Volume 165 — Wisconsin Reports

Appeals from two orders of tie circuit court, for Milwaukee county: E. C. Eschweilek, Circuit Judge. This is a proceeding, to enforce a judgment rendered by tbe circuit court for Milwaukee county January 11, 1906, in a consolidated action. Tbe two orders appealed from are dated respectively May 22, 1916, and June 12, 1916.

0. Higbee, Circuit Judge. Action for damages for breach of contract.

Weewee, Circuit Judge. Action to recover for a personal injury.

SpeNOEe, Judge. Tbis is an action to enjoin a continuing trespass on a tract of land in tbe city of Seymour and to recover damages for sucb alleged trespass. Tbe strip of land bere in question was owned, prior to March, 1874, by one Cyrus Need, wbo deeded it, as a part of a six-acre tract, to one Mitcbell at that time.

SpenceR, Judge. This action was brought against the defendant to recover one half of the money charged and collected by defendant for making abstracts while he was register of deeds between October 1, 1910, and December 31, 1912, under the provisions of ch. 270, Laws 1878, as amended by ch. 200, Laws 1881. The defendant answered, and among other things set up that ch. 270, Laws 1878, as amended, was unconstitutional and. denied plaintiff’s right to recover.

Eoss, Circuit Judge. The appeal is from an order directing the recording of a deposition taken under proceedings to perpetuate testimony.

<p> . Mechanics’ Kens: Materials furnished “for or in or about” structure: Coal used in generating power for machinery. </p> <p>1. Coal furnished to the principal contractor and used in generating steam for engines which operated machinery in making a railroad right of way was not material used “for or in or about” the •construction of such right of way, and no lien therefor is given by the statute (secs. 3314, 3315, Stats.).</p> <p>2. Where material has been consumed in the construction of a building or other structure, — it having had physical contact or immediate connection with the structure itself, — there may be a lien therefor; but if the material be used only to facilitate or make possible the operation of tools or machinery which in their turn act upon the structure, there can be no lien.</p>

Action to recover for money bad and received. Plaintiff paid $250 to defendant on a paper wbicb, so far as tbe same needs to be examined, was as-follows: “Received of G. B. Garloch, purchaser, tbis 6tb day of March, A. D. 1915, tbe sum of two hundred fifty dollars • ($250) as earnest money and in part payment for tbe purchase of tbe following described real property in tbe city of Superior, Douglas county, Wisconsin [describing twenty-four city lots], sold to said purchaser…

.B. Belden, Judge. This is an action brought by the plaintiff to recover $500 as damages 'for the breach of a contract by the defendant. The defendant is the owner of 120 acres of land which is described vin thé complaint. Wishing to sell the land, defendant entered into a written agreement with the plaintiff appointing plaintiff his exclusive agent to sell this real estate.

B. Belden, Judge. Action for personal injuries. The case was tried before the court and a jury. The jury rendered a general verdict in favor of plaintiff. 'The verdict was set aside by the court and judgment notwithstanding the verdict entered in favor of the defendant dismissing the complaint.

Action for malpractice against the executor of the estate of Dr. Loofbourow based upon the breach of an implied contract on the part of the deceased to exercise proper skill and care in treating plaintiff’s broken leg. The answer pleaded in bar the failure of plaintiff to give the notice provided for by sub. (5), sec. 4222, Stats. 1913, to which plea the plaintiff demurred. The court overruled the demurrer and the plaintiff appealed.

Lueck, Circuit Judge. The estate of Benedict Winzenried was being administered in the county court of Waukesha county. A. E. Winzenried was the administrator of the estate and a son of the deceased. As such administrator he inventoried a note for $4,000, dated July 17, 1912, given by himself, but made a notation upon the inventory that he claimed the amount for which the note was given had been given to him by his father.

<p>Appeal from a judgment of the county court of Waukesba county: David W. Agnew, Judge.</p> <p>Action for damages for the value of a horse alleged to have been killed by the escape of electric current from the wires of the defendant company. The case was tried by the court without a jury, and, omitting the merely formal findings, the court found that the defendant company maintained a pole at 511 West Main street in the city'of Waukesha upon which were fastened three transformers which received current from the distribution system of the defendant company and reduced the same from a high to a low voltage, from which point it was thereafter distributed; that at the foot of the pole there was a depression in which surface water gathered in a pool ;■ that at the time in question the defendant had allowed electrical current to escape from its distribution system into the pool, so charging it with electricity as to make it dangerous to animal life; that on July 27, 1914-, a heavy rain had fallen, causing a pool of water to form in the depression, and that by reason of the failure of the defendant company to properly safeguard its distribution system the street and the pool of water became impregnated with electrical current; that plaintiff drove his horse into the pool so charged with electrical current, with the resnlt that the horse was electrocuted ; and that the horse was of the value of $100. Plaintiff had judgment accordingly and defendant company appeals.</p>

Lueck, Circuit Judge. This is an action in equity to enjoin the defendant from maintaining a nuisance consisting of pig pens and pig yards immediately adjacent to plaintiff’s premises on the east shore of Eagle lake in Waukesha county, Wisconsin. The plaintiff owns two acres of land on the shore of the lake, which he purchased in 1905, part of it being purchased from the defendant, and all of which he uses for summer residence purposes.

<p>Bills and notes: Validity: Discharge of prior indebtedness: Married ' woi..jn: Consideration.</p> <p>1. A note given on Sunday to take up a note previously given is ineffectual to discharge the indebtedness on such prior note.</p> <p>2. Where the maker of a note was a widow and had separate estate at the time the note was in fact made, it is immaterial that at the date of the note she was a married woman with no separate property or business.</p> <p>3. Where the payee in a note made by father and son accepted therefor, after the father’s death, a note of the widow (to whom the estate of her husband had come), and thereby waived a claim against said estate and also discharged the indebtedness of the son, either the waiver or the discharge was a sufficient consideration for the widow’s note.</p>

J. Tubweb, Circuit Judge. This is a ceHiorari action to review the action of the hoard of review of the city of Milwaukee in making a personal property assessment against the plaintiff for grain in its elevator on May 1, 1916. The. petitioner operates a grain elevator and warehouse in the city of Milwaukee.

<p>Appeal from, a judgment of the circuit court for Dane county: E. Ray Stevews, Circuit Judge. .</p> <p>This is an appeal from a judgment of the circuit court affirming the order of the Industrial Commission dismissing the application of the plaintiff for an award of compensation.</p> <p>The question to be determined, as stated by the appellant, is whether the amendment to the Compensation Act in 1913 (ch. 599, Laws 1913) brings the plaintiff within the provisions of the Workmen’s Compensation Act as it existed on September 26, 1913, the date of the injury complained of.</p> <p>Eor some time prior to September 1, 1913, tbe defendant Nic Zweifel employed in carrying on bis business seven men, among whom was tbe appellant. Up to September 1st said employer bad not been under tbe Compensation Act and did not come under it by any positive act of bis own, but by force of sub. 2, see. 2394 — 5, Stats. 1913, which section provides, in substance, that on September 1, 1913, every employer of four or more employees in a common employment would be deemed to have elected to accept tbe provisions of tbe Compensation Act unless be gave notice before that date that be would not come under it. In tbe instant case tbe employer never gave such notice.</p> <p>Plaintiff was employed by defendant a few months prior to September 1, 1913, and so continued until date of tbe injury. Plaintiff did nothing of a positive nature indicating that be was or was not under tbe act, but simply continued to work after September 1, 1913. On September 26th, in tbe course of bis employment, be was severely injured.</p> <p>Tbe Industrial Gommission and tbe circuit court held that be was not under tbe law as amended. Whether be was or not is tbe only question involved upon this appeal.</p> <p>Tbe cause was submitted for tbe appellant on tbe brief of Otjen & Otjen of Milwaukee, and for tbe respondent Industrial Gommission on that of tbe Attorney General and Win-field W. Gilman, assistant attorney general.</p>

<p>Appeal from a judgment of tbe circuit court for Monroe county: E. C. Higbee, Circuit Judge.</p> <p>Action to enjoin defendant from maintaining a saloon in tbe village of Norwalk because no valid license was issued to bim. Tbe facts found by tbe court are these: Tbe village of NorWalk bad a population of between 500 and 1,000 on June 19, 1916. In April, 1915, tbe electors of tbe village voted “no license” for tbe license year beginning July 1, 1915, and ending July 1, 1916, so no licenses were issued. In April, 1916, tbe electors voted in favor of license, and on tbe 19tb day of June tbe village authorities granted three licenses for tbe year from July 1, 1916, in tbe following order: one to John Weibel, one to W. O. White, and one to tbe defendant herein. Tbe minutes of tbe meeting showed that tbe licenses were issued in tbe order stated, and such minutes were read and approved at tbe next regular meeting held July 6, 1916; but after this actiou was begun and on tbe 3d of August, 1916, three members of tbe village council, with six out of tbe seven members present, voted in favor of tbe following motion, and three did not vote: “that error in tbe minutes of tbe regular license meeting be corrected thus — placing Louis Schotten second and W. C. White third.” As conclusions of law the court found that the license granted to defendant was void and that he should he enjoined from conducting a saloon in the village of Norwalk. From a judgment entered accordingly he appealed.</p>

<p> Sales: Acceptance: Retention of machine beyond reasonable time for testing: Findings of fact: Evidence: Sufficiency. </p> <p>1. One purchasing a machine has a reasonable time and no more in which to test it, and retention after such period is deemed an acceptance sufficient to bind him for the purchase price.</p> <p>2. In an action for the purchase price of a grain separator which was sold under a contract guaranteeing it to be satisfactory to defendant and was installed and used in‘his mill while he was in California, a finding of the trial court to the effect that plaint-' iff agreed that the approval or disapproval of the machine might await the return of the defendant is held to be without support in the evidence.</p> <p>3. The use of such separator from March 20th to May 1st, when it might have been tested in a few hours, constituted an acceptance under the rule above stated and under sec. 1684Í — 48, Stats.</p> <p>4. A claim by defendant of $15 for services of a millwright in im stalling and repairing the separator was improperly allowed by the trial court, it appearing that the millwright’s bill included other work, so that there was no satisfactory basis for allowing more than $5 which plaintiff had previously allowed defendant for work done in installing the machine.</p>

<p> Trial: Amending complaint to conform to proofs: 'Variance: Eons%iit: Contracts for benefit of third person: Rescission: Exchange of lands: BroJcers: Commissions. </p> <p>1. Under secs. 2880, 28366, Stats., tlie trial court should permit an amendment of the complaint to conform 'to tlie proofs, even though leave to amend is not asked until after the court has announced its decision granting a nonsuit. A variance between the proofs and the allegations of the complaint should he disregarded, and no litigant should he sent out of court where the facts established by the evidence show that he has a just claim.</p> <p>2. If a person makes a contract with another for the benefit of a third person such third person may enforce it whether or not he has formally assented thereto, and neither one nor both of. the immediate parties can rescind the contract or in any way interrupt or prejudice the rights of the third person without his consent, unless the right to do so be reserved in the contract.</p> <p>3. Thus, where a contract for an exchange of lands provided that each party thereto was to pay as a brokerage fee to certain brokers a specified sum “at the time of the closing of the said exchange,” and that all deeds were “to be passed and this negotiation to be closed within fifteen days from the date of this agreement,” the parties to such contract could not by rescinding it or refusing to carry it out affect the right of the brokers to receive such fees at the expiration of the fifteen days mentioned.</p>

<p> Opening default: Discretion: Master and servant: Injury: Independent contractor: Unsafe appliances: Questions for jury: Evidence: Sufficiency: Competency: Principal and agent: Authority to hire servants: Appeal: Harmless errors. </p> <p>1. An order opening a default and setting aside a verdict is held in this case not to have been an abuse of discretion.</p> <p>2. While engaged with a crew of men in decking or piling logs in Michigan plaintiff was injured by the falling of a log which was prematurely released as it was being hoisted to the pile. One C. was in charge of the work under a contract with defendants pursuant to which he boarded and paid the men and was to be paid a certain sum per thousand; but evidence as to the control exercised by defendants over the piling crew and as to liability insurance procured by defendants covering such crew, together with certain admissions in the original answer, is held to sustain a finding by the jury that both plaintiff and C. were servants of the defendants at the time of the injury; and C. was therefore not such an independent contractor that defendants were relieved from liability to plaintiff under the Michigan rule on that subject, which seems to be substantially the same as the rule in this state. 0</p> <p>3. The doctrine in Michigan as to the duty of the master with respect to the tools and appliances furnished for the use of his servants seems to be the same as in Wisconsin; and upon the evidence in this case it was a question for the jury whether such duty had been breached by defendants.</p> <p>4. A finding by the jury that the proximate cause of the injury was negligence of defendants in failing to provide reasonably safe appliances in the so-called pup hooks which were used in raising the logs, is held to be sustained by the evidence.</p> <p>5. A foreman of defendants, who first hired plaintiff and other men, having testified that he was not authorized to hire them for .defendants, it was perhaps error to permit plaintiff and another witness to testify that when the foreman employed them he said they were to work for defendants; but in view of the whole situation as shown by the other evidence it is held that such error was not material or sufficient to work a reversal.</p>

<p>Appeal from an order of the circuit court for Iron county: G-. N. RisjoRd, Circuit Judge.</p> <p>The appeal is from an order permitting the examination, under sec. 4096, Stats., of officers of defendant.</p> <p>The cause was submitted for the appellant on the brief of Sanborn, Lamoreux & Pray of Ashland and Gharles M. Humphrey of Ironwood, Michigan, and for the respondent on a brief signed by Aurelio Bresadola of Hurley m pro. per., and LeQendre & Driscoll and HerbeH M. Norris, all of Ironwood, Michigan, of counsel.</p>

<p> Judgment: Equitable relief against: Action to restrain enforcement: Grounds: Mistake and accident: Pleading: Counterclaim: Tax title to land. </p> <p>1. The abolition of the ancient bill of review in equity did not abrogate any of the remedial rights formerly enforced thereby.</p> <p>2. When the methods expressly provided in the statutes for obtaining relief against a judgment are not available, equitable relief against an unjust and unconscionable judgment by way of restraining the party who seeks to enforce it may be invoked under the Code procedure in all appropriate cases.</p> <p>3. The foregoing rule is applicable to judgments in all civil actions whether the rights of the parties determined by such judgments arose at law or in equity.</p> <p>4. Such equitable relief against an unconscionable judgment may be invoked not only in cases of fraud but also upon the grounds of accident and mistake.</p> <p>5. Thus, allegations to the effect that a tax upon land was in fact paid in 18S8, but by mistake was returned as delinquent and the land sold therefor and a tax deed thereafter wrongfully issued; that the owner of the land at the time said tax was paid and a grantee of such owner continued in possession of the land and paid the taxes thereon without knowledge of any adverse claim until 1912; that upon discovery of the existence of the tax deed an action to quiet title was brought, but, by reason of the mistake of the'taxing officers above stated and the accidental loss of the tax receipt by the former owner, without fault or negligence on the part of the plaintiff in that action the facts could not be proved and judgment was consequently entered quieting the title in the tax-title claimant; and that the tax receipt has since been found — state facts upon which equitable relief may \. be granted against said judgment.</p> <p>6. Such facts were properly pleadable as a counterclaim, under sec. 2656, Stats., in an action for trespass brought by the tax-title claimant against the plaintiff in the former action.</p>

N. Risjord, Circuit Judge. This is an action to recover $300, with interest, which had been paid upon a land contract. Plaintiff claims to have rescinded the land contract. On Eebruary 7, 1913, plaintiff • and defendant entered into a written agreement whereby defendant agreed to sell to the plaintiff certain lands for $1,600.

Appeals from a judgment of tbe circuit court for Bayfield county: G. N. Risjobd, Circuit Judge.

<p> Ownership of timber found afloat: Question for jury: Evidence: Harmless error. </p> <p>1. Whether certain timber found floating in Lake Superior and alleged to have been converted by defendants belonged to the plaintiff is held, upon the evidence, to have been a question for the jury.</p> <p>2. The erroneous admission of immaterial evidence will not work a reversal of a judgment based on the verdict of a jury, where that verdict would have been the same if such evidence had been excluded.</p>

<p> Appeal: Under taking, when not required: Attorney not bound to furnish, though prosecuting for contingent fee and having lien on recovery. </p> <p>Although a tort action is being prosecuted by plaintiff’s attorneys .under a contract, made pursuant to secs. 2591a, 2591m, and 2591m, Stats., that their fees shall be contingent on the result . and that they shall have a lien on the cause of action and on the damages recovered, and although said attorneys are able to furnish the undertaking required by sec. 3052 on appeal, they are not to be considered as in effect parties to the action, and so liable for costs or bound to furnish such undertaking, especially in view of sec. 2590, which prohibits attorneys from becoming sureties for their clients; and if the plaintiff is unable to furnish the undertaking, he is entitled to a certificate of that fact as provided in sec. 3052m, and the undertaking need not be given.</p>

<p>Appeal from a judgment of the circuit court for Marathon county: A. H. Reid, Circuit Judge.</p> <p>The appeal is from a judgment in favor of the plaintiff.</p> <p>J. P. Them & Co. owned certain premises in the city of New London with a grist mill and machinery thereon and upon which there were insurance policies to the extent of $3,500, one for $2,000 in the German Eire Underwriters and $1,500 in another company, neither of which companies was licensed to do business in Wisconsin. In October, 1914, the plaintiff acquired the property, mill, and machinery by a trade. Pie desired only $2,000 insurance, and by agreement with Therh & Co. arrangements were made through defendant, who was' then acting for his son, who had procured the original $3,500 of insurance, by which the old policies were surrendered, premiums adjusted, and a new policy for $2,000 issued and delivered to plaintiff, he then paying the balance required on the premium. The arrangement for the change of the policies was made by defendant with a Chicago broker who represented these unlicensed companies.</p> <p>A jury was waived, and the circuit court found that at the time the policy was issued and when the fire occurred the legal title was in one Henry Gorges, subject to an outstanding contract to convey upon payment of $1,200, and that such legal title was held solely as security for the payment of said $1,200. The court stated in his written decision that all accrued interest on the $1,200 has been paid and that no forfeiture of the contract has been declared nor foreclosure begun. He also found that plaintiff was entitled to a conveyance upon the payment of the $1,200 and that he was the sole and unconditional owner of the property. A further finding was to the effect that no misrepresentations were made or facts withheld or concealed by plaintiff concerning the title.</p> <p>The court determined that defendant, having placed this insurance with an unlicensed insurance company, which would bave been liable but nevertheless refused to pay the loss, became liable under sec. 1919/, Stats., and ordered judgment accordingly, from which judgment defendant appeals.</p> <p>The cause was submitted for the appellant on the brief of Isaac Omite and Nash & Nash, all of Manitowoc, and for the respondent on that of Kreutzer> Bird, Ohoneski & Buch-ner of Wausau.</p>

<p>Appeal from a judgment of the circuit court for Lincoln county: A. H. Reid, Circuit Judge.</p> <p>Action to remove a cloud on title, tried with the following result as to facts: Augusta Zimmerman died April 8, 1915. She then resided on a farm composed of land described in the complaint. She had been a widow since 1901 and for years had operated the farm, assisted by plaintiff, her son John Zimmerman, who was unmarried and resided with her, and also by her son Herman, an incompetent and under guardianship. She derived title from her husband, who predeceased her. February 8, 1901, the deed of the land involved was deposited with one Braun, to be delivered to her in case she survived the grantor, or to the latter in case he survived her. After he died it was delivered to her and recorded. April 10, 1908, she was ill and, supposing she might soon decease, desired to make disposition of her property. Plaintiff was under bond to appear in court, shortly, to be tried upon the charge of murder. She had intended to leave him the farm, charged with the support of Herman, but, because of the pending trial, thought a different disposition necessary. She consulted Braun, her friend and business advisor, and Mr. Van Heeke, an attorney, and directed the latter to prepare (a) a deed to her son Otto, to be executed by her, of all the land described in the complaint, including the personal property on the farm, (b) a deed to her son Paul of two city lots, (c) a bill of sale to her children, except Herman, of -her household goods, Herman to have his bed; also, to be executed by Otto> a $2,000 note to Herman, a mortgage to secure it on a designated part of tbe land, (d) a $650 note to plaintiff, (e) a $300 note to Charles Zimmerman, (f) a $300 note to Fred Zimmerman, (g) a $150. note to Paul Zimmerman and a $100 note to Richard Zim- . merman. She also had prepared a writing between herself and Braun for the transfer to him of some certificates of deposit for $350, and a $50 note, and delivered to him some money to be used for payment of expenses in the criminal matter, the residue, if any, to be used for her funeral expenses. The instruments covered all her property. She executed all papers prepared therefor and placed them in the hands of Braun and Van Hecke, directing them to have the other papers executed and to retain all in the hands of one or the other and not allow any recording during her lifetime. She intended to tl\us retain control of the papers so they would not become effective until her death. The papers were taken to Van Hecke’s office, and, in due course, Otto, his wife joining, executed those prepared therefor. The deed to Otto was delivered to him and, later, the deed to Paul was delivered to him. Such deliveries were unauthorized by Mrs. Zimmerman. The papers so delivered were handed back and remained on deposit in Van Hecke’s office, subject to the control of Mrs. Zimmerman until her death and until the latter part of August, 1915. Neither the mortgage nor any of the notes were ever delivered to any of the payees. The personal property was not delivered. After the death of Mrs. Zimmerman there was an offer to deliver the notes but all parties, except Richard Zimmerman, rejected the offer. Mrs, Zimmerman intended to make a testamentary disposition of her property. Otto, up to the decease of his mother, supposed the deed to him was subject to her recall. April 8, 1908, the plaintiff was acquitted of the charge against him. His mother soon recovered. She, plaintiff, and Herman continued to reside on the farm and, in the course of time, sbe recurred to ber former intention of leaving ber property, in tbe main, to plaintiff charged with tbe support of Herman. Sbe attempted to secure a return of tbe deeds by applying to Braun and obtaining a bundle wbicb sbe bad left with him for safe keeping but did not obtain tbe particular paper. March, 1915, sbe was taken ill. Then, in due form, sbe disposed of ber property by will, ignoring tbe previous transaction. In due course tbe will was probated. All tbe children bad notice thereof and made no objection. Thereby, tbe title to tbe real estate in ques-' tion was vested in plaintiff, subject to a charge in favor of Herman.</p> <p>Upon such facts tbe court concluded that tbe first transaction was an attempted, ineffectual disposition of property; that if it were otherwise than of testamentary character, it was ineffectual for want of delivery of tbe notes and mortgage ■ securing tbe same; and that plaintiff was entitled to judgment establishing title to tbe real estate under tbe will and for costs against Otto.</p> <p>All defendants, except Otto and bis wife, disclaimed and dropped out of tbe case as contestants.</p> <p>Tbe deed to Otto expressly provided that it should not take effect until tbe grantor’s death. There was no express direction by tbe grantor to deliver tbe deed and receive it back to be kept as was done. There was evidence to tbe effect that Mrs. Zimmerman told Mr. Van Hecke sbe wanted tbe property to go as indicated in tbe deed to Otto; that sbe wanted tbe former to carry out ber wishes, tbe deed not to take effect until sbe died, and that be acted as be supposed sbe desired.</p> <p>Judgment was rendered in accordance with tbe conclusions aforesaid and defendants, Otto Zimmerman and wife, appealed.</p>

<p> Tax titles: Limitation on former owner: When notice to be given by tax-deed grantee: Statute construed: Sufficiency of description in tax deed: ‘‘Undivided one-half:" Tenants in common: When one may acquire cotenant’s title. </p> <p>1. That part of sec. 1189, Stats., as amended by cli. 440, Laws 1913, beginning “The tax deed grantee or his assigns may, at any time after the tax deed is issued and recorded, serve a notice on the owner,” etc., does not relate to all tax deeds, but applies only to cases where, as stated in the preceding clause, “a single tax deed only has been issued and the original owner has, before the issuance of such tax deed, paid all taxes levied against the land for the three years ensuing after the year for which the land was returned delinquent and sold.”</p> <p>2. ¥/here a tax deed purported to convey an “undivided one-half” of certain land, reference might be had to the proceedings upon which the tax sale was based in order to ascertain which particular undivided half was sold; and where it appeared therefrom that the grantee in the tax deed as owner of one undivided half of the land had paid the taxes thereon, it necessarily followed that the other undivided half was what was sold and the description in the tax deed was sufficiently certain under sec. 1047, Stats.</p> <p>3. One tenant in common of unoccupied lands may acquire the title of his cotenant by tax deed, where they derived their interests under separate instruments and there was no relationship between them other than that of mere tenancy in common.</p>

<p> Bills and notes: Certificate of deposit: Ownership: Evidence. </p> <p>A finding by the trial court to the effect that a certificate of deposit had been indorsed by the depositor (since deceased) and turned over to plaintiff as compensation for her services, is held not to be contrary to a clear preponderance of the evidence.</p>

<p> Workmen’s compensation: Election not to accept law: Time for filing: Extension: Withdrawal from operation of the act: When employee engaged in interstate commerce: Award conclusive upon party not bringing action to review it. </p> <p>1. The legislature having, in sub. 2, see. 2394 — 5, Stats., fixed the time before which notice of an election by an employer not to accept the provisions of the Workmen’s Compensation Act must be filed, the courts are powerless to extend the time.</p> <p>2. A notice of such an election which was dated August 30th, mailed September 2d, and received by the-industrial commission September 3, 1913, was not filed prior to September 1, 1913, within the meaning of sub. 2, sec. 2394 — 5, Stats., and hence was not effective.</p> <p>3. Such ineffective notice of election cannot be construed as a withdrawal under the provision of said section which allows an employer to withdraw himself from the operation of the law at the end of the year.</p> <p>4. To establish that a railway employee was, at the time of injury, “employed in interstate commerce,” it must appear that he was at that time engaged in interstate transportation or in work so closely related to it as to he practically a part of it.</p> <p>5. Where a railway company transacted both interstate and intrastate business, although the latter was trifling in amount, a janitor in its general office in this state who was injured while breaking up coal for the furnace was not at the time engaged in interstate commerce.</p> <p>6. So far as an award by the industrial commission under the Workmen’s Compensation Act is against the contentions of either party it is conclusive and final unless that party brings his action to review it in that respect.</p>

<p>Mandámus to the county boards of La Crosse and Trem-pealeau counties.</p> <p>On February 13, 1917, the respondents moved to quash the writ. The motion was argued for the respondents by Otto M. Bchlabach of La Crosse, district attorney of La Crosse county, and Elmer E. Barlow of Whitehall, district attorney of Trempealeau county, and for the relators by B. 8. Oowie of Whitehall.</p> <p>The court ordered that the action be certified at once to the circuit court for Trempealeau county, there to be heard and tried as if originally brought in that court. No costs were awarded against either party.</p>

Apbeai, from a judgment of tbe circuit court for La Crosse county: E. C. Higbee, Circuit Judge. Action to recover damages for alleged negligent treatment of plaintiff following an operation for appendicitis while a patient at tbe defendant hospital. Tbe defendants Henke and Mast were surgeons of La Crosse who performed the operation on plaintiff while at tbe hospital.

This action was brought to cancel a deed, contract, and mortgage on the ground of alleged breach of condition subsequent to support the plaintiff Ingimond Danielson and his wife, and to quiet title in the grantors and their heirs. There is nothing in the deed, contract, or mortgage providing for revesting of title or re-entry.

This is an original proceeding brought in this court in the form of a mandamus and certiorari.

B. Belden-, Circuit Judge. The appeal is from an order granting plaintiff a new trial. This was an action brought against the defendant-telegraph company to recover damages,for the mental anguish to the plaintiff caused by the failure of defendant to promptly deliver a telegram sent to her at Kenosha, Wisconsin, from Henderson, Kentucky, January 1, 1916, announcing the expected immediate death of plaintiff’s father.

B. Belden, Circuit Judge. The appeal is from a judgment dismissing plaintiff’s complaint. The plaintiff corporation is a wholesale liquor dealer. The defendant I. Brandy in the year 1914, on his personal application, obtained from the common council of the city of Kenosha a license to operate a saloon in that city. He was at the time and for several years had been engaged in a men’s clothing and furnishing business about six or seven blocks away from the saloon.

Appeae from a judgment of the circuit court for Kenosha county: James Wickham, Judge. Action to recover compensation for damages claimed to have been caused by negligence of the defendant in so managing an automobile on a public highway that it collided with plaintiff’s buggy, causing injury to his property and person.

B. BeudeN, Circuit Judge. This is an action brought by plaintiff to recover for alleged additional work which he claims to have done in connection with the performance of a contract with defendant for the construction of a sewer. On August 1, 1913, plaintiff submitted a bid and contract' to furnish all the material and do all the work for the building of a sewer in the city of Kenosha by a certain route.

Affeal from a judgment of the circuit court for Eacine; county: E. B. Beldeh, Circuit Judge. The construction of the will of Benjamin Smith, made on-the 13th day of July, 1883, and codicil added August 4, 1885, is the question involved upon this appeal. The will is-as follows: “First. It is my will that all of my just debts and funeral expenses be paid with all convenient speed after my decease. “Second.

B. Beldew, Circuit Judge. Action to recover damages for personal injuries sustained on the 3d day of August, 1915, in the city of Kenosha by being run into by one of defendant’s engines.

0. Esci-iweileR, Circuit'Judge. This is an action in equity by a riparian owner to enjoin the erection of a new bridge across Milwaukee river because it is alleged that thereby the plaintiff’s river frontage will be injured and its submerged land in the river bed be trespassed upon. The situation will be more easily understood by reference to the accompanying diagram.

Geegoey, Circuit Judge. Action for damages for breach of contract. As a result of dealings bad between tbe parties prior to November 8, 1907, plaintiff bad delivered at Elkhart Lake station in tbe county of Sheboygan ten railroad cars loaded with steel rails and angle bars. These rails tbe defendant bad refused to accept.

Geegoby, Circuit Judge. Tbis is a petition by Martha Bteinlcopf, tbe widow of Jobn U. Steinkopf, asking for an order terminating tbe interest of tbe defendant, Bertha Bteinlcopf, in tbe plaintiffs property as tbe divorced wife of Jobn H. Steinkopf. In 1906 tbe plaintiff, Jobn H. Steinkopf, brought an action for divorce against bis tben wife, tbe defendant Bertha Bteinlcopf. Sbe counterclaimed for a divorce against bim.

Appeat, from an order of the circuit court for Milwaukee county: OscaR M. Eeitz, Circuit Judge. This is an appeal from an order sustaining the demurrer hy the respondent to the appellant’s amended return to a writ of mandamus requiring it to pave Center street from Teu-tonia avenue to Seventeenth street between the rails and for one foot outside of the rails with asphalt upon a concrete foundation.

Eeitz,'Circuit Judge. Action for damages for personal injuries.

G-RegoRV, Circuit Judge. This is a petition for a writ of certiorari to review tbe action of the defendant in discharging the relator from the office of ward assessor and praying that this court reverse and set aside such action of the tax commissioner. The petition also asks that judgment he entered for relator in the sum of $1,392 and for his costs and disbursements.

<p>Appeal from an order of tbe circuit court for Milwaukee county: Oscae, M. Feitz, Circuit Judge.</p> <p>September 25, 1909, a deficiency judgment was entered against tbe defendant Glemens W. Tillman in tbis action foreclosing a mortgage on land previously conveyed-to bim by a deed reciting that be assumed and agreed to pay tbe mortgage! The, defendant Tillman was not served witb either summons or complaint and made no appearance. Sometime in March, 1912, be first learned of tbe existence of tbe deficiency judgment, and on February 10, 1916, be obtained an order to show cause why tbe deficiency judgment should be held to be a lien upon lands owned by bim and not embraced'in tbe foreclosure action. Tbe amended petition for tbe order alleged that tbe mortgaged premises were sold at tbe foreclosure sale for an inadequate price and that bad tbe petitioner known of tbe sale be could have protected himself.</p> <p>Tbe circuit court found that no service of tbe summons and complaint was made upon Glemens W. Tillman; and that he was not guilty of such laches as to bar him from the relief asked. It held that he had made no general appearance in the action; and ordered the deficiency judgment to he set aside as to him and declared it to be no lien upon any premises owned by him. Erom such order, the plaintiff appealed.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Lawrence W. Halsey, Circuit Judge.</p> <p>The original action was'brought by the plaintiff to secure a divorce. An interlocutory judgment of divorce had been entered in the action February 13, 1911. Prior thereto plaintiff and defendant had entered into an agreement by which they had settled their property rights, and by the terms of this agreement $40,000 was placed in trust for the benefit of the plaintiff, who was to receive the income therefrom during ber life and upon ber death the same was to be paid to the minor- child of the parties, with certain reservations not here material. . The agreement was embodied in the judgment. Within a few months after the entry of the interlocutory judgment the plaintiff died, leaving the minor child surviving, entitled, according to the terms of the trust agreement, to receivedhe income. Thereupon the defendant, by a special proceeding in the divorce action, sought a modification of the judgment. In such proceeding the judgment was modified and the defendant was restored to the unqualified title to the property held under the trust agreement and the custody of the child was awarded to the defendant. There was an appeal from the judgment in the special proceeding (see Yates v. Yates, 157 Wis. 219, 147 N. W. 60). The petitioner, George P. Miller, was guardian ad litem of the minor child in the proceeding brought by the defendant to modify the original judgment and represented her upon the trial and in this court upon appeal. The remittitur from • this court ivas filed with the clerk of the trial court August 24, 1914. This is an application by the guardian ad litem to fix the value of the services rendered upon the appeals and in the court below, begun by petition at the foot of the judgment in the special proceeding June 18, 1915. In his pétition the guardian ad litem, after setting out certain preliminary matter, alleges:</p> <p>“That in the trial of said proceeding upon petition of Arthur W. Yates, and in the prosecution of said appeal to the supreme court of Wisconsin, said George P. Mitter as guardian ad litem of said Georgia Marion Yates, a minor, and as attorney for said trustee, performed and caused to be performed a considerable amount of work and labor and rendered legal services, in the investigation of the facts preparatory to the trial, in the examination of witnesses upon the trial, in the investigation of the law, in the making of oral arguments in this court and in the said supreme court, in the preparation of written briefs filed in this court, and in the preparation of a printed case and a printed brief filed in said supreme court; that said work and labor and said services as suck attorney and guardian ad litem are reasonably worth the sum of one thousand dollars ($1,000); that he as such guardian ad litem or as attorney for said trustee has received no compensation whatever for the same; that said trustee has in its possession as such trustee the property which came into the possession of said trustee under such trust.”</p> <p>The guardian ad litem asked for an order modifying the judgment theretofore made by the circuit court by inserting therein a provision requiring that there should be paid to the petitioner out of the property described in the trust agreement sums aggregating $1,118.30 and for general relief. The defendant in the original action, the appellant here, an-' swered the petition of the guardian ad litem, alleged that the appeals were fruitless, that he was not under any obligation to pay the petitioner fees as guardian ad litem beyond the taxable costs and disbursements, that he had offered to pay the guardian ad litem fair compensation, which the guardian ad litem refused, taking the position that he preferred to have the entire matter settled by the court; that thereupon appellant elected to stand upon his legal rights and denies that he is under any obligation to said guardian ad litem beyond the judgment for costs. There was a trial before the court upon the petition and answer. The court found that the services of the guardian ad litem were reasonably worth the sum of $650; that the services were necessary; that they inured to the benefit of the minor; that the guardian ad litem had necessary disbursements amounting to $178.30, and other facts were found not necessary to be stated here, and judgment was entered as follows:</p> <p>“And it is further ordered, adjudged, and decreed that the revocation and cancellation of the trust agreement and trust conveyance dated February 6, 1911, and executed by Arthur W. Yates and First Savings & Trust Company and the accounting of the said First Savings & Trust Company to said Arthur W. .Yates for the property described in such trust agreement and convey anee which was ordered, adjudged, and decreed in and by said order, judgment, and decree of November 22, 1913, shall be conditioned on the payment of said sum of six hundred fifty dollars ($650) by said Arthur W. Yates to George P. Miller, and said payment shall be made before said cancellation and revocation shall become effective and before said accounting shall be made.”</p> <p>Erom the judgment entered this appeal is taken by the defendant, Yates.</p>

<p> Workmen's compensation: Conditions of liability: When injury is accidental: Hernia resulting from strain: Predisposition. </p> <p>1. A hernia resulting from accidental straining of a muscle is “proximately caused by accident,” within the meaning of sub. (3), sec. 2394 — 3, Stats., even though the employee was predisposed to such infirmity by reason of having a congenital hernial sac.</p> <p>2. A definite mishap to an employee, happening to him.while performing service growing out of and incidental to his employment and proximately causing him physical injury and damaging results, is compensable under the Workmen’s Compensation Act, even though he was physically unsound at the time and otherwise the results would not have been caused by the mishap.</p>

<p> Intoxicating liquors: Licenses: Limitation of number after no-license ■period: Invalidity: Public nuisance: Injunction. </p> <p>1. The saving clause or proviso in sec. 1565d, Stats. 1915, — protecting existing licenses equal in number to those in force at a certain date, — is inoperative after a no-license period.</p> <p>2. The saving clause in sec. 1565del, Stats. 1915 (Laws 1915, ch. 453, sec. 2), is not applicable where, by reason of an injunction, a village board could not and did not fulfil the conditions of that clause by granting, licenses within thirty days from the passage of said ch. 453.</p> <p>3. Where neither of the -saving clauses above mentioned was operative, but one license could be granted in 1916 in a village having less than 500 inhabitants.</p> <p>4. Where a village board, having power to grant but one license, granted three in a single motion, all must be held illegal because it cannot be said that any one of them was granted before the others.</p> <p>5. Whenever any place is used for the unlawful sale of liquor, an action under sec. 3180a, Stats. 1915, to enjoin it as a public nuisance may be maintained, although there has been no criminal conviction of the keeper of the place.</p>

Appeau from an order of the superior court of Douglas county: Chaeles Smith, Judge. The defendants appeal from an order overruling a general demurrer to the complaint and granting injunctional relief pendente lite. The action is brought in equity by a taxpayer and resident of the town of Summit in Douglas county to prevent the illegal expenditure of the funds of the town.

<p> Wills: Construction: Vesting of estates: Trust: Duration. </p> <p>1.- A will gave one fourth of the residue of testator’s estate to each of his two sons and the other half in trust for the benefit of his two daughters. 'One half of the income of the trust estate so created was to be paid to each daughter during her life, and at her death (or in case she died before the testator) was to he paid to her issue, if any, until they respectively attained the age of twenty-one, at which time each of said issue was to receive his' or her share of one half of the principal of said trust estate. Any residue of the trust estate, including income thereof, not thus disposed of was to be paid to the testator’s four children aforesaid, share and share alike — the issue of any deceased child to take by right of representation. It appeared that the testator had reasons for not wishing to. leave any of his property in such a way that it would reach one of his sons-in-law, but did not wish to treat his- two daughters differently. In view of that fact, and in view of the provision relating to a residue of the trust estate, it is held that the children of the testator did not take any vested interest in the corpus of the trust estate at the death of the testator; that hut one trust was created, which was to continue until the death of both daughters and until their issue, if any, attained the age of twenty-one; and hence that one of the daughters could not by will dispose of her interest in the trust estate.</p> <p>2. The law favors an early vesting of estates — but not contrary to. the intention of the testator.</p>

AiREAis from a judgment of the circuit court for Eond du Lac county: Ohestee A. EowleR, Circuit Judge. Held: That the Wisconsin Savings Loan & Trust Company became liable to the holders of said bonds under its said contract, by reason of its said breach thereof, for all damages sustained by reason of its said breach, and that the holders of such said bonds as were valid in their hands who have not by their acts waived or become estopped…

<p> Life insurance: Benefit certificate: Change of beneficiary: Married women: Cancellation of certificate: Action by beneficiary. </p> <p>1. As to a fraternal benefit certificate issued prior to the' enactment of cb. 376, Laws 1891 (amending sec. 2347, Stats.), that statute did not take away the vested right of the assured to change the beneficiary named, even though she was his wife; nor did sec. 3, ch. 175, Laws 1895 (sub. 5, sec. 1957, Stats.), change in any way the rights of the assured to deal with such a certificate.</p> <p>2. Where the manner of making a change of beneficiaries is not prescribed in the benefit certificate nor in the constitution, by-laws, or regulations of the society, any definite designation of a different beneficiary will suffice.</p> <p>3. When the beneficiary named in a fraternal benefit certificate had a mere expectancy of which she might at any time be deprived by the act of the assured without her consent, she cannot during the life of the assured maintain an action for damages on the ground that the society has wrongfully canceled the certificate.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: Osoae M. Eeitz, Circuit Judge.</p> <p>This action was brought by plaintiff to enforce, a mechanic’s lien against certain real estate for material furnished, which real estate was owned by the defendant Harriet M. Cook and one Sarah A. Holbrook, since deceased, and whose executor, H. W. Shattuck, is now one of the defendants.</p> <p>April 10, 1913, Harriet M. Cook and Sarah A. Holbrook, owners of the premises, entered into a contract with the Grand View Eealty Company, by the terms of which said eompanjr was to have possession of the premises described in the contract for a period of forty-nine years and six months. The action was originally commenced against the owners of' the realty, Harriet M. Cook and Sarah A. Holbrook, and afterwards the defendants William H. Creer and Ernst P. Butler, doing business as Wisconsin Mantel & Tile Company, were made parties. Said partners after being made parties defendant served a cross-complaint upon the owners in fee of the property, who demurred to said complaint on the ground (1) that it did not state facts sufficient to constitute a cause of action, and (2) that the said action was not commenced as to said cross-complainants within the time limited by law, viz. within the time limited by sec. 3318, Stats. The court sustained the demurrer as to the first ground and overruled it as to the second.</p> <p>The Wisconsin Mantel & Tile Company, cross-complainants, furnished material to the Grand Yiew Realty Company in the performance of the contract of lease made between Gook and Holbrook and said Realty Company.</p> <p>The contention of the cross-complainants is that the instrument which gave to the Grand Yiew Realty Company possession for forty-nine years and six months for a certain consideration named in the agreement was not a lease as contemplated by sec. 3314, Stats., and that under this instrument the conventional relation of landlord and tenant did not exist between the Grand Yiew Realty Company as lessee and the defendant Gook and the estate of Holbrook as lessors. It is therefore claimed on behalf of the appellants that the cross-complainants were entitled to a mechanic’s lien upon the interest of the lessors, Gook and Holbrook, therefore the court erred in sustaining the demurrer to the cross-complaint.</p> <p>This appeal is from the part of the order sustaining the' demurrer of the defendants Harriet M. Gook and H. W. Shattuck as executor to the cross-complaint of William, H. Greer and Ernst P. Butler, copartners doing business as Wisconsin Mantel & Tile Company.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: MaetxN L. Luecb:, Judge.</p> <p>Action for personal injuries. Tbe complaint alleges that plaintiff was a painter employed by a firm of painters and paperhangers; that the defendant is the manufacturer of a step-ladder known as the Miller step-ladder, designed for the use of painters, ealciminers, and paperhangers; that the defendant prior to the day of the accident in February, 1912, sold to Patek Brothers, dealers in Milwaukee, a consignment of Miller step-ladders; that prior to February 11, 1912, Patek Brothers sold to plaintiff’s employers some step-ladders, including the one in question; that said step-ladder is constructed with, four uprights with steps across the front and braces across the back, and the front and back are held together by a piece of heavy cord attached to two staples on the uprights in the rear and running through one of the steps in front, the string being fastened to the staples by a sailor’s half-hitch, and that when properly fastened this cord prevents the ladder from spreading; 'that said ladder was “carelessly, negligently, and imperfectly manufactured in this, that the said rope so attached to said legs was imperfectly, carelessly, and negligently so fastened to one of the legs of said ladder; that it would not and did not prevent the said legs spreading so far apart while the ladder was being used in the manner contemplated for it to be used,” which the defendant well knew or ought to have known; that while plaintiff was using the ladder in the manner in which it was intended to be used the legs spread, causing plaintiff to fall, by reason of which he sustained serious injuries.</p> <p>The defendant alleged that' it was engaged in the manufacture of a ladder known as the Miller step-ladder; that all of the ladders manufactured by the defendant were thoroughly tested at the time of manufacture, and that before they were shipped they were again tested, and that no ladders are delivered by the defendant to any of its customers which are not approximately perfect in material and construction. The answer then alleged contributory negligence on the part of the plaintiff and otherwise generally denied the allegations of the complaint.</p> <p>There was a general verdict in favor of plaintiff for $800. The verdict was returned into court on the 9th of June. On June 13th plaintiff entered judgment on the verdict without notice. On "June 14-th defendant served its motion for a new trial and for judgment notwithstanding the verdict. The order overruling these motions was entered on July 15th. The notice of entry of judgment was dated July 8th and was not served upon the attorneys for the appellant until July 21st. There was no formal motion to vacate the judgment, but the trial court evidently treated the matter as if such a motion were made, and in disposing of the motions to set aside the verdict and for judgment notwithstanding the verdict the court made the following order:</p> <p>“It is ordered that the defendant’s several motions be and they are hereby denied; and that the judgment entered upon the verdict as returned by the jury stand as and for the judgment in said action.”</p> <p>Erom such judgment defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Oscab M. Eeitz, Circuit Judge.</p> <p>Tbe appeal is from a judgment in favor of claimant, Mrs. Laura Burghardt, upon appeal from tbe county court.</p> <p>A judgment of divorce was entered in Illinois in favor of claimant and against ber then husband, William E. Burg-hardt, by tbe terms of which she was awarded the custody of the minor child Ella, then two years old, with no provisions for the payment of anything other than an allowance of $2 per week for the support of the child. ' No further steps were taken by either party in that divorce action subsequent to the judgment.</p> <p>The defendant paid on this judgment from the time of its entry on February 15, 1897, until October 16, 1898, when he left Illinois and came to Wisconsin, where he resided until his death February 13, 1913. He left $1,000 to the daughter Ella, who has resided with claimant continually. Mrs. Burghardt filed a claim against his estate herein for the full amount claimed to be due for alimony from October, 1898, and interest thereon. The claim was allowed for the ten years preceding the death of Burghardt at an amount which was stipulated to be $1,278, and from the judgment for that amount with costs the executrix appeals.</p> <p>The cause was submitted for the appellant on the brief of Ernst von Briesen of Milwaukee, and for the respondent on that of Litzinger, McOurn & Reid of Chicago, Illinois, and Quarles, Spence & Quarles of Milwaukee.-</p>

<p> Evidence: Telephone conversations: Competency. </p> <p>' Where one subscriber to a public telephone exchange calls in the usual way the place of business of another subscriber and some one there undertakes to answer and accept the communication, this is prima facie evidence that the message was delivered at that place of business to some one authorized to receive it on behalf of the person or firm to whom the telephone was accredited; and the conversation is admissible in evidence, even though the voice of the person to whom the message was delivered was not .identified.</p>

<p> Appeal: Review: Questions for jury: Highways: Injuries to travelers: What defects actionable: Break in curbstone outside of line of travel. </p> <p>1. The decision of the circuit court that the evidence in a case does not present a jury question must, on appeal, be regarded as right unless the contrary clearly appears.</p> <p>2. An imperfection in a highway which is outside of the ordinary course of travel and the place prepared therefor, and not so near thereto or so connected therewith as to render such place not reasonably safe, is not an actionable defect.</p> <p>3. In an action against a city for injuries to a pedestrian who fell when he stepped or his foot slipped into a "break or hole in the curbstone at a point about three and one-half feet distant from the sidewalk and crosswalk prepared for travel, it is field that the trial court was not clearly wrong in directing a verdict for defendant on the ground that, in view of its location, the defect in the street was not an actionable one.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: John J. Gregory, Circuit Judge.</p> <p>Tbis action is brought in equity to restrain the defendant from breaching the terms of an advertising contract.</p> <p>The plaintiff is a corporation duly organized and existing under the laws of the state of Wisconsin and operates three department stores. The defendant is also a corporation existing by virtue of the laws of the state and publishes a newspaper in the city of Milwaukee. On or about the 18th'of February, 1913,• the merchandise manager of the plaintiff and the advertising manager of the defendant contracted as follows:</p> <p>“We hereby agree to contract with Ed. Schuster & Go. to sell you fifteen thousand (15,000) inches or more of space in the Kuryer Polski, to cover three (3) years, beginning with March 1, 1913, and ending February 28, 1916, at the rate of 18c. per inch, bills to be payable before the 15th of each month following. It is also understood that 5001 inches, or more, are to be used each year. . . .</p> <p>“The right is hereby granted to JEd. Schuster & Go. to renew this contract for another two years, under like conditions and at the same rate.”</p> <p>The contract was executed for three years by the parties. On December 27, 1915, the plaintiff elected to renew the contract under the option contained therein and notified the •defendant of such election by mail. It appears that the defendant corporation had a rule that all contracts for advertising for a period of- more than one year must be submitted to the business manager of the corporation. At the time of making this contract plaintiff had no knowledge of such a rule of defendant. The contract, however, came to the notice of the business manager of the defendant corporation some 0time after August 1, 1914, and the defendant continued to furnish advertising to the plaintiff thereafter in accordance with the terms of the agreement and in no way disavowed the contract. After March 1, 1916, the defendant refused to accept and publish the advertisements tendered it by the plaintiff, except upon the condition that the plaintiff would in advance of publication agree to pay a higher rate of advertising than the rate set forth in the original contract.</p> <p>The circuit court adjudged that the defendant corporation be permanently enjoined and restrained during the continuance of the two years’ extension of the contract after March 1, 1916, from refusing to receive and publish the advertising tendered by the plaintiff in compliance with the terms and conditions of such contract. It was also adjudged by the court that the plaintiff recover from the defendant nominal damages and its costs and disbursements of the action. From such judgment this appeal is taken.</p>

Halsey, Circuit Judge. This action was brought in the civil court of Milwaukee county to recover for breach of contract, by the terms of which the defendant, which was conducting a school for stammerers, guaranteed to cure, the plaintiff of stammering, and in case of failure to cure to return the tuition fee, $65. The jury returned the following verdict: “(1) Did the defendant guarantee the plaintiff that he would be cured of stammering?

Feitz, Circuit Judge. The appeal is from a judgment of the circuit court affirming a judgment of the civil court in favor of plaintiff. The defendant Alex Mednikoff was driving an automobile belonging to his codefendant north on Third street near Cherry street in' the city of Milwaukee. The plaintiff, when some distance from Third street, saw a street car standing-on Third street going north, and hastened towards it in order to take passage.

Eeitz, Circuit Judge. Personal injuries. The plaintiff, a laborer employed by a street contractor, was struck on the head by the corner of a street car as he was working in an excavation on the east side of the defendant’s track on Third street in the city of Milwaukee and seriously injured. The defendant claimed no negligence on the part of the defendant was shown and that the plaintiff was guilty of contributory negligence.

<p> Building contracts: Provision for change in materials, etc.: Talidity: Taxpayer's action to restrain payments. </p> <p>1. In a contract for the erection of a school building a clause providing that changes might be made by the school board in the materials, methods of construction, etc., of the building, was a usual and valid provision.</p> <p>2. Such changes, when they are made in good faith and do not substantially change the character'of the building or unreasonably increase its cost, may be legally made without taking the steps required to be taken before letting the original contract. So held as to a change from a composition roofing oí the tar and gravel type to an asbestos and asphalt built-up roofing.</p> <p>[3. Whether a taxpayer’s action can be maintained to restrain the making of payments on a building contract because of changes made as above stated, where neither the taxpayer nor the muhi-cipality suffers any loss, and especially where the action was not commenced until the work was nearly finished, is doubted.]</p>

This was an action of replevin for a two-year-old steer brought in justice’s court, which resulted in judgment that the plaintiff and appellant was entitled to possession of the property, that the defendants unjustly took and detained the same, and tbat tbe damage was $1.

Action to recover tbe reasonable value of services rendered John Laugbnan, deceased, tbe father of plaintiff, from 1883 to 1893, wbicb services it is alleged were rendered upon an express agreement made between the deceased and plaintiff that tbe latter should be compensated therefor at the father’s death. John Laughnan died testate January 9, 1913, at the age of ninety-four, leaving plaintiff only $500 out of an estate valued at about $4,500.

The proceeding was begun by plaintiff, who filed a claim in the county court of Iowa county against the estate of John Hanrahan, Sr., deceased. Judgment was rendered in the county court in favor of the plaintiff and defendant appealed to the circuit court. In circuit court defendant had judgment and plaintiff brings this appeal.

<p> Courts: Jurisdiction: Iowa county court: Action to restrain opening of highway. </p> <p>An action to restrain town supervisors from removing a fence and opening a highway upon lands occupied hy plaintiff not being within any of the classes of cases specified in ch. 339, Laws 1915, the county court of Iowa-county had no jurisdiction to enter any judgment or to take any proceeding therein other than to remove the cause to some court having jurisdiction, as provided in sec. 2836a, Stats.</p>

Appeals from a judgment of tbe county court' of Iowa county: Aldeo JeNks, Judge. This is a taxpayer’s action brought by tbe plaintiff on behalf of tbe city of Dodgeville to recover from' tbe mayor and members of tbe common council of tbe city tbe amounts paid to them respectively as salaries during tbe years 1914 and 1915, also to enjoin all such payments in tbe future, on tbe ground that they were not authorized by law.

the circuit court for Grant county: Geobge Clemektsow, Circuit Judge. Taxpayer’s action based on.facts, in effect as follows: In 1914- defendant Kelley, while chairman of the board of supervisors of the defendant town, sold thereto various articles of merchandise and received, about December 1, 1914, out of its treasury, $434.25 as payment therefor. The town needed the property thus acquired and the same was used to satisfy such need.

Appeai, from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge. ? October 27, 1911, the plaintiff, then Mrs. Wardner, obtained a decree of divorce from her husband in the superior court of Cook county, Illinois, of which county and state she was then a resident.

Ray SteveNS, Circuit Judge. Tbe appeal is from a judgment confirming an award by tbe Industrial Commission. The cause was submitted for tbe appellants on tbe briefs of Burr J. Scott of .Milwaukee, for tbe respondent Industrial Commission on that of tbe Attorney General and J. E. Mes-serschmidi. assistant attorney general, and for tbe respondent Edwards on that of M. E. Davis of Green Ray.

<p> Assault: Charivari: Use of firearms: Instructions to jury: Self-defense: Harmless error. </p> <p>1. The use of firearms against members of a charivari party cannot be justified except where personal violence is threatened and it seems to be necessary for self-defense.</p> <p>2. Upon a trial for assault with intent to do great bodily harm, a statement of the trial judge in his instructions to the jury as to the testimony of a witness who identified the defendant by his voice, is held to have been entirely correct.</p> <p>3. Although in such case the defendant denied the act charged, i. e. the firing of a shotgun into a charivari party, it being possible under the evidence that the jury might disbelieve his story and find that he fired in lawful self-defense, the error, if any, in submitting to the jury the question of self-defense was one favorable to defendant.</p>

<p>Appeal from a judgment of the circuit court for Eau Claire county: E. Ray Stevests, Judge.</p> <p>Action for an accounting and settlement of the affairs of a joint business venture or partnership. The plaintiff is a lawyer residing and practicing at Black River Falls, the defendants are lawyers residing and practicing at Eau Claire. In October, 1911, a destructive flood occurred in the Black river by which much private and public property was destroyed in the city of Black River Falls. It was claimed generally that the flood resulted from the negligence of the La Crosse Water Power Company in the operation of its dam across said river. The complaint charges that in April, 1912, the plaintiff and defendants made a partnership agreement by which they were to act jointly as attorneys in prosecuting claims for all persons who might employ them to sue for and collect" their' claims against the Power Company arising out of said flood, and that in pursuance of that agreement the partnership brought suits for a large number of such claimants and performed professional services in such suits and finally effected a settlement of such claims for a large sum of money, and that the defendants received in payment for such partnership services more than $20,000, of which one half belongs to the plaintiff, hut that said defendants refuse to pay the plaintiff any part thereof. The defendants denied the existence of any such partnership. The action was tried hy the court without a jury, and the court found that no partnership was formed, hut “that plaintiff at the request of the defendants rendered services to the defendants in inducing flood sufferers'to retain the defendants to prosecute their claims and in -procuring assignments of such claims, that he continued to render services to the defendants during the years 1912 and 1913 with reference to the losses sustained and claims made by such flood sufferers which defendants were seeking to recover through actions brought hy them acting as attorneys for such flood sufferersalso “that said services rendered hy the plaintiff to the defendants at their special instance and request are reasonably worth the sum of $915.” There is no hill of exceptions. The defendants appeal from judgment against them in accordance with the findings.</p>

This is a mandamus action commenced in tbis court to compel tbe Circuit Court for Waushara County to change the venue of an action to Milwaukee county. The case is now before us on a motion to quash the alternative writ.

Appeau from a judgment of tbe circuit court for Wood county: ByeoN B. Paeic, Circuit Judge. This is an action by tbe plaintiff to recover $452.03 wbicb be claims is due bim from tbe defendant for legal services rendered for tbe defendant in connection with tbe defendant’s liability upon a bond to insure tbe city of Marshfield against loss through embezzlement or larceny of one Louis B. Carl, superintendent of tbe waterworks and electric light plant of that city.

Pabk, Circuit Judge. Action for libel. Three alleged causes of action are set out in the complaint. ■ The first cause of action is for the publication in the Daily Leader, published [in Grand Rapids, Wisconsin] by the defendant, of an article on the 19th day of November, 1915, which is entitled “What Did He Really Intend to Do?” and another article in the same issue entitled “That Court House Sensation.” The second cause of action is for the publication of an article in the…

Action to construe the will of Erick Olson, begun in the county court of Dunn county and appealed to the circuit court for said county. The parts of the will upon which a construction is prayed for are as follows: “1. ... I give and bequeath to my beloved wife, Mary Olson, all my property both real and personal property, with full power and control of the same. 2.

order of. tbe circuit court for St. Croix county: E. B. BbldeN, Judge. Demurrer to tbe plaintiff’s second amended complaint. Demurrer overruled. Tbe defendant City of Hudson appeals. Tbe cause was submitted for tbe appellant on tbe brief of C. A. Gross and N. 0. Va/rrvwm of Hudson, and for tbe respondent on that of Spencer Haven of Hudson.

The action is on implied contract to recover the value of more than sixteen years of service as a farm hand. The action was -brought in the lifetime of the defendant’s testator, Mrs. M. L. Howard. The defenses pleaded were a general denial and settlement in full. The cause was referred to J. E. Matthews as referee to hear, try, and determine, and was tried during the lifetime of Mrs. Howard. She died, however, before the referee made his report.

Ray Stevens, Circuit Judge. Action for libel. The case was submitted to the jury under proper instructions and the jury returned the following verdict: “We, the jury, duly impaneled to try the issues in the above entitled action, find for the plaintiff, James Barnard* and assess his damages as follows: “Compensatory damages, -. “Punitory damages, $300.” Thereupon plaintiff moved (1) for judgment in his favor; (2) that the verdict be amended by inserting the words “six cents”…

This is an action to recover upon a certificate of insurance issued by appellant to one T. J. White, the respondents being the sisters and alleged heirs of said T. J. White.

Ray Stevens, Circuit Judge. Libel. The defendant is a justice of the peace and the editor of the De Forest Times, a newspaper published at De Forest, Dane county. The facts are: On April 19, 1915, the defendant as a justice of the peace issued a search warrant under ch. 197, Stats.

Ray Stevens, Circuit Judge. The defendant is a fraternal beneficiary society, and the plaintiff sues upon a certificate issued by it insuring him against bodily injury from accident.

Rat Stevehs, Circuit Judge. Mandamus. By ch. 222 of the Laws of 1883 defendant’s predecessors in title obtained the right to build and maintain a dam across Long Lake river just below Long Lake, then in Burnett, now in Washburn, county, with the maximum head of twelve feet.

Appeai, from orders of tbe circuit court for Outagamie county; E'd&AR Y. WeeNER, Circuit Judge. This is an action by tbe plaintiffs to compel tbe receiver of tbe KauJcauna Fibre Company to make a sale and transfer of tbe property of tbe Kauhauna Fibre Company to A. J. McKay of Appleton, Wisconsin, and to cancel tbe contract between tbe receiver and tbe Union Bag and Paper Company for tbe sale of products of tbe Kaukauna Fibre Company.

Weenee, Circuit Judge. In 1908 plaintiff was the owner of several lots in the city of Antigo on which there was a hank building and several other buildings. The assessor incorrectly described the property, and such incorrect description was carried on the tax roll and incorporated in the tax certificate upon the sale of the property for failure of the plaintiff to pay his taxes.

0. Higbee, Circuit Judge. Action to restrain defendants from selling bonds for and erecting a tuberculosis sanatorium. Plaintiff is a taxpayer and a resident of the county of La Crosse.

<p>EkeoR to review a judgment of the circuit court for Rusk county: James Wickham, Circuit Judge.</p> <p>The plaintiff in error, hereinafter called the defendant, and T. E. Malecld were informed against, the information being in. six counts. The first count charged the defendants with unlawfully enticing one Leona Christianson from her home for the purposes of prostitution and of having unlawful sexual intercourse, contrary to sec. 4387a, Stats. The second count charged the defendants with unlawfully and feloni-ously having enticed, etc., one Emma Leighty from her home for the purposes of prostitution and of having unlawful sexual intercourse, contrary to sec. 4581c. The third count charged Malecki with having unlawfully assisted, advised, and encouraged the defendant Weldon in fraudulently enticing, etc., Emma Leighty for the purposes of prostitution and of having unlawful sexual intercourse with her. The fourth count charged the defendant Weldon with aiding and assisting the defendant Malecki in enticing Emma Leighty from her home for the said unlawful purpose. The fifth count charged the defendant Malecki with giving intoxicating liquor to Emma Leighty, contrary to sec. 1557, and the sixth count charged the defendant Weldon with giving intoxicating liquor to Leona Christianson, contrary to sec. 1557.</p> <p>Upon the trial the jury found the defendant Malecki guilty of having given intoxicating liquor to Emma Leighty and the defendant Weldon guilty of having given intoxicating liquor to Leona Christianson, and found both defendants guilty of having fraudulently, deceitfully, and by means of false representations taken Emma Leighty from her home for the purposes specified in the second count, and acquitted them as to the other counts. Motions in arrest of judgment and for a new trial were made and overruled and the defendants were fined upon the fifth and sixth counts, and sentenced, upon the verdict finding them guilty as charged in the second count, to one year in the state prison at Waupun. Execution was stayed pending the determination of the matter on writ of error brought by the defendant Weldon.</p>

<p>Appeal from a judgment of the circuit court for Eau Claire county: James Wickham, Circuit Judge.</p> <p>This is a proceeding to construe the following will:</p> <p>“Superior, Wis., March 6th, 1914.</p> <p>“I, Daniel A. Weymouth, do hereby make my last will and testament:</p> <p>“That it is my wish that all of my property go to my wife' Elizabeth Weymouth so long as she shall remain single.</p> <p>“In case of her marriage she shall have the homestead known as Nos. 1703-1705 58th St., Superior, Wis., and one third of all other property after all debts and accounts are paid, and the balance to go to my brothers and sisters.</p> <p>“L. A. Potter, Daetel A. Weymouth.</p> <p>“Herman Woll,</p> <p>“Witnesses.”</p> <p>The county court found that Daniel A. Weymouth died testate March 9, 1914, a. resident of the city of Superior, Wisconsin, and at the time of his death was the owner of real and personal property valued at $18,000; that he left surviving him Elizabeth Weymouth, the proponent, who claims to be his widow, Charles B. Weymouth and Fred B. Weymouth, brothers, Kilty Howe, a sister, and Newton or Nunez Wey-mouth, who died September. 25, 1914, leaving him surviving his widow and two minor children; that the proponent, Elizabeth Weymouth, was married to one Joseph Gilling (or Gelling) in Michigan December 12, 1886, at which time she was about eighteen years of age and said Joseph was twenty-two; that said parties were never divorced, as deceased knew; that said Joseph was alive on the 21th of March, 1915, and was then a resident of Illinois and has never married again and is still the lawful husband of proponent, if alive; that from the date of marriage proponent lived and cohabited with Gil-ling as his lawful wife in Michigan until on or about 1892, during which time she bore three children, and on or about the year last mentioned proponent left said Joseph Gilling and children and resided elsewhere, and as to the birth and existence of said children deceased was well informed at the time he and proponent commenced living together; that on or about the year 1895 proponent took up her residence in the city of Superior, Wisconsin, with the deceased, Daniel A. Weymouth, at which time nor since was any marriage ceremony performed, although proponent and said deceased lived together and represented to their friends and acquaintances that they were married, and were recognized and treated in the community in which they lived as husband and wife to the time of the death of deceased, March 9, 1914. It also appears, pursuant to stipulation, that during the time last above mentioned and in said city and vicinity the proponent, Elizabeth Weymouth, was known by the name of Bessie Wey-mouth, and that Elizabeth Weymouth, who claims to be the widow of deceased, and Bessie Weymouth/ who from time to time signed deeds with him, are one and tbe same person.</p> <p>The court concluded that the testator, in willing his property to said Elizabeth Weymouth “so long as she shall remain single,” intended she should have it regardless of whether or not her husband, Joseph Gilling, was living or .dead; it was to be hers so long as she should remain single, or until her remarriage to some one other than Gilling, in which case she was to have the homestead and one third of all other property after all debts were paid; and the court ordered and adjudged that “under said will said proponent, Elizabeth Weymouthj, talces a life estate in'all the testator’s property, which estate is, however, subject to be determined by her remarriage, in which case the homestead and one third'of all other property of deceased, after all debts and accounts are paid, remainder to be equally divided among his brothers and sisters.”</p> <p>The case was appealed to the circuit court for Douglas county and a change of venue by stipulation taken to Eau Claire county. The circuit court confirmed the findings of the county court and found in addition thereto that “at the time of the execution of said will the deceased, Daniel A. Weymouth, believed that said Joseph Gilling was dead;” and concluded that proponent took nothing under the first clause of the will, but took the homestead and one third of all other property after payment of debts for her sole use and benefit forever.</p> <p>Judgment was ordered reversing the judgment of the county court appealed from and adjudging and determining the rights of the parties and remitting the case to the county court for further proceedings. Judgment was entered accordingly, from which this appeal was taken.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: W. J. TuRnee, Circuit Judge.</p> <p>Action'for personal injuries. The complaint alleged that on or about September 25, 1912, plaintiff was a passenger upon one of the cars of the defendant company between the city of Kenosha and the city of Milwaukee; that upon reaching Washington street in the city of Milwaukee plaintiff notified the conductor of said'car that she desired to alight and thereupon the conductor stopped the car as requested; that while plaintiff was in the act of leaving the car the mo-toman caused the car to start forward suddenly and violently and without notice or warning to the plaintiff, and that by reason thereof she was thrown to the ground and injured. The answer was an admission of the formal allegations of the complaint, and as to the other allegations a general denial.</p> <p>The case was tried by a jury which rendered the following-special verdict: (1) Plaintiff did not step from the car be-, fore it came to a stop. (2) The motorman did bring the car to a stop and then start it. (3) The motorman was not in the exercise of ordinary care when he started the car. (4) Eailure of the motorman to exercise ordinary care was the proximate cause of plaintiffs injury. (5) Plaintiff was not guilty of any want of ordinary care. (6) Three thousand two hundred - fifty dollars will reasonably compensate plaintiff for the injuries she sustained.</p> <p>The trial court was of the opinion that the verdict of the jury evinced passion and prejudice, the jury in a former trial having assessed the damages at $700; but in view of the fact that there had been two trials the court concluded to reduce the damages to $1,250, and plaintiff had judgment accordingly. Other facts are stated in the opinion. From the judgment defendants appeal.</p>

<p>Appeals from judgments of the circuit'court for Eond du Lac county: Chestee A. Eowleb, Circuit Judge.</p> <p>The first above entitled action of the State ex rel. Pamperin against the Oconto Electric Company is quo warranto to oust the electric company from the exercise of any franchise as a public utility in the city of Oconto. Reference to this action will hereinafter be made as “the quo warranto action.” The second above entitled action was instituted pursuant to a stipulation of the parties at the suggestion of the railroad commission of the state of Wisconsin for the purpose of determining the validity of two street-lighting contracts, the legal status of the two companies as public utilities in the city of Oconto, and which, if either of the two companies, has the right to do the street lighting of the city for the period of five years from August I, 1914. Reference to this action will hereinafter be made as “the equity action.” We will speak of the Oconto Electric Company as the “Oconto Company” and of the Peoples Land & Manufacturing Company as the “Peoples Company.” The two actions were tried together and the trial court considered them together and determined the questions involved in both actions in one decision. The facts involved in the two actions are necessarily numerous and in many respects sharp conflicts exist in the evidence supporting the ultimate conclusions of fact as found by the trial court. We shall adopt the trial court’s statement of facts of the case as the ultimate facts shown by the evidence and on which the rights of the parties rest:</p> <p>“The two companies are both and for many years have been doing business as public-service lighting corporations in the city of Oconto. Only one at a time has ever done, or from the nature of the situation ever can do, the street lighting. The competition between them has been extremely bitter and strong animosity exists between T. A. Pamperin and W. A. Holt, who are and at all times have been the ruling minds of the companies. Mr. Pamperin is manager of the Peoples Company and Mr. ITolt is the principal owner of the Holt Lumber Company, which supplies and always has supplied current to the Oconto Company, and which has supplied funds to it as needed. The lumber company utilizes the sawdust and shavings from its mills as fuel to produce the current furnished to the Oconto Company, which would be practically worthless if not so used. Mr. Holt is a brother of the principal owner of the Oconto Company, who is a nonresident of the state, and looks after the interests of his brother. Both companies are Wisconsin corporations. There is nothing in the articles of incorporation of the Peoples Company expressly purporting to authorize it to do electric lighting, its purposes being expressed as ‘dealing in real estate, manufacturing electrical goods, and doing a general business.’</p> <p>“Mr. Pamperin in 1890 took charge of the only electric lighting plant then in Oconto. He ran this plant in one capacity or another until it was purchased by the Peoples Oom-pany at sheriff’s sale in 1897. This plant did both the commercial and municipal lighting until it was burned in 1899, and during that year its contract for street lighting expired. In October, 1899, the city entered into a contract for street lighting with W. A. Holt, and in January, 1903, another contract for street, lighting was let to him. During this time the Peoples Company did all the commercial lighting in the city.</p> <p>“In April, 1904, Holt was elected mayor. Shortly prior to his election he assigned his contract for street lighting to W. H. Young, an employee of the Holt Lumber Company, without consideration of value. The Holt Lumber Company had been furnishing the electricity for the city lighting and continued to do so. During this time that Holt and Young-held the contract, the monthly payments from the city were turned directly over to the Holt Lumber Company. It is obvious that during this time the interests of Holt and Young in the contract with the city were merely nominal, and that the lumber company was the real party in interest under .the contract.</p> <p>“During 1904 an ordinance was passed by the city granting to the Peoples Company a franchise to do both street and municipal lighting. In December, 1905, just prior to the expiration of the Iiolt or Young contract, the city advertised for bids for street lighting and both Young and the Peoples Company submitted bids. These bids were rejected, and in February following readvertisement was had and bids were submitted by the Peoples Company and the Oconto Company, which had been organized in the meantime, the incorporators being three employees of the Holt .Lumber Company. The Holt Lumber Company, in February, 1906, sold its street-lighting plant to the Oconto Company, and at the same time entered into a contract to furnish it power for the generation of its electricity. In July, 1906, Holt being then mayor, an ordinance was passed by the city granting to the Oconto Company the privilege to do commercial lighting, and in August, 1906, the city contracted with that company for street lighting for three years. At the expiration of this contract, in 1909, the city advertised for bids. Only the Peoples Company submitted a bid, and the Peoples Company was awarded a contract and began street lighting under it in August, 1909. At the time the Oconto Company sold to the Peoples Company all its poles and wires used for street lighting, and disposed of such other street-lighting equipment as it was not able to use in commercial lighting.</p> <p>“In December, 1909, the Oconto Company took out an indeterminate permit under the Public Utilities Law. At this time it was doing only commercial lighting.</p> <p>“The Peoples Company was not doing street lighting and had never done it when the Public Utilities Law was passed. This company did not take out an indeterminate permit under the Utilities Law, but claims that it has such under the automatic action of ch. 596, Laws 1911, which by its terms brought all public-service corporations under the Public Utilities Law and gave them indeterminate franchises in lieu of those previously exercised. . . .</p> <p>“In January, 1914, the common council advertised for bids for street lighting for a period of five years from August, 1914. At a regular meeting of the council on February 3, 1914, a bid was received from the Peoples Company at $47 per light per year for all-night and $43 for ‘moon-light’ schedule service, and one from the Oconto Company at $30 per light per-year which did not designate which schedule of service it would give. The bids were referred to the committee on lights and the council by motion laid over the matter until the regular meeting in May, 1914. This meeting of the council was ‘adjourned subject to the call of the mayor.’ On Eebruary 25th another meeting of the council was had, pursuant to the call of the mayor, in terms as follows : ‘The common council will meet in February adjourned meeting, AVednesday evening, February 25, 1914, at 7:30 o’clock, for the purpose of finishing business, etc.’ At this meeting a motion was made and carried to rescind the action of the council putting over the letting of the lighting contract, and it was then moved and carried to enter into a contract with the Peoples Company for a period of five years from August, 1914, at $28 per light per year for all-night every-night service. Mr. Pamperin had this contract in readiness for signatures, and it was signed the same evening. Mr. O’Kelliher was mayor of the city, was the attorney of the Peoples Company and Mr. Pamperin generally, and was the attorney for the relator in the quo warranto action which was then pending. The relator in this action is the wife of Mr. Pamperin, and she is the principal stockholder in the Peoples Company.</p> <p>“On March 5th, before its bond to secure the performance of said contract had been furnished, the Peoples Company applied to the railroad commission to increase the rate for the street lighting and to fix a rate for commercial lighting. The Oconto Company was made a party to this proceeding, and a hearing was finally set for June 12, 1914.</p> <p>“On May 20, 1914, after the council elected that spring had taken office, a contract with the Oconto Company was formally executed for the furnishing of street lights at $30 per light, pursuant to its bid above mentioned. This company had notified the city in April that it would furnish all-night every-night service or service on a moon-light schedule, as the city might elect.”</p> <p>The court determined</p> <p>(1) That the Oconto Company has had a valid “indeterminate permit’’ as defined in the Public Utility Law of this state for both street and commercial lighting in the city of Oconto since December 23, 1909, and that it never abandoned the public service of street lighting nor “suspended” such privilege within the meaning of such Utility Law.</p> <p>(2) That the Peoples Company has had a valid “indeterminate permit” since July 8, 1911, to do street and commercial lighting in Oconto.</p> <p>(3) That the contract between the city and the Peoples Company, dated February 25, 1914, is valid, but that the rate for service specified therein is subject to modification by the railroad commission pursuant to law; that the Peoples Company is not entitled to specific performance thereof; and that the city is liable in damages resulting from a breach by ihe city.</p> <p>(4) That the contract between the city and the Oconto Company, dated May 20, 1914, is valid, but the rate for service specified therein is subject to modification by the railroad commission pursuant to law, and that in case of a breach thereof by the city the company is entitled to damages resulting from such breach.</p> <p>(5) That upon the filing of such contracts with the railroad commission the specified rates became presumptively reasonable and binding on the parties until such commission should fix different rates, which rates would then be obligatory on the parties.</p> <p>(6) That none of the parties recover costs.in the equity action, except that the Oconto Company recover $3.82, the one half of its disbursements for state tax, clerk’s and sheriff’s fees.</p> <p>The city of Oconto as defendant in the equity action has taken no active interest in the controversy, except that it asserts the invalidity of the contract dated February 25, 1914, between it and the Peoples Company.</p> <p>TRe Peoples Company Ras appealed from tRe judgment entered in tRe quo warranto action.</p> <p>All of tRe parties to tRe equity action Rave taken an appeal from parts of tRe judgment entered tRerein.</p>

<p>AipREAt. from a judgment of the circuit court for Wood county: Byron B. Park, Circuit Judge.</p> <p>On December 10, 1913, Anna Kern sold to Silber and Sebeer, all of the parties at the time being residents of the city of Milwaukee, a farm in Wood county, together with certain personal property thereon, and to secure the payment of $2,000, which was part of the purchase price of the farm and personal property, she took back a chattel mortgage from the purchasers dated December 10, 1913, upon the personal property. The chattel mortgage recites that the mortgagors, Silber and Scheer, reside in the city of Milwaukee, and that part of the description of the personal property material here is as follows:</p> <p>“Three (3) horses. . . . Said property is now on the north half of the northeast quarter (N. -J of the 2ÑT. E. J), section thirty-one (31), township twenty-three (-23) north, of range five (5) east, Wood county, Wisconsin. All of the said property being now in the possession of said first party in the county and state as aforesaid, and free from all incum-brance.”</p> <p>It appears that at the time of the execution of the chattel mortgage Silber intended to remove to the farm in Wood-county and that he did so remove within two or three days after the mortgage was executed. Scheer and his family continued to reside in the city of Milwaukee until April 22, 1914, when they also moved upon the farm. On January 24, 1914, the chattel mortgage was filed with the town clerk of the town of Sigel, Wood county, the town in which the farm was situated. At the'time the chattel mortgage was recorded Silber was residing upon the farm and Scheer in the city of Milwaukee. On March 2, 1914, Anna Kern assigned the mortgage to the plaintiff, Jesse Gappon. August 20, 1914, Silber and Scheer sold for value to defendant two of the horses which they purchased from Anna Kern and which were attempted to be described in the chattel mortgage. After making the bargain for the horses but before paying for them, except a down payment of $10, defendant went to the office of the town clerk of the town of Sigel to inquire as to liens upon the property. The clerk was not at home, and his wife looked at the files hut failed to find anything. On his way home the defendant met the clerk and renewed his inquiries and was advised by the clerk that he could not remember, and the clerk promised that he would examine the records -and write him; and he did write defendant advising him of the existence of the mortgage. But without waiting to hear from the clerk the defendant paid the balance of the purchase price and took the horses. After receiving the town clerk’s letter the defendant went to the mortgagors and secured a guaranty to the effect that the horses were free and clear of liens and that the mortgagors would protect him. September 29,1914, Silber and Scheer were arrested for selling property covered by chattel mortgage, contrary to the statute. The case was continued, and on October 14, 1914, it was settled in accordance with the statute and dismissed. It appears that by the settlement Silber and Scheer deeded to plaintiff their equity in the real estate, on which they had paid $1,000, turned back all of the personal property remaining on the farm, and in addition paid $100 in cash. Silber and Scheer claim that this was to he a settlement of all claims. Plaintiff claims that it was a settlement of special damages accruing by reason of the sale of the chattel-mortgaged property. In the property turned back was some personal property which Silber and Scheer had acquired after the purchase of the farm and not covered by the chattel mortgage. Shortly after the settlement plaintiff commenced this and two other actions to recover property described in the chattel mortgage.</p> <p>The court submitted the case to the jury, and the jury found (1) that the description of the horses in the chattel mortgage from Silber and Scheer to Anna Kern was insufficient so as to render the chattel mortgage void as to the defendant; (2) that there was an agreement between Silber and Scheer and Anna Kern that Silber and Scheer could sell or exchange the horses and stock described in the chattel mortgage, Exhibit A, and replace the same with other horses and stock; and (8) that the value of the horses involved in this action was $325. The parties then made the usual motions. Upon motion of the plaintiff the court changed the answers to questions 1 and 2 from Yes to No, and upon the verdict as so changed directed judgment for the plaintiff in the sum of $325, and further found that plaintiff was entitled to judgment in any event, notwithstanding the verdict, for such sum. Judgment was entered accordingly, and defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Shawano county: Edgar Y. Weenee, Circuit Judge.</p> <p>This action was brought to recover on a bond given March 7, 1911, for one year and renewals of said bond issued in 1912, 1913, and 1914 executed by the defendant company as surety for one G. J. Moses, cashier of plaintiff hank.</p> <p>The complaint claims that Moses, while cashier of plaintiff hank, converted money belonging to the bank to his own use and was guilty of larceny and embezzlement in so doing; tbat while cashier he permitted one .John II. Walechka, a former cashier of plaintiff bank and principal stockholder thereof, to obtain sums of money from the bank, and that these sums taken by Walechka were not loans but constituted larceny or embezzlement.</p> <p>Defendants denied all liability and alleged that there was no larceny or embezzlement by Moses or Walechka or any one else, and that all money received by Moses or Walechka was received .by them as loans. Several defenses are set up in the answer, some of which will be referred to in the opinion herein.</p> <p>The case was tried by the court and a jury. After the evidence was all in the court overruled a motion by defendants for a directed verdict. The following general verdict was returned by the jury:</p> <p>“We, the jury, duly impaneled to try the issues in the above entitled action, find for the plaintiff and assess its damages at the sum of $9,861.34 dollars.”</p> <p>Judgment was entered in favor of the plaintiff upon the verdict, from which this appeal was taken.</p>

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>Tbe appeal is from a judgment of tbe circuit court confirming tbe order of tbe Industrial Commission dismissing tbe application of plaintiff and denying compensation.</p> <p>Tbe plaintiff, a married man tbirty-seven years of age, worked for tbe defendant railway company as boiler-maker helper and blacksmith at $2.40 per day. He was injured by a piece of steel penetrating bis right arm, and was totally disabled from tbe time of tbe injury, September 30, 1914, to January 2, 1915, when he returned to work for the defendant helping take stock and assisting on books and doing other work. When applicant returned to work bis wrist was some-wbat stiff, but much of tbe stiffness had disappeared at the time of hearing. He was left, however, with a permanent partial disability; he has stiffness of the wrist to the extent of fifty per cent, loss of motion thereof, but can use his hand for many kinds of work. He afterwards engaged in the lumber business with a partner. From the date of injury to January 1, 1915, appellant was paid compensation as for total disability and his'expenses for medical attendance.</p> <p>The Commission denied compensation. The circuit court confirmed the findings and decision of the Industrial Commission and allowed no compensation.</p>

H. Reid, Judge. Action in equity brought by plSintiff as a stockholder and creditor of the defendant the Antigo Gas Company, in its he-half.

<p> Guaranty: Note secured by chattel mortgage: Subsequent agreement between mortgagor and mortgagee: Power of sale: Application of payments. </p> <p>1. The rights of a guarantor of one of several notes secured by a chattel mortgage could not he impaired or diminished .by any contract made between the mortgagor and the mortgagee subsequent to the making of the guaranty.</p> <p>2. A chattel mortgage gave the mortgagee power, in case of a default in'payment of any of the notes secured thereby, to declare the whole debt due and to take and sell the' property. Without attempting to proceed under such power, the mortgagee, after two of the four notes secured had become due, procured from the mortgagor an agreement authorizing him to sell the property and apply the proceeds upon any of the notes without affecting liability on the others. Held, that as against a guarantor of one of the notes already due such agreement was of no effect, and that the proceeds of a sale thereunder must be applied upon the notes in the order of their maturity.</p> <p>3. When a debtor makes a payment without application the creditor cannot apply the amount of the payment to a debt not due, to the exclusion of one due or overdue.</p>

<p> Master and servant: Injury to railway employee: Federal statutes: negligence of fellow-servant: Assumption of risks: Defective sledge hammer: Simple tool. </p> <p>1. Under the federal statutes a railway employee engaged in interstate commerce may recover for personal injuries caused by the negligence of a fellow-servant, and does not assume the risk thereof. Whether or not the fellow-servant was theretofore incompetent and known hy the employer to he so, is immaterial.</p> <p>2. A complaint alleging that, while plaintiff was holding against a rivet head a chisel which a fellow-servant was striking with a sledge, a glancing blow struck the chisel from his hand and hurled it against his head, and that defendant was negligent in furnishing and allowing the use of the sledge, which was defective and out of repair in that its head was battered- and chipped and its handle bent and crooked, but not showing that plaintiff had been engaged in such work for any appreciable time before the injury or that he had had any opportunity to examine the sledge or know of its condition, is held to state a cause of action. Under the circumstances stated the sledge cannot be said to have been a simple tool.</p>

<p>Appeal from a judgment of the circuit court for Dodge county: Martin L. Lueck, Circuit Judge.</p> <p>This action "was brought to abate an alleged nuisance claimed to have been maintained by the defendant village. The’ relief demanded in the complaint is (1) damages; (2) that defendant be enjoined from continuing the alleged nuisance; and (3) that defendant be compelled to install and maintain a sewerage system.</p> <p>The answer put in issue the material allegations of the complaint. After the trial the court made a detailed statement of the established facts, which appears in the record, and made findings of fact and conclusions of law; also filed an opinion in the case bolding that upon the established facts no case was made against the defendant, and ordered judgment in favor of the defendant dismissing the complaint with costs. Judgment was entered accordingly, from which this appeal was taken.</p> <p>The cause was submitted for the appellant on the briefs of Roehr & Steinmelz of Milwaukee; and for the respondent on that of T. L. Doyle of Eond du Lac.</p>

<p> Contracts: Validity: Interstate commerce: Unlicensed foreign corporation. </p> <p>1. A purchase of goods in this state for shipment to and sale in other states constitutes interstate commerce; and the fact that the title to the goods passes to the purchaser in this state is immaterial.</p> <p>2. The fact that the purchaser in such a case, a foreign corporation, has not complied with sec. 17706, Stats., does not render the contract void on its behalf.</p>

Lueck, Circuit Judge. The John Komula Company is a firm consisting of John Komula, his sons and sons-in-law, and is engaged in the business of logging. The firm purchased a tract of timber in November, 1912, and in September, 1913, they requested Morner, from whom they purchased the timber, to take out a policy of workmen’s compensation insurance for them.

Lueck, Circuit Judge. A carload of apples was shipped over the defendant’s railway and carferry line by one Wayne Mick at Beulah, Michi■gan, to the plaintiff at Wankesha, Wisconsin, December 22, 1914, and were badly frozen in transit, and this action is brought to recover damages therefor. It was tried by the court without a jury.

Appeai, from an order of the circnit court for Waukesha county: Maetin L. Lueok, Circuit Judge. Affirmed. The appeal is from an order sustaining a general demurrer to plaintiff’s complaint.

<p>Appeal from an order of the circuit court for Waukesha county: .Mahtin L. Luecic, Circuit Judge.</p> <p>The appeal is from an order sustaining a general demurrer to the complaint.</p>

<p>Appeal from an order of the circuit court for Waukesha county: Martin L. Lueck, Circuit Judge.</p> <p>The appeal is from an order sustaining a general demurrer to the complaint.</p>

<p>Appeal from a judgment of the circuit court for Ozaukee county: Maetik L. Lueck, Circuit Judge.</p> <p>This is an action by the plaintiff to recover from J. Oil-herb Hickcox (hereinafter designated the defendant) $197 damages and $103.33 costs on an alleged contract of guaranty whereby the latter is alleged to have guaranteed the plaintiff against loss through the failure of Ered Turner to pay it for butter sold to him. Ered Turner, not having been served, makes no appearance in person or by attorney in the action.</p> <p>Ered Turner did business under the name of the Earm Products Company. He applied to the plaintiff, engaged in the manufacture and sale of butter, to purchase butter from it on credit He was informed by its officers that he could purchase butter from it on credit only if he brought a written guaranty from a responsible guarantor.</p> <p>On July 29, 1913, the defendant Hickcox gave to Turner the following letter, which Turner delivered to the plaintiff:</p> <p>"Thiensville Dreamery,</p> <p>“Thiensville, Wis.</p> <p>“Gentlemen: I will guarantee your account with Ered Turner up to $250. My understanding being that settlements will be made on the first and fifteenth of each month.</p> <p>“Yours truly, J. Gilbebt Htceioox.”</p> <p>The plaintiff made no formal reply of acceptance to this letter, but after inquiring as to Hickcox’s financial condition shipped butter to Turner from July 30, 1913, to September 2, 1913.</p> <p>On August 16, 1913, the account up to and including August 15, 1913, then amounting to the sum of $197, was paid by a check which had the name of J. Gilbert Hickcox as signer.</p> <p>On September 2, 1913, Hickcox wrote to the plaintiff withdrawing the guaranty for the account of Fred Turner and no more shipments of butter to Turner were made by the plaintiff. The unpaid balance of the account for deliveries of butter to the last of August amounted to $197.24.</p> <p>The defendant alleges that his-letter of July 29, 1913, was merely an offer of guaranty, and that no acceptance of the proposal was ever made by the plaintiff and that he at no time considered himself bound by the offer.</p> <p>A trial by jury was waived, and the court found that a valid contract of guaranty existed between the plaintiff and the defendant and that the defendant was indebted to the plaintiff for the balance of the Turner unpaid account, with interest. Judgment for recovery of this amount, with costs of action, was entered against the defendant Hickcox.</p>

Action to recover moneys claimed to Rave been illegally paid out of plaintiff’s treasury by tbe defendants, wbo were officers of tbe plaintiff town. After stating tbe corporate character of plaintiff tbe complaint alleges: “2.

Malpractice. Demurrer. Briefly tibe complaint shows the following facts: That the defendant is a licensed physician and surgeon and that on the 9th day of July, 1913, he was called in consultation with a physician who had previously attended the plaintiff during childbirth; that at the solicitation of the defendant the plaintiff discharged her physician and employed defendant; that he represented himself to her as a very skilful man of remarkable ability in his profession ;…

<p>Appeals from a judgment of the municipal court of Brown county: Carlton MeRelll, Acting Judge.</p> <p>The appeal by plaintiff is from so much of a judgment of the municipal court as gives plaintiff less damages than it claims, by defendant from the judgment denying him relief.</p> <p>The defendant was one of the original stockholders and directors of the plaintiff, a Wisconsin corporation organized in May, 1914. The defendant and one John Ketter, also a stockholder and director, both lived in Green Bay before and after the incorporation, and defendant as treasurer and manager of the company, and John Ketter as director and assistant manager, conducted the affairs of the company at its place of business in Green Bay. Jorgensen as such treasurer had authority to draw checks upon the company’s account kept at Green Bay. The remaining stockholders, Benjamin Sachs and Meyer IST. Finder, both of Chicago, Illinois, were directors and the said Sachs president of the company.</p> <p>By the by-laws of the plaintiff the following were described as the duties of the president:</p> <p>“The management of every department of the company shall be under his control. The several officers of the company shall be responsible to him for the proper and faithful discharge of their several duties and shall make such reports to him, touching the business of the company under their charge, as he may from time'to time require.”</p> <p>At about the time of the incorporation Jorgensen, who had had many years’ practical experience in the fish business, was by resolution of the board of directors employed under a written contract, to be executed by the company, as manager for five years from April, 1914, at a salary of $50 per week, and John Ketter, by a similar resolution, was employed as assistant manager for five years at $35 per week. The stock was equally divided between the Chicago and the G-reen Bay stockholders as follows: Sachs and Einder each fifteen shares, Jorgensen twenty shares, and Ketter ten shares, of a par value of $100 each.</p> <p>At the time of the organization neither J orgensen nor Ket-ter had sufficient cash to pay for all of their subscriptions. By the common understanding they were permitted to make payments thereon from time to time. At about the time of the organization it was proposed by the four to make a written agreement which in substance provided that the stock of all should be deposited with the Chicago Title & Trust Company of Chicago so that in case of differences arising between the parties such Title & Trust Company, its president, or some person selected by it, should act as arbiter' between the parties or carry on the business. This agreement was signed by J orgensen and Ketter, but never by Sachs and Finder. J or-gensen, however, knew of this failure on their part to sign at least a year before his discharge. The corporation from the beginning borrowed about $40,000 from the company in which Sachs was interested in Chicago and used the same in tbe construction of buildings and tbe conduct of tbe business, and also owed about $10,000 to tbe bank at Green Bay for loans, together with other accounts, and was in May, 1916, with less assets than liabilities. Tbe corporation continued with varying business success until tbe spring of 1916. In May, 1916, tbe president, Sachs, learned of substantial overdrafts by Jorgensen, among others a check to pay bis life insurance premium of $30.50, another for bis personal use of $40, and a third to pay bis taxes of $186.68, all drawn in April, and finally that, be drew out practically all tbe cash on hand, and, as found by tbe court, converted tbe same to bis, own use to an amount of $1,601.97 by a check on May 8th, and thereupon Sachs discharged defendant.</p> <p>From defendant’s own testimony it appears that at tbe time this money was drawn out be knew that tbe corporation was practically insolvent and owed large sums of monpy that it bad borrowed, that he bad no authority to withdraw tbe sum, and that it was without tbe consent of tbe president and over bis specific objection to any such overdraft. It also appeared that Jorgensen bad permitted Ketter to overdraw his account so that at this time Ketter’s overdraft practically equaled tbe amount be bad theretofore paid for bis stock, namely, $1,000. • Ketter thereupon resigned and surrendered bis stock.</p> <p>The defendant claimed that be was authorized to withdraw this money for tbe purpose of protecting what he thought- were bis rights against tbe plaintiff in tbe belief that tbe $2,000 worth of stock to which he subscribed bad not been issued to him and was withheld and that tbe Chicago directors had not treated him fairly in that tbe contract with reference to tbe depositing of the stock in escrow with tbe Chicago Title & Trust Company of Chicago bad not been signed by them or its provisions carried out. Although the jury found to tbe contrary, yet tbe defendant admitted on the trial that before the commencement of the action demand bad been made upon him for the return of the money and that he had refused to do so.</p> <p>The plaintiff sued defendant, Jorgensen, alleging the conversion of the $1,601.97. The defendant counterclaimed for $2,000 which he claimed was due him because he had paid for the stock and had not received the same; also for.$5,000 damages on the claim that his contract of five years from May, 1914, had been terminated by the plaintiff without cause and that he was entitled to damages therefor. Defendant withdrew his counterclaim for the $2,000, it appearing upon the trial that the stock had been sent him and sent back by him to Chicago.</p> <p>By a special verdict it was found substantially as follows: First, as answered by the court, that the defendant on May 8, 1916, took into his possession $1,601.97 of money, the property of thé plaintiff, and converted the same to his own use before the commencement of the action. That before it discharged the defendant the plaintiff demanded that he return this sum; and by a further answer that the defendant did not refuse to return this money; by the fourth question that the defendant as general manager ánd employee breached his duty as such to the plaintiff; and then by the fifth question that such breach did not constitute justifiable grounds for his discharge. By the sixth question the jury found that the defendant’s damages by reason of such discharge were $2,500. This answer was modified by the court, under his view of the rule of damages, to the sum of $850. The jury by the seventh question found that the bringing of the action by the president was not ratified by the plaintiff corporation. This answer was changed by the cou^t to the affirmative.</p> <p>After motions by the respective parties the court rendered judgment upon the corrected verdict for the difference between $1,601.97 with interest from May 8, 1916, and the sum of $850, the amount that was the agreed wage from the date of the discharge to the time of trial, making $792.82 as plaintiff’s damages and costs and disbursements. The plaintiff appeals, claiming that it should have judgment for the entire amount found by the court to have been converted by the defendant. The defendant appeals, claiming that he should have allowed the $2,500 damages found for him by the jury; and also that the court was not justified in finding that the action had been properly started cn behalf of the plaintiff corporation.</p>

Action in equity, originally brought by the administrator of the estate of a deceased husband against the administrator of the estate of his deceased wife demanding judgment that certain securities be declared to be the property of the plaintiff administrator and that the defendant administrator be adjudged to hold the same in trust for' the plaintiff administrator.

N. Eis jokd, Circuit Judge. Action for specific performance of eight alleged contracts for purchase of land. The complaint was to this effect: In April, 1913, E. J. Stevenson, as agent for plaintiff, the holder of the legal title to the lands in question (describing the same, consisting of a one-half section) with power to sell the same, negotiated with defendants Thompson & Flieth Lumber Company, W. IT.

N. Risjoud, Circuit Judge. This is an action by the plaintiff, Alfred Herrem, an infant, by his gnardian ad litem, Arnt Herrem, to recover damages for an injury alleged to have been caused through the negligence of the defendant, 8. A. Konz, who is engaged in the lumber manufacturing business at Rib Lake, Taylor county, Wisconsin.

Appeai, from a judgment of the circuit court for Iron county: G. N. Risjobd, Circuit Judge. Action for personal injury. In February, 1913, plaintiff, then about fifty years of age, came to this country from Greece. Since his arrival and up to ’the time of his injury on June 12, 1915, his principal employment was that of a section repair man on railroads.

■ Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge. In May, 1914, Qus DrewetzJci was employed by an agent in Chicago to work for plaintiff in a logging camp near Phelps, Wisconsin. When he arrived at Phelps plaintiff’s bookkeeper sent him to the camp by its logging train and told him to come to Phelps to get his pay.

. Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge. Sufficiency of findings of the Industrial Commission to sustain an award for a penalty. November 9, 1915, one Zander, an employee of-the plaintiff, received injuries resulting in his death.

Aepbai, from an order of tbe circuit court for Bayfield county: G. N. Risjobd, Circuit Judge. Tbe appeal is from an order overruling tbe demurrer of tbe defendant McIntosh to tbe complaint. [No brief for appellant on file.]

<p>Appeal from a judgment of the circuit court for Dane county: E. Ray Stevers, Circuit Judge.</p>

Proceedings were commenced in the county court for probate of an instrument purporting to be the last will of Agnes Griffith, deceased. It was refused. The proponent, Julia Enright, sister of the deceased, appealed to the circuit court. The result was that the decision of the county court was reversed and judgment entered directing probate of the will.

Fkitz, Circuit Judge. Tbe appeal is from a judgment in favor of the plaintiff. Tbe action was brought to recover damages for tbe death of plaintiff’s husband, an employee of tbe defendant. At tbe place of tbe accident, which is about three or four hundred feet west of Merrill Park passenger depot in Milwaukee, are the two parallel main tracks of the defendant, the one to the south being the east-bound.

C. Higbee, Circuit Judge. This is an appeal to tbe circuit court from tbe determination of tbe board of public works and tbe common council of tbe city of La, Orosse awarding damages to abutting owners on account of tbe construction of a viaduct over tbe tracks of tbe Chicago, Milwaukee & St. Paul Railway Company on Rose street in said city in accordance witb an order of tbe railroad commission of Wisconsin.

Appeax from a judgment of tbe circuit court for Dane county: E. Rat SteveNS, Circuit Judge. Tbe appeal is from a judgment affirming an award of tbe Industrial Gommission in favor of defendant Mrs’. Thomas Gough. One John Gougb was accidentally killed while in tbe employ of tbe Flanner-Steger Land & Lumber Company. Tbe plaintiff, widow oí said John Gougb, made application for compensation before tbe Industrial Gommission; bis mother, Mrs. Thomas Gough, also filed her claim.

Appeals from an order of the circuit court for Marathon county: A. H. Reid, Circuit Judge. The appeals are from an order overruling demurrers to the complaint for insufficiency and misjoinder of defendants.

Appeals from an order of the circuit court for Marathon county: A. H. Reid, Circuit Judge. The appeals are from an order overruling demurrers to the complaint for insufficiency and misjoinder qf defendants.

II. Reid, Circuit Judge. This is an action by Louise Malancy to recover a fund of $1,000 from tbe Modern Woodmen of America, a fraternal benefit society, wbicb was originally a party to tbe suit, upon tbe membership of William Malancy, ber husband, in tbe society. Tressie Malancy, mother of William Malancy, also makes claim to tbe fund. Tbe Modern Woodmen of America paid tbe fund into tbe court to abide tbe result of this action.

Eebob to review a judgment of tlie municipal court of Dane county: August 0. Hoppmanii, Judge. Assault with intent to roh. The plaintiffs in error, Al-slieimer and Kronenberg, hereinafter designated defendants, on the 29th day of March, 1917, were convicted of the crime of committing an assault with intent to rob, being unarmed.

Action for money had and received. The essential facts are these: The defendant, a joint school district maintaining a high school, voted July 1, 1914, to issue five per cent, bonds for $60,000 to build a new schoolhouse and furnish the same. July 16, 1914, the plaintiffs, who are dealers in bonds with an office in Chicago, made a bid of $62,400 for the whole issue, subject to approval by their attorneys of the legality of the bond issue.