Volume 162 — Wisconsin Reports

<p>Appeal from a judgment of tbe circuit court for Fond du Lac county: Chestee A. Eowlee, Circuit Judge.</p> <p>Tbe plaintiff is tbe executrix and tbe beneficiary of a large estate left by ber deceased busband. On November 20, 1909, sbe appointed N. W. Sallade to act for ber as attorney in fact to manage for ber tbe personal property located in Wisconsin and wbicb bad come to bis possession from ber deceased bus-band, giving bim full power to deposit and invest it for ber and reinvest it whenever required, and to execute, bold, and deliver all necessary papers and do every act in ber place and stead in regard thereto. Mr. Sallade received into bis possession personal property of tbe plaintiff amounting to about $150,000, consisting largely of moneys, notes, mortgages, and other securities. While acting as plaintiff’s attorney in fact in this matter Mr. Sallade was tbe treasurer of tbe Diocese of Fond du Lac, handling its funds and securities, and active manager of tbe Fond du Lac Church Furniture Company.</p> <p>Mr. Sallade made monthly statements in writing to plaintiff of bis accounts as ber attorney in fact. During tbe summer of 1910 tbe plaintiff, by letter, suggested to Sallade tbe propriety of furnishing ber a fidelity bond. In September, 1910, when plaintiff returned to Fond du Lac after an absence from tbe state from tbe time sbe appointed bim, be furnished ber a list of tbe securities wbicb be stated were ber property and that they were deposited in a safety deposit box at tbe Fond du Lac National Bank. -Plaintiff and Sallade went to tbe bank, took tbe securities from tbe safety deposit box and compared and checked them with tbe monthly statement be bad recently furnished ber, and tbe securities produced from tbe box agreed with this monthly statement of bis account. Some of these securities kept in tbe deposit box, wbicb be represented as having been purchased for ber and wbicb appeared in bis monthly reports, were in fact tbe property of tbe Diocese of Fond du Lac. Tbe plaintiff in fact believed they were securities be bad acquired and held for ber. Sallade bad in bis possession a private account in tbe form of a loose-leaf memorandum book. Tbe trial court found as facts concerning it:</p> <p>“That said Sallade also kept in bis desk, at tbe Cburcb Furniture Company’s' office, certain loose-leaf memoranda, not bound or fastened in any book, -but merely tied together with thumb fasteners, tbe several sheets whereof were beaded ‘E. X). L. Eurn. Co.,’ except one beaded ‘N. W. Sallade and M. O. Pillsbury,’ which indicated tbe sums taken from tbe plaintiff and by Sallade converted to tbe use of tbe Cburcb Furniture Company, but said leaves bad no notation thereon indicating that they referred in any way to tbe plaintiff’s estate, and tbe plaintiff bad no knowledge of tbe existence of said leaves or of tbe facts shown thereby.”</p> <p>On November 19, 1910, Sallade made application in writing to defendant for a surety bond. Tbe defendant requested an “employer’s statement” from plaintiff, and she, on December 22, 1910, made and signed such a statement, and attached thereto tbe list of securities which Sallade bad furnished and cheeked with her in September, 1910. Tbe application recites that her answers to tbe propounded printed questions of tbe statement were “to be taken as conditions precedent, and as tbe basis for tbe said bond applied for. . . .” By question 12 plaintiff answered that tbe means used to ascertain tbe correctness of Sallade’s account were “a personal examination” and that they would be examined “yearly.” Tbe application also contains these questions and answers:</p> <p>“13. When were bis,accounts last examined?” Answer. “Last of September in 1910. Amount of securities, $159,831.61, as per list examined and checked at that time, a copy of which is hereto attached.” “14. Were they at that time in every respect correct, and proper securities and funds on band to balance? Yes.” “15. Is there now, or has there been, any shortage due you by applicant? No.” “16. (a) Is be now indebted to you ? No. - (b) If so, state amount and nature of indebtedness. No.” “17. Have you any reason to know of or suspect any previous defalcation or shortage by the applicant or any circumstances tending to indicate that he is not a proper person to bond? If so, give particulars.” Answer. “No.”</p> <p>The trial court found and the evidence sustains the conclusion of fact:</p> <p>“That the defendant, in executing said bond, did not rely on the statement of the plaintiff, contained in said employer’s statement, as to the securities in the hands of Sallade owned by her, but required the said list to be submitted to its local agent at Fond du Lac, and required such agent to examine the securities referred to in said list and compare them with the descriptions therein, to assure itself that they were in fact in Sallade’s possession at the time the bond went into effect. That said local agent did cursorily examine the identical securities described in said list, and all of them, which were produced and exhibited by Sallade to him. That none of said securities ran to or had upon or with them assignments running to the plaintiff or the said estate, nor did assignments thereof exist. That the said local agent did not call for any evidence of title to said securities, but relied on the oral representations of Sallade, made at the time he examined the same, that they belonged to the plaintiff and were held by him for her.”</p> <p>After the examination of the securities by defendant’s local agent at Fond du Lac and upon entering into an arrangement with Sallade for a joint control with Sallade over the safety deposit box containing the mortgages he held as securities for her, the defendant on January 10, 1911, delivered to plaintiff, upon payment of $175 to it as premium, its bond of indemnity against loss through larceny or embezzlement by Sallade as attorney in fact of the plaintiff. This bond covered the period of one year from January 10, 1911. Sallade died in August, 1911.</p> <p>h It appears that $14,119.41 of plaintiff’s money was embezzled by Sallade after the bond was given and while it was in force. There is no dispute of the claim that Sallade had in fact dishonestly appropriated and. embezzled a considerable amount of plaintiff’s property before September, 1910, and tbat the lists of her securities he had made were false and included therein securities which did not belong to her estate, and a part of the securities he exhibited to her in September, 1910, and to defendant’s agent before the issuance of the bond, as her property, were the property of the Diocese of Eond du Lac.</p> <p>The bond contains the provisions that “upon the faith of said statement [employer’s statement] . . . which employer hereby warrants to be true, it is hereby agreed and declared that subject to the provisions and conditions herein contained, which shall be conditions precedent to the right on the part of the employer to recover under this bond, ... If the employer’s written statement, hereinbefore referred to, shall be found in any respect untrue, this bond shall be void. . . . This bond is issued on the express understanding that the employee has not within the knowledge of the employer at any former period been a defaulter. . . .”</p> <p>The.trial court held that the bond is a binding obligation and that there were no breaches thereof on the part of the plaintiff on account of any misstatements of fact in her written statement upon which the bond issued and which was made a part thereof.</p> <p>This is an appeal from a judgment awarding plaintiff recovery against defendant for the amount of Sallade’s defalcation to her during the time the bond was in force.</p>

<p> Judgments: Setting aside after term: “Surprise:" Delay in entry: Mistakes: Correction: Jurisdiction: Validity of judgment: Construction: Interest. </p> <p>1. A valid, judgment cannot be set aside after the term at which it is entered, except under sec. 2832, Stats., and the motion and order under that section must be made within one year after the moving party had notice of the judgment.</p> <p>2. A judgment entered by the clerk in pursuance of an order of court made on the same day must be regarded as a judgment of the court in session, and a motion to set it aside for irregularity must be made at the same term.</p> <p>3. The circuit court has no jurisdiction to review a judgment rendered at a former term, for the purpose of correcting errors in law or fact committed by the court in rendering it or in the proceedings prior thereto.</p> <p>4. Where judgment is entered after a full trial on the merits and pursuant to an order of the court, surprise at the decision of the court on the facts before it is not the kind of surprise for which sec. 2832, Stats., provides a remedy.</p> <p>5. A court is not authorized to set aside a final judgment more than three years after it was entered merely because there was a long delay in entering it.</p> <p>6. After the lapse of the term at which judgment is entered and the expiration of one year thereafter, the circuit court may correct a mistake in the entry of the judgment so as to make it conform to the judgment actually pronounced by the court, but it cannot modify or amend the judgment to make it conform to what the court ought ,to have adjudged or even intended to adjudge.</p> <p>7. No power exists to set aside the whole of a judgment for the purpose of correcting a clerical error therein.</p> <p>8. An order of the circuit court setting aside the whole of a judgment entered three years before, for the purpose of correcting a clerical error therein, was a nullity, and a new judgment entered in lieu of the former one was absolutely void.</p> <p>9. Where by a judgment the amount of plaintiff’s recovery was adjudged to be a certain sum with interest from December 19, 1898, and it was further adjudged that plaintiff have a lien on certain property to the extent of said sum and interest thereon from December 19, 1896, the lien could not be enforced for interest accruing before December 19, 1898.</p>

Williams, Circuit Judge. Action to recover damages for personal injuries sustained May 10, 1914, while attempting to board one of defendants’ cars at the intersection of Fifth and Clybourn streets in the city of Milwaukee. Plaintiff claims that the car stopped at the usual stopping place; that one or more persons boarded it before he attempted to do so; that the car was standing still and the door was open when he attempted to get on.

<p> Contracts: Statute of frauds: Possible performance within a year: Modification by oral agreement: Prior breach: Counterclaim: Mutuality: Rental value of appliances: Special verdict: Certainty in finding: Instructions to jury: Appeal: Harmless errors. </p> <p>1.'An agreement is not within sub. (1), sec. 2307, Stats. 1913, if by its terms it may be performed within one year from the making thereof.</p> <p>2. Where a written contract was not required by the statute of frauds to be in writing, its terms might be modified, after it had taken effect, by oral agreement, without any new consideration.</p> <p>3. Where by oral modification of a written contract for the perform-ancé of certain work defendant had agreed to pay plaintiff the full reasonable value of all work done by the latter, there remained no basis for a counterclaim for breach by plaintiff of the original contract, and the question whether that contract was so lacking in mutuality that there could be no counterclaim thereon is immaterial.</p> <p>4. Under the evidence in this case, tending to show, among other things, that the parties did not contemplate that full rental value should be charged for a steam shovel and other appliances furnished by defendant for use by plaintiff in doing railroad construction work as a subcontractor of defendant, that the shovel was old and worn, and that some of the other appliances could not be used for the work, it is held that the jury were properly instructed that the reasonable value of the use plaintiff had of the appliances in doing the work might be allowed to defendant, and that defendant was not entitled to a peremptory instruction directing the jury to allow the rental value of the appliances at the amount fixed by defendant’s opinion evidence.</p> <p>5. Where the evidence permitted only the inference that a contract was modified, if at all, on July 5th, a finding in a special verdict that it was modified “on or about July 5th” was not fatally indefinite or uncertain. It must be presumed that the jury agreed on their answer and based it on the evidence.</p> <p>6. Where the answers to certain questions in a special verdict entitle plaintiff to judgment without regard to the answer to another question, any alleged error in the instruction with respect to such other question is wholly immaterial.</p>

<p> Corporations: Stock subscriptions: Cancellation: Evidence: Increase of capital stock: Insufficient subscriptions: Personal liability for debts: Amendment of articles: Record: Certificate of register of deeds: Authentication: Oral promise not a subscription: As-signability of claims: Lost note: Bond of indemnity. </p> <p>1. The three organizers of a corporation subscribed for all of its capital stock — 100 shares. Stock certificates were made out accordingly, but were never severed from the book, and across the-face of each certificate and its stub the words “Void, reissued,” were written in red ink. There was no other corporate record of such cancellation. The following stubs showed that on the day of the subscription above mentioned fifty-one shares were issued to two of said subscribers. Afterwards other shares were issued, so that, prior to an increase of the capital stock to 250 shares, ninety-six shares in all had been issued. After such increase fourteen more shares were issued, making 110 in all. In an action under see. 1774», Stats. 1913, to enforce a personal liability of the officers and stockholders for debts incurred by the corporation, the evidence, including the uncontradicted testimony of the secretary — one of the original incorporators — that only 110 shares in all were ever subscribed for in writing, is held to sustain a finding by the trial court that the original subscriptions of 100 shares were in fact canceled and that, to the knowledge of the defendants, less than one half of the increased stock of the corporation had been subscribed for at the time the debts in question were incurred.</p> <p>2. A copy, certified by the secretary of state, of his record of an amendment increasing the capital stock of a corporation duly authenticates for admission in evidence the attached certificate of the register of deeds which, by sec. 1774, Stats., must be filed with the secretary of state before he can issue the certificate of amendment.</p> <p>3. Oral promises to take shares of stock in a corporation are not subscriptions and, under sec. 2308, Stats., cannot be enforced where the value of the stock exceeds $50.</p> <p>4. Sec. 1774», Stats., — making’the officers and stockholders of a corporation personally liable for debts contracted by it with their consent, while having knowledge that less than one half of the authorized capital stock has been subscribed or less than twenty per cent, thereof paid in, — creates a primary absolute liability at the time the debts are incurred, thereby imposing a contractual relation upon the stockholders instead of a penalty; and claims arising under it are assignable. Eillen v. Barnes, 106 Wis. 546, distinguished.</p> <p>.5, Where a note given by a corporation for goods purchased was lost, recovery of the amount due thereon could not be had under sec. 1774», Stats., against officers or stockholders of the corporation, unless plaintiff gave a bond of indemnity as provided by secs. 4190, 4191, Stats. 1913.</p>

The complaint in this case sets out three causes of action arising out of the same transaction: one on contract, one in tort, and one based on fraud. The defendant demurred to each of said causes of action, on the ground that the complaint did not state facts sufficient to constitute a cause of- action. A demurrer was also interposed on the ground that several causes of action were improperly nnited.

This is an action brought under the Corrupt Practices Act (secs. 94 — 1 to 94 — 35, Stats. 1913) to try the title to the-office of district attorney, it being alleged that the defendant violated the act during the primary campaign of 1913 by purchasing intoxicating liquors for voters and in other ways. The complaint was before this court on a former appeal (160 Wis. 431, 152 1ST. W. 161) and was sustained.

Appeals from a judgment of the circuit court for Dane county; E. Ray Stevens, Circuit Judge. This is an action to set aside an award of the Industrial Commission requiring the plaintiff village to pay to Alice Voech $3,000 on account of the death of her husband, William Voeck, caused by an accidental injury while in the employ of the plaintiff village.

<p> Railroads: Injury to person taking short cut to depot: TJnlighted‘ way: Negligence: Proximate cause. </p> <p>1. A railway company having provided a safe and suitable way by which its station platform and trains could be reached, no duty rested upon it to light or guard a back driveway which the public had not been, either expressly or impliedly, invited to use- and which, though occasionally used in the daytime as a short, cut, had not been used or traveled at night.</p> <p>2. Even if the agent at such station negligently misinformed an intending passenger as to the time when a train would arrive, there was no causal connection between such negligence and an injury sustained by such passenger in attempting to reach the-train in the nighttime by an unlighted back way which had not. been used for that purpose.</p>

<p>Landlord and tenant: Lease with option to buy is not a sale: Parol evidence affecting writings: Agreement to give up leased premises if sold: False statement of sale: Toluntary surrender: Measure of damages for breach: Prospective profits: Excessive damages.</p> <p>1. A lease giving the lessee an option to purchase the premises at a specified price within a'prescribed time and to apply the sum paid for rent as a payment on the purchase price, is not a contract of sale.</p> <p>[ 2. Whether as between the lessor and a third person parol testimony was admissible to show that the lease did not express the true intent of the parties thereto and that there was in fact a sale, is not decided.]</p> <p>3. The finding of a jury in such a case that there was no sale was supported by evidence that the lessee wished to buy and that the lessor wished to sell and that they agreed upon the price, but that the lessee could pay only a small sum down and, the lessor being unwilling to make a binding contract of sale on so small a payment, a lease with an option to purchase was decided upon, under which the lessee might buy if he could raise the necessary money and if he could not his rights in the premises would terminate at the expiration of the lease.</p> <p>4. A lessee who is obligated by the lease to vacate and give up the premises in case of a sale thereof has a right to rely upon the lessor’s representation and notification that a sale has been made, and his delivery of the premises to the alleged purchaser should not be deemed a voluntary surrender thereof.</p> <p>6. The lease of a cranberry marsh having provided that the lessee should vacate the premises‘in case of a sale and that if called upon to do so after a certain date he should be paid as compensation for his loss a sum equal to the net promts that would have accrued if he had been allowed to complete his term, and the lessee having been induced to surrender the premises by the lessor’s false statement that they had been sold, and it appear- ■ ing that the net profits which would have accrued to the lessee were shown with reasonable certainty, such profits were the proper measure of his damages, it being reasonable to suppose that both parties contemplated that damages for a breach would be so measured.</p> <p>6. An award by the jury of $1,362 as damages in such case, reduced by the trial court to $1,000, is further reduced by this court, on appeal, to $600, that being deemed as large a sum as in any reasonable probability a fair jury properly instructed would have awarded.</p>

<p> Carriers: Live stock killed in transit: Right to damages: Condition precedent: notice: Contract: Validity: Duty to wait for car not ready lohen train arrives. </p> <p>1. A contract by which the shipper of live stock agrees that, as a condition precedent to his right to recover for loss of or injury to any of said stock, he will give notice of his claim before removal of the stock from place of destination or mingling with other stock, is valid. It does not limit the carrier’s common-law liability, but merely prescribes a condition precedent to the right to enforce it.</p> <p>'2. Unless restricted by the context, the word “injury” in such a contract includes injury resulting in death, and the provision for notice applies where stock is killed in transit.</p> <p>3. Where a scheduled stock train running from Minneapolis to Chicago and obliged, in order to reach its destination in time for the early morning market, to run between thirty-five and forty miles per hour between stations, arrived five minutes late at a station, it was not the duty of the carrier to wait there for a car which, through no fault of the carrier, was not then ready for shipment.</p> <p>4. Where in such case, at the shipper’s request, the conductor wired to the train dispatcher for orders and was directed not to wait, the fact that the car was ready before the train ■ actually left does not show a breach of duty in proceeding without it, since to take it then would have involved additional delay.</p> <p>[ 5. Whether, in such a case, waiting for the car would be the giving of a preference to the shipper in violation of the Interstate Commerce Act, is not decided.]</p>

Appbau from a judgment of the circuit court for Buffalo county: G-eokge ThojupsoN, Circuit Judge. Action to recover on a judgment of a court of competent jurisdiction in the state of Nebraska. • The claim of the plaintiff is this: March 12, 1912, it commenced an action against defendant in a court of general jurisdiction in Lancaster county, state of Nebraska.

Oroix county: Gbobge Thompson, Circuit Judge. Plaintiff brought this action for divorce from the defendant, alleging cruel and inhuman treatment of him by defendant and that such treatment made it dangerous and impracticable for him to live with her, and that he had faithfully discharged his marital obligations throughout their married life.

<p> Statutes: Construction: Ditches, etc., to permit natural drainage: Duty of railway company: Enforcement: Jurisdiction of railroad commission. </p> <p>1. All the words in a statute should he given effect if possible; but they should be given effect according to recognized legal rules.</p> <p>2. When in a statute words relating to a particular person or specific subject are followed by general words, the latter should be restrained to persons or subjects of the same genus or faniily to which the particular person or subject belongs.</p> <p>3. Thus, in sec. 1797 — 31, Stats. 1913 (providing that the railroad commission shall have power “to enforce the provisions of sections 1797 — 1 to 1797 — 38, inclusive, as well as all other laws relating to railroads”), the words “all other laws relating to railroads” are to be restrained in accordance with the rule last above stated, and do not include sec. 13886, Stats. 1913 (relating to the maintenance of ditches, culverts, or other outlets to permit the natural drainage of low lands over which any highway or road grade shall be constructed by a municipality or railway company).</p> <p>4. The railroad commission cannot exercise judicial or legislative power, within the legal meaning of those terms.</p> <p>5. Sec. 13886, Stats. 1913, having conferred a new right upon the owners of lands therein mentioned and having provided a remedy for its enforcement, which remedy is not enforcement by the railroad commission, the remedy so provided is exclusive.</p> <p>6. Sec. 13886, Stats. 1913, not having come into existence until eight years after sec. 1797 — 31 was enacted, it follows that the legislature never intended by the last mentioned section to confer upon the railroad commission jurisdiction to enforce the provisions of sec. 13886. [Whether the legislature could confer such power upon the railroad commission, is not decided.]</p>

<p>Appeal from an order of the circuit court for Dane county: E. Rat Stevers, Circuit Judge.</p>

<p>Appeal from a judgment of the circuit court for Sauk county: James O’Neill, Judge.</p> <p>Action to recover damages for personal injury. On November 17, 1913, at about 6:15 in the afternoon, plaintiff sustained an injury by reason of tripping over a guy wire, attached to an electric light pole, that had broken and fallen across the sidewalk on the north side of Main street at its intersection with the east line of Pine street in the city of Reedsburg. The city operated a commercial electric lighting plant and had installed and maintained the guy wire in question.</p> <p>Notice of the injury was filed with the city clerk on November 19, 1913; a claim filed with the council on March 3, 1914; summons and complaint served July 27, 1914; and the action tried September 22, 1914.</p> <p>At the close of plaintiff’s testimony the court granted defendant’s motion for nonsuit. Prom a judgment entered accordingly the plaintiff appealed.</p>

<p>Appeal from a judgment of tbe circuit court for Dane -county: E. Ray Stevens, Circuit Judge.</p> <p>Action to recover compensation for a personal injury.</p> <p>Plaintiff was injured, March 17, 1914. She was then eleven years of age. Tbe accident occurred while she was riding in and operating an automatic elevator which was maintained by defendant in its apartment building for the use of its tenants residing in such building. Plaintiff was a member of a family which so resided. The circumstances were such that a child of plaintiff’s age could readily open the door of the elevator shaft opposite the elevator cage, at whatever floor it might be, step upon the elevator platform, and by pressing an electric button, cause the cage to ascend or descend as desired. The negligence complained of was that defendant maintained the elevator shaft with such projections into it that, in case of one riding in the cage with some part of his person extending beyond the side thereof; it was liable to collide with some such projection and a serious personal injury result; that ch. 588, Laws 1913, required such elevators as the one in question to be so constructed and maintained as to be safe, and according to rules for safeguarding prescribed by the state industrial commission; that such commission, by such rules, ordered all projections into elevator shafts, such as floors, sills, and bolts, unless guarded against by the car inclosure, to be provided with a guard under such-projections so as to prevent any projecting portion of a passenger’s body from being caught and injured thereby; that defendant wholly failed to comply with such order.</p> <p>The claim of the defendant was that due care was used in the construction and maintenance of the elevator, and that plaintiff was injured by reason o'f her own negligence, and that of her parents.</p> <p>The statutes of the state empower the industrial commission to make rules in respect to the construction and maintenance of elevators in public buildings, and make any owner of such a building, who fails to comply therewith, liable to a forfeiture of not less than $10 nor more than $100 for each offense. The industrial commission made an order as claimed by plaintiff. The apartment building in question bad several floors besides a basement and sub-basement floor. Tbe elevator was operated in an elevator shaft extending from such sub-basement floor to those above, and with a door opening at each level. A person at one floor desiring to use the elevator, could, by means of a push-button, conveniently located for that purpose, cause the car to come to his floor, when he could unlatch the door of the shaft, enter the car, close the door, and by pushing a button inside the car corresponding to the floor desired to be reached, cause the car to proceed to such floor. There was no door in the side of the car. There was an opening which could be used when the car was in proper position at a door in the side of the elevator shaft. No such door could be opened without the car being in such position, nor could the car be moved therefrom until the door was closed again. The basement floor and the elevator floor, when the ear was in position for entrance thereto from the former, were separated at the door opening by a space about seven eighths of an inch wide. After the car descended below the basement floor, the space increased to four and one-quarter inches wide by reason of there being a recess area under such floor of that depth. There was an angle-iron fitted to the bottom of the basement floor at the top of the recess and to the side of the floor next to the elevator shaft, extending up such side and flush with it sufficiently to make an iron guarded corner to such floor at the lower side of the elevator opening. Such construction permitted one, in riding in the elevator car from the sub-basement to the basement floor, to project a foot beyond the edge of the ear floor into the recess under the basement floor, so that when the car floor was about to reach such basement floor, where the four and one-quarter inch wide recess was sharply nárrowed to the seven-eighths inch space through such floor, the foot would be caught. That was what happened to the plaintiff.</p> <p>In addition to the foregoing, there was evidence to this further effect: The elevator was of the ordinary type. It was installed by persons experienced in such business. The danger caused by the unguarded recess mentioned was such as the order of the industrial commission was intended to remedy. The plaintiff was a very lively child, and well educated for one of her years. She knew how to operate the elevator. By a notice, conspicuously posted on the elevator shaft, children under fourteen years of age were prohibited from using the elevator except when accompanied by a parent or guardian. Plaintiff’s father, mother, and brother knew of such prohibitions. The notice in regard to the matter could readily have been read by plaintiff. If she had not read it, she was perfectly familiar therewith. She had been repeatedly notified by her father, mother, and brother to keep out of the elevator or she would be liable to get hurt. She had been likewise notified by others. On the evening of the accident, she was in the sub-basement observing a woman who wás hanging out clothes to dry. Several other persons, including her brother, were present. When the woman was through with her work, she started up the stairs, and, as the others, except plaintiff, were about to follow, the latter asked one of them to go up in the elevator with her. He declined, saying to her that it was dangerous and calling her attention, particularly, to the prohibition of such children as herself using the elevator alone. However, she persisted for the purpose of reaching the floor above ahead of the rest. The car was. at the sub-basement floor or she caused it to come there. She hurriedly unlatched the door leading into the car, entered therein, and caused the car to ascend. All her movements were made in a hurry to accomplish her purpose of reaching the floor above ahead of her associates or some one of them. After the car started, her right foot slipped, or, in some way, was partly projected beyond the edge of the car floor into the recess area under the basement floor, so that it was caught at the top of such recess and severely injured. She knew very well that she was doing wrong in using the elevator. She had used it alone before, but not to thd knowledge of the' owners or managers of the building.</p> <p>The jury found, specially, in plaintiff’s favor to this effect: The elevator was natui'ally calculated to attract children to play therewith and defendant, in the exercise of ordinary care, should have known of that fact. Defendant failed to exercise ordinary care in not guarding, covering, or inclosing the space between the basement floor and the track of the subbasement elevator door. Neither the plaintiff nor her parents were guilty of any want of ordinary care proximately contributing to the injury. Her failure to heed the warnings given her did not proximately contribute to the injury. She was damaged to the extent of $500.</p> <p>A motion on behalf of defendant to change the answers given hy the jury on the subject of contributory negligence, and to render judgment for it on the verdict, so corrected, was denied. Judgment was rendered for plaintiff.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>This is an action to recover damages for injuries alleged to have been caused by an attempted wrongful ejection of plaintiff by one of defendant’s conductors from a street car. Plaintiff alleges that his hand was cut and torn and that he suffered great mortification and injury to his feelings by reason of such unlawful assault and battery.</p> <p>The defendant operates a street-car system in the city of Madison. The plaintiff, a man about forty-four years of age, boarded one of defendant company’s pay-as-you-enter street cars at the corner of Ingersoll and Jenifer streets of the city. Eive other persons boarded the car at this point. The plaintiff was the last of this group of persons to step into the vestibule of the car. The other passengers paid their fares and passed from the vestibule into the car. The plaintiff after paying his fare stepped back into the left-hand portion of the rear vestibule and remained standing there. The conductor asked the plaintiff to step into the car, but the plaintiff indicated that there' was no room in the car and stated that he would remain where he was. The conductor then told plaintiff to step into the car or get off, and that if plaintiff did neither he would stop the car and ej ect plaintiff. The plaintiff made no response to this remark of the conductor, but declined to step into the car. The evidence is not. clear as to whether the conductor attempted to eject plaintiff at the next crossing (Brearly street) or at the third crossing (Livingston street). The testimony as to the number of people standing in the aisle of the car varies widely; one witness estimates it as high as from twelve to fifteen, while other witnesses estimate it at a less number. The conductor stopped the car at one of these crossings and told the plaintiff to get inside or he would put him off. Plaintiff refused to step into the car, whereupon the conductor signaled for the motorman to come to the rear platform and then took hold of plaintiff and attempted to eject him from the car. He did not succeed because of the resistance offered by the plaintiff. The motorman advised letting the matter rest for the present and reporting it to ,the inspector upon reaching the business district of the city. The conductor then desisted in his effort and the plaintiff rode about a mile to his destination in the rear vestibule, where the conductor reported the entire matter'to the inspector. The evidence tends to show that several passengers' got on the car within the next two or three blocks after the plaintiff had boarded the car, while only a possible two left the car, and that all of these passengers found standing room inside of the car. It also appears that there was standing room in the aisle of the car for at least eight to ten more passengers when plaintiff was requested to step into the car, though the aisle appeared to he filled near the entrance where the plaintiff stood.</p> <p>The court submitted the case to the jury, who rendered a special verdict finding (1) that Mr. Coombs, under the circumstances, was not, as a reasonably prudent man, required to step into the car when asked to do so by the conductor; (2) that the conductor used more force than was reasonably necessary to eject plaintiff from the car; (3) that the conductor was actuated by malice and vindictiveness in attempting to eject the plaintiff; (4) that the defendant company ratified such malicious and vindictive action; (5) that such malicious or vindictive action on the part of the conductor was not within the scope of his employment; (6) assessed plaintiff’s compensatory damages at $350; and (1) assessed plaintiff’s punitory damages at $50. The court denied the right to punitory damages and judgment was entered for the plaintiff in the sum of $350 compensatory damages, together with the costs and disbursements of this action. Erom such judgment this appeal is taken.</p>

<p> Life insurance: Benefit associations: Assessments: Default in payment: Advances by clerk: Suspension: Avoiding certificate: Agency of clerk: What by-laws may provide. </p> <p>1. A member of a benefit association bad several times defaulted on monthly assessments, but the amounts were advanced by the local clerk, whom he repaid. He defaulted on assessment No. 260 for May, 1912, and the clerk advanced it for him. He also defaulted on assessment No. 261 for June, but this was not advanced, and on July 12th the clerk reported him for suspension. Two days later the clerk collected from him the amount of assessments Nos. 260 and 261, including the latter by mistake, being under the impression that he had advanced two assessments since the last payment by the assured. The clerk did not remit assessment No. 261, nor report payment thereof, nor report the assured for reinstatement. The assured also defaulted in July and August, and died in September, having made no attempt to pay the last mentioned assessments. Under a by-law providing that failure to pay an assessment results ipso facto in suspension of the member and renders his certificate void, subject to reinstatement on payment within ten days, held, that the default for July and August avoided his certificate, even if the association were estopped to take advantage of the June default.</p> <p>2. A benefit association may provide, as to the local clerk who is authorized to collect from members, that notice to him of matters not necessarily involved in, or part of, his duty of collection and remittance shall not be notice to the supreme lodge; but whether it may limit the scope of his agency so that in making and remitting such collection he does not act as the agent of the association, is not decided.</p> <p>3. A benefit association may also provide for a death benefit covering only such period as is covered by each successive payment and terminating at the end of such period, to be revived for a like period by a new payment and reinstatement of the member.</p>

<p> Railroads: Highway crossing: Insufficiency: Injury to driver of vehicle: Contributory negligence: Questions for jury. </p> <p>1. A highway east of and parallel with a railroad crossed the track diagonally to the southwest at an angle of about twenty-three degrees. On each side of each rail was a plank to raise the road to the level of the rail, and the space between the inner planks was filled with cinders. Plaintiff with a companion was driving southward in a light automobile. They testified that at this crossing their car was driven in the traveled track, hut that the left front wheel struck the inner side of the west rail, which deflected the car along the railroad track to the south, and that plaintiff having lost control of the car it ran into a ditch and she was injured. The evidence as to the condition of the plánk inside of the west rail was conflicting, but that for plaintiif was to the effect that the south end of that plank was worn and splintered and that the traveled track of the highway extended beyond and to tile south of it. Held, that the jury were warranted in finding that the crossing was unsafe and insufficient.</p> <p>2. In view of the acute angle at which the highway crossed the track, and the defect being one which might he overlooked or its dangerous character not appreciated by a person exercising ordinary care, and there being evidence that although plaintiff was familiar with the crossing she had theretofore always crossed in the other direction, and that a strong south wind was raising a dust which made it difficult to see the ground at that point, a finding that plaintiff was not guilty of contributory negligence was also warranted.</p>

<p>Appeal from an order of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>Upon the petition of the city of Milwaukee the Railroad Commission ordered the Chicago, Milwaukee & St. Paul Railway Company to depress its main track, switch tracks, .-and sidetracks at and between certain street crossings in said city, being a distance of nearly two miles, so that the grade of the tracks should he separated from the grade of the-streets, the tracks being carried in a subway and the streets being carried on bridges across said subway, and further ordered the city to pay twenty-five per cent, of the cost of the-work, the railway company seventy per cent., and the Milwaukee Electric Railway & Light Company five per cent.. The order was made because, in the judgment of the Commission, public safety required the abolition of gradé crossings. The city brings this action to set aside that part of the order assessing twenty-five per cent, of the cost of the work against the city of Milwaukee, and from an order sustaining- a general demurrer to the complaint the city appeals..</p>

Ray Stevens, Circuit Judge. Action for specific performance. There was a general demurrer to the complaint which was overruled. The plaintiff, with some other matters not material to he stated, pleaded the following for a cause of action: Defendants Nellie Lyons, George, J. 8., Nettie, FranJc, Edward, and Charles Grady, April 1, 1914, rented their farm to the plaintiff for the term of one year.

<p>Appeal from a judgment of tbe municipal court of Outa-gamie county: Thohas H. RyaN, Judge.</p> <p>Tbis action was brought to recover' damages for personal injuries sustained by plaintiff while in the employ of the defendant and while working about a locomotive crane in the performance of his duties in the yards of the defendant in the city of Appleton. Tbe claim of tbe plaintiff is based upon tbe alleged failure of tbe defendant to furnish a safe working place.</p> <p>Tbe defendant.denied negligence and also set up contributory negligence on tbe part of tbe plaintiff. Tbe jury returned tbe following verdict:</p> <p>“(1) Was tbe plaintiff injured at tbe time alleged while passing over tbe crane car, on bis way to tbe water tank in tbe performance of bis duties? A. Yes.</p> <p>“(2) Did employees of defendant’s crane car generally in tbe performance of tbeir duties, and to tbe knowledge of defendant’s superintendent, use, and pass over tbe crane car on tbeir way to tbe tank when necessity required tbe taking on of water? A. (answered by tbe court). Yes.</p> <p>“(3) Did defendant at tbe time plaintiff was injured negligently fail to maintain tbat part of tbe crane car over wbicb plaintiff passed in as safe a condition as tbe nature of tbe employment would reasonably permit ? A. Yes.</p> <p>“(4) Ought defendant in tbe exercise of ordinary care to have known before tbe accident tbat tbe platform of said crane car 'was not as free from danger to tbe safety of employees in tbe performance of tbeir duties or tbe circum-stanpes of employment would reasonably permit and have remedied tbe same ? A. Yes.</p> <p>“(5) If you answer either or both of questions numbered 3 and 4 ‘Yes,’ then were tbe facts so found tbe proximate cause of plaintiff’s injury ? A. Yes.</p> <p>“(6) Did want of ordinary care on tbe part of tbe plaintiff contribute to produce bis injury? A. No.</p> <p>“(I) What sum in money will reasonably compensate tbe plaintiff for tbe injury by him sustained ? A. Three thousand dollars ($3,000).”</p> <p>■ Tbe defendant moved for nonsuit and directed verdict, also made tbe.usual motions after verdict, all of wbicb motions were denied and judgment was rendered in favor of tbe plaintiff upon tbe verdict, from wbicb this appeal was taken.</p>

<p>Infants: Guardians ad litem: Appointment: Master and servant: Injury: When Compensation Act applicable: Minors: Prohibited employment: Dangerous machinery: Constitutional law: Obligation of contracts: Police power: Evidence: Competency: Special verdict: Issues: Instructions to jury: Excessive damages.</p> <p>1. Sec. 2618, Stats., providing that a guardian ad litem for an infant may he appointed hy the court in which the actidn is prosecuted or hy a judge thereof, does not require that such guardian must he. so appointed.</p> <p>2. Where at the trial of an action in circuit court objection was made that plaintiff’s guardian ad litem had been appointed by the county court, the circuit court might cure the irregularity, if any, by appointing the same person and proceed with the trial.</p> <p>3. Where an employee whose contract of employment was made before his employer became subject to the Workmen’s Compensation Act (ch. 50, Laws 1911) was injured after the employer came under that act but before he himself had made an election and within the thirty days during which he might do so, the act did not apply.</p> <p>4. Sub. 2, sec. 1728a, Stats. 1911, prohibiting the employment of minors under the age of sixteen years in operating certain dangerous machinery, including carding machines haying live rolls into which the hands of the operator might be drawn, is a valid exercise of the police power.</p> <p>5. In an action for injuries sustained by a minor while employed, in violation of said statute, in operating a carding machine, evidence that the machine was not dangerous was properly excluded.</p> <p>6. Such a statute cannot be said to impair the obligation of an existing contract of employment of a minor which was not made for any definite term; but even if the contract had been made for a term extending beyond the time of an accident which occurred after the passage of the law, its abrogation by the law was a legitimate exercise of the police power.</p> <p>7. There being no dispute as to the fact of injury while operating the carding machine; the defendant employer being liable because it violated the statute; contributory negligence not being a-defense; and it being obvious that if plaintiff had not been employed on the machine he would not have been injured while operating it, so that there was no issue as to proximate cause,— the trial court properly submitted to the jury only the question of damages.</p> <p>8. Where the charge, read as a whole, was fair and correct and not at all calculated to mislead the jury or prejudice the appellant, criticism of detached sentences therein is not of consequence.</p> <p>9. An award of $4,500 for a severe injury to the arm of a boy under sixteen years of age who was employed in operating a carding machine in violation of law, is held not so excessive that this court should' interfere.</p>

Appeals from an order of the municipal court of Lang-lade county: T. W. Hogaw, Judge. Action for libel. Plaintiff, James Gagen> of Indian blood ■on his mother’s side, was a candidate for the office of county treasurer of Langlade county.

W. Hogan, Judge. Action to recover $500, being the balance dne on the purchase price of an equitable interest in twelve forties of timber land alleged to have been sold by the plaintiff to the-defendant by written contract December 8, 1911.

The plaintiff brought this action to recover wages alleged to be due her on a written contract with the board of education of the city of Kaukauna, Wisconsin. The action was commenced by the service of a circuit court summons and was brought to trial on the 21st day of January, 1915, before Judge Thomas H. RyaN of the municipal court of Outagamie county. When the case was called for trial the defendant filed an affidavit of prejudice against Judge Thomas LI. Ryah.

This action was brought to recover damages growing out of an alleged breach of duty by the defendant as agent of the plaintiff.

<p> Ditches to permit natural drainage: Duty of towns, etc.: Enforcement in equity: Exclusive remedy: Action for damages: Filing of claim. </p> <p>1. Sec. 13886, Stats. 1913 (relating to ditches, culverts, or other outlets to permit the natural drainage of low lands over which a highway or road grade shall be constructed), gives a new right to the landowner and declares the remedy for failure of the municipality or railway company to perform the duty thereby imposed; and the remedy so provided (viz. the recovery of damages) excludes any right of the landowner to resort to equity to compel the construction and maintenance of the ditches.</p> <p>2. Failure of a town to perform the duty imposed upon it by said sec. 13886 does not constitute a' nuisance against which equity will grant relief.</p> <p>3. A claim for damages caused by failure to construct and maintain ditches, etc., as required by sec. 13885, must be filed as provided in see. 824, before an action thereon can be maintained against a town.</p>

<p> Money paid, under unconstitutional law: Recovery: Subscriptions: Failure to comply with conditions: Highways: Improvement: Towns: Liability to repay moneys subscribed. </p> <p>1. The rule that relief will not he granted against a mistake of law is not without limitation; and the rule that money paid under an unconstitutional law without any circumstances of compulsion is paid under a mistake of law and is not recoverable, is not applicable to all situations.</p> <p>2. A gift, donation, or subscription may be made on condition that the donee do some act before the donation will become available, and if there is a refusal to accept the condition the donation may be withdrawn.</p> <p>3. If in such case payment is made but the condition has not been fulfilled, the amount paid may be recovered.</p> <p>4. Where, pursuant to sub. 3, sec. 1317m — 4, Stats. 1913, and assuming it to be valid, freeholders subscribed and paid into the treasury of a town a certain sum and presented a petition designating the parts of the system of prospective state highways which théy wished to have improved, but the town refused to raise a like amount for that purpose by taxation, and in an action to compel it to do so it was held that said subsection was unconstitutional, the condition upon' which the subscriptions were made was never fulfilled, and the money might be recovered.</p> <p>5. The electors at a town meeting having voted to expend the moneys so subscribed upon the highways designated, the town thereby assumed ownership and control over the fund and rendered itself liable to an action to recover it.</p>

<p>Appeal from a judgment of the municipal court of Outa-gamie county; Albeet M. Spences., Judge.</p> <p>Action for damages for personal injury. Plaintiff,. Herbert SchaboWj was injured April 7, 1914, by falling through, a trap door in defendant’s car barn while assisting in delivering a can of soft soap weighing 100 pounds. Upon arriving at the barn he tied his team and entered to get help¡ Both on entering and leaving he passed over the trap door, which was then closed. Though he had made deliveries there for about a year past he claimed he had never seen it open. The trap door consisted of an iron plate hinged flush to the cement floor, and it covered a stairway leading to the basement. The stairs led down from the end nearest the outside door of the barn. The latter was a sliding door with a narrow swinging door set in it. The trap door was directly opposite to and at a distance of forty-one inches from the small swinging door. Plaintiff and one of defendant’s employees, John Steger, carried the can of soap by the handles, walking side by side till the door was reached. Plaintiff then swung backwards and opened the door with his right hand, backed through and beyond it, and fell down the open stairway, the trap door having been opened by an employee of defendant while plaintiff and Steger were out to get the soap. The jury found negligence on the part of the defendant; that it was the proximate cause of the injury; that plaintiff was free from contributory negligence; and damages $1,000. From a judgment in favor of plaintiff entered upon the verdict the defendant appealed.</p>

<p>Appeal from a judgment of the circuit court for Dan© county: E. Bay SteveNS, Circuit Judge.</p> <p>The action was to test an award made by the Wisconsin Industrial Commission in favor of defendant Uric Jacobson. The award was sustained.</p> <p>Tbe Commission made tbe award and it was confirmed on tbis state of facts, as indicated in a memorandum wbicb sucb Commission filed in tbe proceeding as a basis for its conclusion :</p> <p>“May 16, 1914,” Eric Jacobson “was in tbe employ of” Bystrom Brothers “laying cement blocks. He was at work under tbe porch of a residence, and in attempting to lift a block weighing approximately eighty pounds, on tbe foundation of tbe wall, while in a sitting position, be strained tbe muscles of bis right side. Tbe accident occurred during tbe forenoon. .' . . He . . . consulted a physician, who pronounced the injury as a muscular spasm. There was no external evidence of injury, but he suffered pain and was disabled until July 6, 1914.”</p>

<p>Appeal from a judgment of the circuit court for Racine county: W. J. TubbteR, Judge.</p> <p>This is a case of alleged unfair competition in trade. The-plaintiff and respondent (hereinafter called the Plow Works) brought the action to enjoin the appellant (hereinafter called' the T. M. Company) from using the name “Case” or ffJ. I. Case,” either alone or in combination with other words, upon plows or plow machinery sold by it, as well as in advertising such plows and plow machinery, on the ground that these-names Rad become Valuable trade-names to the use of which upon plows the Plow Worles had acquired the exclusive right.</p> <p>A subsidiary controversy arising upon a cross-complaint filed by the T. M. Company will be set forth later in this ^statement.</p> <p>The testimony was voluminous and superficially contradictory, but there was really little dispute as to the fundamental and material facts. These facts will be briefly summarized, using as a basis either uncontradicted evidence or findings of fact made by the trial court based on sufficient evidence.</p> <p>The Plow Worhs is a corporation located at Racine which for many years has manufactured plows and tillage machinery. The T. M. Company is also a corporation which has for many years manufactured threshing machines at Racine and during recent years has extended its activities into other lines, among which are engine-drawn gang plows. Both corporations were founded by Jerome I. Case, who began the manufacture of threshing machines at Racine in 1842. He built up a great and profitable business and made the name “Case” well and favorably known among farmers and agricultural implement dealers. In 1863 he associated with himself three equal partners. The business continued and grew under the name J. I. Case & Company. In 1876 Case, with three others not interested in the firm of J. I. Case & Company, organized the Case-Whiting Company, a corporation, for the purpose of making plows at Racine. Case owned a large amount of the stock. This company immediately began manufacturing plows on a large scale, both common walking plows and sulky plows, as well as harrows, cultivators, and tillage machinery of similar nature. In 1880 the name of the corporation was changed to J. I. Case Plow Company. In 1884 it failed and its property and good will were sold to Mr. Case, who in 1885 organized the plaintiff company and conveyed to it the property of the former company including its good will. The business of making plows continued without material interruption and has continued ever since and the plows soon became generally known in tbe trade and among farmers as tbe “Case” or “J, L Case” plows. J. I. Case owned practically all tbe stock of tbe plaintiff from tbe time of its organization until be transferred it in 1890, just before bis death, to bis daughter and her husband, tbe latter being tbe defendant R. M. Wallis, now president of tbe Plow Worles. Tbe plows have acquired their reputation under tbe name “Case,” and tbe right to use the name on plows is unquestionably a valuable asset.</p> <p>Tbe T. M. Company was incorporated in 1880 by the partners in tbe firm of J. I. Case & Company and succeeded to tbe property, business, and good will of that firm, Case owning one quarter of tbe stock. Tbe corporation continued tbe tbresbing-maebine business of tbe firm and enlarged it greatly. There was entire harmony between tbe two corporations for many years. Mr. Case was president of both companies up to bis death in 1891. Tbe T. M. Company made tbe “Case” threshing machines, and tbe Plow Worles made tbe “Case” plows, and neither sought to invade tbe field of tbe other.</p> <p>Tbe T. M. Company has placed upon its products for many years a trade-mark composed of tbe picture of an eagle upon .a globe with tbe corporate name and business address upon tbe globe thus:</p> <p>J. I. Case</p> <p>Threshing Machine Co.</p> <p>Incorporated Racine, Wis.</p> <p>U. S. A.</p> <p>Tbe trade-mark of tbe plaintiff, which has been used upon its products for many years, consists of tbe picture of a plowshare held up by tbe band against an illuminated background with tbe corporate name and address underneath, thus:</p> <p>J. I. Case</p> <p>Plow Works</p> <p>Racine, Wis.</p> <p>U. S.A.</p> <p>As before stated the Case-Whiting Company commenced the manufacture of plows in 1876. That manufacture has. continued to the present time, and the plaintiff has succeeded to all the rights of the original company. The output at first, consisted largely of ordinary walking plows, but horse-drawn sulky plows were also made, and some time prior to 1886 these-sulky plows began to be made with gangs of two or three plow bottoms. The sulky plows were arranged with lifting levers,, the handles of such levers projecting upward and backward just behind the seat of the driver so that he could conveniently .grasp them if necessary to lift one or all of the plows over an obsti’uction. In the early nineties the question of the practicability of operating gangs of plows by means of a traction-engine or “tractor” instead of horses was extensively considered by the manufacturers and dealers in plows, and much experimenting done, with more or less satisfactory results. While the change from horse-drawn to engine-drawn plows-was not rapid, some progress was made, and in 1893 the Plow Company began to make changes in some of its horse-drawn gang plows which would enable them to be attached to. tractors; these changes consisting in altering the position of the lifting levers so that they projected forward instead of backward in order that the operator standing on the footboard of the tractor might easily reach them. These gangs were-sold to some extent during the years 1893 to 1903 inclusive, but how largely sold does not appear. They were in fact horse gangs converted into engine gangs by change in the position of the levers. Gangs made specially for tractor purposes came several years later. About the year 1903 the demand for engine-drawn gangs seems to have died down for a time, to be revived a few years later with the development of the gasoline engine. About the year 1908 numerous experiments were being made by plow manufacturers with new forms of tractors and improvements of various kinds in the mechanism of the gangs and their attachments.</p> <p>In 1909 the plaintiff endeavored to perfect a successful engine-drawn gang plow, and in November of that year sold two gang plows of that type which were successful, and since the spring of 1910 it has offered and sold said engine-drawn gang plow throughout the United States and Canada and marked the same with the words “Case” and “J. I. Case” as it marks its other products. The plaintiff has not itself entered on the manufacture of tractors, but in the fall of 1912 an associate company called the Wallis Company was organized by Mr. Wallis to manufacture tractors which could he sold with the plaintiff’s engine gang plows as a complete plowing outfit, and the plaintiff since that time has advertised and sold the Wallis tractor and its own gang plows together as one outfit. This tractor has never been marked with the name ¿íCase” or any compound of that name.</p> <p>In 1889 the T. M. Company made a steam traction engine for an inventor named Price which was intended to pull a gang of plows. Price bought plow bottoms of the plaintiff and attached the same to a triangular frame which was itself attached to the engine. This was experimental work and continued for some years, the defendant advancing Price money to carry on his attempt to produce a successful tractor. In 1893 Price had become indebted to the T. M. Company in the sum of $11,000, and, being unable to pay, he transferred to the T. M. Company all his rights in the engine, plow, and patterns, both finished and unfinished. The T. M. Company manufactured some of the Price plowing outfits (purchasing the plow bottoms from the plaintiff) and sold a few outfits, but the number of sales does not appear. They were advertised for two years as the “ J acob Price steam plowing outfit.” In 1894 the T. M. Company issued a catalog devoted to the ■“Jacob Price field locomotive, manufactured at the works of J. I. Case T. M. Company, Racine, for Jacob Price.” In 1893 the Plow WorJcs also advertised this outfit for sale as the “Jacob Price field locomotive and steam plow.” It does not appear bow many of these outfits were sold by either party, but the machine was unsuccessful and the manufacture and sale seems to have ceased in 1897, having resulted in a loss to the T. M. Company. During all this time the defendant made no plows, but purchased such as it needed to complete the Jacob Price outfits from the plaintiff. In 1900 it. assembled a heavy tractor engine plow, made up entirely of parts conveyed to it by Price in 1893, and used it in connection with a new type of tractor engines at several exhibitions in the West. On the' engine and gang of plows the name “Case” appeared in large letters together with the defendant’s-corporate name and the trade-mark. The entire outfit was sold two years later to a farmer near Winnipeg. In 1902 the defendant constructed an attachment in the shape of a triangular platform on wheels to be attached to the rear of their engine or tractor as a connecting link between the tractor and the plows, and having on the lower beam hooks for the purpose of attaching ‘plow beams thereto.. This attachment carried a coal bunker and water tank and was made and soldi by the defendant from 1902 to the present time. It had stenciled on the side in large letters the word “Case” as well as the corporate name of the T. M. Company. It was sold without plows and was constructed so that gang plows of any standard make could be attached to it, and during the years from 1902 to 1912 373 of these attachments were sold by the T. M. Company. Still it made no plows.</p> <p>In 1909 the T. M. Company built and experimented with an engine gang plow with individual beams, but sold none- and abandoned the experiment. Nothing further was done by the defendant till the spring of 1910, when it manufactured what was called a “steam lift engine gang plow,” which embodied a new invention and of which it sold during 1910' and 1911 sixty-three outfits, of which twenty-seven were'returned as unsatisfactory, and the sale practically ceased in 1911. In these outfits the plows themselves appear to have been manufactured by or expressly for tbe T. M. Company and were marked with the word “Case” in large letters and were so advertised. The advertising of these outfits as the “Case” plowing outfits in trade journals began in January, 1911. Up to that time (with the exception of the plows advertised with the Jacob Price plowing machinery) the T. M. Company had never advertised any plows in trade journals nor had it made any plows. In fact it advertised in its catalogs up to 1909 that it did not manufacture or furnish plows.</p> <p>In January, 1912, the T. M. Company contracted with the Racine-Sattley Company of Springfield, Illinois, for a large number of engine gang plow bottoms. They were made, marked “Case-Sattley engine gang plows,” and sold by defendant through that season in connection with its engine made by itself at Racine. In 1913 another contract of the same kind was made, but the plows were marked “Case-Racine,” and they were sold in large numbers by defendant. In the fall of 1914 the T. M. Company began making a light engine gang plow for use with a light tractor, the word “Case” being stenciled in large letters on the plow beams. This gang plow was very similar to the light engine gang plow manufactured and sold by the plaintiff for the same purpose in the latter part of the year 1914, and it has attained a considerable sale. There was also a small walking plow, designed for grading and breaking, marketed by the defendant beginning in the fall of 1910, which plow was made for the T. M. Company by a concern at Sidney, Ohio, and had on the beam the word “Case” in large letters. This plow is quite similar to two or three plows designed for similar uses made by plaintiff. It was sold and advertised as a “Case” plow. In 1912 the Plow Works and the T. M. Company, on the advice of counsel, jointly purchased a Canadian patent for steam-lift gang plows in order to protect themselves, each contributing one half of the expense, and they still own said patent in undivided shares.</p> <p>The principal product of the T. M. Company has always been threshing machines, and these machines have been known as the “Case” or “J. I. Case” threshing machines for more than sixty years. During the last quarter of a century the T. M. Company has added other lines of manufacture, such as road machinery, traction engines, and automobiles. All this machinery has been known to the trade as the “Case” machinery, and in 1903 the defendant began and has since continued to brand its machinery of all kinds with the word “Case” in large letters, and to advertise it as the “Case” machinery in trade journals.</p> <p>Up to about the time of the making of the contract between the T. M. Company and the Racine-Sattley Company in January, 1912, the Plow Works had no knowledge that the T. M. Company had offered any plows for sale under the name “Case” or “J. I. Case” or intended to do so. It learned of the Sattley contract in March following, and immediately protested to the T. M. Company both verbally and in writing against the use of the name. Among purchasers of farm machinery it has been generally supposed that the Plow Works and the Threshing Machine Works were simply branches of one concern. Since entering on the sale of engine gang plows and breaker plows in 1910 the T. M. Company has continuously and extensively advertised them as “Case” plows and plowing machinery or outfits, just as it advertised its other articles of manufacture, without notification of any kind that the plows were not the original Case plows. Both the engine gang plows and the breaker plows are quite similar in appearance and finish to the plaintiff’s plows and are likely to be mistaken therefor by the ordinary observer. The evidence shows also that they have been mistaken therefor and that purchasers have, to a greater or less extent, actually been misled and have purchased the T. M-. Company’s product in the belief that it was the product of the manufacturer and vendor of the original “Case” plows. The different sten-cilings now used on plows by tbe two parties do not differentiate tbe plows to tbe ordinary observer, and some trade-name other tban “Case” or “J. I. Case” must be used to make tbe purchasing public understand tbat tbe plows offered for sale by tbe T. M. Company are' not those made by tbe plaintiff.</p> <p>Eor many years there has been some confusion in tbe delivery of postal matter to tbe two corporations. Letters are continually being addressed to “Case & Co.” or to “J. I. Case Company” or to “J. I. Case,” and these letters so imperfectly addressed have generally been delivered to tbe T. M. Company, and if upon examination they appeared to be intended for tbe Plow Works they were immediately sent to tbe latter concern. This was a satisfactory method until tbe two concerns became business competitors in tbe manufacture and sale of plows, at which time friction began to appear. In December, 1911, the T. M. Company took tbe preliminary steps toward changing its name to tbe J. I. Case Company, and tbe officers of tbe Plow Works, learning of this action, at once caused to be organized a new corporation called tbe J. I. Case Company with $100,000 capital stock, and completed the organization before tbe T. M. Company could complete tbe proceedings which it bad commenced for change of name, whereupon said proceedings were dropped. Tbe incorporators of. tbe new corporation were three grandsons of the original Jerome I. Case, one of whom bears the name of his grandfather. The purposes of this new organization were stated •in its articles to be “tbe buying, selling, and dealing in real estate, securities, and merchandise within the state of Wisconsin and elsewhere,” and‘it was organized to act as sales agent for the products of tbe Plow Works', but has as yet done no business. Its postoffice address is Station A, Racine, Wisconsin.</p> <p>Upon the organization of this new corporation in January, 1912, it demanded of the postmaster at Racine tbat all mail arriving there directed to J. I. Case Company or J. I. Case Go. be delivered to it, and the postmaster referred the demand to the postoffice department, where, after a hearing at which both sides appeared and were heard by counsel, an order was made May 21, 1912, directing that all mail directed as last aforesaid without other -designation of street number or address be delivered to the T. M. Company.</p> <p>The court found as a fact that the names “Case” and “ J. I. Case” have become associated in the public mind as the names of plows made by the plaintiff at its factory at Racine, and have acquired a secondary significance indicating the particular make of plows sold by the plaintiff, which names are of great value; and that the reputation and good will of the “Case” plowj however drawn, was created by and belongs to the plaintiff. The court' further found as a fact that the light engine-drawn gang plow manufactured and sold by both parties has been gradually evolved from the horse-drawn gang plow for many years manufactured by the plaintiff and from the engine-drawn gang plow designed by Jacob Price. It seems that a number of manufacturers make and sell plows performing the same service as the gang plows drawn by light gasoline tractors which are now marketed by both the Plow Works and the T. M. Company and that there is no patent on •such plows.</p> <p>The plaintiff in its original complaint joined the new corporation aforesaid (the J. I. Case Company) as a codefend-ant with the T. M. Company on the ground that it also claimed the right to have mail addressed to J. I. Case Co. or J. I. Case Company delivered to it, and hence that its presence was necessary to settle the entire controversy. The defendant T. M. Company by way of cross-complaint alleged that the creation of said new corporation was a sham and a fraud perpetrated by H. M. Wallis, H. M. Wallis, Jr. (his son), and Jerome I. Case (second) for the purpose of appropriating to themselves and to the Plow Works the trade-name “Case” and the good will of the T. M. Company, also for the purpose of intercepting the T. M. Company’s mail and diverting to the Plow Worles orders sent by mail and intended for the T. JÍ. Company. Thereupon the three last named .gentlemen were made parties to the action. Upon the subsidiary questions raised by this cross-complaint the court found that it would be inequitable for the recently organized J. I. Case Company to act as selling agent of the Ploiv Worles and that equity required that the mail addressed by the short or imperfect names before set forth should be delivered to the T. M. Company} except such as may be so addressed that the postal authorities can determine that it. is intended for the plaintiff.</p> <p>The court found as conclusions of law:</p> <p>(1) That both parties are entitled to make and sell plows such as are now commonly in use, including engine-drawn plows.</p> <p>(2) That the plaintiff is entitled to the exclusive use, upon plows, tillage implements, and engine-drawn plows, also in its catalogs and advertisements, of the words “Case” and “J. I. Case” as the trade-name or designation of any description of plows made and offered for sale by it.</p> <p>(3) That the defendant J. I. Case T. M. Co. be perpetually enjoined and restrained from selling or offering for sale any plows, walking plows, sulky plows, horse gang plows, engine gang plows, traction gang plows, whether drawn by animal or power propelled, with the name “Case” or “J. I. Case” thereon, or the word “Case” thereon as part of its corporate name, or the word “Case” in connection with other words, as “Case-Sattley” and “Case-Raeine” thereon.</p> <p>(4) That the said defendant J. I. Case T. M. Co. shall be enjoined and restrained from using the name “Case” or “J. I. Casé,” in connection with any other words or letters, upon its plows, or in its catalogs or advertising matter, so as to carry the meaning to the purchaser or reader that it is manufacturing and selling, or selling, plows, the product of the plaintiff, and, to that end, it shall be restrained and enjoined from using any of the marks, either “Case,” “J. I. Case,” or its trade-mark or corporate name, upon any plows manufactured or sold by it, except that it may sell and advertise its product under another name so that it will be distinctly understood by persons exercising ordinary care, when they buy plows from the defendant T. M. Company, that they are not acquiring a Case or J. I. Case plow.</p> <p>(5) That the defendant T. M. Company is entitled to manufacture and vend the so-called “plow attachment,” being the triangular platform and levers thereon, together with its other accessories, but not with plows attached thereto, with the name “Case” or “J. I. Case” thereon, and its trade-mark, in addition thereto placing thereon words clearly indicating that it is not manufactured by the plaintiff. If, however, the same is sold by said defendant, together with the plow beams and bottoms, as a unit, then it is subject to the prohibition as to marking provided in the fourth conclusion of law herein.</p> <p>(6) That the plaintiff is entitled to judgment restraining the defendant, its officers, agents, and servants, from representing, or holding out, or giving out, in any manner, that the plows sold and, offered for sale by it are the product of the plaintiff Plow Worles, or that they are original Case plows.</p> <p>(I) That judgment shall be entered herein that the mail addressed “J. I. Case Company,” “J. I. Case Co.,” “Case Co.,” “Case Company,” “J. I. Case & Company,” “J. I. Case & Co.,” shall be delivered to the defendant the J. ■ I. Case T. M. Company, unless addressed by street or number, or by some other designation, to the plaintiff.</p> <p>That all mail received by the defendant J. I. Case T. M. Company, addressed “J. I. Case Company,” “J. I. Case Co.,” “Case Company,” “Case Co.,” “J. I. Case & Company,” “J. I. Case & Co.,” be retained by the defendant J. I. Case T. M. Company until 11 o’clock in the forenoon of each secular day, at its office, and then be opened and dis-. tributed by it, that intended for the plaintiff being forthwith transmitted to it; that at such time and place the plaintiff may have a representative to observe the opening of said mail and the distribution thereof.'</p> <p>That the mail received between the hours of 11 o’clock a. m. and 5 o’clock p. m. be handled and disposed of in the same manner, with the same right to the plaintiff as just hereinbefore described, it being the intention of the court to provide the maimer of opening and disposing of the mail .so that each of the parties, the plaintiff and the defendant T. M. Company, shall have an equal opportunity to examine the same at such time.</p> <p>That all mail, if any, received from the postoffiee by the plaintiff, addressed “J. I. Case Company,” “J. I. Case Co.,” “Case Company,” “Case Co.,” “J. I. Casé & Company,” “J. I. Case & Co.,” shall be delivered by said plaintiff, unopened, to the said defendant J. I. Case T. M. Company at 11 o’clock in the forenoon of each secular day at its office, the same to be there opened and distributed in the same manner and with the same rights to each- of the parties hereto therein as is hereinabove more particularly defined in relation to mail so addressed delivered by the postoffice to said defendant J. I. Case T. M. Company.</p> <p>That the distribution of said mail shall be determined upon and made by an officer or representative of the defendant 2! M. Company, but full opportunity shall be allowed the representative of the plaintiff to take notes from any disputed mail matter so that application can be made to the court for its order as to the disposition to be made thereof.</p> <p>Let judgment be entered in accordance with these findings, reserving therein the right to the court to make such' further order or judgment with reference to the mail as the court may hereafter deem proper and equitable.</p> <p>Judgment was entered granting injunctive relief to the plaintiff practically in the words of the foregoing conclusions of law, and in addition thereto dismissing the cross-complaint, except that the J. I. Case Company was perpetually enjoined from acting as selling agent of the Ploiv Works in selling tractors or engine-drawn plows or from selling the same on its own account.</p> <p>The T. M. Company appeals from the entire judgment except that part which adjudges that both parties are entitled to make and sell plows such as are now commonly in use, including engine-drawn plows.</p>

<p> Banks and banking: Liquidation by commissioner of banking: Liability for rent: Offsets: Waiver: Bankruptcy: Rights of trustee: Possession of property: Surrender: Mortgagee in possession: Right to rents: Courts: Enforcing liability of commissioner of banking: Jurisdiction. </p> <p>1. Where, pursuant to sec. 2022, Stats., the commissioner of banking takes possession of the property and business of a banking corporation and while liquidating its affairs occupies and uses premises of which such corporation was lessee, he is liable to pay for such use out of the funds of the corporation in his hands; and the rent stipulated in the lease fixes the measure of such liability.</p> <p>2. Where at the time the commissioner took charge of an insolvent trust company a certain sum was due to the company on open account from its lessor, and thereafter the lessor became bankrupt and the commissioner and the trust company filed their claim on open account against such lessor in the bankruptcy proceedings, stating in the proof of claim that the said sum was due over and above all setoffs, they thereby waived their right to offset said sum against rent due the lessor.</p> <p>3. Amounts due to the trust company as interest on a mortgage given to it by its lessor and not included in said open account might be offset against rentals up to the time the lessor became a bankrupt; but as to rents thereafter accruing the right of offset did not exist.</p> <p>4. The trustee in bankruptcy of the lessor, having become vested with the title and right to possession of the building, a part of which was leased to the trust company, was entitled to the rents so long as he elected to retain possession of the building in the interest of the creditors whom he represented.</p> <p>5. Where such trustee in bankruptcy afterwards elected to surrender the building to the trustee for the holders of the bonds secured by the mortgage on the building given by the bankrupt lessor, and the bankruptcy court so ordered and said trustee for the bondholders took peaceable possession without any protest from the mortgagor or its creditors, such possession entitled the trustee to collect the rents from the lessees, including the commissioner of banking and tbe trust company whose business was being liquidated.</p> <p>6. Where a mortgagee obtains peaceable possession of the mortgaged property he may retain it until his mortgage debt is paid and may collect the rentals’ although the rentals themselves were not specifically mortgaged.</p> <p>7. The bankrupt lessor and mortgagor having had only a ninety-nine-year leasehold interest in a part of the mortgaged building, and the trustee under the mortgage, after receiving possession from the trustee in bankruptcy, having in turn surrendered said part of the building to the owners, such owners became entitled either to their share of the rent thereafter accruing under the lease to the trust company or to the reasonable value of the use and occupancy of their premises by the commissioner of banking.</p> <p>8. Even assuming that the liquidation of the business of a banking corporation under sec. 2022, Stats., is not a proceeding in or under the direction of a court, but is an administrative proceeding carried on by the commissioner of banking, a court may nevertheless entertain jurisdiction of an action against the commissioner to recover a debt for which he is legally liable and which he refuses to pay.</p> <p>9. Where in such a case no action was brought, but creditors proceeded by petitions in the liquidation proceeding in the circuit court and the banking corporation and the commissioner voluntarily answered and the issues raised were without objection tried on the merits, the court had jurisdiction both of the subject matter and of the parties.</p>

Fritz, Circuit Judge. Tlie action is to recover death benefits upon a certificate of membership in an unincorporated employees’ benefit association composed of employees of the defendant corporation. The plaintiff is the beneficiary named in the certificate and is the widow of Frank Zaremba, a member of the association in good standing, who died July 16, 1912.

Oebtiobabi to review a judgment of the circuit court for Winnebago county: Bybon B. Pabk, Judge. Pursuant to sec. llQlm — 80, Stats. 1913, the city of Me-nasha brought an action in the circuit court to determine the necessity of taking the public utility plant of the Wisconsin Traction, Light, Heat & Power Company located in said city. The jury found that public necessity required the taking and a judgment in accordance with the verdict was entered.

<p>Appeal from a judgment of the circuit court for Monroe county: E. 0. Higkbee, Circuit Judge.</p> <p>Action to recover compensation for a personal injury.</p> <p>The claim of the plaintiff was that in the defendant city a public street, known as Williams street, near its intersection with Clark street, for more than a year prior to October 20, 19T3, on the south side thereof, used by pedestrians, had been unsafe for persons in the exercise of ordinary care by reason of there being a depression in the footway from eight to fourteen inches deep and twelve to eighteen inches wide; that ■such condition had been known to the defendant’s officers for .a long time before the occurrence complained of; that on such day, plaintiff, while traveling along the footway in the exercise of due care, stepped into such depression, causing him to fall and fracture his right leg. The facts so claimed were •duly pleaded with all the conditions precedent to the right to •maintain an action to recover compensation for the injury.</p> <p>The claim of the defendant was that there was no depression in the footway where plaintiff was injured, rendering it unsafe for use by travelers in the exercise of ordinary care; -that plaintiff did not exercise such care, and that his fault resulted in the injury.</p> <p>The evidence established the claim that plaintiff fell by ■stepping into a depression in the footway at the place alleged nnd was thereby seriously injured in his right leg, and that •the accident occurred in the nighttime when it was too dark to enable one to observe the defect with reasonable distinctness. He testified that there was a “dug-out” in the footway .several feet long with a couple of drops in it, making a hole ,at the deepest place eight, nine, or ten inches deep, and that people were accustomed to walk around it to the south; that he did so on the occasion in question; that he was familiar with the defect and was looking for it, but, upon meeting a person coming from the opposite direction, he momentarily took his mind off the subject in stepping aside to give way for such person to pass, and, in doing so, he went into the hole, fell upon his knee and received the injury. The person who was present when the accident occurred testified that the defect had existed for more than a year; that he stepped into the depression once himself and received an injury; that he measured the depth of the depression on the side plaintiff traveled and found it to be six inches at the first step down, increasing to nine and then to twelve inches; that the width was twenty inches, and that the “dug-out” was caused by "travel and washing. There was other evidence to the same effect. There was a photograph of the premises indicating-that the depression was, as testified to by the witnesses, several feet long with a slope on the south side. There was evidence by a surveyor that he examined and platted the premises some time after the accident. The result of his work was allowed in evidence against objection. Whether the conditions were the same when he did his work as when the accident occurred was disputed. He claimed that the bottom of the pathway was smooth through the depression; that it was well tracked and was used, in the main, for travel; that the south side sloped, and that there was some evidence of travel around the depression on such side. The evidence indicated that the sidewalk area had never been improved; that travelers had made for themselves a pathway, and that when it became worn by travel or washing they diverged around the-place.</p> <p>The cause was submitted to the jury with the following result : The traveled foot-path was insufficient for public use by persons in the exercise of ordinary care. Such conditions-had existed for such length of time prior to the accident that defendant’s officers, in the exercise of reasonable diligence, should have discovered and remedied the same. Such defective condition was the proximate cause of the injury. Plaintiff was not wanting in ordinary care which contributed to the injury. It will require $1,000 to compensate plaintiff for the injury.</p> <p>On motion the answers were changed so as to find the pathway free from actionable defect and the plaintiff guilty of' contributory negligence. The motion was granted and on the first point upon this theory: All the evidence, when rightly understood, is in substantial harmony as regards the condition of the place where the accident occurred. The street was not much used. No sidewalks had ever been constructed. The pathway along the south side of the street sloped for a distance of some eighteen feet to the intersecting street. The bottom of the old path was substantially uniform. The width of it varied from seventeen inches to two feet. The greatest depth of the center of the path below the side on the south was 11.64 inches and the drop at that part was on a slope of one foot and a half. If the plaintiff stepped off into the depression where it was the deepest, he must have taken a long side-step. If it occurred within four feet of the intersection of the pathway with the cross street, the drop was less than two inches. Such condition under such circumstances, the court thought, does not warrant a finding that the street was actionably defective.</p> <p>Judgment was rendered, dismissing the action with costs..</p>

<p>Appeal from a judgment of the circuit court for Monroe county: E. 0. Higbee, Circuit Judge.</p> <p>Action to probate a will. July 25, 1913, John H. Elliott died. Eour hours previous to his death he executed a will leaving $500 to O. W. Fish, the proponent, and the remainder of his property, of the value of about $1,500, to one Jess McCullough. Phillip Elliott, the father of the deceased, contested the probate of the will on the ground of lack of testamentary capacity on the part of the testator and undue influence on the part of the legatees. The contestant has died since this appeal was taken and the administratrix of his estate has been substituted in his place. The county court refused to probate the will because of lack of testamentary capacity and the proponent appealed to the circuit court. The latter found testamentary capacity, hut refused probate on the ground of the exercise of undue influence on the part of the legatees. Erom a judgment entered accordingly the proponent appealed.</p>

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

<p> Death: Presumption from absence: Life insurance: Benefit societies: Waiver of proofs of death. </p> <p>1. Proof of diligent search and inquiry is not required to establish the presumption of death of a person who has been absent from his home or place of residence for seven years without being heard from.</p> <p>2. In an action upon a benefit certificate, proof that the insured (plaintiff’s husband) left his home in March, 1905, that neither the plaintiff nor any other person had had any tidings or information concerning him since the summer of 1905, that he had not been heard from for eight years prior to the trial, and that his whereabouts were wholly unknown, established the legal presumption that he was dead.</p> <p>3. The refusal of a benefit society, after being notified of the presumed death of a member by reason of his not having been heard from for more than seven years, to furnish to the beneficiary blanks for proof of death, constituted a waiver of its requirement that proof of death should be made on blanks to be* furnished by it before an action could be .maintained on the benefit certificate.</p>

<p> Railroads: Negligence: Death of switchman: Defective running board: Evidence: Sufficiency: Proximate cause: Inspection: Federal statutes, when applicable: Pleading: Interstate commerce: Survival of 'actions: Separate recovery for suffering: Double recovery: Dependents: Appeal: Verdict, when conclusive. </p> <p>1. In an action against a railway company for death of a switchman who fell from the top of a ear, findings hy the jury to the effect that defendant negligently permitted the end of one of the boards of the running board of the car to project above the adjacent board to such an extent as to constitute a defect or insufficiency in the car, and that the fall of the deceased from the car was caused by his stumbling over the projecting board end, are held to have such support in the evidence that they should not be disturbed.</p> <p>2. Under the federal Employers’ Liability Act (35 U. S. Stats, at Large, 65, ch. 149, sec. 1) giving to a railway employee engaged in' interstate commerce a right to recover for injury or death “resulting in whole or' in part” from negligence of the railway company, the common-law rule as to proximate cause has no relevancy, it being sufficient that the defect or negligence pleaded contributed -in any manner to cause the injury.</p> <p>3. The Safety Appliance Act (36 U. S. Stats, at Large, 298, ch. 160, sec. 2) imposes an absolute duty upon common carriers to equip their cars with “secure running boards;” and in an action for death caused by a defective running board it is no defense that defendant had made proper inspection, if the board was in fact defective.</p> <p>4. Where, in an action for the death of a railway employee, the answer alleged that deceased was at the time of the injury engaged in interstate commerce and that fact was established upon the trial, it was the duty of the court to apply the federal acts.</p> <p>5. Under 36 U. S. Stats, at Large, 291, ch. 143, sec. 9, providing for the survival of any right of action given by the act to a person suffering injury, a cause of action for pain and suffering of a deceased railway employee survived to his mother, the sole beneficiary, and a recovery of the amount of her pecuniary loss resulting from his death and also of damages for his pain and suffering between the time of injury and death was not a double recovery for the same injury.</p> <p>6. The trial court having in such case sustained the findings of the jury on the question of damages, and there being ample evidence to support them, they cannot be disturbed on appeal on the ground that the mother was not dependent upon the deceased.</p> <p>Barnes, J., Winslow, C. J., and Marshall, J., dissent.</p>

<p> Landlord and tenant: Breach of covenants: Remedies of lessor: Election: Foreclosure: Liens: Quieting title: Covenant to erect building: Conditions of surety bond: Measure of damages for breach. </p> <p>1. The right, under a stipulation in a lease, to declare a forfeiture thereof for breach of any of its covenants by the lessee, is one created for the benefit of the lessor, and he is not obliged to invoke it, .but may elect whether to hold the lessee responsible in damages for the breach or to declare the lease at an end.</p> <p>2. Where in a lease for ninety-nine years the lessees agreed to erect a building on the land, to be completed before a certain date, and gave a bond to secure performance of such agreement and to save the lessor harmless from all liens and claims for liens and all costs, charges, and damages (including costs of suits) for or on account of such liens or claims, such condition of the bond shows that it was contemplated that the lessor was to have time to clear the leased premises of such liens by action if necessary.</p> <p>3. The lessees having defaulted in payment of the rent and also in the erection of the building, the lessor gave notice of the termination of the lease and commenced foreclosure proceedings under sec. 2197a, Stats., hut it appeared that improvements to the amount of $5,000, required in order to bring the' case within that statute, had not been made. ■ Held,, that a foreclosure judgment under the statute was improper, but such judgment was within the general jurisdiction of equity, valid between the parties, and sufficient ás a decree to remove a cloud on the title as against the lessees and those claiming liens under or through them.</p> <p>4. The surety on the bond given by the lessees, not having been made a party to the foreclosure suit and the defense thereof not having been tendered to it, was not concluded by the judgment; nor was it relieved thereby of anything.</p> <p>5. The acts of the lessor in giving notice and prosecuting the foreclosure suit were equivalent to an election by him to terminate the lease and take possession one year after judgment therein quieting his title, unless the premises were sooner redeemed; and, the lessor having the right to clear the premises of liens at their expense, neither the lessees nor their surety could object to this.</p> <p>6. For the lessees’ default in failing to erect the building (which would have been security for the performance of all other covenants of the lease) the measure of damages recoverable is not the same as in case of building contracts generally. The lessees and the surety on their bond are liable for all damages logically flowing from such breach; and the fact that performance of the covenants to pay rent and taxes was not covered by the bond, cannot be taken to enlarge or diminish such damages.</p> <p>7. The damages recoverable in such case include rents and taxes, not paid by the lessees, which accrued prior to the time when the lessor elected to and did resume possession of the premises free and clear of liens; but do not include rents or taxes accruing thereafter.</p>

<p>Appeal from a judgment of tbe circuit court for Pollt county: W. E. QuiNLAN, Judge.</p> <p>Tbe plaintiff is a foreign corporation engaged in manufacturing machinery in tbe state of Pennsylvania and is not licensed to do business in Wisconsin. Through its agents it sold machinery in this state from time to time, such agents taking orders which were filled from the factory located at Muncy. In 1913 it sold, through one of its agents, to Boulay Brothers of Eond du Lac, an attrition mill manufactured by it. Under the contract of sale title was reserved in the plaintiff because the purchase price had not been fully paid. On June 12, 1913, the purchasers began to operate the mill. It was not satisfactory to them, probably because the motor furnished was unable to develop sufficient power to properly operate the machine. The purchasers refused to pay the purchase price, and thereupon a new agreement was made whereby the plaintiff agreed to ship a larger mill to take the place of the one then in use, in consideration of the return ■of the old mill and the payment of $125 additional to the price at which the old mill was sold. It was further agreed between the parties that until such time as the new mill was furnished and could be put in operation Boulay Brothers were to have the right to use the machine which had been installed. Under this arrangement the mill first shipped was used until about October 28th, when the new mill was installed and the old one was set aside. During the month of December, 1913, an agent of the plaintiff called on the defendant, a Wisconsin corporation, at .Amery, Wisconsin, and entered into a contract with the defendant for the purchase and sale of two mills, one of them being the mill at Eond du Lac, and the other to be shipped from the factory in Pennsylvania. The contract stated the gross price to be paid for the two mills, but did not specify the amount agreed upon for each one of the mills. It was also agreed that some extras were to be furnished both for the Fond du Lac mill and the one to be shipped from the factory. It was shown in the testimony without dispute that the agreed price of the mill at Fond du Lac was $725. Both mills were delivered according to contract, and defendant refused to pay the agreed price, claiming that the condition of the mill at Eond du Lac was misrepresented by the agent. The issues raised by the pleadings were submitted to a jury, which returned a verdict in favor of tbe plaintiff for $362.50 on account of tbe Eond du Lac mill. Tbe court set aside tbis verdict and ordered the-complaint dismissed on tbe ground tbat, plaintiff being a foreign corporation not authorized to do business in tbe state, tbe contract was void and no recovery could be bad thereon. From tbis judgment plaintiff appeals.</p>

<p> Contracts: Validity: Statute of'frauds: Contract for sale of goods: Agreement to buy jointly and divide: Consideration: Mutual promises: Judicial sale: Chilling bidding: Breach of contract: Damages: Pleading. </p> <p>1. The statute of frauds (sec. 2308, Stats.) relative to contracts for the sale of goods for the price of $50 or more is applicable only to contracts between seller and buyer; and an oral agreement to buy jointly and afterwards divide a bankrupt stock of goods was not void under that statute nor under the Uniform Sales Act (sec. 1684Í — -4, Stats.).</p> <p>2. The fact that as to some of the goods the inventory value was to measure their division value did not change such an agreement from one of division to one of sale.</p> <p>3. Each of the parties thereto having agreed to furnish one half of the purchase price, the agreement was not nudum pactum, such promises being performable, concurrent, and mutually binding upon both parties at the same time.</p> <p>4. Agreements to bid jointly at a public sale, if not made for the purpose of chilling or suppressing bidding, are valid.</p> <p>5. In an action for breach of an agreement to buy jointly and after-wards divide a large bankrupt stock of goods, upon a demurrer ore terms to the complaint damage to the plaintiffs is sufficiently shown by allegations that it was necessary for them to make financial arrangements for the half of the price which they were to furnish, and by a statement of their counsel (which it was agreed the court might consider) that they were advised of defendant’s repudiation of the contract at the last moment, when they were not able to take care of themselves.</p>

Plaintiff commenced an action in the circuit court for Washburn county on a demand, not due, for $330.50 and interest thereon from March 4, 1915, and caused a writ of attachment to be issued therein, pursuant to which, in form, a levy was made on real estate in which defendants were interested. In due time judgment was rendered in such action. Defendants appeared in the action but did not answer. No notice of the application for judgment was given.

This is an action brought by the plaintiff, an attorney at law, to recover for services rendered pursuant to a contract in a criminal prosecution in which defendant was the complaining witness. One Eowler, treasurer of a company in which defendant was interested,'was charged with having embezzled some of the company’s money. Plaintiff was employed by the defendant to secure a requisition from the governor for the return of the accused.

This action was brought to secure partition of personal property, or a sale thereof in ease it could not be partitioned to advantage.

<p>Appeal from a part of a judgment of the circuit court for Green county: George Grimm, Circuit Judge.</p> <p>Action to foreclose a real-estate mortgage of $6,000 securing two notes of $5,000 and $1,000, each, executed by one E. O. Grenzow, since deceased.</p> <p>Administration on the estate of the mortgagor had been completed before this action was begun, and the sum of $1,762.27 out of his personal estate was assigned to each of the four appellants. At the time of administration the mortgage indebtedness was not due and plaintiffs filed no claim against the estate. The plaintiff Schmidt owns the note of $5,000 and .the plaintiff Babler is the owner of the $1,000 note. The defendant Mary Legler is liable as an in-dorser of the $1,000 note and does not appeal. In the usual foreclosure judgment the court also ordered a judgment for a deficiency, if any should arise, against the four heirs to the extent of $1,762.27 each. Erom that part of the judgment they appeal.</p>

The action, is brought by the plaintiffs, who are the children -of Chauncey B. Dean, deceased, by his first marriage, to recover upon a benefit certificate for $2,000 issued December 23, 1898, by the Mystic Workers of the World, a fraternal order, on the life of said Chauncey B. Dean.

<p> Contracts: Construction: Ambiguity: Sale or contract for work: Acceptance: Questions for jury: Special verdict: Omissions: Finding by court, when presumed: Instructions to jury: Damages: Remission of part: Appeal: Disposition of case. </p> <p>1. Whether the contract under which plaintiff made for defendants' a “winding machine” for absorbent cotton and which, it was> conceded, called for a weigher device as well as a winding device, called also for a header device (which plaintiff in fact furnished) as a constituent part of the machine, is held upon conflicting evidence to have been a question for the jury.</p> <p>2. In an action for a balance due on such contract, defendants having counterclaimed for damages, and the court having charged the jury that if they answered “no” to a question as to whether the machine satisfied the guaranty in the contract they need not answer a question as to whether there was a breach by plaintiff of the contract in respect to furnishing information as to putting up and packing the absorbent cotton, it was error to-instruct the jury that if they answered either of those questions in favor of defendants they should include in their assessment of damages, in addition to the down payment of $100 made by defendants, all loss which defendants sustained as a proximate result of plaintiff’s failure to comply with either or both of said provisions of the contract.</p> <p>3. The jury having acted in accordance with such instruction and made no answer to the second question, and it being impossible to determine how much of the damages assessed was for the breach covered by the unanswered question, the judgment for defendants is reversed unless they elect to take judgment for $100 only, the amount which they had "paid on the contract.</p> <p>4. The contract, by which plaintiff guaranteed “to make a machine that will wind absorbent cotton in a satisfactory manner,” etc., was a contract for doing the work of making the machine, not for the sale and delivery of property.</p> <p>5. No request having been made for submission of a question as to whether defendants accepted the machine as satisfying the guaranty, and there being evidence which would reasonably support a finding that they had not, the trial court must be presumed to have determined that question in favor of defendants, for whom judgment was rendered on their counterclaim.</p>

Ltjeck, Circuit Judge. ' This action was brought to recover the purchase price of certain twelve-inch gang plows and extra equipment at an agreed price of $575.

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

<p>Appeal from a judgment of the county conrt of Dodge county: O. W. Lamobeux, Judge.</p> <p>Action to recover damages for delay in the shipment of poultry and for loss of part thereof.</p> <p>On November 17, 1912, plaintiff delivered to the defendant at Minnesota Junction, Wisconsin, forty-eight barrels and fifty-two boxes of dressed poultry for shipment to New York. The jury found that owing to the negligence of the defendant a part of the shipment was lost in transit and the balance was damaged; and they assessed plaintiff’s damages in the sum of $856.91. From a judgment in said amount with costs entered in favor of the plaintiff the defendant appealed.</p>

<p> Highways: Injury from defeat or insufficiency: Liability of town: Engine standing in highway: Unguarded quarry hole: Notice of defects: Contributory negligence: Shying of horse: Momentary loss of control: Proximate cause: Special^ verdict: Form of questions. </p> <p>1. While being driven along a highway near which and within the limits of an intersecting highway a locomotive engine had been left standing, plaintiff’s horse became frightened at the engine and shied toward an unguarded quarry excavation which extended into the highway, and as a result plaintiff, his vehicle, and the horse fell into the excavation at a point where it was about seventeen feet distant from the traveled track. A question submitted in the special verdict, “Did the unguarded quarry hole within the limits of the highway cause such highway to be in a condition of insufficiency?” is held, though faulty, not to have been fatally defective, in view of instructions that in answering it the jury should ■ consider whether under all the circumstances the lack of a railing or barrier rendered the highway at that place “not reasonably safe” — meaning, plainly, not reasonably safe for public travel.</p> <p>2. The recital in such question of undisputed facts as to the quarry hole was not improper as invading the province of the jury; nor was the question open to the criticism that it practically told the jury that it was the duty of the town to make its highways suitable for, travel over their entire width.</p> <p>3. While a town is not bound to keep a highway suitable for travel throughout its entire width, a defect within the limits of the highway, though not within the traveled part thereof, may constitute an insufficiency if it is so connected with the traveled part that the road is not reasonably safe under all the circumstances; and that question in this case was one for the jury.</p> <p>4. In connection with a question as to whether the town had notice of the fact that the engine was being left on the intersecting highway, it was not necessary to submit another question as to whether it had notice of such fact in time to have had the engine removed before the accident, — the jury having been fully instructed on the subject of constructive notice.</p> <p>5. A question, which the jury answered in the negative, “Was the plaintiff guilty of any contributory negligence or want of ordinary care which contributed to produce and was the proximate cause of his injury?” was erroneous. It should have been, Was the plaintiff guilty of any want of ordinary care which proximately contributed to produce his injury? But, the case being barren of any evidence of contributory negligence, the error was not prejudicial.</p> <p>6. A horse should not be considered as having been uncontrollable in the sense that it had escaped from management by its driver and become a runaway, where it merely shied out of the traveled track and after going a few steps, while momentarily not under control, reached an excavation into which it fell.</p> <p>7. Even if, in this case, the loss of control over the horse was inore than momentary, and even if the excavation was not an actionable defect in the highway, nevertheless the town is liable, since it clearly appears that the engine in the highway was an object naturally calculated to frighten horses of ordinary gentleness and constituted an actionable defect which proximately caused the injury, plaintiff’s horse having been startled thereby and having dashed into the excavation before he could, in the exercise of ordinary care, restrain it.</p>

<p>Appeal from a judgment of tbe circuit court for Washington county: MabtiN L. Lueck, Circuit Judge.</p> <p>This is an action to recover the purchase price of a Conover inner player piano sold by the plaintiff to the defendant.</p> <p>The plaintiff is a Wisconsin corporation engaged in the sale of music and musical instruments with its principal place of business in Milwaukee, Wisconsin. Plaintiff’s business with the defendant was transacted through H. W. Ban-dall, manager of the player piano department. About two years ago Bandall sold the plaintiff a Melville-Clark Apollo player piano. In February, 1914, she returned to the store and expressed a desire to exchange it for a new instrument. A short time after this defendant called again and the price was discussed. Bandall offered to take the Melville-Clark player piano and $250 in exchange for the $1,000 Conover inner player piano. Defendant was satisfied with the price provided she 'liked the new instrument. She felt that the Steck Eolian player piano was her choice, but she consented to go to Chicago with Bandall and see the Conover instruments there, where the assortment offered greater opportunity for choice. Bandall paid the expenses of the trip, and upon reaching Chicago ■ took defendant to the Cable Company’s warerooms and from there to the Cable factory. They met a Mr. Baumann, who was in charge at.the factory, and they tried out several instruments. Defendant finally showed a preference for one and agreed to take it provided the case would be stained-a certain darker color and the tone made more brilliant, which was agreed to by Bandall and the Cable Company. Bandall then escorted defendant to the depot, where he suggested that she sign the following order, to which she assented. The material parts of the order are:</p> <p>Date of order J. B. Bradford Piano Co.,</p> <p>4/2/14. Milwaukee, Wis.</p> <p>Salesman. Sold to Miss B. Hacker</p> <p>H. W. R. Hartford, Wis.</p> <p>Ship to Miss B. Hacker</p> <p>Town and State Hartford, Wis.</p> <p>Ship when . . .</p> <p>Terms: Cash delivered Price. Conover Inner Player p. c. c. 167237 $1,000 00</p> <p>Cr. Melville-Clark Piano R. Mahy. 750 00</p> <p>(Signed) Beetha Hackee. $250 00</p> <p>This order was duly sent to tbe Cable Company, confirming tbe verbal order as given by Randall while be and Miss Hacker were at tbe factory. On April 7, 1914, tbe defendant sent a letter to tbe Bradford Piano Company repudiating tbe contract. Tbe Bradford Company on May 2, 1914, made a tender of delivery of tbe piano as refinisbed. At tbe time of tbe trial tbe piano was in tbe warerooms of tbe Bradford Company.</p> <p>Mr. Randall testified that be thought tbe work to be done on tbe instrument could be done in one day. Mr. Baumann, tbe person in charge of tbe Cable Company’s factory, testified that tbe process of staining tbe instrument tbe shade desired by tbe defendant took about two or three weeks.</p> <p>At tbe conclusion of plaintiffs case before a jury tbe defendant moved for a nonsuit, which motion was granted. Judgment was entered dismissing plaintiff’s complaint and that defendant recover her costs and disbursements of tbe action. From such judgment this appeal is taken.</p>

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Ray SteveNs, Circuit Judge.</p> <p>This is an appeal from a judgment confirming an award óf tbe Industrial Commission in favor of tbe respondent. Havolic under tbe Workmen’s Compensation Act (sees. 2394 — 1 to 2394 — 31, Stats. 1915).</p> <p>Tbe essential facts are not disputed. Havolic worked for tbe plaintiff in its rubber tire factory, bis duties being to feed stock into a tubing machine. • In tbe department in wbicb be worked there was a compressed air system with hose and nozzles attached for use in some of the factory operations, but ITavolic had no duty which required him either to use or come in contact with the system or the hose. Employees were forbidden to use the hose for the purpose of cleaning their clothes and Havolie knew of the prohibition, but many, employees did do so, and on the evening of the accident Havolie, on quitting work, took down the hose from its place .and began to use it to blow the dust from his clothing. He had cleaned a part of his clothing when a fellow-workman came up and (whether of his own motion or at Havolie’s request is a matter in dispute) took the hose from Havolie’s hand and proceeded to clean his (Havolie’s) back. The air in the hose was at a pressure of nearly or quite eighty pounds, ,and the fellow-workman, apparently by way of practical joke, held the nozzle to Havolie’s rectum, with the result that the intestines were ruptured. Havolie was compelled to go to the hospital for several weeks and was totally disabled for seventeen weeks. For these injuries the award complained of was made.</p>

<p>Appeal from a judgment of tbe circuit court for Dane •county: E. Ray Stevens, Circuit Judge.</p> <p>Action to set aside an award made by tbe defendant Commission in favor of defendant Schmidt.</p> <p>Defendant Schmidt, a minor eighteen years of age, while in the employ of plaintiff, on the 26th day of January, 1914, fell off a lumber pile and was injured. The provisions of the Workmen’s Compensation Act applied to the matter. The accident was duly reported to the Industrial Commission, and the age of the injured person stated. He was paid some compensation and later made an agreement in writing with plaintiff, reciting the matters aforesaid and the following: The fall from the lumber pile caused injuries to the employee’s head producing a disability from the date of the accident to the-time of the agreement. When injured - he was receiving $10.50 per week. He has been paid, as compensation under the Workmen’s Compensation Act, $88.66 for the period from January 27, 1914, to April 27, 1914. He has also received medical and surgical treatment, medicines, and surgical supplies and apparatus as required, for the ninety days-subsequent to the injury. There is a dispute between him and his employer as to whether he is still disabled so that he-cannot return to the employment at which he was working at the time of the accident, and it is’ desired by both parties that the dispute be compromised and settled. The recitals were followed by an agreement that the Industrial Commission might enter an award in a lump sum, on the statement of facts, that the employer pay Schmidt $54.56 in addition to the $88.66 previously paid. The instrument was filed with the Industrial Commission and it made an award accordingly, which was, in due form, satisfied on the 1st day of Juné, 1914.</p> <p>In the proceedings aforesaid, Schmidt was not represented by a guardian of any sort, but was represented by an attorney. He could not read or write English; but the agreement he made was explained to and understood by him.</p> <p>On September after the satisfaction aforesaid, Schmidt, represented by a general guardian, filed an application for compensation for the injury settled for as aforesaid. In sueb application, disability in the neck and back was claimed, whereas the disability mentioned in the settlement was to the head. The matter was duly heard before the Commission, it being insisted on behalf of the applicant that he was not bound by the award or the stipulation therefor because he was not represented in the proceedings by a guardian, and in opposition thereto that such award was binding because a guardian in such proceedings is not essential.</p> <p>The Commission decided that its previous finding, based on the stipulation for settlement, was erroneous; but that an award in favor of a minor upon facts found in a regular hearing is conclusive, whether the minor is represented by a guardian or not, but that a minor cannot bind himself by an agreement that a certain sum will fully compensate him for all disability resulting from an injury when the facts are otherwise, and that an award made on such an agreement does not preclude the Commission from entertaining an application for further compensation in accordance with the actual, facts.</p> <p>Upon proofs submitted, the Commission exonerated plaintiff from any intention to overreach its employee in making the compromise agreement, and awarded additional compensation.</p> <p>The second award was affirmed by the circuit court upon the ground that the minor had a right to disavow his agreement and hence the Commission had jurisdiction to make the second award. Judgment was rendered accordingly.</p>

<p>ERROR to review a judgment of the circuit court for St. Croix county: George Thompson, Circuit Judge.</p> <p>The plaintiff in error, hereinafter called the defendant, is charged in the information with obstructing a public highway by wilfully and maliciously placing and building a fence within and along the traveled track in violation of sec. 1326, Stats. 1915.</p> <p>The defendant together with -his brother is the owner of the southwest quarter (S. W. of section thirty-six (36), range nineteen (19), in the town of Troy in St. Croix county. A highway ran along the north side of this tract of land which had been used by the public for a period of forty years or more. When defendant purchased the land his grantors told him that one Simpson, owner of land on the other side of the highway, was encroaching on the north side of the traveled track and that no part of the grade along the north side of this land was on the southwest quarter (S. W. ^) of section thirty-six (36), the land which they sold to him. The defendant, being under the impression that the highway was encroaching on his land, consulted an attorney in regard to building a fence along his north line. The attorney advised him that he might build a fence along his north line, and that if the town officers disputed his-right to put a fence there they would probably tear it down and he could then bring an action in trespass and try out the question as to the location of the highway. Defendant, relying on this advice, built a fence in and along the highway. Part of this fence was in the traveled track of the highway. Mr. Simpson, his neighbor, who was then the pathmaster, told defendant not to build a fence there until he obtained permission from the town chairman, but defendant replied, “He didn’t care.” Simpson then called up the chairman and again spoke to the defendant and delivered the chairman’s message to the effect that Qollins must not build the fence, to which Gollins answered, “I don’t care; going to build tlie fence anyliow.” Simpson again told him he better not build the fence until the line was established. Collins then said, “I will fence anyhow,” and did erect the fence.</p> <p>The action was commenced in justice’s court and the defendant answered and deposited a bond conditioned on an appeal to the circuit court. The justice’s court found the bond sufficient. Defendant moved for a discharge on the ground that the complaint did not state a crime or an offense under the statutes, but this motion was overruled. The trial proceeded in justice’s court, and the defendant, offering no testimony, was adjudged guilty of the offense.</p> <p>Upon appeal to the circuit court the defendant was convicted and sentenced to pay a fine of $25 and the costs of the prosecution, amounting to $148, and in default of the payment of the fine and costs he be confined to the common jail of St. Oroix county, Wisconsin, until such fine and costs are paid, not to exceed four months. To review such judgment defendant sued out this writ of error.</p>

<p> Intoxicating liquors: Bale to Indians: Statute construed. </p> <p>Construing it in accordance with the doctrine of “last antecedent” and in the light of the history of the legislation on the subject, see. 1567, Stats., — providing that “no person shall sell . . . liquor to any Indian or to any mixed-blood Indian, except civilized persons of Indian descent not members of any tribe,” — prohibits the sale of liquor to any full-blood Indian whether he belongs to a tribe or not.</p>

Arpear from an order of the circuit court for Milwaukee county: F. C. Eschweiler, Circuit Judge. The plaintiff and defendant were divorced in 1907.

Croix county: George ThoMpsoN, Circuit Judge. This action was brought in tbe county court of St. Croix county, appealed to tbe circuit court for St. Croix county, and tried de novo there.

<p> Interstate commerce: Regulation: Constitutional law: Federal authority paramount: Conflicting state statutes: Railroads: De-murrage: “Additional free time" for unloading cars: Statutes: Construction: Partial or total invalidity: Burden on interstate commerce. </p> <p>1. The federal government is the paramount authority in the regulation of interstate commerce; the laws of Congress on that subject supersede and override all state statutes conflicting therewith; and where the federal government, acting through its constitutional agencies, has fully covered the subject by regulations of its own, there is usually no room for further state regulation.</p> <p>2. Sec. 1797 — 10m, Stats., providing that the consignee of carload freight “shall he allowed for unloading without car service or demurrage being assessed, additional free time equivalent to. the number of days in excess of seventy-five miles per day of twenty-four hours consumed by the common carrier in transporting said freight from point of shipment to point of destination,” is invalid as to interstate shipments for the reason that it attempts to add variable time, depending upon length of haul and time occupied in transit, to the time for unloading cars, fixed in the demurrage regulations filed with and approved by the interstate commerce commission pursuant to the federal act to regulate commerce.</p> <p>3. Mere general words in a state statute will ordinarily he restrained so as to include only such subjects as the legislature had jurisdiction to include; but where the plain meaning of the statute is that it shall apply equally .to a subject over which the legislature has jurisdiction and one over which it has no jurisdiction, and such subjects are so interrelated that it is reasonably apparent that the regulation of one alone in the manner and to the extent specified in the statute would not have been attempted, then the-statute, being invalid in its main purpose, must be held wholly nugatory.</p> <p>4. Under the foregoing rule, in view of the interrelation of state and interstate freights and the impracticability of having different periods of “free time” for unloading, sec. 1797 — 10m, Stats., is held wholly void, not onjy as to interstate commerce but as to-local or state commerce as well.</p> <p>[ 5. Whether, if said section were upheld as to local or state com•merce, it would impose a burden on interstate commerce by its tendency to expedite the movement of intrastate freight at the expense of interstate freight, not decided.]</p>

<p>■ Appeal from a judgment of the circuit court for Rock county: Geokge Gkimm, Circuit Judge.</p>

Ray Stevens, Circuit Judge. The appellant Wisconsin Telephone Company owns and operates and for many years last past has owned and operated a local telephone exchange in the city of La Crosse. It also operates long-distance toll lines which reach most of the populous centers in the state, and it has made contract arrangements for connections Avith local toll lines where it deemed it advantageous to do so.

Obigihal action of quo warranto brought in this court on the relation of A. E. Richter against F. W. Ohadbourne to test the constitutionality of chs. 518 and 589 of the Laws of 1915, creating a superior court of Fond du Lac county and abolishing the county court thereof. In April, 1913, the relator was duly elected county judge of Fond du Lac county for a term of six years from the first Monday of January, 1914.

<p>Appeal from a judgment of the circuit for Frown couiity: S. D. HastiNgs, Circuit Judge.</p> <p>This action was brought to recover for personal injuries. The original complaint, omitting title, was as follows:</p> <p>“First. That the defendant is a railway corporation, organized under the laws of the state of Wisconsin; that at all times herein mentioned it owned and operated a line-of railway in and through said state and between the cities of Mari-nette and Green Bay, Wisconsin.</p> <p>.“Second. That at all times hereinafter stated, when injured, plaintiff, a resident of said city of Green Bay, was in the employ and service of defendant as a freight conductor on one of defendant’s freight trains operating between said cities; that on the 9th day of October, 1911, while running southerly and about to head in onto the siding at Little Su-amico, a station on said line in Oconto county, the defendant’s said freight on which plaintiff then was employed as conductor was carelessly and negligently run into by one of defendant’s passenger trains following after before the freight had time to pull onto the siding, and plaintiff was injured as hereinafter alleged.</p> <p>“Third. On information and belief plaintiff alleges that defendant’s servants in charge of the said passenger train knew of its presence and that the said passenger was following close after on the same block; that said servants had been warned to that effect by a caution card or notice delivered to them at Pensaukee, a station next north of Little Suamico, providing and directing that they proceed with caution prepared to stop within their vision, and that they might expect to find Extra 116, plaintiff’s said freight train, within the block,' that, notwithstanding, defendant’s servants in charge and control of said passenger train did not proceed with caution and so as to be able to stop within the vision, but recklessly, carelessly, and negligently run said passenger train at a high and dangerous rate of speed, and so run it against and into the said freight at said place. . ■</p> <p>“Eourth. That the defendant’s servants, the train dispatcher and others, having control of the running of said trains, while the said freight was proceeding south, carelessly and negligently suffered and caused the said passenger train to be let onto the said block with the said freight, thereby causing the said passenger to enter the block and proceed on its way southerly before the block was clear and before thp freight had left it, which made it possible and likely that such an accident might happen.</p> <p>“Fifth. That the said passenger train, by reason of the aforesaid negligence, ran into the said freight with great force and violence, and the plaintiff was, by the said negligence, severely and greatly injured, to wit, plaintiff’s left hij) and leg were severely sprained and injured; that he was confined to the hospital for some ten days on account thereof and suffered great pain; that said injury has continued, causes the plaintiff pain, and renders him unable to do many kinds of manual labor that he could formerly do; that said injury has caused plaintiff loss and damage in expense for treatment and in loss of time and earnings, still does, and will in the future greatly impair plaintiff’s ability to earn a livelihood; all to his damage in the sum of $5,000.</p> <p>“Wherefore plaintiff .demands judgment against the defendant for said sum and for costs.”</p> <p>Among other things the defendant set up facts showing that at the time of injury the plaintiff and defendant were engaged in interstate commerce, and that the cause of action, if any existed, was under the federal act, not under the laws of the state of Wisconsin. Judgment was demanded by defendant abating the action.</p> <p>Afterwards the plaintiff was allowed to amend his complaint by adding allegations to the effect that defendant’s road runs through the state of Michigan and between the cities of Green Pay, Wisconsin, and Menominee, Michigan, and that plaintiff and defendant were at the time of the injury alleged engaged in interstate commerce. Defendant then amended its answer setting up the statute of limitations.</p> <p>At the time of the amendment of the complaint two years from the time of the alleged injury had expired. The court below held that the original cause of action was one under the state law, and that the amendment of the complaint set up a cause of action under the federal act and that such action was barred by the two-year statute, and sustained the defendant’s demurrer and dismissed the complaint.</p> <p>The plaintiff appealed to this court from the judgment dismissing the complaint.</p>

<p> Highways: Establishment by user: Wharf connecting street and, river. </p> <p>1. The provision in sec. 1294, Stats., that all unrecorded roads used and worked for ten years shall become legal highways, does not abrogate the common-law rule of this state that a highway may be created by user alone for twenty years.</p> <p>2. A' highway or street need not take any specific form of structure. If it serves the purpose of a street or highway it is immaterial what its form may be or that it may also serve some other purpose,</p> <p>3. Where, within the lines of a street extended to the established' dock line on a river which was also a public highway, a wharf and the filled approach thereto served to connect the travel on the city streets with the travel on the river, and there was evidence that public travel over such wharf had been more or less continuous for over twenty-five years and that it was used for-all purposes for which the public had any use for it, a jury would be warranted in finding that such wharf was a public street,, even though it had never been opened as a street and had been-used to some extent by adjoining owners for storage purposes, and it was not shown that it was built by the city or that the city had ever expended any money on its repair or maintenance.</p>

<p> Appeal: Verdict, when disturbed: Garriers: Railroads: When person becomes passenger: Injury at station: Defect in platform: Questions for jury: Intoxication of plaintiff: Contributory negligence: Brief stricken from files. </p> <p>1. Where a verdict is challenged in the trial court and the judge of that court deliberately approves the findings before judgment, his decision on the question is not to be disturbed unless clearly wrong.</p> <p>'2. One who goes to a railway station within a reasonable time before the scheduled arrival of a train, with the bona fide intention of taking the train, becomes a passenger.</p> <p>3. Sub. 1, sec. 1797 — 9, Stats. 1913, — requiring railway companies to keep open their passenger stations for not less than twenty minutes before the scheduled time of arrival of a passenger train and until it has departed, — is entitled to considerable weight but is not controlling in determining what constitutes a reasonable time within the meaning of the foregoing rules.</p> <p>4. Whether in this case the plaintiff, who had come to the defendant’s railway station intending, as he claimed, to take a train due to arrive at 5:50 p. m., and who, while on the station platform at a time not exactly fixed but which the station agent said was about 5:20 p. m., in some way fell under the wheels of a passing freight train, was a passenger at the time of the accident, is held upon the evidence to have been a question for the jury.</p> <p>5. It is the duty of a railway company to furnish at a station a reasonably safe platform in view of the dangers to be apprehended; and the dangers to be apprehended as the result of a stumble on a railway platform at a distance of four feet from a moving train are so much greater than those from a stumble on an ordinary sidewalk that the same measure of diligence cannot apply in both cases.</p> <p>6. Upon evidence tending to show that plaintiff’s fall from a station platform under a moving train was caused by his stubbing his toe against a plank about four feet from the track and projecting about one and three-quarters inches above the crushed stone which formed a part of the platform next to the planking, the question whether the platform was reasonably safe was one for the jury.</p> <p>7. Upon the evidence, stated in the opinion, it is held that plaintiff was not conclusively shown to have been intoxicated or to have been guilty of contributory negligence.</p> <p>8. A brief in which defendant’s claim agent, a member of the bar of • this court who procured typewritten statements from several of the witnesses in the case soon after the accident, is charged with framing up a false defense, manufacturing testimony, and suborning perjury in this and other cases, — there being no foundation for the charge except the fact that the making of certain statements said to have been made to him is denied, — is stricken from the files.</p>

<p>Appeal from a judgment of the circuit court for Brown .county: HbNEY Geaass, Circuit Judge.</p> <p>This is an action to recover wages earned by the plaintiff while in the employ of the defendant company as a brakeman.</p> <p>The plaintiff, a married man having a family dependent upon him, was in the employ of the defendant company as a switchman at Chicago, Illinois, until October 9, 1912. At this time he quit his employment with the company at Chicago and moved to Green Bay, Wisconsin, on account of the ill health of his wife. On August 15, 1912, the plaintiff, while residing in Chicago, Illinois, and while in the employ of the defendant, assigned to L. G. Cobb & Co. his wages for' the ensuing year until August 31, 1913. This assignment was in writing signed by him but not by his wife. The instrument also gave to Cobb & Co. power of attorney to sue, collect, and receipt for money due them under the assignment. The assignment reads as follows:</p> <p>“Eor a valuable consideration to me in hand paid by L. G-. Cobb & Co., a corporation, the receipt of which is hereby acknowledged, I do hereby sell, transfer, assign and set over to the said L. G. Cobb & Co., a corporation, or its assigns, all wages and claim for wages or commission earned and to be earned, and all claims and demands due or to become due me from the Chic. & No. West. By. Co., their successors, heirs or assigns, or any other firm, person, company or corporation, by whom I may hereafter be employed, or who may owe me money for any consideration whatsoever, up to and including the last day of August, 1913; and I hereby authorize and direct the party or parties named above, or any of them, to pay the said demand and claim and all thereof to the said L. G. Cobb & Co., a corporation, or its assigns.</p> <p>“I do hereby constitute and appoint the said L.. G. Cobb & Co., a corporation, or its assigns, my attorneys in my name to take all legal measures which may be proper or necessary for the complete recovery and enjoyment of the claim or claims hereby assigned; and I hereby authorize and empower it to receive any money which may become due hereon and receipt for tlie same in my name, hereby ratifying any acts my said attorneys may take herein.</p> <p>“Witness my hand and seal this 15th day of August, 1912.</p> <p>“BarNem E. Pobt. (Seal.)”</p> <p>On October 24, 1912, upon plaintiff’s application for employment as brakeman and having passed the physical examination, he was employed by and commenced work for the defendant company as a brakeman at Green Bay, Wisconsin. The defendant paid the plaintiff for services performed under this employment until December 1, 1912. On November 27, 1912, the defendant received notice of the assignment; and on December 6, 1912, the assignment was filed with the defendant. On January 27,1913, L. G. Cobb & Co., the assignee, brought suit on the assignment against the defendant company in Chicago, Illinois, and recovered judgment on March 21, 1913, for $116.05 of the amount due plaintiff for his December and January earnings. The plaintiff on February 3, 1913, commenced an action against the defendant company to recover these wages earned between December 1st and January 18th, amounting to $118.82. After two postponements the plaintiff took judgment by default. Defendant appealed the action to the circuit court for Brown county, where judgment was rendered for the plaintiff in the sum of $108, together with the costs and disbursements of the action. The plaintiff was not a party to the suit by L. G. Cobb & Co. against the defendant in Chicago, Illinois, no service of summons having been made upon him. The plaintiff’s attorney by letters dated February 13 and 17, 1913, notified the defendant, before the L. G. Cobb & Co. action was tried, that plaintiff claimed the assignment was void and that the amount due him was exempt as wages earned in Wisconsin, and that plaintiff claimed the right to recover the wages due him from defendant. From the above judgment this appeal is taken.</p>

<p>Appeal from a judgment of the circuit court for Brown county: HeNBy Geaass, Circuit Judge.</p> <p>This action was brought to recover for personal injuries sustained by plaintiff while in the service of the defendant. After the evidence was in the court below directed a verdict for defendant. Judgment was entered accordingly dismissing the complaint, from which judgment this appeal was taken.</p>

<p>Railroads: Injury to person crossing track: Oontributory negligence: Failure to look: Warning signals at highway crossings: Omission to give: When injury “caused” thereby: Warnings due only to travelers on highways.</p> <p>1. Plaintiff, a licensee who had the right to cross defendant’s railway-tracks at a station and was accustomed to do so many times daily, and who while crossing the main track was struck and injured hy a train, is held to have been guilty of contributory negligence, as a matter of law, upon undisputed evidence that after he knew the train was coming he went around the end of a string of cars on a sidetrack and proceeded to pass over the main track without looking toward the approaching train.</p> <p>2. It appearing that plaintiff not only had ample warning hut in fact knew that the train was coming — having seen the smoke and heard the noise, — it cannot he said that, within the meaning of sub. 6, sec. 1809, Stats. 1911, his injury “was caused by the omission” of defendant to give the warning signals provided for in sub. 4 of said section.</p> <p>3. It further appearing that plaintiff was not traveling on or over a highway, but was merely crossing the railway tracks diagonally to the depot, at a point 400 feet from the highway, sub. 4, sec. 1809, Stats. 1911, is inapplicable. That statute was enacted for the protection of travelers on highways, and the duty to give the warning signals therein provided for is due only to such travelers.</p>

N. Risjobd, Circuit Judge. The appeal is from a judgment in an action to recover ;$1,356.86 with interest, income tax assessed against the defendant, and adjudging and determining that such tax wás illegally levied and assessed and was void because such income was not taxable in Wisconsin.

<p>Appeal from a judgment of tbe circuit court for Bayfield county: Gr. 1ST. Risjobd, Circuit Judge.</p>

<p> Insurance commissioner: Powers: Approval of policy forms: Collateral attack: Stipulation that company was duly licensed: Presumption: Accident policy: Statutory requirements: Typography: Expert testimony: Liability for gunshot wounds: Eyewitness clause: Validity: Public policy: Who is “eye-witness </p> <p>1. The insurance commissioner is vested with power to determine whether a form of policy submitted for his approval complies with all the statutory requirements (including those relating to its typography as well as those relating to its contents), and his decision that it does so comply cannot be collaterally attacked in an action upon such a policy by a beneficiary.</p> <p>2. In such an action, therefore, expert testimony is inadmissible to show that in a policy of the form approved by the commissioner a certain provision was not printed in bold-face or prominent type as required by sub. 2, sec. 1960, Stats. 1913. '</p> <p>3. A stipulation upon the trial of an action upon an accident insurance policy that prior to the issuance of the policy the defendant company had been duly authorized to transact its appropriate business in Wisconsin, was equivalent to stipulating that defendant had filed its policy form with the insurance commissioner and that it had been approved by him as required by sec. 1960, Stats. 1913, since it is not to be assumed or presumed, in the absence of proof, that a license would have been issued to defendant if it had failed to comply with the law.</p> <p>4. The plaintiff in such an action was entitled to show that the policy in suit was not of the form approved, or that no form had ever been submitted for approval; but the trial court having held in this case that the policy on its face showed that it complied with the statutes, — in which conclusion this court concurs, — it is unnecessary to decide whether expert testimony offered by the plaintiff as to the typography of the policy would be sufficient to throw the burden on defendant of proving that there was no departure from the approved form.</p> <p>•5. A provision in an accident insurance policy to the effect that the company will not be liable at all for injuries resulting to the insured from the discharge of firearms unless the accidental character of the injuries be established by the testimony of “an eyewitness to all of the circumstances of the casualty,” is not void as against public policy.</p> <p>6. One wbo saw the insured on a lake rowing towards a boat landing, afterwards heard a shot from the direction of the landing, and soon after went to the landing, where she found him dead, lying in the bottom of the boat, with his rifle between his legs, was not “an eye-witness to all of the circumstances of the casualty,” within the meaning of an accident policy.</p>

<p>Mandamus: When writ issues: Mistake in remedy: Amendment of pleading: Constitutional law: /Schools: Holding graduating exercises in church: Sectarian instruction: Nonsectarian prayers: Compelling support of or attendance at “place of worship:” “Rights of conscience:” Giving preference to modes of worship, etc.</p> <p>1. Tire writ of mandamus is not granted to take effect prospectively, and hence is not the proper remedy to compel a school hoard to hold future graduating exercises elsewhere than in a church and to omit from such exercises the offering of any invocation or prayer.</p> <p>2. Under sec. 28366, Stats. 1915, this court has power to permit plaintiffs who have mistaken their remedy and brought a wrong action to amend their pleading so that the matter in controversy may he disposed of on its merits.</p> <p>3. Although graduating exercises are a part of a school curriculum and under the direction and control of the school hoard, the holding of such exercises in a church building is not in itself the giving of sectarian instruction, within the meaning of sec. 3, art. X, Const.</p> <p>4. Where no charge is made for. the use of the church in which such exercises are held and nothing is paid to the clergyman delivering an invocation, no one is compelled to “erect or support any place of worship, or to maintain any ministry, against his consent,” nor is any money “drawn from the treasury for the benefit of religious societies,” in violation of sec. 18, art. I, Const.</p> <p>5. Parents and pupils of all denominations have the right to attend the graduating exercises of a public school without their legal rights being invaded; but in attending such exercises once a year in a church of a denomination other than that to which they belong they are not being “compelled to attend . . . any place of worship,” within the meaning of sec. 18, art. I, Const. That section means that no one shall be required to attend a place where religious services are being held or religious instruction given at the time he is required to be present.</p> <p>6. The holding of such exercises in a church does not constitute an “interference with the rights of conscience,” within the meaning of sec. 18, art. I, Const.; nor is it a violation of any other provision of that section.</p> <p>7. The final decision upon the question whether any right guaranteed by the constitution is violated must rest with the courts and not with the individual; and the mere assertion of persons who desire to attend graduating exercises with their children that being compelled to enter a church of a denomination other than their own is violative of their assured rights of conscience, does not make it so.</p> <p>8. The offering of a nonsectarian invocation or prayer by a Catholic or Protestant clergyman at the annual graduating exercises of a public school is not sectarian instruction within the meaning of sec. 3, art. X, Const.; it does not interfere with any right of conscience which the law recognizes; permitting it is not the giving of any preference to any religious establishment or mode of worship, in a constitutional sense; nor does it violate any other provision of sec. 18, art. I, Const.</p>

<p> Municipal corporations: Permitting platform scales in street: Injunction: Rights of taxpayers: Aldermen. </p> <p>1. Prior to the enactment of ch. 382, Laws 1913, while a municipality might not grant a right to maintain a platform scales in a street, it might permit a temporary use 6f the street for that purpose hy an abutting owner where such use did not interfere with the public use for travel or any other lawful public use of the street, such permission being subject to revocation at any time.</p> <p>2. A resident taxpayer who neither suffered- nor was threatened with any loss or other special or peculiar damage from such temporary use of the street under a permit from the city coun-oil, liad no such interest in the matter as entitled him to maintain an action to restrain such .use; and the mere fact that he was an alderman did not add anything to his rights in that respect.</p>

<p>ApplicatioN for writ of prohibition.</p>

<p> Juvenile courts are not criminal courts: Nature of proceedings: Review: Writ of error or appeal? </p> <p>Juvenile courts, under secs. '573 — 1 to 573 — 10, Stats. 1915, are not. criminal courts; the proceedings therein are special proceedings, civil in their nature, but not according to the course of the-common law; and a determination therein that a child is delinquent is not reviewable on writ of error, but only upon an appeal taken in the manner and within the time specified in sub. 3, sec. 573 — 6.</p>

<p>Appeal from an order of the circuit court for Chippewa county; Jakes Wioichak, Circuit Judge.</p> <p>Action to recover damages for malpractice. Plaintiff alleges that on the 5th day of March, 1914, while in the employ of the John S. Owen Lumber Company, a log rolled onto him and he sustained a fracture of the leg; that he employed the defendant to treat him for the injury, and that by reason of the negligence and lack of skill of the defendant in the treatment given him within a couple of weeks after the injury and subsequent thereto the leg was improperly set and treated, to the damage of plaintiff. The complaint further alleges that at the time of the injury both plaintiff and his employer, the John S. Owen Lumber Company, were under the provisions of the Workmen’s Compensation Act, and that plaintiff made a claim against his employer under the act and received compensation and part of his medical expenses from March 5 to about August 20, 1914; that as soon as he discovered the negligence of the defendant he refused to accept any more compensation from his employer, and he offers to return the same or so much thereof as the court may adjudicate. The defendant entered a general demurrer to the complaint, and from an order sustaining tbe' same tbe plaintiff appealed.</p>

<p>Appeat. from a judgment of tbe circuit court for Price •county: G-. N. RisjoRd, Circuit Judge.</p> <p>Tbis is an action to recover damages for an injury sustained by tbe plaintiff as a result of a collision with one of defendant’s locomotives.</p> <p>Tbe defendant is a railroad corporation operating more than fifty miles of track within tbe state and one of its stations is located at Spencer, Wisconsin. Tbe defendant’s tracks run through Spencer in a northerly and southerly direction. Tbe main track is tbe first one east of tbe depot and there is a platform about twelve feet wide extending from tbe •depot toward this track. Tbe branch line track leading to Ashland is tbe second track east of tbe depot and a coach track is tbe third one east of tbe depot. There is a platform .about twelve feet in width between tbe main line track and tbe Ashland branch track. The two platforms are connected by crosswalks.</p> <p>Tbe plaintiff is a man about forty years of age and is deaf. At tbe time of tbe accident be was a game warden. He boarded tbe south-bound train at Phillips, a station on tbe Ashland branch, for tbe purpose of detecting violations of the .game laws. Tbis was on Sunday evening, November 17, 1912. He rode to Spencer in the baggage and express, car, which contained tbe shipped deer. Tbe train reached Spen•cer shortly after midnight, and the ears were put on the third •or coach track and were to remain there up to the time for the return trip to Ashland. The plaintiff was busy with his inspection, .except for a short time while he went to a- restaurant for lunch, until 1:50 a. m. Having completed this work at this time he left the baggage and express coach to go do the ticket office to purchase a ticket for his return trip to Phillips. Pie attempted to cross the tracks on one of the-crosswalks. The night was not clear, rather cloudy and dark. Plaintiff testified that, before crossing the main track, about, ten feet from the rails he looked up and down the track, but saw nothing; that he then started to walk across the track when he sensed something to be wrong, so jumped to save-himself. The locomotive struck the plaintiff and indicted, serious injury on his left arm and shoulder. Plaintiff further testified that when he looked in both directions before crossing he did not see any train approaching nor did he see any light or a headlight. One Genett testified that he saw the-engine and that it had no headlight. The testimony of the-plaintiff and Genett is flatly contradicted by seven of the railroad employees as regards the engine having a headlight.. They all assert that the headlight was lighted and the two sidelights also. It is admitted, however, that the headlight on the engine did not comply with the calls of the statute.</p> <p>The court submitted a special verdict to the jury, who-found (1) that the locomotive was not equipped with a regulation headlight; (2) that the failure to have such a headlight was a proximate cause of plaintiff’s injury; (3) that defendant’s servants were guilty of negligence in running the train the way they did at the time of the injury; (4) that such negligence was a proximate cause of the plaintiff’s injury;. (5) that plaintiff was not a trespasser at the time; (6) that the plaintiff was not guilty of any want of ordinary care that contributed proximately to produce his injury; and (7) assessed plaintiff’s damages at $2,500.</p> <p>The court granted plaintiff’s motion for judgment on the verdict and entered judgment in plaintiff’s favor in the sum' of $2,500 damages, together with the cost and disbursements-of the action. From such judgment this appeal is taken.</p>

<p>Appeal from a judgment of tbe circuit court for Eau Claire county: Jambs Wickham, Circuit Judge.</p>

<p> Master and servant: Injury to employee in quarry: Unsafe working place: Contributory negligence. </p> <p>In an action, for injury to a drill man working in a granite quarry, caused by a loose piece of rock being displaced and coming down upon his foot, the evidence is held to support findings by the jury to the effect that defendant negligently failed to provide a safe place for plaintiff to work and that plaintiff was not guilty of contributory negligence.</p>

<p> Libel: Privilege: Criticism of candidate for office: False statements: Insults: newspaper article: Meaning: When libelous: Justification: Proof of substance of charge: Excessive publication. </p> <p>1. A candidate for a public office wliere integrity, incorruptibility, and judicial ability are absolute essentials places bis character in these respects before the people for consideration and discussion, and fair comment or criticism — even though caustic and severe — made in good faith and without malice by a newspaper is privileged; but insult, contemptuous phrase, or false and libelous statements of fact are not privileged.</p> <p>2. Secs. 94 — 17 and 94 — 38, Stats. 1911, — providing a penalty .for knowingly publishing any false statement intended or tending to affect a candidate at any primary or election, — do not change the principles of law with respect to privilege in a civil action for libel, but add to the penalties which may follow the publication of false and libelous statements of fact regarding candidates for public office.</p> <p>3. In judging of the meaning of any given part of an alleged libelous newspaper article the whole article must be considered.</p> <p>4. If a newspaper article conveys the idea that a candidate for office received and took part in the unlawful distribution of a part of a political corruption fund, or that he sold his political influence and surrendered his honest belief for money, it is libelous unless proven to be true; but if it simply conveys the idea that he received and distributed in lawful ways a part of a large political campaign fund and received money for political labor, and influence exerted in lawful ways and not contrary to his honest convictions, it is not libelous.</p> <p>5. A newspaper editorial which contained a thinly veiled comparison of a candidate for judicial office to Judas Iscariot was libelous as matter of law and not privileged, such comparison being a jibe,, a contemptuous insult, and not fair criticism of any type.</p> <p>6. In order to be a complete defense to an action for libel a justification must be as broad as the libel; but it is sufficient if the substance of the charge be proven.</p> <p>7. Thus, where the alleged libelous statement was that a certain amount of money was received and disbursed by plaintiff for corrupt and unlawful political purposes, it is a sufficient justification to show that a substantial sum was so received and disbursed, though less than the amount charged.</p> <p>[ 8. Whether the fact that a newspaper, though primarily a local county paper, had some incidental circulation outside of the county, would prevent it from successfully interposing the defense of privilege when it had honestly discussed the qualifications of candidates for office in that county, not decided.]</p>

<p> Vendor and purchaser of land: Validity of contract: Insufficient description: Bills and notes: Consideration: Unauthorized corporate stoch: Fraud: Solder in due course. </p> <p>1. 'A contract to convey an undivided one acre out of a designated1 tract containing a specified number of acres may be valid; but where the tract out of which the acre is to be sold is not capable-of identification from the instrument evidencing -the sale, nothing passes for want of description.</p> <p>2. Notes given for preferred stock in a corporation which had no authority to issue such stock, and notes given for so-called certificate contracts of the corporation, which purported to convey an undivided interest in lands in a foreign country but which in fact conveyed no enforceable rights and were merely illusory and fraudulent, were without consideration and there could he-no recovery thereon as between the payee and the maker.</p> <p>3. The defense of fraud is available against an interstate commerce-contract as well as against other contracts.</p> <p>4. In an action by an indorsee of the notes above mentioned, evidence showing, among other things, that plaintiff knew of the fraudulent character of the consideration for the notes before, he purchased them, is held to sustain findings by the jury to the effect that he did not acquire them in the usual course of business or-for value or in good faith.</p>

<p>Appeal from an order of the circuit court for Walworth •county: E. B. BeldeN, Circuit Judge.</p> <p>The appeal is from an order of the circuit court based on the verdict of a jury and modifying a report of the drainage •commissioners with reference to benefits and damages accruing to the lands in said drainage district of the respondent, Daniel Ward, and ordering that the commissioners take further proceedings in that behalf, as provided by statute.</p>

<p> Money had, and, received: Payment to agent on land contract: Failure of owner to convey: Liability of agent. </p> <p>1. Defendant, as agent for the owner of a farm, contracted to sell it to plaintiff, who paid $100 down. Defendant's principal was unable to convey title, but defendant refused upon demand to repay the $100 to plaintiff and afterwards paid one half thereof to his principal and retained the remainder. Held, that an action against defendant to recover the $100 is not based upon the contract between plaintiff and defendant’s principal, but is an action for money had and received, arising from defendant’s implied agreement to return the part of the purchase price paid if the farm was not conveyed as agreed.</p> <p>2. Defendant having asserted in such action that the money belonged to his principal, but on the trial having admitted that the latter had no right to it as against plaintiff, could thereafter assert only such claim as he had to the money and, having none, a judgment in favor of plaintiff was proper.</p> <p>3. An agent who has money to which his principal has no right is personally liable to the party from whom it is wrongfully withheld.</p>

<p>Appeal from a judgment of the circuit court for Racine county: E. B. BeldeN, Circuit Judge.</p> <p>This is an action for divorce on tbe ground of cruel and inhuman treatment.</p> <p>The plaintiff and defendant were married about the month of January, 1891, and from the time of their marriage to the commencement of this action they have continuously resided in the city of Racine. The issue of the marriage is one daughter, Josephine, who is now twenty-four years of age and able to care for herself. By a former marriage the plaintiff had three children, two boys and a girl. These children lived with the parties and contributed all of their earnings toward the maintenance of the home up to the time they became twenty-two years of age. Thereafter the two sons paid $5 per week for board and the daughter paid $3.50 per week for board while residing at the home of the , parties. At the time of marriage the plaintiff owned about two acres of land in the city of Racine upon which was situated a brick veneer house. At this time there was a $600 mortgage on this property and the plaintiff was otherwise indebted in the sum of $100. The defendant paid this $J00. During the year 1905, Douglas avenue, the street plaintiff’s property was located on, was paved and an assessment levied against her property. The defendant refused'to pay this assessment unless he was given a lien on the land, so the plaintiff gave him a quitclaim deed of the premises.</p> <p>The complaint alleges generally cruel and inhuman treatment, and specifies that about ten years ago the defendant assaulted the plaintiff and knocked her against a building in the yard, causing the plaintiff to become unconscious; that the defendant left their home various times for several days at a time, and that on the 25th day of January, 1915, he deserted plaintiff and refused to return to their home; that defendant on numerous occasions criticised the plaintiff in a cruel manner for procuring improper food for the family, and on one occasion took some of the food from their home and exhibited it to the workmen at the place where he was employed, for tbe purpose of bumiliating and degrading tbe plaintiff. Tbe plaintiff further alleges that sbe maintained upon tbe land adjoining tbe bouse a large market garden wbicb produced sufficient income to provide the family with groceries, and that tbe defendant is tbe owner of personal property of tbe value of $4,000 besides what remains of tbe real estate be obtained from the-'plaintiff, of tbe value of $6,000.</p> <p>Tbe court found that tbe plaintiff was entitled to a divorce from tbe bonds of matrimony on tbe ground that soon after tbe marriage defendant began to practice toward tbe plaintiff a course of cruel and inhuman treatment without cause, justification, or excuse. Tbe acts of cruelty found by tbe court were that on numerous occasions defendant struck and kicked tbe plaintiff, used vile and opprobrious epithets toward her, wrongfully accused her of procuring improper food for tbe family and of being improvident in not saving money, and that defendant otherwise caused her great humiliation; that on tbe 25th day of January, 1915, tbe defendant left bis home and refuses to return; that all of said conduct of defendant has been largely without fault on the part of tbe plaintiff and has resulted in seriously affecting her health and renders it unsafe for her- to longer live with tbe defendant as bis wife. Tbe court also found that tbe value of tbe real estate owned by tbe defendant was $6,000 and tbe personal property, mortgages, money, and other securities of tbe value of $3,156, making a total of $9,156, beside tbe household furniture.</p> <p>Tbe judgment dissolves tbe bonds of matrimony between tbe parties and provides:</p> <p>“That as and for a final division of all tbe property of tbe parties to this action and in lieu of all court costs, permanent alimony, and further allowance of attorney’s fees, there be and hereby is awarded to tbe plaintiff, Gertrude Klaus, free and clear from all claims and demands of tbe defendant, Clemens Klaus, except as hereinafter stated, tbe following described real and personal property, to wit[description of real estate], “and the title to said premises be and the same hereby is absolutely vested in fee simple in the plaintiff, Gertrude Klaus j subject, however, to the payment by said plaintiff, Gertrude Klaus, to the defendant, Clemens Klaus, of the sum of $800” [specifications of payment] ; “that in addition to the real estate above awarded to the plaintiff there is hereby awarded to the plaintiff all of the household furniture of the parties to this action, including the piano and stoves, excepting only one bedroom set, with bedding, together with sufficient chairs to properly furnish a bedroom, is hereby awarded to the defendant.”</p> <p>It is further provided in the judgment “that all of the rest, residue, and remainder of the property of the parties to this action be and the same is vested in the defendant, Clemens Klaus, free and clear of all claims and demands of the plaintiff, Gertrude Klaus/’ From such judgment this appeal is talcen.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: Lawrence W. Halsey, Circuit Judge.</p> <p>Tbis action was brought to recover for personal injuries sustained by plaintiff in consequence of big left band becoming caught iu a revolving augen-like conveyor of a sausage machine. The jury returned the following verdict:</p> <p>“(1) Did the defendant at the time of the plaintiffs injury fail to exercise ordinary care with respect to furnishing light at the place of plaintiff’s employment ? A. Yes.</p> <p>“(2) If you answer the first question ‘Yes,’ then answer this question: Was such failure a proximate cause of the plaintiffs injury ? A. Yes.</p> <p>“(3) Did the plaintiff slip on said floor at the time of the accident? A. Yes.</p> <p>“(4) If you answer question No. 3 ‘Yes,’ then answer this question: Was the condition of the floor such as to render the place of employment as safe as the nature of the employment would reasonably permit ? A. Yes.</p> <p>“(5) If you answer question No. 4 ‘No,’ then was such condition a proximate cause of plaintiff’s injury ? A. -.</p> <p>“(6) Did the plaintiffs hand enter the grinding machine in consequence of his slipping upon the floor ? A. Yes.</p> <p>“(I) Did the defendant to the knowledge of the plaintiff provide a stamper to be used in forcing meat into the machine ? A. Yes.</p> <p>“(8) Did the defendant instruct the plaintiff to use the stamper in the operation of the machine in question ? A. No.</p> <p>“(9) Did the plaintiff voluntarily omit to use the stamper ? A. Yes.</p> <p>“(10) Did the omission to use the stamper proximately contribute to the plaintiff’s injury ? A. Yes.</p> <p>“(11) Did the defendant adopt and use in and about the ' manner of feeding the machine, at the time and place in question, a method that was reasonably adequate to render the use of such machine safe? A. No.</p> <p>“(12) If you answer the above question ‘No,’ then was such failure to adopt and use .such method a proximate cause of plaintiff’s injury ? A. Yes.</p> <p>“(13) Was the plaintiff guilty of any want of ordinary care which proximately contributed to his injury? A. Yes.</p> <p>“(14) What sum will reasonably compensate plaintiff for the injuries which he received ? A. $2,250.”</p> <p>Plaintiff moved to change the answers to several questions of tbe special verdict, for judgment on tbe verdict as so-changed, and for judgment notwithstanding tbe verdict, and that tbe verdict be set aside and a new trial granted. All these motions were denied and tbe defendant’s motion for judgment dismissing tbe complaint was granted and judgment entered accordingly, from which this appeal was taken.</p>

<p> Bills and notes: Delivery for special purpose: Evidence: Contemporaneous oral agreement: Recitals: Burden of proof. </p> <p>1. Under sec. 1675 — 16, Stats., in an action by the payee upon a promissory note, the maker was properly permitted to show a contemporaneous oral agreement pursuant to which the note was delivered conditionally and for a special purpose only and was not to be paid unless the amount thereof was collected by the maker in a certain suit to foreclose a mechanic’s lien. Such evidence did not tend to vary or contradict the written contract.</p> <p>2. The words “being money loaned me October 21, 1912,” contained in such note, constituted a recital or statement of the consideration and placed upon the maker the burden of proving the real nature of the transaction.</p>

WilliaMs, Circuit Judge. This is an action to recover a death benefit of $1,000 under the terms of a mortuary benefit certificate issued by the defendant, a Canadian fraternal association, upon the life of Peter E. Peterson, deceased, payable to the plaintiff, who was his widow.

Halsey, Circuit Judge. Tbe appeal is from an order denying an adverse examination of tbe defendant Messmer under sec. 4096, Stats. The-action was brought to recover damages on account of the publication of a certain pastoral letter issued, circulated, and published by tbe defendants as bishops of tbe Roman Catholic church in the dioceses of Milwaukee, Green Bay, Marquette, Superior, and La Crosse.

J. TubNee, Circuit Judge. Action begun in tbe civil court to recover damages for-breach of warranty in tbe sale of a borse. Upon a general verdict for plaintiff'in tbe sum of $152.07 tbe civil court entered judgment and tbe defendant appealed.

<p> Corporations: Directors: Contract to repurchase stock of employee: Yalidity: Public policy: Appeal: Findings of fact. </p> <p>1. The directors of a private corporation are considered in the law as standing in a fiduciary relation toward the stockholders, and a contract by such a director, dealing with matters of corporate interest, which is antagonistic to the free and impartial discharge of his official duties is void on the grounds of public policy unless all of the stockholders with full knowledge assent thereto.</p> <p>2. Thus, a contract between a director of a private corporation and a purchaser of stock who became the manager of the company, by which it was agreed that if said manager’s employment with the company should be discontinued for any reason he would sell his stock and the director would repurchase the same and pay full par value therefor plus pro rata share of accumulated profits, was void unless made with the knowledge and consent of all the other stockholders.</p> <p>3. In an action by the manager upon such contract, a finding by the trial court that a stockholder, wife of one of the other directors-of the corporation, did not know of or consent to or ratify such contract, is held to be sustained by the evidence.</p> <p>[ 4. Whether the contract in such a case would be void if it provided only for an option on the part of the manager to demand that the director purchase his stock in the event of the discontinuance of his service with the corporation, is not decided.]</p>

Eextz, Circuit Judge. Tbe action is for damages for personal injuries received by plaintiff.

<p>Appeal from an order of tbe circuit court- for Milwaukee county: W. J. TueNee, Circuit Judge.</p> <p>Action for malpractice, brought by an infant about three years of age. Tbe father of tbe infant was appointed guardian ad litem, and tbe defendant sought to examine him under sec. 4096, Stats. 1915. Tbe court upon motion ordered the examination dismissed and enjoined further proceedings therein. Erom such order tbe defendant appealed.</p>

<p> Street and interurban railways: Negligence of motorman: Unnecessary noises: Frightening horse which was being led from track: Contributory negligence: Questions for jury. </p> <p>1. Although under ordinary circumstances the making of the usual noises attendant upon the operation of a car does not constitute negligence, yet in this case the jury were warranted in finding that the motorman of an interurban car was negligent in releasing the air with a loud hissing noise and in blowing the whistle while plaintiff was in the act of leading from the track, only two or three feet in front of the car, a young horse which had been standing partly over the track, harnessed to a wagon which was backed up to the curb — there being evidence that the noises were unnecessary at the time they were made.</p> <p>2. The plaintiff in such case, who, when the horse reared upon hearing the noises, threw his arms around its neck to keep from being run over and was dragged some distance, cannot be held to have been guilty of contributory negligence as a matter of law ' merely because, being in a position of surprise and sudden peril, he did not choose the safest means of escape.</p>

<p> Municipal corporations: Ordinances: Talidity: Redelegation of legislative power by council: Erection of public garages: Consent of adjacent property owners. </p> <p>1. The common council of a city cannot redelegate legislative power properly delegated to it.</p> <p>2. A municipal ordinance (sub. (d) and (e), sec. 474, Milwaukee Code of 1914) providing, in effect, that no public garage shall be erected outside of the business sections of the city without the written consent of two thirds of all the real-estate owners within three hundred feet, is void for the reason that it attempts to delegate legislative- power vested in the common council to private persons, giving to them the power to say, not on grounds of public welfare, public health, or the like, but as a matter in their own discretion, that a particular property owner shall not be permitted to use a-particular piece of property in a certain way.</p>

<p> Appeal: Affirmance by divided court: Railroads: Death of employee. </p> <p>In an action for death of a railway employee who was run over by a car in defendant’s yards, a judgment upon a directed verdict for the defendant is affirmed by a divided court.</p>

<p>Appeal from a judgment of the circuit court for Dane-county: E. Eat SteveNS, Circuit Judge.</p> <p>Action to set aside an award against the plaintiffs made by the Industrial Commission in favor of James Suffern, who-on July 29, 1914, sustained an injury while in their employ. Upon notice a hearing was had before the Commission in Manitowoc on August 28, 1914, and an award made. Subsequently the matter was opened up at the request of plaintiffs, who had not received the notices of the hearing mailed them, due to their absence from, home, and a further hearing was had November 4, 1914, at which time all parties appeared, and the Commission made an award of $441.81 in favor of Suffern. Thereupon plaintiffs brought an action in. the circuit court for Dane county to set aside the award. The court made findings of fact and conclusions of law sustaining the award, and from a judgment entered accordingly the plaintiffs appealed.</p>

Eeeoe to review'a judgment of the civil court of Milwaukee county: Michael F. Blewski, Judge. The facts are these: A jury in a bastardy action were instructed by the court that if they agreed they might seal their verdict and separate.

<p> Vendor and purchaser of land: Construction of contract: Ambiguity: Parol evidence: “Clear:” Breach of contract: Measure of damages: Instructions to jury: Harmless errors: Validity of contract: Sunday: Pleading: Presumption as to delivery: Costs: Taxation: Fees of constables: Service of summons and subpoenas. </p> <p>1. Where a contract to convey cut-over land provided that the vendors should “clear” a certain se.veu acres by the following first day of April, and it appeared that the land had been cleared once a]j.d was an old pine slashing grown up to poplars which could easily be plowed under, the word “clear” was so far ambiguous that parol evidence of the circumstances surrounding the transaction was admissible to show the sense in which the word was used; and such evidence is held to sustain a finding by the jury to the effect that the parties intended to require the removal of old stumps and down timber so that the seven acres would be ready for immediate plowing and planting.</p> <p>2. For a breach of an agreement by the vendors of land to clear a part thereof the purchasers’ damages should include the reasonable cost of completing the clearing as the contract required and the reasonable value of the use of the land for one season, if they lost such use as the direct result of the breach; but the “reasonable value of the use” should be understood to mean fair rental value, and an instruction that under certain circumstances the jury might find as damages the full value of the crops which it was reasonably certain could have been produced, was probably erroneous.</p> <p>3. An error, in such case, in the instruction as to the measure of damages, was not prejudicial, where it appears that the sum found by the jury did not exceed the reasonable cost of clearing the land, together with its reasonable rental value.</p> <p>4. Where the complaint alleges and the answer admits that the contract in suit was made on a secular day, defendant cannot escape liability on the ground that it was in fact made on Sunday unless he proves beyond a doubt that the execution of the contract, including its delivery, was completed on Sunday.</p> <p>5. A constable not being, in his official capacity, required or authorized to serve the summons and complaint in an action in the circuit court, he acts in serving them simply as a private person, not as an officer, and is not entitled to official fees therefor.</p> <p>6. But, under sec. 842, Stats., in serving and returning a circuit court subpoena a constable acts officially and hence is entitled, under sec. 2959, to charge the fees therefor which the sheriff is entitled to charge.</p>

<p> Accounting as to trust funds and lands: Referees’ report modified and confirmed. </p>