income tax on its income for tbe year 1911 and assessed in tbe year 1912.</p> <p>Tbe plaintiff is a corporation organized, under tbe laws of tbis state and is located and bas its principal place of business at Carrollville in the town of Oak Greek, Milwaukee county. Tbe plaintiff conducted tbe business of manufacturing glue, gelatine, grease, and other products and sold these products in tbis and other states of tbe United States and in foreign countries. Its manufacturing was done at its plant in tbe town of Oak Greek, tbe defendant in tbis action. It maintained general offices at its plant in Carrollville and conducted all of its business there, except such as was conducted at its established branch business places in tbe cities of Boston, Massachusetts; New York City, New York; Chicago, Illinois; Cincinnati, Ohio; Eichmond, Virginia; and Grand Eapids, Michigan. At these places tbe plaintiff carried stocks of its goods. Each place was in charge of a manager, who employed traveling men to solicit orders for goods.. A part of tbe goods covered by orders obtained by salesmen were shipped to tbe purchasers from tbe stocks at these branches, and tbe rest of such orders were sent by tbe managers to tbe plaintiff’s headquarters at Carrollville and tbe goods called for by them were shipped from tbe factory at Carrollville. Tbe stock of goods at these branches was in part manufactured at tbe factory in Carrollville and sent to tbe branch bouses before sale thereof, and the rest of the goods at these branches the plaintiff purchased from manufacturers and dealers outside of this state and were shipped from the places of purchase either directly or by way of plaintiff’s factory to these branches.</p> <p>The parties agreed upon the material facts of the case and stipulated that in 1911 —</p> <p>(1) The value of plaintiff’s property within the state was $753,181.61. The value of its property within and without the state was $1,060,900.</p> <p>(2) Plaintiff’s income from rentals, stocks, bonds, securities, or evidences of indebtedness was $10,390.81.</p> <p>(3) Plaintiff’s income from its business (exclusive of the above item of $10,390.81) for 1911 was $1,279,850.71, which is designated hereafter as its business income.</p> <p>(4) The state tax commission computed plaintiff’s net “business income” for 1911 at $1^3,200. After making the deductions provided for .by the law the tax commission computed plaintiff’s taxable income for 1911 to be $66,576, upon which it assessed an income tax at the rate of six per cent., amounting to $3,994.56.</p> <p>(5) In 1913 the tax commission made a reassessment of plaintiff’s 1911 income to correct alleged errors in their assessment thereof in 1912, and upon their computation for reassessment found that $13,344 of plaintiff’s net taxable income for 1911 had been omitted from the tax of 1912 and made an assessment thereon at the rate of six per cent., amounting to $700.64, which the plaintiff paid under protest and included in its demand of recovery in this action.</p> <p>(6) It is also stipulated that the plaintiff’s net “business income” for 1911 arising from the conduct of its business, was derived as follows:</p> <p>(a) The sum of $15,999.47 was realized from the manufacture, sale, and delivery of goods from .its factory to cus' tomers residing in the state of Wisconsin.</p> <p>(b) The sum of $65,103.26 Avas realized from the manufacture, sale, and delivery of goods from its factory to customers residing outside of tbe state of Wisconsin.</p> <p>(c) Tbe sum of $31,336.86 was realized from tbe manufacture of goods at tbe factory, sent to branch bouses outside ■of Wisconsin, and tbe sale and delivery of sucb goods from tbe branch bouses to customers residing outside of tbe state of Wisconsin.</p> <p>(d) Tbe sum of $11,444.75 was realized from tbe purchase of goods in tbe market outside of tbe state of Wisconsin and shipped from tbe place of purchase either directly or by way of plaintiff’s plant at Carrollville to its branch bouses, and tbe sale and delivery of sucb goods to customers, residing outside of tbe state of Wisconsin.</p> <p>Tbe trial court adopted tbe facts as stipulated by tbe parties as its findings of fact in tbe case, and as conclusions of law held that plaintiff’s taxable income for tbe year 1911 under tbe provisions of secs. 1087m — 1 to 1087m — 30, ■Stats. 1911, inclusive, was $10,390.81 income derived from rentals, stocks, bonds, securities, and evidences of indebtedness, and $15,999.47 of tbe income derived from conducting tbe business specified and described in tbe foregoing ■classes (a), (b), (c), and (d) as “business income,” and that tbe income tax lawfully due thereon was tbe sum ■ of $1,055.61, which tax was paid by plaintiff on tbe 29th day of •January, 1913; that plaintiff was unlawfully required to pay tbe sum of $2,835.38 in excess of tbe lawful amount due as income tax; and tbe court awarded plaintiff judgment for tbe recovery of $2,835.38 with interest thereon from January 29, 1913. From sucb judgment this appeal is taken.</p>

<p> ^Negligence: Injury to licensee: Carpenter working on vessel being unloaded,: "Warning of increase in danger: Evidence: Contributory negligence: Instructions to jury: Burden of proof: Special verdict: Harmless errors. </p> <p>1. Plaintiff’s intestate, a ship carpenter who, to the knowledge of and without objection from defendant, was lawfully engaged in repairing a vessel while its cargo of coal was being unloaded at defendant’s dock, was not a trespasser but was entitled at least to the privileges and protection of a licensee; and the defendant was bound to so act as not unnecessarily to increase the danger to him or render the premises more dangerous without notifying him of such fact.</p> <p>:2. Evidence tending to show, among other things, that said intestate and his crew had started to work on the side of the vessel under the hoisting rig by which the coal was being taken from the hold, at a time when defendant was making some repairs on such rig; that defendant knew of their presence under the rig; that in the usual operation of the rig lumps of coal dropped from the buckets; that no warning was given to deceased before the rig was started again; and that shortly after it was started a lump of coal fell and struck him, causing his death — is held sufficient to show negligence on the part of defendant, and not to establish contributory negligence of the deceased as matter of law; hence there was no error in refusing to direct a verdict for defendant.</p> <p>:3. If in such case defendant’s employees knew the deceased was in a place of danger, or ought to have so known, it was their duty to give warning.</p> <p>4. It was not prejudicial error to refuse requested instructions to the-effect that there was no evidence that defendant’s employees knew the hearing of the deceased was not acute, and that if he-was hard of hearing it was his duty to govern himself accordingly — it not appearing that dullness of hearing had anything to-do with the accident.</p> <p>5. Refusal to submit in the special verdict a question as to an evi-dentiary fact not put in issue by the pleadings is not error, especially where the matter involved was sufficiently covered by the verdict submitted and the charge given.</p> <p>6. It is not error to refuse to give requested instructions which are-sufficiently and correctly covered by the general charge.</p> <p>7. Error in the instructions as to the burden of proof upon certain questions in the special verdict is not prejudicial where such questions were immaterial and answers thereto may be treated, as surplusage.</p>

<p>Appeal from a judgment of the circuit court for Wash-burn county: W. B. QuiNLAN, Judge.</p> <p>Action to enjoin enforcement of a judgment upon the ground of its being inequitable and having been obtained by fraud.</p> <p>The judgment referred to was rendered by default November 21, 1911, in the circuit court for Washburn county, in favor of G. A. L. Loomis and against plaintiff for $564.22, on two promissory notes of $250 each. Plaintiff in this action claimed that the two notes were given with a contract for the purchase of a stallion, and were, when parted with, attached to such contract and governed by its provisions; that they did not have any red-ink memorandum written thereon; that they were given in payment for a stallion; and that, later, and without his knowledge or consent, such memorandum was so written. It was stipulated in the contract that the purchase price of the notes should be paid out of' earnings of the stallion, ■ should not be enforced until such earnings amounted to $500, and, in case of precedent death of the stallion from some unavoidable cause, the earnings up to that time should be received in settlement of the debt. Fifty dollars were earned by the stallion the first year and paid over. The animal died the nest year, having earned $50, which was collected and paid over, and $40 in advance payments which it was mutually agreed plaintiff might keep for expenses. By reason of the facts plaintiff refused to pay anything further on the notes and in November, 1911, thereafter suit was commenced thereon. Plaintiff is an ignorant man and did not appreciate the effect of the service made on Mm. He was informed by the attorney that no judgment would be taken against him on the notes because the required red-ink memoranda were not thereon. He relied thereon. He supposed he had to appear at the attorney’s office in twenty days but did not do so because he was sick. Application was made to the clerk of the circuit court for judgment. The notes did not disclose their true character, because detached from the contract, otherwise judgment could not have been obtained. They then contained the required red-ihk memoranda. Plaintiff did not discover the fraud that had been perpetrated on him till about March, 1914. Before this action was commenced the judgment was assigned to Chrissie T. Loomis, wife of defendant C. A. L. Loomis. The judgment is inequitable and a cloud on the title to plaintiff’s realty.</p> <p>The claim of defendants was this: The notes, when delivered, were in the same condition as when put in judgment. The stallion was sold to be used for breeding purposes and with the understanding alleged. The stallion was not used for breeding purposes to any considerable extent and so far as so used the earnings were not accounted for. The maker of the notes understood fully the proceedings to obtain judgment but paid no attention thereto.</p> <p>There was evidence on behalf of plaintiff tending to prove the facts alleged by him and evidence on behalf of defendants tending to prove the facts as claimed by them, particularly this: Efforts were made to obtain a settlement with the debtor on several occasions after the horse died. The action on the notes was not commenced until over a year thereafter. The debtor knew that commencement of the action meant a judgment against him if he paid no attention to the matter. He was not misled by the plaintiff in such action, or his attorney. He neglected the matter, thinking he was execution proof, until some two years and a half after judgment. He then discovered that if the notes did not, originally, have the red-ink memoranda thereon required by law, they were unenforceable, and then proceeded to avoid judgment on that ground.</p> <p>The trial court found, among other things, this: A proper red-ink memorandum was written on each of the notes when they were executed. The judgment on the notes was regularly entered upon due and proper service, Hovember 21, 1911. The action to impeach such judgment was not commenced until April 14, 1914. The judgment was not entered for some two months after service of the summons. The action was not commenced until after reasonable, but fruitless efforts were made to secure an accounting and settlement under the purchase contract. After the entry of the judgment, efforts were made to have the debtor pay it, but he refused to do so, or pay any attention thereto, believing that it was uncollectible. When he came to appreciate that his property could be reached to satisfy it he commenced this action. He is a man of average intelligence and reasonably well acquainted with court proceedings. He so slept upon his rights as to be guilty of fatal laches.</p> <p>Upon such facts, judgment of dismissal with costs was ordered and rendered.</p>

<p>Appeal from a judgment of the circuit court for Washington county: Maetih L. Lueck, Circuit Judge.</p>

Rat SteveNS, Circuit Judge. This is an appeal from a judgment affirming an order of tbe Industrial Commission made under tbe Workmen’s Compensation Act, awarding $1,124.40 to tbe claimant as compensation for tbe loss of an eye. Tbe appellants claim that there was no sufficient proof that tbe loss of tbe eye was tbe result of an accident while in their employ. Tbe facts were as follows: Tbe claimant is a plumber.

Eay Steveits, Circuit Judge. The Commercial Club of the city of Superior filed a complaint with the Railroad Commission of Wisconsin, setting forth that the rate of fare charged by the Duluth Street Railway Company for carrying passengers on its street cars in the city of Superior was excessive, and praying that an investigation be made and the rate of charge reduced.

J. Monahan, Judge. Plaintiff brought this action in the municipal court of Prown county to recover damages for injuries alleged to have been sustained while riding as a passenger on one of defendant’s passenger trains between Escanaba, Michigan, and Oconto, Wisconsin.

Halsey, Circuit Judge. Action to foreclose mechanics’ liens upon a building owned by Ludwig Berg and Fredericlca Berg, Ms wife. Six lien claimants, who have proved tbeir claims, were joined in this consolidated action as parties defendant. Three other claimants who were also joined as defendants failed to appear and prove their claims.

W. HogaN, Judge. Tbis was an action to recover damages for personal injury. Tbe plaintiff was a locomotive engineer and was injured in a collision at Aniwa station on tbe defendant’s line in February, 1913. Plaintiff was taking bis engine, number 980, from Wausau to Antigo, and was running light. On reaching Aniwa a freight train was overtaken, and it was decided to allow tbe plaintiff’s engine to run ahead of tbe freight train, which was also destined for Antigo.

Fowlee, Circuit Judge. Action to recover damages resulting from tibe alleged mis-routing of a carload of horses shipped from Brookings, South Dakota, to the Union Stockyards at Chicago. The facts were substantially as follows: The plaintiff, a horse dealer residing at Lodi, Wisconsin, purchased a carload of horses at Brookings, South Dakota, through his agents, Lohman & Samis, who lived in that vicinity.

Eowleb, Circuit Judge. This action grew out of an exchange of properties. Tbe plaintiff conveyed to tbe defendants a farm and some personal property tbereon and received in exchange property in tbe village of Montello valued at $1,200. In tbe trade tbe farm was valued at $3,300 and tbe personal property at $725.

<p>Appeal from a judgment of tbe circuit court for Eond du Lac county: Chesteb A. Eowleb, Circuit Judge.</p>

Fowlee, Circuit Judge. For many years tbe defendant town has maintained a highway running north and south over a low tract of land in said town, and plaintiffs are the owners of forty aeres lying west of and adjacent to the highway. Off from the highway in plaintiffs’ forty there is a small pond, the slope of the land being from the highway to the pond.

Appeals from a judgment of the circuit court for Columbia county: Ohesteb A. Eowlee, Circuit Judge. September 22, 1912, Benno Sydow died intestate leaving a widow, Frieda, and a minor son,' Rugo. His homestead of forty acres was of the value of $7,000.

Eowlee, Circuit Judge. This is an appeal from a judgment of nonsuit. Tbe action was brought to recover money alleged to bave been paid under duress of threatened criminal prosecution. Tbe defendant claimed by bis answer that tbe money was paid to settle a claim for civil damages.

Appeals from a judgment of tbe circuit court for Fond du Lac county: Ci-iesteb A. Eowlee, Circuit Judge. Equitable action to set aside two deeds upon tbe ground that they were procured by fraud and undue influence. In 1904, Minnie Smith, an aged lady, while in poor health and residing with her daughter Agnes, deeded her farm, consisting of two forty-acre tracts, worth about $6,000, one half to Agnes and one half to her son Edward.

<p>Appeal from a judgment of the circuit court for Oconto county: W. B. Quinlan, Circuit Judge.</p>

33. QuiNLAN, Oircnit Judge. Upon the petition of the defendant a writ of certiorari issued from the circuit court to review the judgment of a justice’s court. Other facts are stated in the opinion. This appeal is from a judgment of the circuit court reversing the judgment of the justice.

B. QuiNlaw, Circuit Judge. Tbe plaintiff is a public utility corporation engaged in tbe business of furnishing electric current for lighting purposes in tbe city of Oconto. Tbe Oconto Electric Company is a rival corporation engaged in tlie same line of business. Tbe defendant at one time was a stockholder in tbe plaintiff corporation, but sold bis stock in sucb company before tbe commencement of tbis action.

<p> Slander: Words not actionable: Special damage. </p> <p>1. Words alleged to have been spoken by the pastor of a church concerning plaintiff, who had charge of the collection of the accounts of the parish, to the effect that the books showed that a certain sum had been collected but there was “no account to show what became of it,” are held not to be actionable per se, because they do not in their natural and ordinary meaning charge a criminal offense but merely slovenly or imperfect bookkeeping.</p> <p>2. Alleged loss of customers in his business as a blacksmith cannot be held to be the natural or proximate result of the charge of bad bookkeeping so made, so as to render the words actionable.</p>

B. Belden, Circuit Judge. This action was brought to reform a written instrument.

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

<p>Appeal from an order of the circuit court for Racine county: E. B. BeldeN, Circuit Judge.</p>

<p>Appeal from an order of the circuit court for Racine county: E. B. BeldeN, Circuit Judge.</p> <p>Plaintiff for the year 1912 made an income return showing a net income of $53,648.01, upon which sum the assessor of incomes assessed his income tax. The board of review notified him that they proposed to raise tbe assessment. He appeared before tbe board through bis son and made full disclosure under oath as required by law. Tbe board raised tbe assessment to $310,699.02 and tbe plaintiff paid tbe tax in excess of that upon an income of $53,648.01 under protest, claiming that tbe board of review bad no lawful ground for raising tbe assessment. In this action, brought under sec. 1164, Stats. 1913, be seeks to recover tbe illegal excess paid, amounting to $15,731.52. To a complaint setting up these and other facts essential to a recovery the defendant demurred on tbe ground that tbe complaint failed to state facts sufficient to constitute a cause of action, in that it did not allege that plaintiff took an appeal from tbe assessment of tbe board of review to tbe state tax commission as provided by sec. 1087m — 19. Erom an order overruling tbe demurrer tbe defendant appealed.</p>

0. Higbee, Judge. This is an action to recover damages alleged to have been sustained by the plaintiff as administratrix of her husband’s estate and as his widow on account of her husband’s death. The defendant is a corporation organized under the laws of the state of Wisconsin. The deceased, Gerhard Yennen, was employed by the defendant during the spring and early summer of the year 1914.

<p> Reformation of lease: Mistake: Evidence: Laches. </p> <p>1. A finding of the trial court that by mutual mistake of the parties there was a misdescription of the premises intended to be covered by a lease is held to be sustained by the evidence.</p> <p>2. Delay in commencing an action for correction of the misdescription of premises in a lease did not constitute laches where plaintiff was in peaceable possession of the disputed premises, with defendants’ consent, and the rights of innocent parties were in no way prejudiced.</p>

<p> Master and servant: Injury: Insecure path: Contributory negligence: Question for jury. </p> <p>In an action for injuries to an employee contributory negligence was a jury question upon evidence showing, among other things, that as he was walking in defendant’s factory along a narrow path constructed of a thin coating of concrete laid on ashes, close to the edge of which was an excavation, the bank caved away causing him to fall into the excavation, that for weeks he and others had walked over the path safely, and that he knew of the excavation and of the thinness of the concrete, but not showing that he knew or even suspected the insecure condition of the bank under the concrete.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: Orren T. Williams, Circuit Judge.</p> <p>Certiorari action to test tbe validity of tbe assessment of an income tax, under tbe laws of tbis state, on an annuity bequeathed to Abbie W. Kempsmith by ber husband, Frank Eempsmith.</p> <p>Mr. Kempsmith, by will, left a considerable estate in trust, in part, to pay out of tbe net income thereof $3,600 per year to bis wife, Abbie, so long as she should live. In due course, tbe bequest was valued under tbe inheritance tax law of tbe state, tbe prescribed inheritance tax was assessed thereon, and was paid by or on account of tbe beneficiary. When she made ber income tax statement for tbe year she received tbe first annuity payment of $3,600, she claimed that such sum was not assessable. Such claim was overruled by tbe taxing officers and she carried tbe matter, by certiorari, to tbe circuit court for Milwaukee county, where, in due course, it was beard, resulting in a decision that tbe value, in prcesenti, of tbe probable future payments having been determined and tbe 'statutory inheritance tax paid thereon, tbe yearly payments were not taxable under tbe Income Tax Law. Judgment was accordingly rendered reversing tbe determination to tbe contrary.</p>

Reitz, Circuit Judge. Action to recover taxes paid under protest. There was an income tax assessed on a year’s payment of a $5,000 life annuity left to plaintiff by will, payable out of the net income of the testator’s estate. The beneficiary’s interest in the estate was valued, an inheritance tax assessed thereon, and paid, and subsequently an income tax assessed on a yearly payment made in 1912 and $250 paid for the previous year.

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

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: LaweeNce W. Halset, Circuit Judge.</p> <p>Gertiorari to reverse tbe action of tbe income tax board of review of tbe county of Milwaukee in assessing an inheritance of real estate located in tbe state of Michigan as a part of tbe taxable income of tbe relator.</p> <p>Tbe relator is a resident of tbe state of Wisconsin and engaged in business in tbe city of Milwaukee. Mary Brenk, mother of the relator, died on tbe 14th day of April, 1913, in tbe city of Jackson, Michigan, and left an estate consisting entirely of real estate, all of which is located in tbe state of Michigan. Tbe relator’s share of tbe estate amounted to $7,316.80. On tbe 24th day of February, 1914, tbe relator made a report of bis income for tbe year 1913 and filed tbe report with tbe county assessor of incomes for tbe county of Milwaukee. In this report be listed tbe inheritance here in question under tbe bead of “Gross income,” but claimed the right to deduct tbe inheritance from tbe amount shown on bis report under tbe bead of “Deductions and exemptions.”</p> <p>The county assessor refused to allow tbe deduction and the county board of review sustained tbe bolding of tbe assessor. •Tbe relator then appealed to tbe Wisconsin tax- commission and tbe commission entered an order confirming tbe action of tbe county assessor and tbe board of review.</p> <p>Tbe relator petitioned for and tbe circuit court for Milwaukee county allowed a writ of certiorari to review tbe action of tbe assessing officers. Tbe circuit court entered judgment annulling tbe acts of tbe county assessor of incomes and tbe income tax board of review of Milwaukee county and allowing tbe inheritance to be deducted from tbe taxable income of tbe relator. From sucb judgment tbis appeal is taken.</p>

<p> Conspiracy: Collusion: Pleading: Complaint: Joinder of catises• of ao tion: Parties. </p> <p>1. To constitute conspiracy no express agreement is necessary, an understanding or tacit concurrence in mental intent to effect the common purpose being sufficient; and under certain circumstances “collusion” is synonymous with conspiracy.</p> <p>2. A complaint charging, among other things, collusion between all except one of the defendants to defraud the plaintiff corporation, and that in pursuance of such collusive agreement they fraudulently and corruptly converted goods and money of the plaintiff and used plaintiff’s funds in the purchase of real estate, title to. which was taken in the name of certain of the defendants, and praying for an accounting of the property so converted and for general relief, is held, on demurrer, to state but one cause of action.</p> <p>8. The fact that the title to some of the property in question was placed in the defendant who was not a'party to the collusive agreement, rendered her a proper party to the action.</p>

<p> Master and servant: Injury: Insecurely guarded rollers: Evidence: Sufficiency: Opinion: Special verdict: Order for judgment: Taxation of costs: Time limited: New trial as to damages only. </p> <p>1. Under secs. 1636; and 1636;';', Stats. 1911, which, made the duty to securely guard dangerous machinery an absolute one, testimony of an employee that when, as the result of a sudden jerk, his fingers went through a slot in the guard and came in contact with the rollers of a machine for pressing shoe soles they were caught and drawn further in, and that a thin cast-iron strip forming the base of the guard broke and gave way, allowing his hand to be severely hurt, was sufficient to justify the jury in finding that the rollers were not securely guarded, although there was expert testimony to the effect that the guard could not be broken in the manner described.</p> <p>2. A verdict, if supported by evidence, is not impeached by producing evidence which, if believed by the jury, would have supported a contrary finding.</p> <p>3. Where the trial court in effect decided that its clerk had no authority to enter an order for judgment on a special verdict, and itself signed and filed a written order for judgment thereon, the date of such written order, not that of said entry by the clerk, fixed the beginning of the sixty days within which, under sec. 2894a, Stats., the prevailing party might tax his costs.</p> <p>4. The plaintiff in an action for unliquidated damages cannot retain the advantage gained by a verdict in his favor and at the same time have a new trial for the purpose of increasing or adding to the damages assessed in such verdict. '[Whether such a practice, even if authorized by statute, would be due process of law, is doubted.]</p>

<p> Highways: Collision between vehicles: Negligence: Questions for fury. </p> <p>1. In an action for personal injuries sustained when defendant’s wagon collided with plaintiff's buggy which was being driven in the opposite direction on the extreme right of the traveled track, it is held, on the evidence that plaintiff was not guilty of contributory negligence as a matter of law in failing to have her buggy brought to a standstill before the collision occurred or in failing to shout a warning to defendant’s driver. Lloyd v. Pugh, 158 Wis. 441, distinguished.</p> <p>2. It is not negligence as a matter of law to permit an eleven-year-old boy, when accompanied by a parent, to drive a horse which is not shown to be difficult to manage.</p>

<p>Apteal from a judgment of tbe circuit court for Milwaukee county: LawbeNCe W. Halsey, Circuit Judge.</p> <p>Action to foreclose a mortgage for $4,500. Defense, payment of $8,000 and tender of balance. The circuit court found against the defendants and entered judgment for the face of the mortgage with interest, costs, and $200 solicitor’s fee. Erom such judgment defendants appealed.</p>

Ebitz, Circuit Judge. Judgment on cognovit having been entered in the civil court of Milwaukee county in this action, that court denied defendant’s motion to vacate the judgment and allow a defense to be interposed. On appeal to the circuit court this order was reversed with $10 costs, and the civil court was ordered to allow the proposed defense to be made on certain terms. From this latter order the plaintiff appeals.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Oscae M. Eeitz, Circuit Judge.</p> <p>This is an action for damages for personal injuries sustained hy the plaintiff while a passenger on one of defendant’s street cars.</p> <p>The plaintiff is a married woman thirty-five years of age. The defendant operates electrically propelled street cars .in the city of Milwaukee and carries passengers for hire. On April 22, 1914, in the forenoon, the plaintiff with a friend, one Mrs. Cucu, boarded one of defendant’s cars which was being operated on Thirty-fifth street. After getting onto the' platform of the car and attempting to step into the aisle of the car, and while reaching in her sweater pocket for her transfer, the car started and the plaintiff was thrown to the floor. There is a step leading from the platform into the car, and the plaintiff was thrown across this step in such a way that her omentum was torn so as to necessitate an immediate operation. The plaintiff alleges in her complaint that the car started with a sudden jerk, caused by the negligence of the defendant, and the plaintiff and Mrs. Cucu both testified at the trial that the car did start with a jerk. One Mr. Gaulke, who boarded the car at the same place, testified that there was no jerk, and so did the conductor.</p> <p>By a special verdict the jury found that the car was suddenly jerked; that the motorman was not negligent in operating the car; that no want of ordinary care on the part of the plaintiff proximately contributed to produce her injury; and assessed plaintiff’s damages at $1,500.</p> <p>An order was entered denying plaintiff’s motion for judgment on the verdict and for a new trial and granting defendant’s motion for judgment on the verdict. This is an appeal from the judgment in defendant’s favor.</p> <p>They cited, among other cases, Fitch v. Mason Giiy & G. L. T. Go. 124 Iowa, 665, 100 N. W. 618; Smith v. St. Paul Gity B. Go. 82 Minn. 1, 18 N. W. 827, 828; New Jersey B. & T. Go. v. Pollard, 22 Wall. 341; O’GaXlaghan v. Dellwood Park Go. 242 Ill. 336, 89 N. E. 1005; Louisville, N. A. & G. B. Go. v. Jones, 108 Ind. 551, 9 1ST. E. 476; St. Louis, I. M. <& S. B. Go. v. Holmes; 96 Ark. 339, 131 S. W. 692; Consolidated T. Go. v. Thalheimer, 59 ET. J. Law, 474, 37 Atl. 132; Copeland v. Omaha & O. B. St. B. Go. (Neb.) 151 1ST. W. 947; Irvine v. D., L. & W. B. Go. 184 Fed. 664, 671; Lee Line Steamers v. Bobinson, 218 Fed. 559, 563; Gleeson v. Va. M. B. Go. 140 U. S. 435, 443, 11 Sup. Ct. 859; Weber v. O., B. I. & P. B. Go. (Iowa) 151 ET. W. 852; Harden v. G., M. & St. P. B. Go. 102 Wis. 213, 78 ET. W. 424; Spencer v. G., M. & St. P. B. Go. 105 Wis. 311, 313, 81 ET. W. 407; Hopkins v. G., M. & St. P. B. Go. 128 Wis. 403, 107 ET. W. 330; Otto v. Milwaukee N. B. Go. 148 Wis. 54, 134 ET. W. 157; Kinziger v. G. & N. W. B. Go. 156 Wis. 497, 146 ET. W. 518; Hewitt v. Southern Wis. B. Go. 159 Wis. 309, 150 ET. W. 502.</p>

Fritz, Circuit Judge. This action was brought by tbe city of Milwaukee to recover a penalty on breach of ordinance relating to stationary and portable boilers.

<p> Constitutional law: Justices of the peace: Limiting number. </p> <p>Under sec. 15, art. VII, Const, (providing that the number and classification of justices of the peace to he elected in towns, cities, and villages shall be regulated by law, and that they shall have such civil and criminal jurisdiction as shall be prescribed by law), the legislature had power (by ch. 468, Laws 1911) to limit the number of justices in cities of the first class to one, leaving that one clothed with extensive civil jurisdiction and many important powers and duties, fixing a moderate salary for him, and / imposing no handicap preventing the acceptance of or holding the office. State ex rel. Burke v. Sinkel, 144 Wis. 444, distinguished.</p>

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

<p>Appeal from an order of tbe circuit court for Milwaukee county: J". C. Ludwig-, Circuit Judge.</p> <p>Action to recover damages for breach of contract. In November, 1913, a corporation operating a department store in Milwaukee, known as Leflys, was financially embarrassed.. James Harris, its president; Sam E. Blinkenstine, its secretary; Louis Sulzer, its treasurer; and Leo D. Lefly, its-vice-president and general manager, had become liable on its-paper as indorsers to the amount of $92,000. On the 20th of November they entered into an agreement with the defendants whereby the latter agreed to assume their liability as in-dorsers upon their transfer to them of their shares of stock in the corporation, their resignation from their respective offices, and a cessation of their salaries from the date of the agreement, provided the defendants were able within thirty days to secure an extension of the time of payment of $75,000 of the indebtedness of the Leflys corporation. It soon became apparent that an extension of time could not be secured from the requisite number of creditors. So on November 24th another agreement was entered into between Maurice-Moyer and James Harris as parties of the first part and Louis Sulzer, Sam E. Blinkenstine, and Leo D. Lefly as parties of the second part whereby the defendants in substance-agreed, first, to make diligent efforts to purchase all of the-outstanding merchandise claims of Leflys on a basis of fifty cents on the dollar and to furnish the money therefor, or, failing in this, second, to furnish the money for a composition to bo offered by Leflys in bankruptcy of fifty cents on the dollar, or, failing in tbis being satisfactory to creditors or approved by the court, third, to bid at the sale in case the property of the Leflys should go to a bankruptcy sale, and if they succeeded in purchasing the claims -at -fifty cents on the-dollar, or in making a composition agreement at fifty cents-on the dollar approved by the court, or if they purchased the property at a bankruptcy sale, they would in either case assume the liability of the parties of the second part as indors-ers to the amount mentioned. The contract was to be performed within thirty days from its date. Both contracts,, stock, and resignations from office were delivered in escrow to the Wisconsin Trust Company. The plaintiff succeeded, to the rights of Blinkenstine and Leflys.</p> <p>The complaint sets out these contracts and alleges that the-defendants failed to make diligent efforts to purchase the-outstanding merchandise claims of Leflys; failed to furnish the money therefor; failed to furnish the money for a composition agreement; and failed to bid at the bankruptcy sale,, though the property of Leflys was sold at such sale, whereby plaintiff sustained damages in the sum of $92,000. From an order overruling a general demurrer to the complaint the-defendant Moyer appealed.</p>

Feitz, Circuit Judge. Personal injuries resulting from a street-car collision. Both negligence and gross negligence on tbe part of tbe motorman are alleged in tbe complaint. At tbe close of tbe evidence tbe trial judge directed a verdict for tbe defendant and tbe plaintiff appeals.

<p> "Worhmen’s compensation: Accidental injury while performing service growing out of and incidental to employment: Evidence: Sufficiency. </p> <p>Where a night workman, whose duties took him to all parts of the bottling house of a brewery, was found between 8 and 9 o’clock p. m. lying, unconscious and with bruises on his head and shoulder, on the basement floor beneath a guarded temporary opening in the floor above, and died on the following morning, findings by the industrial commission that his death was caused by an accidental injury sustained while he was “performing services growing out of and incidental to his employment,” were not wholly unsupported by the evidence, although there was no di-. rect evidence showing what he was doing at the time.</p>

Ray Stevens, Circuit Judge. This is an appeal from a judgment confirming an award of the Industrial Commission.

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Rat SteveNS, Circuit Judge.</p> <p>This is an appeal from a judgment affirming an award of tbe Industrial Commission.</p> <p>Tbe award provided that plaintiff pay tbe defendant Leipus compensation for an injury sustained by bim by reason of wbicb be was found by tbe Commission to be partially permanently disabled in bis left forearm to an extent equivalent to a one-balf loss of said forearm.</p> <p>Tbe award included an allowance of $9.37 per week, being sixty-five per cent, of tbe average earnings of Leipus for tbe period of bis actual total disability from tbe time of tbe injury, October 6, 1913, to January 3, 1915, and also an additional allowance of $9.37 per week for 100 weeks.</p>

<p> Public officers: Malfeasance: Supervisor transporting members to town board meetings: Allowance of bill for traveling expenses. </p> <p>1. The furnishing, hy a member of a town hoard, of a conveyance to transport the members to and from their board meetings is not the purchase or sale of property or things in action nor a contract, proposal, or bid in relation thereto, within the meaning of sec. 4549, Stats., but is in the nature of labor or services.</p> <p>2. The compensation of town supervisors being expressly provided for in sec. 850, Stats., and no provision being made for traveling expenses, they must themselves defray such expenses, and the allowance by the town board of bills for such expenses violates that clause in sec. 4549 which makes it an offense for any town officer to do “any other act in his official capacity or in any public or official service not authorized or required by law.”</p>

<p> Railroad commission: Regulation of passenger service: Stopping-trains at small stations: Interstate commerce. </p>

<p> Railroads: Action for death of employee: What law governs: Inter state commerce: Burden of proof: Evidence: Sufficiency. </p> <p>1. Where the complaint in an action for death caused hy negligence predicated liability under the state statutes, but defendant affirmatively claimed that the case fell under the federal Employers’ Liability Act, defendant had the burden of proof on that proposition.</p> <p>2. Coal which was piled on a dock and had passed out of interstate commerce was loaded upon cars and thence dumped into hoppers which projected into a sunken room or basement. From the hoppers it was taken by conveyors to a bin, was weighed out from such bin, and then went into another bin, from which it was spouted into the tenders of locomotives employed in interstate commerce. Railway employees were required every night to clean up, with shovels, the scattered coal from the floor of said sunken room and throw it into the conveyor, which carried it to the bins. While so doing one of them was fatally injured. The purpose of their work was primarily to clean the floor and the fact that the coal cleaned up finally reached the interstate locomotives was merely incidental. There were one or two men or crews of men between the deceased and the locomotives, as well as between the deceased and the coal pile on the dock. Held, that these facts did not show that the deceased when injured was engaged in interstate commerce.</p> <p>S. Plaintiff’s evidence in this case as to the description of the place of work, its surroundings and lighting, and also as to the manner in which deceased came to his death, is criticised as defective.</p>

<p> Contracts: Agency: Subscription of money to operate mines: Selection of agents: When subscribers bound: Incurring debts: Joint liability of subscribers: Evidence: Minutes of meetings: Competency: Appeal: Harmless errors. </p> <p>1. Where stockholders, including the president and directors, in a mining corporation signed an agreement whereby they severally subscribed certain sums “to a fund to be used in buying such articles as are necessary to operate the mill” of said company, “and to pay such bills as are pressing by having them assigned to our representative, the balance to be used to operate the mines and mill . . . , providing the directors pledge to us the gross output of the operations or enough .of the product to repay , us the money subscribed and guarantee to us that none of the money received by the operation of the mill shall be used for any other purpose than running said mill until we have been repaid,” etc., each subscriber, whether he signed before or after the acceptance of the proposition by the directors of the company, conferred upon his associates, by clear implication, the power to create the agency necessary to carry out the purposes of the agreement, and was bound by their action even though he; himself neglected or refused to take part in the selection of such agents.</p> <p>2. Where such proposition was presented by one or more of the subscribers at a meeting of the directors and was accepted by them,, all subscribers were bound by such acceptance; and the minutes, of such meeting were competent evidence as being part of the-res gestee.</p> <p>3. So, also, the minutes of a subsequent meeting of the subscribers-reciting that thirty-three of them were present, some of whom were identified by name, that the minutes of the directors’ meeting were read to them, and that they elected an advisory board, of subscribers to act with the directors and also a trustee for the subscribers, were competent evidence as being in the nature-of admissions.</p> <p>4. The representatives of the subscribers, acting with the directors,. having operated the mines and mill pursuant to the agreement and having incurred certain debts for work and materials in the attempt, through such operation, to repay to the subscribers the-amounts advanced by them, all of the subscribers became jointly liable for the debts so incurred.</p> <p>5. The testimony of the manager employed to take charge of the-mines and mill under the agreement was sufficient to prove the claims for work and materials, and it was not necessary to prove-each such claim by the testimony of the person who did the-work or furnished the material.</p> <p>6. Where a cause is tried by the court without a jury, the admission of incompetent evidence is not available as error on appeal unless some proposition essential to sustain the judgment has no-evidence to support it other than such incompetent evidence.</p>

<p> Railroads: Injury to person riding in engine cab: Trespasser or licensee? Presumptions. </p> <p>1. One who enters the cah of a railway engine for the purpose of getting a free ride in violation of Wis. Stats., secs. 1797 — 1 to 1797- — 38, and 36 U. S. Stats, at Large, 546, ch. 309, becomes thereby a trespasser, although the engineer makes no objection; and for his death caused by explosion of the boiler while he is so riding there can be no recovery, in the absence of wilful or gross negligence on the part of the engineer.</p> <p>2. In view of the law prohibiting such free passage, and it being common knowledge that the engine cab is for the exclusive use of the engine crew, a person attempting to ride free therein is presumed to know that the engineer has no authority to permit him to do so, and to wilfully commit an unlawful act.</p>

O. Esohweileb, Circuit Judge. Tbis is an action on a bail bond given pursuant to an order for arrest in a civil action for damages for injury to tbe person. On November 19, 1913, tbe plaintiff obtained a judgment against Charles E. Hoppenratb in tbe Milwaukee county circuit court for tbe sum of $783.71 as damages and costs in an action for personal injuries sbe sustained in a collision with plaintiff’s vehicle and Hoppenrath’s automobile.

<p> Pleading: Action “against a corporation:” Complaint: Sufficiency: Foreclosure of mortgage: Claimant of subsequent lien: Disclaimer. </p> <p>1. Where, in an action to foreclose a mortgage, a security company was made a defendant on the sole ground that it had or claimed: some interest or lien subsequent to the lien of the mortgage, the' complaint was not demurrable merely because it failed to allege that the security company was a corporation. The action in such a case is not against the company within the meaning, of sec. 3205, Stats., but notice of the foreclosure proceedings is merely given it because of its subsequent lien or claim.</p> <p>2. If in such a case the security company has or claims no interest subsequent to the mortgage, it should disclaim and the suit should be dismissed as to it.</p>

<p>Appeals from orders of tbe circuit court for Milwaukee county: LaweeNce W. Halsey, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county; E. 0. Esci-iweileR, Circuit Judge.</p> <p>Certain real estate in what is now the city of Milwaukee-was platted in 1835. Block 69 was shown on the plat as in the diagram on page 491.</p> <p>Spring street as shown on this plat is now Grand avenue-The alleys shown therein were twenty feet in width. The plaintiff is lessee of the west half of lots 1 and' 4 and of all of lots 5 and 8, together with the buildings thereon. The plaintiff’s lease extends to July, 1922. It also has an option from the lessor to purchase the premises which it occupies.</p> <p>The defendants are lessees of a portion of the west half of block 69, abutting on both sides of the east and west alley. By ch. 134, Laws 1887, the legislature attempted to vacate that portion of the north and south alley lying to the north of the north line of the east and west alley, and also to narrow. tlie east and west alley five feet on its north, and five feet on its sontfi side, so as to leave it a width of ten feet. Plaintiff alleges and defendants admit that the legislation was void. The abutting owners acted on the theory that the legislation was valid, and the north end of the north and south alley was</p> <p> </p> <p>closed and buildings were erected thereon. The building now held under lease by the plaintiff occupies the east half of this portion of the alley, as well as part of the five-foot strip on the north side of the east and west alley. On the east end of the ten-foot strip of this alley which was not vacated there are encroachments which render its use by teams difficult if not impossible. The south half of the north and south alley as originally platted does not appear to Rave been encroached upon or interfered with.</p> <p>In June, 1911, proceedings were instituted in tbe common council of tbe city of Milwaukee for tbe vacation of tbe westerly 150 feet of tbe east and west alley, pursuant to tbe provisions of cb. VI of tbe city charter. An attempt at least was made to follow tbe charter provisions in carrying out tbe vacation proceedings. Tbe court fotind that such provisions were substantially complied with. Tbe plaintiff insists that they were not, and that in any event tbe law was void in so far as it affected tbe rights of tbe plaintiff in the alley in question which were peculiar to itself and not shared in by tbe general public. These proceedings were completed during tbe year 1911. Tbe defendants, apparently relying on tbe validity of tbe vacation proceedings, started tbe erection of a building on tbe premises leased by them, which inclosed tbe portion of tbe east and west alley which tbe city bad attempted to vacate. Thereafter tbe plaintiff brought this action to declare void tbe vacation proceedings and to enj oin and restrain tbe defendants from obstructing tbe west half of tbe east and west alley as originally platted and to compel the defendants to fill in an excavation which they bad made in said alley and to restore tbe same to its former state of usefulness, tbe plaintiff claiming that, inasmuch as its property abutted on said alley, it was entitled to have same kept open and unobstructed through tbe entire block. It was set forth by appropriate averment that the west portion of tbe alley attempted to be vacated was used by and was useful to tbe plaintiff and that it bad a property right in tbe entire alley by virtue of this lease, which granted to it tbe privileges and appurtenances appertaining to tbe property contained in tbe lease. This action was commenced November 7, 1911. At, this time tbe excavation for tbe new building bad been made and tbe building was partially constructed. There were some steel beams in place over tbe alley. Tbe city of Milwaukee was named as one of tbe defendants because part of tbe relief sought was to declare void the proceedings by which it attempted to vacate the portion of the alley in question.</p> <p>The court found, among other things, that the proper steps were taken by the city to vacate the portion of the alley in question; that the value or usefulness of the plaintiff’s interest in the premises described in the complaint has not been materially diminished or affected by the vacation or closing of such portion of the alley; that the plaintiff was itself maintaining an encroachment upon the east half of the east and west alley, and that the building which it occupied covered the east half of the north half of the north and south alley, and that it was guilty of the same kind of interference in respect to the alley referred to as is charged against the defendants ; that under the circumstances disclosed by the evidence it would be contrary to equity to permit the plaintiff to maintain this action; that the plaintiff did not at the time of the commencement of the action have any private easement or property rights in the westerly 150 feet of the east and west alley; that the vacation or closing of said portion of the alley did not and does not have the effect to deprive the plaintiff, as lessee of the premises described in the complaint, of free access to and from the surrounding streets or to and from the system of public streets in the city of Milwaukee. In accordance with these findings, and conclusions of law based thereon, judgment was entered dismissing the complaint.</p>

C. Ludwig, Circuit Judge. Action to recover damages resulting from being bitten by a. dog kept by the defendant. August 5, 1914, plaintiff desired' to visit a Mrs. Harrow, who lived upstairs in a duplex flat, the lower flat being occupied by the defendant. A common door-opened from the street into a vestibule three or four feet deep and eight feet wide.

<p> Gifts: Delivery: Acceptance: Custody in third person: Evidence: Statements of person since deceased: Assignment of note and mortgage: Reservation of benefit to donor. </p> <p>1. A purpose to make a gift of property can only be consummated by tlie donor actually parting with possession of and dominion, as owner, over the subject by an absolute delivery thereof to the donee, or some one for such donee, and an acceptance by the latter.</p> <p>2. Delivery to the agent of a donee to control the title for him, the agent being actually in possession and control as such, is sufficient to complete a gift.</p> <p>3. Title to property may be vested by one person in another, as donee, and custody remain in a third person, as bailee, conditioned to turn the subject over to the donee after the death of the donor.</p> <p>4. Statements made by one since deceased to a third person that she had made a gift of specific property to a person named are competent evidence in an action between such donee and the administrator of the estate of the deceased.</p> <p>5. V., an old lady, owning a note and mortgage for $2,500 which were in possession of one L. as her agent, executed an assignment thereof, under seal and expressing a consideration, to C., a relative, who thereupon delivered, such assignment to L., directing him to hold the securities as bailee for her (C.), but to pay the interest, and the principal if necessary, to V. for the support of the latter. L. assented thereto. Afterwards L. paid the interest to V. and also loaned her $500 on the securities. When the note was paid L. deducted the $500, and with the remaining $2,000, by direction of V., purchased two bonds for C., which he kept in an envelope labeled as the property of C. He also sent to V. a receipt stating that the bonds had been received from O., that V. was to have the interest thereon during her lifetime, and also that the bonds might be delivered to V. at any time if she should demand or require them. V. afterwards made statements to third persons that she had given the $2,000 to C. Held,, that the trial court was warranted in concluding that there had been a good delivery and a completed gift of the property to O.</p>

<p> Vendor and purchaser of land: Contract construed: "Warranty deed:” Parol evidence: Restrictive covenants: Incumbrances: Inability of - vendor to convey as agreed: Recovery of amount paid: Waiver: Tendering return of contract. </p> <p>1. A contract to convey land by “warranty deed” calls for a deed containing the usual covenants of warranty, including the covenant that the land is free and clear from incumbrances.</p> <p>'2. Parol evidence is not admissible to show that such a contract called for a deed containing covenants on the part of the grantee restricting the use to be made by him of the land, with rever-sionary provisions.</p> <p>•3. Existing restrictions upon the use which may be made of land by the owner, with provision for reversion in case of violation, constitute such an incumbrance as to prevent the owner from giving a warranty deed.</p> <p>-4. Where the vendor of land cannot convey title as agreed in the contract of sale, the vendee may refuse further payment of the purchase price and recover the amount already paid thereon.</p> <p>•5. A letter from the attorney of the vendee of land stating in effect that his client would carry out the agreement of sale, though advised to the contrary by the attorney, upon receipt of the warranty deed called for by said agreement, is held not to have been a waiver or modification of the terms of the contract.</p> <p>6. Where both parties to a contract for the sale of land finally treated it as ended and stood upon their legal rights consequent upon the breaches claimed, the vendee was not required to ten- • der a return of the writing embodying the contract in order to entitle him to recover the purchase money which he had paid.</p>

<p> Death from negligence: Recovery for pain, etc.: Substantial period of suffering: Pleading. </p> <p>1. If a substantial period of suffering intervenes between an actionable personal injury and death resulting therefrom, damages may be recovered for such pain and suffering.</p> <p>2. An allegation that “a few minutes” after plaintiff’s decedent was caught by flames and exposed to burning in a building in which he was working “he then and there died from the effect of the flames and the burns which he received from them,” sufficiently alleges that there was a substantial period of suffering between the injury and death.</p>

<p> Villages: Widening street: Condemnation of land: Damages: Deduction of special benefits: Statute construed. </p> <p>1. From the fact that the market value of the remainder of a tract of land is the same as the market value of the whole tract before a strip was taken therefrom for the widening of a street, it does not necessarily follow that such market value was kept up or restored by benefits equal to the market value of the strip taken.</p> <p>2. Under sec. 899, Stats. 1913, where land is taken by a village for a street or other public improvement, “the special benefit, if any, to be enjoyed” by the owner “from such improvement” is to be offset or deducted, not from “the value of the land taken,” but only from “the damage otherwise sustained,” if any. Holton v. Milwaukee, 31 Wis. 27, distinguished.</p>

<p> Evidence:' Privileged communications: Physicians and surgeons. </p> <p>Under sec. 4075, Stats. 1913,' — providing in substance tliat no physician or surgeon shall be permitted, to disclose information received by him while attending a patient and which information was necessary to enable him to treat such patient, — in a personal injury action a physician who treated the plaintiff after the injury was properly not permitted to state whether he treated plaintiff at that time for hernia or rupture or whether' plaintiff complained to him of hernia or rupture.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>This is an appeal from a judgment of the circuit court affirming an order of the Industrial Commission awarding the respondent Jennah Patch compensation from the plaintiff for the death of her husband, Asa A. Patch. Asa A. Patch died April 9, 1914, from the effects of blood-poisoning. He bad been prior to bis death for many years employed as nigbt janitor and watchman by the plaintiff, First National Bank of Milwaukee, bis duties being, among other things, to clean inkwells and cuspidors and make rounds of the building. His hours of duty were from 6 p. m. until morning. . On Sunday, March 29, 1914, he left home in good health and condition, uninjured, and went to the bank. About 9 o’clock that evening he entered a room of the bank in which Schrantz, one of the employees of the bank, was working, sucking his thumb, and stated that he had scratched or pricked it. Later in the evening while playing cards with one B allering he stated that he had just scratched his thumb while cleaning cuspidors; that he thought there was a pin in the towel he was using. On Wednesday following he complained to his wife of pain in his thumb and stated to her that he had pricked it, and found out afterwards that there was a pin in the towel he was wiping brass cuspidors with. Thursday the thumb grew worse; a physician was called and Patch was taken to the hospital; the thumb was opened and found to be badly infected. Patch died April 9th from general sepsis, and a doctor testified that the port of entry of the infection was the left thumb.</p> <p>On May 15th plaintiff, through its agents, filed its report of the accident with the Industrial Commission. On this report the following answers were given to certain of the questions under the heading “Machine or Thing Causing In-jury:”</p> <p>“23. What was it ? Pin or sharp part of cuspidor.</p> <p>“26. Part causing the accident? Point.</p> <p>“31. How did the accident occur? Tip of left thumb punctured while cleaning cuspidor, presumably by pin or some sharp substance unknown in towel or cloth used in polishing.”</p> <p>The following errors are assigned: (1) That the court erred in finding that the statement of the deceased that he had scratched or pricked his thumb at the time and that he was sucking it to cleanse it was part of the res gestee. (2) The court erred in finding that there was evidence to support the finding that deceased was injured while engaged in performing services growing out of and incident to his employment. (3) The court erred in affirming the award of the Commission.</p>

<p>Appeal from a judgment of tbe circuit court for Dane •county: E. Eat SteveNs, Circuit Judge.</p>

0. Backus, Judge. Plaintiff in error was on March 6, 1915, convicted of abandonment of his wife and infant child under sec. 4587c, Stats. 1913, and duly sentenced.

J. TubneR, Circuit Judge. Plaintiff brings this action to recover from the defendants commission alleged to be due it as a broker under the terms of certain written proposals dated March 1, 1913, which are as follows: “John E. DeWolf Company, Milwaukee. “Gentlemen: In consideration that you, on or before March 10, 1913, procure some person or corporation to purchase from the present owners the following described property : [here follows description] for the sum of four…

<p> Workmen’s compensation: Statute construed: What minors are “employees.” </p> <p>In sub. (2), sec. 2394 — 7, Stats., the words “minors who are legally permitted to work under the laws of this state,” used in defining the term “employee” in the Workmen’s Compensation Act, are not to be restricted so as to apply only to minors permitted to be employed in the precise work in which the accidental injury in question was sustained, but are to be given a broad, comprehensive meaning, so as to include all minors who are permitted, under the laws of the state, to work at any gainful occupation under any circumstances.</p>

<p> Railroads: Injury to boy: GatcMng on train: negligence: Questions for jury: Changing verdict. </p> <p>In an action for injuries to a boy who was run over on defendant’s, track either — as he claimed — after a train had been parted into, two sections and he was trying to cross the track in front of the rear section, which he supposed was at rest, or — as defendant claimed — when he attempted to catch a ride on the moving cars before the train was parted, it is held that the trial court was-not clearly wrong in deciding that the evidence conclusively showed that the injury occurred before the train was parted, and in changing the special verdict accordingly and rendering judgment for defendant on the ground that there was no proof of negligence on its part.</p>

<p> Railroads: Injury to person on trade in station: Contributory negligence: Headlights: Validity of statute. </p> <p>1. An employee of an express company who was struck and injured by a train alleged to have been run into a station at an excessive rate of speed without giving appropriate signals, is held, as a matter of law, to have been guilty of contributory negligence upon evidence showing, among other things, that he was familiar with the surroundings and knew that the train was likely to ■ come in soon on the track in question; that the station was well lighted; that he had walked 200 feet beside the track without looking back, and then stepped into the zone of danger when the engine was just behind him.</p> <p>[2. Whether sec. 1809®, Stats., relating to locomotive headlights, is unconstitutional, is not decided.]</p>

<p>Appeal from a judgment of tlie circuit court for Milwaukee county: GeoRge Clemeetsoh, Judge.</p> <p>'This is an action for libel, based on tbe publication of tbe following article:</p> <p>“EXTRA.</p> <p> “Gity Cleric’s Force Charged with Graft. </p> <p>“Graft charges against Peter F. Leuch, city clerk, and members of bis office force, were made to tbe common council Monday afternoon following a probe conducted by Aider-men Coleman, Aldridge, and Krzycki, Social-Democrats.</p> <p>“City Clerk Leuch and every member of bis department are said to be implicated in a scheme to get part of tbe money appropriated by tbe common council for tbe preparation of tbe tax levy.</p> <p>“Investigation by tbe Social-Democrats showed that tbe employees in tbe clerk’s office were receiving their salaries as department clerks and were also receiving money from tbe fund set aside for tbe preparation of tbe tax levy, which is in direct violation of tbe city charter, forbidding extra compensation to city employees.</p> <p>“While tbe common council was in session Monday afternoon tbe Social-Democrats obtained access to tbe tax payroll and got tbe evidence.</p> <p>“Charles S. Brand, deputy city clerk, who is receiving $150 a month salary, got $180 last month for ‘work on tbe preparation of tbe tax levy.’</p> <p>“Herman C. Schultz, first assistant city clerk, receives $166.66 a month salary, and got $57 last month for ‘work on tbe preparation of tbe tax levy.’ Mr. Schultz was a party to tbe extra payments under protest, bis position, it is understood, banging in tbe balance.</p> <p>“Emil E. Allee, second assistant city clerk, is receiving $83.33 a month salary, and got $91.20 last month for ‘work on tbe preparation of tbe tax levy.’</p> <p>“John E. Reiff, committee clerk in tbe city clerk’s office, is receiving $125 a month salary. He got $108 last month for ‘work on tbe preparation of tbe tax levy.’</p> <p>“Owen D. Murphy, clerk in tbe city clerk’s office, is receiving $100 a month salary. He got $108 a month for ‘work on tbe preparation of tbe tax levy.’</p> <p>“ ‘Eddie’ Hinkel, Rose henchman, got $185 for ‘work on tbe preparation of tbe tax levy.’ He, however, is not a regular city employee.</p> <p>“Alderman Coleman introduced a resolution in tbe council requesting City Clerk Leuch to report to tbe aldermen tbe names of tbe city employees wbo were receiving double pay in compiling tbe tax levy. There was surprise on tbe faces of tbe 'nonpartisan’ henchmen, wbo thought they bad been secure in their abstractions from tbe coffers of tbe city.</p> <p>“Meanwhile Alderman Coleman bad been gathering bis evidence, and when City Clerk Leuch read tbe resolution be was armed with all tbe facts, and urged tbe passage of tbe resolution merely as a formality to have tbe city clerk inform tbe aldermen of tbe peculiar jobholding started by tbe 'nonpartisans’ soon after they got in office.</p> <p>“ 'This is graft pure and simple,’ said Alderman Coleman. 'The employees of tbe city clerk’s office bad been drawing double pay since tbe beginning of tbe preparation of tbe tax levy. City Clerk Leuch was allowed money to hire additional clerks to prepare tbe tax levy blanks and lists and be did gather in “Eddie” Hinkel and other henchmen of “Dave” Eose and tbe corrupt machine which was turned to power on tbe wave of “nonpartisan” victory. But they were not satisfied to give these fellows jobs. They went after some of this easy money and a good piece has been divided up among them.’</p> <p>“Charles S. Brand, accused by tbe Social-Democrats with receiving two checks from tbe city, is an officeholder of tbe old Eose machine. When Peter Leuch became city clerk Brand came back into a steady job for two years.</p> <p>“Herman C. Schultz, also charged with receiving double pay, has been in tbe city clerk’s office under several administrations. Because of bis knowledge of tbe office affairs be was held over during tbe tenure of tbe Social-Democrats, and Carl D. Thompson, then city clerk, praised bis work highly as that of a valued and trusted employee.</p> <p>“John E. Beiff was appointed committee clerk about a month ago. He bad been a clerk in Leuch1's department. He was at one time secretary for 'Dave’ Eose.</p> <p>“Owen D. Murphy is a son of ex-Alderman Murphy. He was brought to the office when the ‘nonpartisans’ took bold after two years’ absence while Carl D. Thompson was city clerk.”</p> <p>By way of answer the defendants, among other defenses, alleged that tbe matters and things set forth in tbe article were true. At the close of the evidence the defendants moved to direct a verdict, which motion was denied, the court stating that “the article when published without explanation was of a libelous character ... on its face. . . . There must be a recovery by the plaintiff unless it is justified by állegation and proof. The allegation or justification is made in the answer, and the proof in reference to it we have heard.” Continuing, the court said:</p> <p>“I think the article must be considered as a whole in order to determine the specific charge made. The article, when carefully read, is an article that charges that the city clerk violated the law in giving extra pay to members of his department who were drawing a salary; that is as I construe that article. And unless it can be shown by the defendant that that is true, there must be a recovery.”</p> <p>The court prepared a special verdict containing the following questions:</p> <p>“(1) Did the plaintiff pay or cause to be paid out of the fund placed in his hands of $6,000, for the employment of special help to prepare for the tax levy of 1912, compensation to members of the regular salaried force in his office for extra work done by them in preparation for the tax levy ?”</p> <p>“(2) Was any one of those who were responsible for the conduct of the Milwaukee Leader actuated by express malice against the plaintiff, that is, by a desire and intention to injure him in the publication of the article in question in this case ?”</p> <p>(3) (Related to assessment of damages.)</p> <p>There was no dispute or controversy as to how the first question should be answered, and it was properly answered “Yes” by the court. After the jury had deliberated some time and had announced that they were unable to agree on the answer to be returned to the second question in. the special verdict, the court directed the jury to answer the question “No,” and on the verdict thus directed judgment was entered dismissing the complaint, from which judgment plaintiff appeals.</p>

<p> Corporations: Toll-road company: Lease of road and franchise: Rights of assignees: Change of ownership: Presumption: Parol evidence: Lessee holding over: Annulment of franchise: Ouster. </p> <p>1. A corporation to which had been granted a franchise to construct and operate a toll road leased the road and the franchise for fifty years. After several successive assignments of the leasehold interest, one W., in an instrument assigning the same, purported also to sell and transfer to the assignee the road itself with all the franchises and everything connected therewith. Thereafter, by ch. 103, Laws 1874, the lease was validated and the lessee and his assigns secured in the enjoyment of the property for said term. Subsequent assignments all declared that the intention was to convey the “lease and devise” assigned by W. In the absence of any showing that the original owner of the franchise had transferred or that there had been any judicial sale of the franchise and property, or any judgment against such owner, it is held that there can be no presumption that the-ownership of the road and the franchise had vested in W. before-he attempted to transfer them, and that each of the assignees took only the leasehold interest.</p> <p>2. The existence of the lease being recognized in all the assignments, and the rights of each assignee after W. being expressly made referable to and measurable by the validated lease, parol evidence was inadmissible to show that the intention, when any of such transfers were made, was to convey the road and. the franchise absolutely; nor could title by adverse possession be acquired by such assignees as against the original owner.</p> <p>3. An assignee of the leasehold interest who continued to operate the road after the expiration of the term was a tenant holding over; and when, thereafter, the original owner’s corporate charter, and all its privileges and franchises were annulled such assignee was properly ousted from exercising any such franchise or privilege.</p>

<p> Trade: Unfair competition: Purchase of bankrupt’s stock: Exclusive right to advertise: Bight of purchaser of exempt stock. </p> <p>1. The purchase, at the trustee’s sale, of all the stock in trade of a bankrupt except the portion allowed as exemptions, did not give to the purchaser such an exclusive right to advertise the sale of such bankrupt stock as would preclude one who bought the exempt portion from also advertising it as a part of said stock.</p> <p>2. An advertisement of such exempt portion of the bankrupt’s stock, containing no statements which were untrue or calculated to mislead the public, did not constitute unfair competition in trade, and a preliminary injunction against such advertising, at the suit of the purchaser of the stock sold by the trustee, was improvidently granted.</p>

<p> Taxation: Inheritance tax: Allowance to widow: Construction of statutes. </p> <p>1. An allowance made to a widow, pursuant to sub. (2), sec. 3935„ Stats. 1913, for her support and that of the children pending the administration of the estate of her deceased husband, is neither an inheritance nor a gift from the deceased made in contemplation of death and is not subject to an inheritance tax.</p> <p>2. There is no “transfer” of such allowance, within the meaning of that word as used in secs. 1087 — 1 to 1087 — 24, Stats.</p> <p>3. The rule that weight should be given by the courts to the construction of a statute by the officers or department whose duty has been to execute it, does not apply where there is no ambiguity in the statute; nor does it apply to the erroneous rulings of inferior tribunals so as to control or affect the decision of the superior tribunal having by law the power and duty to review directly such rulings.</p>

<p> Appeal: Right is statutory: Time for taking cannot be' extended: Condemnation of land for railroad: Failure to appeal in time: Power of courts: Equitable relief. </p> <p>1. The right of appeal is wholly statutory and must he exercised upon such terms and within such limitations as the written law prescribes.</p> <p>2. After the expiration of the thirty days limited by secs. 1849, 1852, Stats., for appealing from the award of commissioners in a proceeding to fix the compensation to be paid for land taken for a railroad, the court cannot extend the time for taking such appeal. Neither sec. 2831 nor sec. 2832, Stats., authorizes such relief; nor has the court inherent power to grant it.</p> <p>3. If the circuit court had power to grant such an extension of time a very strong case would be required to warrant a decision on appeal that there was an abuse of discretion in refusing to grant it.</p> <p>4. Whether under special circumstances a court of equity might interfere to prevent the person in whose favor the award was made from having the benefit of it, is not decided. If such power exists the relief must be sought in an independent action; and no leave of court to bring such an action is necessary.</p>

<p> Executors and administrators: Title to personal property: Testamentary trusts: When title vests in trustees: Failure to qualify: Loss of trust estate: Liability of sureties on bond of executors. </p> <p>1. The title to personal property of a testator vests in his personal representatives upon his death.</p> <p>2. The title to the trust estate cannot vest in a testamentary trustee until the bond required by sec. 4025, Stats., has been given and filed.</p> <p>3. Where the executors of a will, who were also by its terms made testamentary trustees, duly qualified as executors but failed to qualify as trustees, they could not act as trustees but continued to hold title to the estate as executors, and the sureties on their bond as executors were liable for their acts whereby the trust estate was lost.</p> <p>4. Such executors never having qualified as trustees, the county court could not, by an order or decree, transfer the title to the property from them as executors to them as testamentary trustees.</p>

Paee, Judge. Tbe city of Menasha pursuant to sec. 1797m — 80, Stats.. 1913, brought an action in tbe circuit court to determine tím necessity of taking tbe public utility plant of tbe defendant located in tbe plaintiff city. Tbe jury found that public necessity existed for its taking and tbe court entered a judgment in accordance with tbe verdict, from which judgment tbe defendant appealed.

<p> Wills: Construction: Death of legatee before making of mil. </p> <p>A testator having bequeathed certain legacies to persons residing' in Germany whom he had not seen or corresponded with for more than twenty years, and having, by a clause applicable only to this class of legatees, provided that “in case of the death of either” of such legatees her legacy “shall be payable to the legal heir or heirs of such legatee,” it is held that such clause was intended to apply to death of a legatee either before or after the-making of the will.</p>

<p> Descent of real property: Homestead: Testing of estates. </p> <p>Under sec. 2270, Stats., providing generally for the descent of real property, and sec. 2271, providing that a homestead not lawfully devised shall, if the owner leave a widow and issue, descend “to his widow during, her widowhood and upon her marriage or death to his heirs according to the newt preceding section,” the heirs take at the death of the owner a vested estate, subject to the conditional life estate of the widow.</p>

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

<p>Gifts inter vivos: Evidence: Competency: Self-serving declarations: Invalid, mil: Transfer of note by parol: Mistake of trial court as to law: Appeal: Findings presumed to rest on competent evidence only: Witnesses: Competency: Transactions with person since deceased.</p> <p>1. Self-serving declarations, whether oral or written, not part of the res gesté, are incompetent.</p> <p>2. Declarations of a donor after a gift and in derogation of it are incompetent to disprove the gift.</p> <p>[3. Whether, when the alleged acts and words of a gift are so ambiguous that the transaction might be either a gift or a bailment, declarations of the alleged donor contained in an abortive attempt by him to make a will or codicil are competent as verbal acts and part of the res gesta, not decided.]</p> <p>4. Oral comments by the trial judge, in deciding the case, upon the informality of a transaction by which, it was claimed, without any written transfer a father made a gift to his son of a note for a large amount executed by the son and secured by a mortgage, are held not to show that the judge believed the evidence insufficient in law to support a gift or that his finding against a gift was based upon an erroneous view of the law.</p> <p>5. Where there is competent evidence sufficient to support a finding by the trial court, this court will presume, in the absence of an affirmative showing to the contrary, that such finding rests upon the competent evidence solely.</p> <p>6. The question being as to whether a deceased father had in his lifetime made a certain gift to his son, the son was not competent to testify as to transactions or communications personally had with the father concerning which no witness had been examined in behalf of the opposite party.</p> <p>7. In such case, where the son had been examined under sec. 3825, Stats., at the instance of the father’s executors, his testimony then given was not admissible in his behalf.</p>

<p>Appeal from a judgment of the circuit court for Grant county: Geoege Clemewtsoit, Circuit Judge.</p> <p>Action to recover commission on an alleged exclusive contract for the sale of real estate.</p> <p>The cause was submitted to the jury on a special verdict of two questions. In answer to the first they found plaintiff was not the procuring cause of the sale. Upon the second question, whether defendant gave plaintiff an exclusive agency for the sale of his farm, they were unable to agree, and the court finally directed them to answer it in the negative on the ground that there was no evidence of an exclusive agency. Erom a judgment dismissing the complaint the plaintiff appealed.</p>

<p>Appeal from a judgment of tbe circuit court for La Crosse-county: E. 0. Higbee, Circuit Judge.</p> <p>This is a proceeding for tbe construction of tbe will of Ouden Evenson. It was commenced in tbe county court and tbe judgment rendered in tbat court was affirmed upon appeal by tbe circuit court.</p> <p>After making certain minor bequests tbe will in 'question contains tbe following provisions wbicb are claimed by tbe appellants (tbe residuary legatees) to be invalid:</p> <p>“VIII. I give, devise and bequeath to ‘Tbe Synod for tbe Norwegian Evangelical Lutheran Church in America’ tbe hereinafter named sums of money, wbicb shall constitute so many legacies as tbe institutions belonging to and owned and conducted by said Synod hereinafter named and described, and indicated in order by tbe letters a, b, c, d, e, and f under this eighth provision of my will. Said legacies shall bear my name and tbe name of my deceased wife, Eandine Even-son, and be used and applied for tbe purposes and in tbe manner hereinafter stated, to wit:</p> <p>“A. Three thousand dollars ($3,000) to the Church Extension Eund of said Synod, said sum of money to be lent to congregations for a term of six years provided so long a time is asked for, and for each and every loan tbe best security must be demanded and obtained.</p> <p>“B. One thousand dollars ($1,000) to tbe Home for tbe Old People erected and conducted by said Synod near Stough-ton, Dane Co., Wisconsin. Tbe interest of said money to be used for tbe support of said Home.</p> <p>' “C. One thousand dollars ($1,000) to tbe Martin Luther Orphans’ Home, owned and supported by said Synod, and situate near Stoughton, Dane Co., Wisconsin. The interest of said money to be used for the support of said Home.</p> <p>“D. One thousand dollars ($1,000) to the Mission for Seamen in such parts as said Synod shall select. The interest of such money to be used for the support of said Mission.</p> <p>“E. Two thousand dollars ($2,000) to the Norwegian Luther College of Decorah, Iowa, owned and supported by said Synod, and incorporated under the laws of the state of Iowa, the members of said corporation being the same as the members of said Synod. The interest of said money shall annually be used for the aid and support of one or more worthy farmers’ sons studying at said college, providing they shall be in need of such aid and support. Preference in awarding the annual interest of said money shall be shown farmers’ sons from the eastern district of said Synod.</p> <p>“E. Two thousand dollars ($2,000) to the Luther Seminary in Hamline, St. Paul, Minnesota, owned and supported by said Synod. The interest of said money shall annually be used for the aid and support of one or more worthy farmers’ sons studying at said seminary, provided they shall be in need of such aid and support. Preference in awarding the annual interest of said money shall'be shown farmers’ sons from the eastern district of said Synod.</p> <p>“IX. I give, devise and bequeath to the hereinafter named institutions having separate incorporations, but created and conducted in the interest of and under the auspices of the Synod for the Norwegian Evangelical Lutheran Church in America, the following sums of money, to wit:</p> <p>“To Gale College situate in Galesville, county of Trem-pealeau, and state of Wisconsin, two thousand dollars ($2,000), the annual interest of which money shall be used for the aid and support of one or more worthy farmers’ sons, who shall be in need of such aid and support, and who shall be members of congregations belonging to the eastern district of aforesaid Synod.</p> <p>“To H. A. Preus Academy situate in Albion, county of Dane, and state of Wisconsin, two thousand dollars ($2,000),. the annual interest of which money shall be used and applied for the same purpose and in the same manner as mentioned above under G-ale College. These two above mentioned bequests shall constitute so many legacies bearing my name and the name of my deceased wife, Randine Evenson.</p> <p>“In case, however, said institutions, Gale College and H. A. Preus Academy, or any or either of them, shall cease to be run and conducted in the interest and under the auspices of said Synod, and shall cease to remain under the control of and be operated by members of congregations belonging to and connected with said Synod, said Synod shall be empowered and it is hereby empowered to declare, adjudge and decree the above named legacies, mentioned in this ninth provision of my will, forfeit. And when any or both of the said legacies shall be declared forfeit, such legacy or legacies, as the case may be, shall, and it is so hereby ordered, constitute one legacy bearing my name and the name of my said deceased wife, and the annual interest of said legacy shall be used for the benefit and support of the Inner Mission of the eastern district of said Synod.</p> <p>“XI. All the rest or remainder, if any, of my estate which shall be left after the foregoing provisions shall be executed and provided for I give, devise and bequeath to the Synod for the Norwegian Evangelical Lutheran Church in America to constitute a legacy bearing my name and the name of my deceased wife, Randine Evenson, the annual interest of said legacy to be equally divided between the Gonner Mission of the eastern district of said Synod and the Outer Mission of said Synod and used for the support of said Mission. But if said rest or remainder shall be more than four thousand dollars ($4,000), such excess or overplus shall be equally divided between my two brothers, Ole and Gulbrand, or their heirs, and John Torgerson and Elsie Hulberg or their heirs.”</p> <p>It appears by the evidence that the Synod of the Norwegian Evangelical Lutheran Church in America is a corporation ; that the bodies named in subdivisions A, B, 0, and D of paragraph VIII are unincorporated organizations within the Synod, created by and under its direction, the work of each being charitable work along the lines suggested by its name; tbat tbe educational institution named in subdivision E is an incorporated institution and tbe one named in> subdivision E is unincorporated, but botb are under tbe control of tbe Synod, wbicb directs tbeir policies and makes contributions to tbeir support; tbat tbe institutions referred to-in paragraph IX are incorporated and tbat tbeir legal names are “Gale University” and “H. A. Preus Lutheran Academy” respectively, but that they are frequently called by the' names used in tbe will; tbat tbe Synod has no absolute control over them, but makes yearly contributions to each so long-as it conforms to tbe policy of tbe Synod, and also tbat it exercises visitorial jurisdiction over them.</p> <p>It was held by botb county and circuit courts tbat tbe bequests attacked were valid.</p>

<p> Contracts: Parol evidence to vary writing: Sale under trade-name: Implied warranty of fitness: Acceptance. </p> <p>1. In the absence of fraud and mistake parol evidence of antecedent or contemporaneous oral agreements between the parties is inadmissible to contradict, alter, or modify their written contract.</p> <p>2. Where, by written order and acceptance, vacuum cleaners were purchased merely by their known trade-name, without other specification, there was, under sec. 1684Í — 15, Stats. 1913, no implied warranty of fitness.</p> <p>3. A purchaser of vacuum cleaners who retained them for two months before intimating that they, were not satisfactory, and thereafter allowed two weeks to elapse before returning them, must, under sec. 1684Í — 48, Stats. 1913, be deemed to have accepted them.</p>

<p>Appeal from a judgment of the circuit court for La Crosse county: E. C. ITigbee, Circuit Judge.</p> <p>This action was brought to recover damages for injuries to plants belonging to the plaintiff, situate in a greenhouse in connection with plaintiff’s dwelling on Sixth street in the city of La Crosse. It is the claim of the plaintiff that defendant’s employees were guilty of negligence in repairing defendant’s gas mains which extended into the plaintiff’s premises, in consequence of which gas escaped into the greenhouse and poisoned the plants.</p> <p>The jury returned the following verdict:</p> <p>“(1) Did the servants of the defendant company fail to exercise ordinary care in the removal of stoppage in the gas pipes of the plaintiff at the time and-place in question? A. Yes.</p> <p>“(2) If you answer question number one 'Yes,’ then was such failure to exercise ordinary care the proximate cause of the injury to plaintiff’s plants ? A. Yes.</p> <p>"(3) Did the plaintiff or her servants or agents fail to exercise any ordinary care which contributed to the injury to her plants? A. No.</p> <p>“(4) If tbe court sbg.ll finally determine that tbe plaintiff is entitled to recover, at wbat sum do you assess ber damages? A. $500.”</p> <p>Motions for directed verdict, to change tbe answers in tbe verdict, and for new trial were denied, and judgment was rendered upon tbe verdict in favor of tbe plaintiff, from wbicb this appeal was taken.</p>

<p> Execution: Exemptions: Stock in trade. </p> <p>1. The exemption under sub. (8), sec. 2982, Stats., of $200 in value of tbe stock in trade of any merchant, does not extend to cases where the stock is not actually used or kept for the purpose of carrying on the business in which he has been engaged.</p> <p>2. The stock in trade of a retail liquor dealer who had failed to renew his license because of an increased license fee, and who had endeavored to sell such stock in bulk and in fact had sold some of it, was not used or kept for the purpose of carrying on the business of saloon-keeping, even though he intended to resume that business as soon as he was able to find some other suitable location.’</p>