Volume 166 — Wisconsin Reports

H. Reid, Circuit Judge. This action was brought by the executor of the estate of Walter II. Phillips, who died May 25, 1915, to set aside an assignment executed by Phillips on July 15, 1911, to the defendant of a mortgage for $10,900 running from the Oconto Brewing Company to Phillips, bearing date December 11, 1909. Tbe defendant for some twelve ox fifteen years before tbe execution of said assignment bad been tbe attorney, adviser', and intimate friend of Mr. Phillips.

H. Reid, Circuit Judge. Action for a refund of taxes on real estate paid under protest. Plaintiff owns lots 4 and 5 in section 3, town 33, range 6 east, lying on opposite sides of tbe Wisconsin river. It also owns lots 1 and 8 in section 10, lying on opposite sides of tbe river immediately south of lots 4 and 5.

<p>Appeal from a judgment of the circuit court for Columbia county: Chestee A. Eowlee, Circuit Judge.</p> <p>Nancy H. ITillyer, a widow, died testate May 28, 1883, leaving an estate of about $8,885. She had one son, Dray-ton A. Hillyer, her sole heir at law, whom she made her beneficiary by her will. She gave him certain real estate in fee and the “use only” of the residue of her property “for and during the term of his natural life only.”</p> <p>The will further provided that “after the death of my said son, D. A. Hillyer, I hereby direct that all of my estate remaining, both real and personal, shall be given to his child, or children,” and that if said D. A. Hillyer should die without issue, “all the estate that remains at the time of his death” as aforesaid was devised and bequeathed unto certain nephews named.</p> <p>The will contained the following item:</p> <p>“Sixth. If it should appear to the executor to be hereafter associated with my said son, D. A. Hillyer, in executing this my last will and testament, that from sickness long continued or from any other providential cause the money arising from the use of my said estate should not be sufficient to give the said H. A. Hillyer all the reasonable comforts of life, then and in that case my said executor is hereby authorized and empowered to pay to the said D. A. Hillyer such sum or sums (at such time or times as to him may seem meet) as may be necessary for his comfortable support and care, not to exceed, however, in any one year, the sum in the aggregate of three hundred dollars.”</p> <p>The will appointed Drayton A. Hillyer and Miles T. Al-verson executors. Alverson declined to act. Hillyer qualified and filed a bond in the sum of $10,000 with four sureties, viz. Henry Little, E. K. Thayer, James G-owra'n, and George W. Morrison, each of whom is now deceased, but one of whom, George W. Morrison, was living at the time of the trial in the circuit court and died after the entry of judgment. [The defendant Siroud is Morrison’s executor, and the other defendants are the heirs of one of the deceased sureties.]</p> <p>Drayton A. Hillyer took possession of the property, and in 1884 filed a partial account showing $6,687.85 worth of property in his hands. In 1894 he filed a corrected partial account, which showed that $1,700 of the securities making up the amount of his account in 1884 never came to his hands, which left him charged at that time with $4,983.30. Drayton A. Hillyer died December 15, 1913. A claim was presented against his estate by the administrator de bonis non of Nancy H. Hillyer for the amount of her personal estate adjudged in his hands as executor and was on December 21, 1914, allowed in favor of the administrator de bonis non of Nancy H. Hillyer at $5,078.85.</p> <p>This action was duly commenced in May, 1915, in the name of the county judge of Columbia county, Wisconsin, to recover on the bond of the executor of Nancy H. Hillyer. The action was tried before the court, findings of fact and conclusions of law made, and judgment directed thereon in favor of the plaintiff for the sum of $5,436.50. Judgment was entered accordingly, from which this appeal was taken.</p>

Fowler, Circuit Judge. This action was brought by the plaintiff, a judgment creditor, to wind up the affairs of the defendant Columbia County-Electric Light & Power Company, sequestrate its assets, enforce unpaid stock subscriptions, and test the validity of outstanding bonds. All bondholders and stockholders were made-parties defendant. The bondholders counterclaimed for enforcement of their-bonds and foreclosure of the trust deed securing the same.

B. Quinlan, Circuit Judge. Action to recover for an alleged conversion of $280 and interest. The claim of the plaintiff was that he placéd $280 with the defendant with instructions to use it in paying his note of $275, held by the Cecil State Bank, which was given by plaintiff to one Kuehl, and indorsed by him to said bank, and that, instead of doing so, it paid the money to Kuehl.

B. Quihxah, Circuit Judge. Action to recover damages for personal injuries. Plaintiff, the employee, and defendant, the employer, were both under the Workmen’s Compensation Act. Defendant oper-. ated. an electric power plant at High Ealls and plaintiff was engaged in tending the generators. At the time of his injury he began work at 12 o’clock noon and worked till 12 o’clock midnight.

Ray Stevens, Circuit Jndge. Otto Meister was a fireman in plaintiff’s employ. In the discharge of his duties he was required to take out clinkers from the combustion chamber, clean the boilers and fixtures, polish the same, clean the engine and oil it.

EeeoR to review a judgment of the circuit court for Marathon county: A. H. Beid, Circuit Judge. This is a writ of error to review a- judgment dismissing a habeas corpus proceeding. The petitioner, Strachotaj. is the father of two children, aged respectively eleven and'nine years, who have lived for more than seven years with their maternal uncle and aunt, John Franz and his sister, Minnie Eranz.

Kabel, Judge. Appellant, December 6, 1916, was duly charged before said court with being a delinquent girl of the age of sixteen years because of her having unlawfully failed, neglected, and refused to attend continuation school as required by sec. 1728o — 2, Stats.

EbeoR to review a judgment of the municipal court of tbe city of Osbkosb and county of Winnebago: A. H. Goss, Judge.

J. TueNee, Circuit Judge. This is an appeal from a judgment entered in a certiorari proceeding setting aside assessments of income made in 1916 by the income tax board of review of Milwaukee county and confirmed by the Wisconsin tax commission, on account of income received during the years 1912, 1913, 1914, and 1915 by the stockholders in Prospect Hill Land Company as dividends on their stock in said company.

J. Tukwee, Circuit Judge. This is an appeal from a judgment entered in a certiorari proceeding, setting aside the assessments of income made in the year 1916 by the income tax board of review for Milwaukee county and confirmed by the Wisconsin tax commission, on account of moneys received during the year 1915 by respondents, stockholders in the Lindwurm Company, a corporation, as dividends on their stock in said company.

B. Quinlan, Circuit Judge. A general demurrer to the complaint was overruled hy this court upon a former appeal in the present action. 156 Wis. 507, 145 N. W. 1081. After the return of the case to the circuit court it was brought to trial before a jury. The plaintiff’s proof tended to show that he was the father of Gregory Legault, a boy nine years of age, who was bitten by a dog kept by the defendant, and thereafter died. Proof was also made of medical and funeral'charges.

This is an action of mandamus by Henry Schroeder as relator to compel the town hoard of Excelsior to open up a new road as laid out by commissioners appointed by the county court of Sauk county. Henry Schroeder and five other residents of Excelsior petitioned the town hoard of Excelsior to lay out a road and discontinue a part of an old one in the town of Excelsior.

Ray SteveNS, Circuit Judge. The appeal is from a judgment of the circuit court remanding proceedings to the Industrial Gommission. The plaintiff was injured July 6, 1915, while in the employ of the defendant National Terra Gotta & Window Gleaning Company, and became entitled thereby to compensation from such employer under the provisions of the Workmen’s Compensation Act.

Appeals from a judgment and an order of the circuit court for Douglas county: James Wickham, Judge. This is an action brought by the city of Superior and county of Douglas to recover the sum of $100,310.04, being the income tax assessed against the defendant in the year 1912 based on the income received by it in 1911.

This action was brought by the plaintiff, beneficiary and' mother of John McGinty, on a policy of life insurance issued, by defendant. John McGinty died February 25, 1913. His written application for this insurance, together with the report of an. examining physician, Dr. J. J. O’Neill, were made in September, 1911.

<p>Appeals from a judgment of the circuit court for Columbia county: Chester A. Eowlee, Circuit Judge.</p> <p>The defendant corporation was organized February 4, 1901, and originally incorporated for $20,000, made up of common and preferred stock at the par value of $50 per share, and to each subscriber of either form all stock was issued substantially in the one form of certificate containing the following provisions:</p> <p>“There shall be paid upon the preferred stock a six per cent, annual cumulative dividend, payable on the first days of January and July of each year. The preferred stock shall be non-assessable. Each share of common stock carries with it the ownership of one good telephone, and the use of not less of the company lines than would be furnished with a rented telephone in the same locality, and may entitle the holder thereof to use any number or all of the company party lines, if the common stockholders so vote at the last annual meeting, subject to restrictions made by the board of directors as to time line may be occupied and proper use of. Company is not liable to additional expense on account of sale of common share by original purchaser. The common stock is assessable to pay the corporate expense of the corporation, provided that the assessment of each share of said stock shall at no time exceed the sum of ten dollars per year.”</p> <p>The plaintiff purchased such stock in January, 1901, paid therefor the sum of $55, and received for use and continued to use for some time thereafter a telephone which was connected with and used with other telephone lines in the system operated and maintained hy defendant. Defendant at the time of its organization took over a telephone system theretofore owned by one Farrington, who became president of defendant and continued to be such thereafter. Plaintiff had been a subscriber to the former system and had paid for the use of such telephone over substantially the same lines about $12 per annum.</p> <p>For some time after 1901 the plaintiff paid, upon request of the defendant, rates for the use of such telephone from $4 to about $9 per annum and never in excess of $10 in any one year. Subscribers for telephone service other than such holders of common stock were required to pay at rates in the neighborhood of $12 per annum per telephone for the same kind of telephones and telephone service as that furnished the plaintiff.</p> <p>In 1901, on the suggestion of the railroad commission that such difference in charges for substantially the same services was in the nature of an unlawful discrimination, the defendant undertook to require the plaintiff to pay for his telephone service at the same rate as was being paid by the other telephone users. Such payment having been refused by plaintiff and several other holders of common stock, actions were brought by the defendant against the plaintiff and one Lewis for two years of such service respectively, and in the trial of said actions it was held by the trial court that the contract embodied in the certificate above quoted, the same having been entered into prior to the passage of the law creating the railroad commission, was valid and binding between the parties and authorized the allowance to a person situated as was plaintiff a difference in the rate to he charged for the same services; and upon appeal to this court such holding was affirmed. People’s Tel. Go. v. Lewis, 151 Wis. 15, 138 N. W. 100.</p> <p>For the year 1914 the defendant company made what it called an assessment against tbe plaintiff, under its construction of tbe contract embodied in tbe stock certificate, for tbe use of sucb telephone and service to tbe amount of $10; and in arriving at such assessment it computed tbe entire cost of sucb service and divided sucb cost by tbe average number of telephones in'service during sucb year. In computing sucb cost it included an item for depreciation in tbe value of its equipment and also included interest paid by it on its outstanding bonds. Plaintiff refused to pay sucb sum of $10; and on April 15, 1915, tbe defendant gave notice to tbe plaintiff ‘that owing to tbe trouble it bad in collecting assessments from certain holders of sucb common stock it would not furnish service to holders of common stock whose assessments were in arrears after May 15, 1915, except in cases where sucb parties would make a deposit of $10 with tbe company to guarantee payment of tbe assessment, and that upon tbe using up of sucb deposit in tbe payment of assessments a new deposit was to be made, and in default of making any sucb deposit service would be discontinued witbin thirty days after notice. Tbe plaintiff refusing to make sucb deposit, tbe defendant disconnected plaintiff’s wires and refused to continue service. Thereupon plaintiff commenced this action to require tbe defendant to restore and re-establish connection as before and for damages against tbe defendant on account of bis loss of sucb service by reason of tbe disconnection.</p> <p>Tbe court made its findings of fact and conclusions of law, tbe material parts of tbe conclusions of law being as follows: First, that tbe assessments of common stock are not payable until tbe end of tbe current year and that defendant has no right to disconnect tbe telephone for failure to pay sucb assessments, but is limited to tbe ordinary remedies for collecting debts. Second, that defendant has no right to require tbe deposit of $10 in advance and that it has no right to disconnect tbe telephones for refusal to make sucb deposit, and that such disconnection in plaintiffs case was illegal. .Third, that the true basis of assessments under the contract between the parties is the cost to the defendant of the service to common stockholders, and that such cost should be made by dividing the total expense of maintenance by the total number of telephones, and that no sum should be included for depreciation. Fourth, that in such total expense it is proper to include such sums as are paid into funds actually created and set aside to pay losses from storms, and industrial insurance, provided that when such funds are disbursed such disbursements shall not be included in the expenses in making the assessment for the year in which they are made. Fifth, that it is proper to include in such total payment any bonds and interest thereon. Sixth, that the assessments for the years 1914 and 1915 were void for inclusion in the total corporate expense amounts for depreciation. Seventh, that the plaintiff is entitled to judgment declaring the meaning of the contract to be as so stated, and declaring the 1914 and 1915 assessments void; and enjoining the defendant from attempting to collect said assessments, but not from collecting reassessments for said years made according to the construction of said contract declared in said findings; enjoining the defendant from thereafter disconnecting plaintiffs telephone as a means of enforcing its demands, or from attempting to enforce them otherwise than by the ordinary remedies; enjoining the defendant from assessing plaintiffs common stock in the future for corporate expenses otherwise than according to the construction as in said findings declared; and for recovery from the defendant corporation of $18 damages on account of plaintiff being deprived of the use of his telephone for a period of thirteen months, and for his costs and disbursements.</p> <p>Both plaintiff and defendant excepted to certain portions of said judgment, and upon such exceptions took cross-appeals to this court.</p>

J. TueNee, Circuit Judge. The superintendent of schools for Milwaukee county applied .to G. P. Gary, state superintendent of schools, to have an inspection made of the Thirty-sixth street and State street schools of district No. 8 in the town of Wauwatosa, Milwaukee county, with a view of having both buildings condemned. An inspector was directed by Mr. Gary to view the buildings and make report.

<p> Taxation: Lands acquired by the state: Prior tax sales: Redemption. </p> <p>As a, condition of quieting the title to certain lands acquired hy the state, redemption thereof from sales for taxes levied prior to such acquisition is required — the payments to he made from the state treasury as authorized in sub. (e), sec. 1, ch. 572, Laws 1917.</p>

G. Ludwig, Circuit Judge. The appeal is from a judgment in a proceeding which annulled an assessment of $115 made by the assessor of incomes for Milwaukee county and affirmed by the board of review and tax commission, upon an income reported by the relator as executor of the will of Samuel A. Field.

Rat Stevens, Circuit Judge. Action to set aside an order of the Industrial Commission awarding compensation to the defendant MarJcman for injuries received under the following circumstances as found by the Commission: In February, 1915, MarJcman> a sailor, entered tbe employ of plaintiff, a resident of Milwaukee and the owner of the steamer Venezuela, then lying in the Burn-ham slip for repairs.

B. Quinlan, Circuit Judge. Tbis is an action by tbe plaintiff, as administrator of tbe estate of Joseph Lucia, deceased, to recover damages from tbe defendant, tbe Wisconsin Northwestern Railway Company, for tbe injuries and death of Joseph Lucia, caused by tbe alleged negligence of tbe defendant. Joseph Lucia was employed by tbe defendant as conductor on one of its trains making regular trips from Taylor Rapids to Girard Junction, Wisconsin.

B. QuihlaN, Judge. January 22, 1914, a written contract was made between the parties for, the sale to defendant of a player piano, delivered the following day. The defendant was permitted to give testimony tending to prove that at the time of the sale, and without its being expressed in the written contract, plaintiff warranted said piano as fit and suitable for use for hand playing and warranted the action' of the keys of the piano to be as easy as those on any other piano.

Halsey, Circuit Judge. The appeal is from an order sustaining the demurrer of the plaintiffs to the answer of the defendants. This is an action to determine the ownership of a fund amounting to $7,066.67, the interest accrued on bonds owned by the defendants and purchased by the plaintiffs in April, 1911, which sum is deposited with the First Trust Company of Milwaukee, under an agreement of the parties, until it will be determined to whom the fund belongs.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Edwakd T. Eaieciiill, Circuit Judge.</p> <p>Oertiorari. Tbe defendant here instituted an action against tbe plaintiff here in tbe civil court of Milwaukee county for personal injuries, which on October 9, 1916, resulted in a verdict for the plaintiff in that action in the sum of $575. Both parties served and filed the usual motions after verdict, and after several adjournments the various motions were argued and submitted. On January 16, 1917, the court ordered judgment for the plaintiff in that action on the verdict. On January 18, 1917, judgment was entered for $631.39 damages and costs. On January 31, 1917, the defendant in that action, respondent here, sued out a writ of certiorari, alleging in its petition that the case was finally submitted to the court on December 2, 1916, and that no decision was rendered until January 18, 1917, that the failure of the court to render its decision within ten days worked a loss of jurisdiction, and that therefore the judgment entered was null and void. Upon the return of the clerk the appellant made a motion to quash the writ. The'motion was denied, the circuit court holding that the civil court had lost jurisdiction, and an order was entered in the circuit court setting aside the judgment of the civil court in the personal injury action. Prom such judgment this appeal is taken. Other facts are stated in the opinion.</p>

<p>Appeal from an order of tbe circuit court for Milwaukee county: OscaR M. Reitz, Circuit Judge.</p>

<p> Conspiracy: Judgment obtained by fraud: Payment before discovery of facts: Remedies: Action at law or in equity f Recovery of damages; Relief against judgment not necessary. </p> <p>1. A complaint alleging in substance that, pursuant to a conspiracy among the defendants, the plaintiff indemnity company was. induced by false representations to execute surety bonds for an. irresponsible contractor, who thereafter defaulted; that in an action brought on the bonds said company consented, by reason of such false representations and conspiracy and in ignorance-of the facts, to the entry of a judgment against it; and that it did not discover the facts as to such fraud until after it had paid such judgment,- — is held to state a good cause of action for the-recovery of damage's.</p> <p>2. The action in such case is one at law, in which the issues are tria-ble Ijy jury, the only relief obtainable or appropriate being a. money judgment for damages, and the former judgment being allowed'to remain of record untouched. The legal remedy being, adequate, a resort to equity is unnecessary.</p> <p>D. Sec. 2832, Stats., providing for relief from a judgment, is not applicable to the case stated, the purpose of said section not being to provide a means for recovering damages against conspirators for a successful fraud.</p>

Fairchild, Circuit Judge. Action for damages on the ground of negligence. The cause was tried before the civil court of Milwaukee county. The evidence disclosed this: August 16, 1916, defendants’ servant, in the course of his employment, drove a four-horse team of horses, drawing a heavy truck, loaded with iron beams forty feet long, east on Oneida street, in the city of Milwaukee.

<p> Municipal corporations: Street paving: Duty to enforce compliance with specifications: Negligence: Defects in pavement: Second assessment for resurfacing: Fraud upon lotowner: Right to recover damages: Waiver by payments, etc.: Special verdict: Instructions to jury: Harmless error. </p> <p>1. Where a city undertakes, under its charter, to f>ave a street at the expense of the abutting lotowners, it is its duty to enforce a substantial compliance by the contractor with the plans and specifications for such paving.</p> <p>2. Where, through negligence of city officials in failing to secure compliance with the plans and specifications for a pavement, the bituminous surfacing thereof was worthless, it was a legal fraud for the city, after havirg required abutting lotowners to pay for such pavement, to assess against them also the cost of the resurfacing made necessary by such negligence; and the city is liable to the lotowners for the damages caused them by the second special assessment.</p> <p>S. The right to recover such damages was not waived by a lotowner by paying the instalment bonds issued by the city to the contractor in payment for the original pavement, nor by signing an express agreement to “make no objection to any want of power, illegality, or irregularity in regard to the” first assessment.</p> <p>4. Refusal of the trial court to submit special questions and to give instructions to the jury as to the claim that the defective condition of the original surfacing of the pavement was due to insufficiency of the plans and specifications furnished by the city, was not error, it appearing clearly that the defects were the result of negligence of the city authorities and the contractor in laying the bituminous surface under unsuitable conditions and in failing to comply with the specifications and the contract.</p> <p>5. Where after giving a correct instruction as to the burden of proof the court, in applying it to the particular question to be answered, used the word “not” by mistake, thus contradicting the first part of the instruction, but the jury evidently understood and correctly applied the rule, there was no prejudicial error.</p>

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

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: LaweeNCe W. Halsey, Circuit Judge.</p> <p>Action to recover damages for personal injury. 'First avenue and Sixth street are public highways of defendant and are connected by a viaduct over the Menomonie river and valley. Over the river and forming a part of the highway is a bascule bridge, the north and south ends or leaves of which are raised to permit the passage of boats. When the bridge is about to be raised signals are given by the bridge tender. They consist of a danger light just above the center of the bridge, the ringing of electric bells and of a large hand bell. On January 8, 1916, plaintiff, while riding in a jitney bus, was injured by reason of the raising of one leaf of the bridge, causing the car to fall some distance upon the other leaf, not raised, and-the passengers to be thrown up against the roof of the car. At the close of plaintiff’s testimony the court granted a nonsuit because the evidence showed that the injury resulted from the negligence of the bridge tender in not giving proper signals, and that for such negligence there was no liability on the part of the defendant. The plaintiff appealed.</p>

<p> Municipal corporations: Defective sidewalk: Question for jury. </p> <p>A slight depression in one block and an elevation in the adjoining block of a cement sidewalk, the difference in level being about one and one-quarter inches, was, as a matter of law, not an actionable defect. Kleiner v. Madison, 104 Wis. 339, followed.</p>

J. TueNee, Circuit Judge. Tbe appeal is from an order denying defendant’s motions to set aside service of summons and to suppress a proposed examination. Plaintiff and respondent herein was also the plaintiff in another action pending in Milwaukee county against the Marshall & Ilsley Bank.

J. Turner, Circuit Judge. The appeal is from an order denying defendant’s motions to set aside service of summons and to suppress a proposed examination.

W. Buewell, Judge., Mandamus action to compel appellants to pave their street-car zone in the city of West Allis with creosote blocks on a permanent concrete foundation. In 1894 the Milwaukee Street Railway Company, predecessor of appellants, obtained consent of the boards of supervisors of the towns of Greenfield and Wauwatosa, in Milwaukee county, to construct, maintain, and operate a street railway line in such towns, using highways thereof for that purpose.

J. Tuentee, Circuit Judge. This act‘on was brought under eh. 546, Laws of 1915, against defendants to recover for injuries received by plaintiff’s husband causing his death. Defendant Gold was operating a motor vehicle as a “bonded carrier.” Gold and the Automobile Liability Company, Limited Mutual, of Milwaukee, Wisconsin, were made defendants.

J. TueNes, Circuit Judge. Action to quiet title. Tbe plaintiffs are residuary legatees of one Anna E. Bours, wbo died May 7, 1916.

<p> Trusts and trustees: Testamentary trust.: Termination. </p> <p>The decision of the trial court that a certain testamentary trust may now properly he terminated, the trustee relieved, and the trust funds and estate be turned over to the cestui que trust, is held to be supported by the evidence.</p>

<p> Corporations: Liability for torts of agents: Exemption of benevolent association: Fraternal insurance society: Libel: Joint wrongdoers: Master and servant: Separate actions: Judgment in one not a bar until satisfied: Jurisdiction: Evidence: Competency: Prejudicial error: Excessive damages: Appeal: New trial. </p> <p>1. The Modern Woodmen of America, a fraternal insurance corporation conducted on the assessment plan and having, besides a benefit fund out of which death claims áre to he paid, a general fund which may he used for other purposes, is not a purely benevolent association and its funds are not all trust funds in such • a sense that it should be exempt from the ordinary liability of a corporation for the torts of its employees or agents.</p> <p>2. A corporation is liable for the torts of its agents within the scope of their employment and in furtherance of the corporate business, and this includes libel.</p> <p>3. A libel may be the joint act of several persons, who may in such case be sued jointly or separately at the plaintiff’s election.</p> <p>4. Where two are sued separately for libel, in neither action does the liability of the other furnish any defense or mitigation of damages; both actions may be prosecuted to judgment, but there can be but one satisfaction; .when one judgment is satisfied it becomes a bar to the other action.</p> <p>5. A -master and servant acting together in publishing a libel are joint publishers thereof and may be sued jointly or severally; and a judgment against one is not a bar to the action against the other until it is satisfied.</p> <p>6. The fact, in such a case, that the servant or agent circulated the libel in a part only of the territory in which it was circulated, and the fact that in a separate action against the agent plaintiff sought only to recover damages for the circulation in such part, are immaterial in an action against the principal.</p> <p>7. Where, in such case, plaintiff recovered only nominal damages in the action against the agent, the payment of the amount of the verdict into court could not of itself operate to bar the action against the principal, especially before the time f,or appeal had expired.</p> <p>8. A plaintiff who brings separate actions against several joint wrongdoers has the right to choose which judgment he will accept and satisfy.</p> <p>9. Where the principal authorized or ratified the act of an agent in circulating a libel in one state, an action against the agent in a court of that state and recovery of a judgment for damages on account of such circulation in that state only did not preclude the bringing of an action against the principal in the same court or affect the jurisdiction of that court to entertain such action.</p> <p>10. In an action for libel, the withdrawal from the jury of the positive testimony of a witness, based on personal knowledge, that one of the charges in the alleged libelous publication was true, is held, to have been a prejudicial error, especially in view of the large damages awarded to plaintiff and of the fact that in an action against an agent for circulating the libel in the state of plaintiff’s residence only nominal damages were awarded.</p> <p>11. The damages, both compensatory and exemplary, awarded in an action for libel being surprisingly large, and there having been a prejudicial error in the withdrawal of evidence from the jury’s consideration, this court grants a new trial, rather than an option to take or suffer judgment for a smaller sum.</p>

<p>.Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>Action to set aside a decision of the Industrial Commission awarding compensation from appellant on account of the death of Walter Durkee.</p> <p>The Commission found as facts: January 27, 1915, Walter Durkee, husband of Emma Durkee, .was an employee of Ernest Hart in the performance of work which said Hart was engaged in as a subcontractor under Charles Giese who was a contractor for such work under the 'Wausau Lumber ■Company. Neither Hart nor Giese were employees within the meaning of the Workmen’s Compensation Law. Neither of them had insured against claims for injuries to their employees. The Wausau Lumber Company had duly elected to become subject to the Workmen’s Compensation Law, secs. 2394 — 3 to 2394 — 31, inclusive, and was carrying insurance according to the provisions of such sections. On said January 27, 1915, said Durkee sustained personal injuries resulting in his immediate death. His injuries were not intentionally self-inflicted and were proximately caused by accident, in the course of his said employment. All further facts were found essential to warrant the award of compensation complained of.</p> <p>The trial court decided that the finding made by the Commission, that Durkee was, when injured, in the employ of Hart who was a subcontractor of Giese, a principal contractor of the Wausau Lumber Company, was sustained by the evidence, and therefore affirmed the award.</p>

Nay SteveNS, Circuit Judge. The appeal is from an order dismissing this action upon the ground that the court had no jurisdiction thereof for want of service of the summons and complaint on the defendant Frieda Yennen within twenty days of the Commission's award. This is an action to review an award of the Indv¿-trial Commission. The award made to Frieda Yennen by the Industrial Commission was dated June 5, 1917.

<p>Aupeal from a judgment of tbe circuit court for Milwaukee county: Johk J. Gkbgoby, Circuit Judge. ‘</p> <p>Tbis action was commenced in tbe circuit court for Milwaukee county June 18, 1914, by tbe respondent, a minor fifteen years of age, by bis guardian ad litem, to recover damages from tbe appellant for injuries sustained October 24, 1913, while in tbe employ of tbe appellant under a cbild-labor permit.</p> <p>Tbe complaint alleges that tbe minor was hired under a permit to do work which be was authorized to do, but that be was, by tbe appellant, wrongfully put to work in operating and running an elevator, which employment was prohibited by law.</p> <p>Tbe case was tried to tbe court and a jury. Motions for nonsuit and directed verdict were denied and tbe following special verdict returned:</p> <p>“(1) Was tbe plaintiff, William Lutz, directed by tbe foreman, Wegehaupt, to use tbe elevator? A. Yes.</p> <p>“(2) Did tbe defendant permit or suffer tbe plaintiff, William Lutz, to run said elevator? A. Yes.</p> <p>“(3) What sum will reasonably compensate tbe plaintiff for tbe injuries be received? A. Four thousand dollars ($4,000).”</p> <p>Judgment in favor of tbe plaintiff was rendered on tbe verdict, from which tbis appeal was taken.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Edwakd T. Eaiechild, Circuit Judge.</p> <p>Action to recover the cost ©f certain shrubs and trees and the planting thereof. Plaintiff is a foreign corporation domiciled at Bloomington, Illinois, and has no office or place of business in this state. It has never complied with the provisions of sec. lYIOb, Stats. 1915. In March, 1916, it entered into a written contract with the defendant whereby it agreed to sell him certain shrubs and trees then in its nursery at Bloomington, at a price therein specified, and plant tlie same upon defendant’s premises in Milwaukee according to the plans and directions of defendant’s landscape architect and to replace any stock not in healthy condition in the spring of 1917 if the same had been properly taken care of by an experienced gardener. After the shrubs and trees arrived at defendant’s premises he objected to their quality, and it was then agreed that they should be planted and defendant should pay their reasonable market value (found by the court to be $1,221.39, instead of the contract price, amounting to $1,496.03); also that he might order additional shrubs and trees at prices named in a list submitted to him, which he did to the amount of $415.79. The only defense material to this appeal was that since plaintiff had never complied with the provisions of sec. 1770b, Stats. 1915, it could not enforce the contract against the defendant. The court held the contract enforceable because the transactions between the parties constituted interstate commerce, exempting it from the provisions of the statute, and rendered judgment for plaintiff in the sum of $1,780.26 damages, interest, and costs. The defendant appealed.</p>

J. TubNEe, Circuit Judge. The plaintiff corporation was engaged in the business of storing merchandise in the city of Milwaukee. It was in need of additional warehouse room, and on May 11, 1914, leased from, the Chicago & Northwestern 'Kailway Company a tract of land for a period of five years.

<p> Income taxation: Royalties upon ore taken from mine: "Rentals:” Deductions: “Depreciation’.’ of property: Oonstruction of statutes: Conflict of -laxos. </p> <p>1. Royalties received by the owner from the lessee of a mine, upon the ore taken therefrom, are “income” within the meaning of the Income Tax Law of 1911 (sub. 2, sec. 1087m — 2, Stats. 1911).</p> <p>2. Such royalties are "rent” and "rentals” within the meaning of said law and were subject to income taxation thereunder if received by a resident of this state, though derived from sources without the state (sub. 3, sec. 1087m' — 2, Stats. 1911).</p> <p>3. The law of the state in which the mine is located is not binding upon the courts of this state upon the question whether or not such royalties are “rentals” within the meaning of our statute.</p> <p>4. The taking out of the ore upon which such royalties were paid did not constitute a "depreciation” of the property, for which under sub. (b), sec. 1087m — 3, Stats. 1911, the corporation owning the mine might make a deduction from its gross income.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: W. J. Turnee, Circuit Judge.</p> <p>The plaintiff sued in tbe civil'court of Milwaukee county for a balance of $415.95 for groceries and meats supplied defendant between March 18 and November 1, 1915, for use on a boat operated by defendant on Lake Michigan.</p> <p>The defendant alleged, by way of answer and counterclaim, that during the preceding season of 1914 and the one in question defendant had ordered from plaintiff meats and groceries of the value of about $1,100, for which it had fully paid; that during substantially all the period of the two navigation seasons there had been a conspiracy between the plaintiff and defendant’s cook, who had charge of the ordering and receiving of such, meats and groceries, so that, upon the promise and payment of money, wines, tobacco, and cigars to such cook, large overcharges were made for such meats and groceries, and that defendant had thereby been defrauded of upwards of $300, for which sum it demanded judgment as well as for the dismissing of the complaint.</p> <p>It appeared upon the trial that orders for such meats and groceries as received from time to time were entered in one of many order books kept by plaintiff in which was written the amounts so ordered and the prices charged. Erom these order books, and at substantially the same time, entries were made in a so-called ledger, and from this ledger bills were made out atf the time of the sending of the goods, which bills were itemized as to amounts and prices, and there was also carried.on each bill or slip the balance then claimed by plaintiff to be existing for each month for either groceries or meats. The order books were not produced on the trial and appear to have been destroyed with a quantity of other such books after the commencement of the action and before the trial.</p> <p>On request of plaintiff the defendant produced in court substantially all of such bills or slips, and in the few instances where certain bills were not produced the same- balances found in the ledger after such missing items appeared on subsequent slips. Tbe last slip or bill for meats was dated October 23d and for groceries October 27 th, showing, tbe amounts claimed due by plaintiff for such month and corresponding with tbe accounts in tbe ledger. Separate statements appear also to have been rendered showing tbe balances due for tbe respective months, and those of May, June, July, and August were produced and correspond with tbe statements in tbe ledger and tbe complaint.</p> <p>Payments were made by defendant on this account from time to time while tbe deliveries were going on and also after such final deliveries; $100 November 1 and $100 November 20, 1915. Plaintiff and bis wife testified in substance that tbe entries in tbe ledger were made at or about tbe time of tbe transactions; that they were correctly entered and tbe prices were reasonable. Plaintiff gave testimony from which it might be inferred that be bad examined tbe so-called ledger, was familiar with tbe items, and that tbe entries are just and reasonable; that be checked everything that was delivered and that everything in tbe book is correct.</p> <p>One of defendant’s officers testified that sometime either in July or August, 1915, a former employee of plaintiff who bad just been discharged or who bad left plaintiff’s employ told him that there bad been overcharges and falsifications of tbe accounts during tbe preceding season and during tbe season in question. That from that time on tbe defendant bad tbe delivery of tbe goods and bills from the plaintiff carefully watched; bad some articles weighed, and found in some instances overweights in its favor, but discovered no indication of fraud by plaintiff. That defendant made no complaint to plaintiff with reference to any such possible fraud or overcharges until December, 1915, and after having bad tbe statements of the final deliveries and making tbe two payments on account in November. Tbe so-called ledger was received in evidence as an account book after proof bad been made of tbe destruction of tbe order books.</p> <p>At tbe close of tbe testimony on tbe trial before a jury tbe plaintiff moved to dismiss defendant’s counterclaim. Tbe defendant then moved for judgment in its bebalf. Then, without making any reservation and also without expressing in any way whether be considered it a submission under sec. 28570, Stats., and apparently on bis own motion, tbe court announced to tbe jury that in bis opinion there was no dispute but that tbe goods were sold and delivered to tbe amount claimed and that there was not sufficient evidence upon which a verdict could stand as to tbe claim of fraud or conspiracy, that tbe payments in November were a ratification of tbe transaction, and directed the jury to find a verdict for tbe plaintiff. Judgment was entered thereupon and appeal taken to tbe circuit court.</p> <p>Upon review in tbe circuit court tbe judgment was reversed and a new trial ordered in that court for reasons stated to be that tbe so-called ledger was not properly proven and should not have been considered and that there was therefore an issue of fact left as to whether or not tbe goods to tbe amount claimed bad been delivered, and also that there was testimony sufficient to.go to tbe jury as to whether or not there bad been a conspiracy or fraud. From tbe judgment of tbe circuit court so ordering a new trial plaintiff appealed.</p>

<p>Appeai, from a judgment of the circuit court for Milwaukee county: Joi-iN J. GtRegoey, Circuit Judge.</p> <p>Action to recover compensation for personal injuries.</p> <p>Plaintiff, a widow, wbo customarily earned $12 to $15 per week, and for about six months in tbe year, $25 per week, about 5:45 p. m. of November 18, 1915, while passing through the only entrance of the Merrill Building in the city of Milwaukee leading to a cafeteria therein on the second floor, tripped on an inner step and fell to the floor of the lobby and was severely injured. The structure was a public building .within the meaning of sec. 2394 — 48, Stats., as it existed at the time of the injury, which provided as follows:</p> <p>“Every employer and every owner of a place of employment or a public building now or hereafter constructed shall áo construct, repair or maintain such place of employment or public building, and every architect shall so prepare the plans for the construction of such place of employment or public building, as to render the same safe.”</p> <p>The evidence was to this effect: Plaintiff was entitled to the protection of the statute. It was defendant’s duty to comply with the provisions thereof in regard to the safety of the entrance. She had entered the building where the accident occurred several times prior thereto, but, by reason of changes at the entrance, its condition at the particular time was materially different from what she was familiar with. There were double outside doors swinging outward. Inside thereof, there was a vestibule about five feet square. At the far side of the vestibule there was a step five inches high made of marble, of a different color than the floor of the vestibule and that of the lobby beyond. Located about four inches back of the edge of the step there were double doors, hung so as to swing both ways. Then came a lobby with a stone floor. The vestibule was lighted on the occasion in question. Plaintiff opened one of the outer doors and stepped into the vestibule. She then stepped to where it was necessary to open one of the inner doors in order to go into the lobby. Supposing the floor of the lobby to be on a level with the floor of the vestibule, but not talcing any particular observation of the situation, after opening one of the inner doors by pushing it inwardly, she moved forward and was tripped by the step, causing her to fall and fracture her left femural bone and otherwise injured her left leg. She suffered much pain, was confined to ber bed at a hospital for six months, and then and thereafter, up to the time of the trial, she was compelled to have much attention by a physician and nurse and suffered much pain. She was rendered partially helpless for life and her earning power for about one year and three months was totally destroyed and was, to a great fextent, permanently impaired. Her hospital bill was $881, doctor bill $442, and she incurred expense for care by her daughter-in-law from the 3d day of May, 1916, to the time of the trial which was testified to by the latter to be reasonably worth $30 per month.</p> <p>The cause was submitted to the jury for a special verdict and they rendered the following:</p> <p>“(1) Was the entry to the Merrill Building as it existed on November 18, 1915, so constructed as to be as safe to tenants or the public using it as the use thereof would reasonably permit ? A. No.</p> <p>“(2) If you answer the first question ‘No,’ then answer this question: Was such fact the proximate cause of plaintiff’s injury ? A. Yes.</p> <p>“(3) Was the plaintiff guilty of any want of ordinary care which proximately contributed to produce her injury? A. No.</p> <p>“(4) At what sum do you assess 'plaintiff’s damages? A. $11,000.”</p> <p>Various motions were made on behalf of defendant including a motion to set aside the verdict as excessive. The motions were denied on condition of plaintiff consenting to ,a reduction of the amount of damages as found by the jury to $8,000, and the motion on behalf of plaintiff for judgment on the verdict was granted conditioned on consent being given to a reduction as stated. In due course judgment was rendered in plaintiff’s favor pursuant to such determination, from which this appeal was taken.</p>

Halsey, Circuit Judge. This is an action to recover on a note, commenced in the civil court of Milwaukee county. The complaint alleges that the plaintiff, a corporation, had, by assignment from C. E. Gether, become owner of a promissory note for $375 payable to him and executed by the defendant, John Kohl.

<p> Pleading: Complaint: Refusal to make definite: Dismissal. </p> <p>In an action on contract, plaintiffs refusal to comply with an order that the complaint he made inore definite and certain by stating the consideration for defendant’s alleged agreement and whether such agreement was in writing or oral, justified a judgment of dismissal.</p>

<p> Master and servant: Negligence in operating master’s automobile: Liability: Scope of employment. </p> <p>1. To render the master liable for negligence in the use of his automobile by a servant it must appear that such use was with his knowledge and consent and was within the scope of the employment and to facilitate the master’s business.</p> <p>2. Efforts of the master to accommodate and assist the servant do not bring within the scope of the employment acts of the servant otherwise without such scope.</p> <p>3. Thus, permission given to a servant, at the close of a day’s work, to use the master’s automobile for the sole purpose of going home and returning to work in the morning, did not render the master liable for injuries caused by the servant’s negligent operation of the car while so using it.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: LawRence W. Halsey, Circuit Judge.</p> <p>The appeal is from a judgment affirming a judgment of the county court disallowing appellant’s claim against the ■estate of Charles E. P. Pullen.</p> <p>February 10, 1905, the claimant, George L. Pullen, purchased from the Gold Orest Mining Company 80,000 shares •of its capital stock for the sum of $5,000. Such purchase was made in reliance upon a written guaranty made and executed at the same time by which the deceased, Charles E. P. Pullen, a brother of claimant, and M. D. Kelly and P. J. •Somers, jointly and severally agreed that if, at any time within two years, claimant became dissatisfied with the purchase and so desired, those three would take the stock off his hands and repay him the $5,000. On March 25, 1905, "upon a like guaranty, a purchase of 20,000 additional shares for $1,000 was made by claimant. On February 7, 1907, a written demand was made upon the three for the repayment of the $6,000; and then, in consideration that the time for the repurchase of such stock should be extended another two years, so that the money might be used in developing the mining property, another guaranty was signed by the same three for such repurchase of such stock upon demand and containing a further agreement to indemnify the said George L. Pullen for any loss he might sustain prior to February 10, 1909, by reason of his retaining the stock aforesaid.</p> <p>On February 8, 1909, claimant made another tender of the 100,000 shares of stock to the guarantors and demanded the payment of $6,000, making no mention, however, at that time of any claim for any alleged loss in addition thereto. Again the guaranty was extended, and then on January 23, 1911, the claimant again tendered the stock to the guarantors and again demanded the payment of $6,000. The stock of the Gold Crest Mining Company at this time had become worthless and was delivered by claimant to Charles F. P. Pullen. In the meantime Somers went to Goldfield, Nevada, and Kelly to Muncie, Indiana.</p> <p>On March 5, 1913, the claimant and the deceased went to Muncie and met Kelly there. At that time, by reason of negotiations which appear to have been conducted by said Kelly and the deceased, some in the presence and hearing of the claimant, certificates for sixty shares of the par value of $6,000 of the Muncie National Training Corporation and then the property of Kelly were transferred and delivered by Kelly to the deceased and by him, at the same time, to the claimant. A document was then signed by appellant which was in substance as follows: Acknowledged the receipt of the sum of $6,000 then paid to him by Charles F. P. Pullen of Milwaukee, Wisconsin, and M. D. Kelly of Muncie, Indiana ; that the said sum is paid by the said Pullen and Kelly and received by claimant as part payment for the repurchase of 100,000 shares of the capital stock of the Gold Crest Mining Company and to malee claimant whole of loss sustained by reason of said purchase; that the said sum is paid at claimant’s request pursuant to the contract in writing made in the spring of 1905 between the three heretofore named, jointly and severally. It also stated that the substance of such prior agreement was to repurchase said stock upon demand and to malee whole said George L. Pullen from any and all loss by reason of the purchase of said stock. It recited further that, said George L. Pullen having demanded of the three the repurchase of said stock and that they malee him whole from any and all loss as agreed, the said Charles F. P. Pullen and M. D. Kelly do make payment of said sum of $6,000, “being tbe approximate two-thirds share of tbe purchase price for said stock paid by tbe said George L. Pullen and loss sustained by him by reason of the payment and investment aforesaid(Tbe italics are for convenience in tbis statement only.)</p> <p>It is undisputed in tbis proceeding tbat as a matter of fact no cash was paid in March, 1913, at tbe time of tbe executing of tbe receipt or at any other time, either by Charles E. P. Pullen or Kelly, to claimant on account of tbis transaction, and tbat tbe $6,000 referred to in sucb receipt was nothing else than tbe sixty shares of tbe par value of $6,000 of said National Training Corporation.</p> <p>Charles E. P. Pullen died in September, 1913, and appellant made claim against his estate for $9,630, which was itemized as being tbe $6,000 purchase price spoken of above and interest thereon amounting to $3,630. On tbe trial in tbe county court upon sucb claim and tbe executor’s objections thereto it was disallowed in whole. An appeal from sucb disallowance was taken to tbe circuit court, and, upon tbe trial there, findings were made in effect tbat tbe written receipt of March 5, 1913, reciting tbe receipt of $6,000 was a payment and satisfaction of tbe entire liability of both Kelly and tbe deceased upon their guaranty contracts, and tbat therefore, tbe said Kelly and tbe deceased having paid to George L. Pullen tbe full amount of their liabilities, tbe estate was not indebted to tbe claimant upon sucb claim. Erorn judgment entered in accordance therewith an appeal was taken to tbis court.</p>

<p> Negligence: Injury to person crossing street: Automobiles: Excessive speed: Contributory negligence: Questions for jury: Instructions to jury. </p> <p>1. The “look and listen” doctrine which is applied to persons approaching a railway track is not applicable to persons who • are using a city street on which ordinary street traffic only is going on.</p> <p>2. As between the drivers of ordinary vehicles . and a pedestrian crossing a city street the latter is required only to exercise ordinary care, and this does not impose upon him the duty of being constantly on the lookout.</p> <p>3. What constitutes ordinary care in such a case is generally, though not always, a question for the jury.</p> <p>4. In an action for injuries to a person who, while crossing a street from the curb to a street car, was struck by an automobile running at high speed, there being no evidence that he actually observed or that he could have seen that the automobile was approaching at a speed which would make his crossing dangerous, it was proper to instruct the jury in effect that if at the time a pedestrian leaves the curb he observes that the street is clear and that there are no vehicles thereon within a distance which would be covered by a vehicle going at a lawful speed, he may proceed on the assumption that all vehicles not within said distance will be operated at a lawful speed.</p> <p>6. It may well be, however, that if a pedestrian actually sees that a vehicle is approaching at a rate of speed which would make his crossing dangerous, he is not entitled to take the chances.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Ebwaed T. Eaieciiild, Circuit Judge.</p> <p>Action for personal injuries begun in the civil court of Milwaukee county. On August 5, 1915, plaintiff was in the employ of the Chicago & Northwestern Railway Company and formed a part of a crew of about ten men engaged in moving some frogs preparatory to placing them in the track. They consisted of two rails of from fifteen to eighteen feet in length, so welded together as to permit a train to pass from one rail to another, and were two and a half feet in width at the widest point. It required about ten men to carry them. Their westerly end lay within about three feet of the east rail of the easterly or north-bound track of defendant’s double track running north and south past them. On the day in question one frog had been carried from the pile and deposited some fifty feet to the northeast and about twenty-five feet east of the east rail of defendant’s east track. Upon returning for another frog, at about 9:39 a. m., and just as plaintiff, who was at the westerly end of the pile, was in the act of bending down to take hold and lift tbe frog, defendant’s train, consisting of an engine and twelve cars, came south on the north-bound track and the pilot beam of the engine struck plaintiff and inflicted the injuries for which damages are sought in this action.</p> <p>The civil court jury found (1) defendant did not give reasonable warning of the approach of the train; (2) it was guilty of negligence in failing to do so; (3) such negligence was a proximate cause of plaintiff’s injury; (4) it was apparent to the employees of defendant keeping a lookout just prior to the injury that plaintiff would not seek a place of safety; (5) defendant was guilty of a want of ordinary care in failing to bring the train to a stop after it became apparent that plaintiff would not seek a place of safety; (6) such failure to exercise ordinary care was a proximate cause of the injury; (7) plaintiff was.not guilty of any want of ordinary care which proximately contributed to produce the injury; (8) the danger of plaintiff being injured under the conditions as they existed was not such that plaintiff by the exercise of ordinary care should have known and appreciated such danger before the time of his injury; and (9) damages in the sum of $1,500. Judgment for plaintiff was entered upon the special verdict, and upon appeal to the circuit court the judgment was affirmed. Defendant appealed.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: W. J. Tubueb, Circuit Judge.</p> <p>Construction of will. Sale of real estate by trustees. Briefly the findings of the court are as follows:</p> <p>1. That John Plankinton died testate on March 29, 1891, leaving surviving him his widow, Annie B. Plankinton, who died October 19, 1900, his son William Plankinton, who-died October 29, 1905, and bis daughter Elizabeth A. Plank-inton, still living, sixty-three years of age, unmarried and without issue.</p> <p>2.' That his last will was admitted to probate on the 2d day of June, 1891; that the executrix and executor therein named qualified and the estate was duly administered and on the 10th day of February, 1893, a final decree was made and entered in the county court in the matter of the settlement of said estate, and Annie B. Planldnton continued to act as trustee t'o the time of her death, and thereafter William Planldnton acted as such trustee until his death.</p> <p>3. That William Planldnton left as his sole and only heir surviving the defendant William Woods Plankinton; that the defendant Alexandra Stuart Planldnton is his wife; that they have two children: William Woods Planldnton, Jr., aged ten, and Elizabeth Stuart Plankinton, aged six; that the appellants were duly appointed as trustees under the will of John Plankinton.</p> <p>5. That the defendant Plankinton Company -is a Wisconsin corporation, and William Woods Plankinton is the owner of all of its capital stock except three qualifying shares.</p> <p>6. That the defendants the Institution of Protestant Deaconesses of Allegheny County, Pennsylvania, and the Milwaukee Hospital Auxiliary are the corporations referred to in the will of John Plankinton as the Passavant Hospital.</p> <p>7. That the said testator by his will, among other things, provided as follows: That Annie B. Plankington should have a life estate in the homestead, being a part of block 255 in Rogers’ subdivision in the city of Milwaukee.</p> <p>(For remainder of will material here, see 152 Wis. pages 296, 297, 298, 299, 300.)</p> <p>8. That the location, boundary, and area of the various interests in block 255 are as shown in plaintiffs’ Exhibit 1, on page 273.</p> <p>9. That the rectangular northeast corner of said block, being 186.5 feet on G-rand avenue and about 510.6 feet on</p> <p> </p> <p>Fifteenth street, is tbe property designated by John Plant-inton in bis will as bis bomestead and devised to bis wife; that upon said corner so designated as bis bomestead is located tbe residence occupied by John Plankinton at tbe time of bis death and an old barn that was used by bim up to tbe time of bis death; that tbe balance of said block, being 313 feet on Clybourn street and approximately 323.95 feet on Fifteenth and Sixteenth streets, was vacant and unoccupied at tbe time of tbe death of John Plankinton and is now vacant; that tbe property designated by John Plankinton as bis bomestead was occupied by tbe widow until her death and thereafter by William Plankinton, son of tbe testator, and bis family until bis death and until some time in tbe year 1906, since which time it has been vacant and unoccupied excepting as used by a caretaker.</p> <p>10. That tbe area of tbe designated bomestead was approximately 100,000 square feet; tbe area occupied by tbe residence 9,000 square feet, and that occupied by tbe barn 5,000 square feet.</p> <p>“11. That during tbe lifetime of John Plankinton and for a few years thereafter, tbe neighborhood of said residence was a popular residence section of tbe city of Milwaukee and occupied by large and expensive residences; that due to tbe growth of tbe city and change of conditions said neighborhood is no longer considered suitable or desirable for large private residences of tbe size and character of testator’s bomestead; that said neighborhood has come to have a large number of flats, apartment and rooming bouses, and property in said neighborhood is beginning to be used for business purposes; that said residence cannot be rented for private residence purposes, nor can tbe same be remodeled and rebuilt to advantage for use for flat or apartment bouse purposes or for any other purposes; that said trust estate is heavily indebted and not in a financial condition to permanently improve said property, and it would not be for the best interests of said trust estate to undertake to permanently improve tbe same.</p> <p>“12. That all that part of said block belonging to said 'trustees is entirely unproductive; that they are and have been unable to rent the same; that the improvements on said premises have greatly depreciated in value and are exposed to waste and dilapidation; that the average annual expense during the past six years to the trustees of that portion of ■said block belonging to them is $4,129.67 for taxes, insurance, repairs, and caring for said property; that said portion of •said block belonging to the trustees will not increase in value to an amount equal to the cost of carrying the same over what it can now be sold for; that the interests of the beneficial owners of the said real estate, or interests therein, will be •substantially promoted by a sale of said real estate because the same is exposed to waste and dilapidation and is unproductive.</p> <p>“13. I further find that the testator did not intend by his will to restrict or forbid the sale of any of his real prop-, erty when and in the event the interests of the beneficial owners of such real estate, or interest therein, would be substantially promoted by a sale thereof because the same is exposed to waste or dilapidation, or is unproductive, or for other peculiar reasons or circumstances.”</p> <p>Upon such findings the court made the following conclusions of law:</p> <p>“That because the interests of the beneficial owners of all that portion of said block 255 above described belonging to the trust estate will be substantially promoted by a sale thereof because the same is exposed to waste and dilapidation and is unproductive, a sale thereof should be ordered and directed by the court in the execution of the trust under the will of said deceased.</p> <p>“2. That the plaintiff trustees and their successors in trust should be authorized, empowered, and directed to sell and convey all said premises for such price and upon such terms as may be approved by order of this court to be made .and entered at the foot of the judgment herein, and that the proceeds of such sale be impressed with the trust under the wilt of said John Plankinton, deceased, and be administered by the trustees thereof as the equivalent of the aforesaid real estate.</p> <p>“3. That this court has jurisdiction in this action to authorize or require a sale of said real estate as aforesaid in the execution of the trust under said will.”</p> <p>Judgment was entered accordingly, and from the judgment so entered the guardian ad litem, representing ’William, Woods Plankinton, Jr., and Elizabeth Stuart Plmhinton, and any persons unborn who might have any interest in said premises, appeals.</p>

<p> Arrest and bail: Affidavit: Sufficiency: Remedies: Habeas corpus. </p> <p>1. Under sub. (2), sec. 2689, Stats. 1916, an order of arrest may properly be issued in a civil action where it appears by affidavit that the defendant, while treasurer of a corporation, wrongfully converted moneys of the corporation to his own use and fraudulently misapplied its funds.</p> <p>[2. Whether habeas corpus is a proper remedy in a case where an order of arrest has been issued without a sufficient affidavit, or whether a motion to vacate the order under sec. 2715, Stats., is the exclusive remedy, is not decided.]</p> <p>3. The nature of a habeas corpus proceeding, as being in itself a civil action and not a motion in another action, the proper • parties thereto, and the procedure therein, are indicated.</p>

W. BubNell, Circuit Judge. This is an action to recover the amount of two promissory notes' given by the Wisconsin Grain and Fuel Company to the plaintiffs, together with the costs of the action. These notes were given by the Wisconsin Grain and Fuel Company for a pre-existing debt it owed the plaintiffs, Holmes and Hertzberger, doing business as the Holmes-Hertzberger Fuel Company. Before delivery the notes were guaranteed by the defendants James Ji.

Ray Stevens, Circuit Judge. Writ of certiorari to review tbe proceedings of tbe Wisconsin Tax Commission assessing tbe Sallie F. Moon Company an income tax on dividends received by it since January 1, 1911, as a stockholder of tbe Northwestern Lumber Company. Tbe dividends were declared out of surplus on band January 1, 1911.

<p>Appeal from a judgment of tbe circuit court for Milwaukee county; Maetiw L. Ruege, Judge.</p> <p>Action to recover damages for money and jewelry deposited by plaintiff December 12, 1915, as a guest in defendant’s Hotel and stipulated upon tbe 'trial to Have been lost by it through the theft or gross negligence of one of its servants. The value of the money and property lost, exclusive of a ring claimed to be a pigeon-blood ruby, was stipulated to be $1,425. The jury by special verdict found (1) that the property of the plaintiff was deposited in the vault by the cashier after having been received by her; (2) that the value of the ruby ring was $2,500; and (3) that defendant, during the time plaintiff was a guest at its hotel, had not complied with the posting of notices required by sec. 1725, Stats. 1915. The court set aside the third finding and found that defendant had complied with the statutory requirement as to the posting of notices, and held that under the provisions of sec. 1725 defendant’s liability was limited to $300. Judgment for that amount, with interest and costs, was entered in favor of plaintiff, and from such judgment she appealed.</p>

<p> Municipal corporations: Building permits: Garages: “Business section:” Ordinances construed: Mandamus: Relator’s right to damages: Officers: Honest mistakes in performing quasi-judicial duties. </p> <p>1. Sub. (d), sec. 474, Milwaukee Code of-Ordinances, — providing that “when two thirds of the lots fronting on one street in any block of the city ... not within the business section are occupied by buildings devoted to residence purposes,” no public garage shall be erected on any lot in such block on such street, — is not applicable unless two thirds of all the lots of the block fronting on one street are occupied as stated, even though some of such lots are within the “business section.” Thus where, of the twelve lots in a block fronting on one street, two and the greater part of a third were within the business section and were not occupied by dwellings, while six of the remaining lots were so occupied, the building inspector was not justified in refusing a permit to erect a garage on a site which included the part of said third lot not within the business section.</p> <p>2. Where the “business section” of a city as defined by ordinance included a district described: “Greenfield avenue. — Beginning at the intersection of First avenue to one hundred and fifty feet north and south of Greenfield avenue, westerly to Twenty-sixth avenue,” such district embraced an area rectangular in form extending north and south from the margins of Greenfield avenue 150 feet, and east and west from First avenue to Twenty-sixth avenue; the strip being of uniform width throughout and embracing all lots or parts of lots located within it, regardless of what streets such lots fronted upon.</p> <p>3. Where in a mandamus action the parties submitted the issues for trial to the court without a jury, the findings of the court in favor of the relator are equivalent to a verdict, in the contemplation of sec. 3453, Stats. 1915, which provides that in case a verdict shall be found for relator or if judgment be given for him upon demurrer or by default he shall recover damages and costs in like manner as he might have done in such action for a false return.</p> <p>4. Secs. 3451, 3453, 3456, Stats. 1915, do not create an absolute liability of the respondent for damages in case a verdict shall be found for relator or if judgment be given for liim upon demurrer or default; nor does tlie relator’s right in such case to recover damages rest within the sound discretion of the court. The liability must depend upon the facts of the case, including the nature and quality of the duty which the respondent failed to perform and of the rights of the relator which were breached ■ by such failure.</p> <p>5. Where a building inspector, in refusing a permit for the erection of a public garage, acted honestly and in good faith upon a mistaken view of the meaning of a city ordinance, and his return to an alternative writ of mandamus truthfully stated the facts, he was not liable in damages to the relator to whom he had denied said permit, such denial not being an invasion of the relator’s private property rights.</p> <p>6. As a general rule, officials acting in an honest exercise of their judgment in the discharge of gwasi-judicial duties are not liable in damages to private persons for their mistakes and errors.</p>

Action to recover a commission on an agency contract to procure a purchaser for certain real estate.

The plaintiff in county court filed a claim of $2,700 against, the defendant. The county court disallowed it. In circuit -court, upon trial before a jury, the plaintiff recovered $2,650. In her claim Lizzie Thoni, daughter of Mary McDonnell, demanded $2,700 for services rendered on the farm for her mother under an express contract. Patrick McDonnell, husband of Mary McDonnell, died in 1887.

<p>Appeal, from a judgment of tbe circuit court for Iowa county: G-eobge ClemeNtsoN, Circuit Judge.</p> <p>Tbe respondent filed a claim against tbe estate of Mary McDonnell, deceased, appellant bere, for services performed by ber upon an alleged express agreement to tbe effect tbat if respondent would leave ber borne and take care of ber mother and sister during tbeir lives, or so long as tbe mother should desire such services, she should be paid $1,000.</p> <p>The claim was originally filed for two causes of action: (1) for reasonable value of services, and (2) for the sum of $1,000 upon express agreement. Tbe former was abandoned on tbe trial, the respondent electing to stand on the latter.</p> <p>The jury returned the following verdict:</p> <p>“(1) Was Oelia McHation called by Mary McDonnell, her mother, to come to her home on or about June 26, 1911, to take charge of 4it and to take care of her; and did Celia McIIatton at once go and take upon herself these duties ? A. Yes (by the court).</p> <p>“(2) Did Mary McDonnell say in the presence of Celia McHation that her compensation for the Avork specified in the first question would be $1,000 ? A. Yes.</p> <p>“(3) If you answer the last question ‘Yes,’ answer this question: Did Mrs. McHatton, in reliance upon said ’promise, enter upon the performance of said work and continue to discharge it until April 8, 1912, when Mrs. McDonnell’s son, M. E. McDonnell, took possession of the home property which he had purchased from Mary McDonnell February 7, 1912, and as a part of the consideration for the property had in writing agreed to support and care for his mother during life? A. Yes.</p> <p>“(4) Was Mrs. McHatton willing, at the time when M. E. McDonnell took possession of the property, to continue to live in the home and care for it and her mother as she had been doing? A. Yes.</p> <p>“(5) Did Gelia McHatton consent voluntarily to abandon the arrangement made with her mother to take care of the home and her? A. ETo.</p> <p>“(6) What was the value of the services performed by Mrs. McHatton per week under all the circumstances? A. Twelve dollars a week per week.”</p> <p>Judgment was rendered in favor of the respondent for $1,000, from which this appeal was taken.</p>

<p> Contracts: Consideration: Recitals not conclusive: Reformation of instruments: When not necessary: Evidence: Sufficiency. </p> <p>In an action to recover $800, the rental specified in a lease of plaintiff’s farm to defendant for fifteen months, the question being whether such rental was included in the sum of $2,100 which was named in a hill of sale as the consideration for which plaintiff sold to defendant the personal property on the farm, the recitals in said instruments as to consideration were not conclusive, and it was not necessary for defendant, in order to avail himself of the defense that the rental was included in said $2,100, to have the writings reformed, nor was it necessary for him to prove a mutual mistake by evidence so clear and satisfactory as to warrant a reformation.</p>

<p> Life insurance: Validity of contract: Appointment of insured as local adviser: Discrimination between insurants: Rebates: Enforcement of contract. </p> <p>1. A contract appointing a lawyer as local adviser of a life insurance company and providing, among other things, that, in consideration that he will “on written request” furnish the company with information as to the character and habits of applicants for insurance, etc., certain payments will he made to him annually on the premium date of a “20-payment life advance dividend local adv. policy of insurance” for $5,000, which was issued 'to him as a part of the same general arrangement, is held to have constituted discrimination between insurants of the same class and, in effect, a rebate of a part of the premium and an inducement not specified in the policy, in evasion and violation of sec. 1955o, Stats. 1898, — the evidence as to services rendered under the contract being very general and indefinite and not a single written request for information being shown.</p> <p>2. Such local adviser contract, being in violation of a statute and in contravention of the public policy of the state, will not be enforced so far as it remains executory.</p>

<p> Statutes: Implied repeal: Construction of repugnant provisions: New trial: When motion to be decided: Loss of jurisdiction: Waiver of statutory requirements. </p> <p>1. Implied repeals are not favored, and unless an intent to displace a prior statute by a later one is clearly indicated effect should, if possible, be given to both.</p> <p>2. In the absence of some unmistakable indication to the contrary, each chapter of the statutes should be held to prevail as to its own subject matter; and a special provision relating to a particular matter should, if it can reasonably be done, be held controlling on that particular subject as against a later general provision which in letter is repugnant thereto.</p> <p>3. Sec. 113.10, Stats. (Laws 1913, ch. 592), did not supersede or repeal sec. 2878, Stats. The words “all other matters” in said sec. 113.10 were intended to refer to all other matters dealt with in the act of 1913 and not therein specially prescribed for, and were not intended to modify the provision of sec. 2878 that a motion for a new trial on the minutes of the judge, if made but not decided during the trial term, shall be taken as overruled.</p> <p>4. If a motion for a new trial on the judge’s minutes is made but not decided at the trial term, the circuit court has no jurisdiction to grant such motion after the term unless the requirement of sec. 2878, Stats., has been expressly or impliedly waived by counsel.</p> <p>5. The mere fact that when a motion for a new trial on the judge’s minutes was submitted during the trial term counsel did not insist upon a decision being rendered before the expiration of the term, does not show a waiver of the requirement of sec. 2878, Stats.</p> <p>6. Where defendants’ counsel, upon being advised that a motion by plaintiff for a new trial would be granted after the trial term, made some suggestion as to the form of the order but expressly stated that they did so “without waiver of any of defendants’ rights in the premises,” and afterwards, before the order was entered, notified the judge that the provision of the statute would be insisted upon, there was no waiver of such provision.</p>

Action against the sureties upon a guardian’s bond. One Carroll Lucas was appointed guárdian of the estate of plaintiff and John Kyle and George Kyle signed his bond as sureties. Lucas died insolvent and indebted to the estate of his ward in the sum of $'719.97 with interest thereon at six per cent, from January 1, 1912. George Kyle was also dead, and one E. J. Rates, the administrator of his estate, was made a party defendant.

Ray Steveets, Circuit Judge. Action on contract for damages. Plaintiff was the owner of a hotel property located in tlie city of Madison, upon which, there wás a first mortgage of $30,000, and a second mortgage of $35,000 owned by the Iiausmann Brewing Company. Defendants were interested in two tracts of land situated in Hidalgo county, Texas, one 389 acres in extent, known as the Edinburg tract, and the other 280 acres, known as tho Mercedes tract.

Ray Stevens, Circuit Judge. Oertiorari to review tbe proceedings of tbe Tax Commission assessing an income tax against tbe relator for tbe year 1915. Tbe facts were these: Tbe relator, a Wisconsin corporation, owns stock in tbe Fidelity Gas Company, a West Virginia corporation having its principal office at Milwaukee, which in turn owns stock in tbe Wisconsin Securities Company, a Wisconsin corporation.

<p> Automobiles: Operation on highiuays: Speed: Invalidity of local regulations: Municipal ordinances: Bridges. </p> <p>1. Secs. 1636 — 47 to 1636 — 57, Stats., relating to the use and operation of motor vehicles on the highways of the state, establish uniform regulations as to all localities and exclude local legislation inconsistent therewith.</p> <p>2. Sec. 1636 — 49, Stats., provides for unusual conditions and cases. which could not be regulated by specific speed limits, and in such cases the “reasonable and proper” rate of speed is not to be fixed by local authority but is to he determined upon the particular facts of each case.</p> <p>3. Under sec. 1636- — 55 local authorities may enact ordinances or regulations “in strict conformity with” the state law, imposing the same penalty for a violation of that law, where such violation occurs within the jurisdiction of the local authority; but this does not authorize the fixing of any speed limit inconsistent with the statutes.</p> <p>4. A city ordinance which attempts to fix a speed limit of ten miles per hour for motor vehicles upon a bridge in the' city, is inconsistent with the statutes and hence void.</p> <p>5. A bridge is a “public highway” within the meaning of secs. . 1636 — 47 to 1636 — 57, Stats.</p> <p>6. Under the express terms of sec. 925' — 2, Stats., the provision fn sec. 925 — 52 giving a city council power to regulate bridges is. inapplicable to a city theretofore incorporated which has not adopted the latter section.</p> <p>7. Sec. 1323, Stats., imposing a penalty in certain cases upon one who “shall drive or ride on any animal faster than a walk” on any bridge, is not applicable to automobiles.</p>

<p>Appeals from judgments of tbe circuit court for Dane county: E. Eay SteveNs, Circuit Judge.</p> <p>Both of the above entitled actions arise out of the same accident and they will therefore be treated together. Claim for compensation for accidental death. The deceased, Ferdinand Kuetbach, Jr., on and prior to December 19, 1915, the date of the accident, was in the employ of the defendant 'Washington Outlery Company, and living with his father, Ferdinand Kuetbach, 8r., who was dependent upon him for support. Prior to this time, as a result of illicit intimate relations between the deceased and the respondent Etta Kuet-bach, she was pregnant by the deceased. On May 18, 1916, the deceased and Etta Kuetbach were married. On June 5, 1916, as a result of accidental injuries, the death of Ferdinand Kuetbach, Jr., occurred, and on Jifne 21, 1916, Ferdinand Edward Kuetbach, the minor, was born. The widow, Etta Kuetbach, was living with her husband, Ferdinand Kuetbach, Jr., at the time of his death. The matter was presented to the Industrial Commission and issue joined, and upon the hearing the Commission made an award giving compensation to the father, Ferdinand Kuetbach, Sr. Etta Kuetbach, the widow, brought an action in the circuit court for Dane county to review the award of the Commission, and Ferdinand Edward Kuetbach, minor, by bis guardian, brought a like action to review the award. Upon the trial the circuit court reversed the award of the Commission as to the father, awarded compensation to the widow, and denied compensation to the minor child. From the judgment of the circuit court Ferdinand Edward Kuetbach, minor, appeals in one case, and the Industrial Commission, 'Washington Cutlery Company, and Ferdinand Edward Kuetbach, minor, appeal in the other case.</p>

<p>Sales: Place of contract; Title, when passes: “F. o. b. mill:” Place of payment: Action against corporation: Place of trial: Where “cause of action” arose.</p> <p>1. Where paper was sold on. written orders mailed by the buyer at M. to the seller at P., such orders became contracts when accepted at P., and hence P. was the place of the contract.</p> <p>2. Where the invoices of such paper showed that it was sold “f. o. b. mill,” the title passed to the buyer when the paper was placed on cars at'the mill, — that being the meaning of the quoted expression, and also the effect of sub. 4, sec. 1684Í — 19, Stats., in the absence of contract provisions -or facts persuasively showing a different intent.</p> <p>3. The terms of the contract of sale being: “All invoices to be settled monthly by cash payable in funds current in Chicago or New York,” the place of payment was the residence of the seller, although the seller had been in the habit of receiving personal checks in payment of instalments due under previous contracts. Even if such habit rose to the dignity of a custom it could not vary the terms of a definite and unambiguous contract.</p> <p>4. The place of making a contract of sale, the passing of title, and the place where payment was to be made being all in the county in which the seller had its principal office, an action to recover the purchase price was properly brought in that county, and the buyer, a domestic corporation, was not entitled to have the venue changed to the county in which its principal office was located, on the ground that “the cause of action or some part thereof arose” in the latter county within the meaning of sub. 5, sec. 2619, Stats.</p>

Appeals from a judgment of the county court of Winnebago county: Feed Begliwgee, Judge. Mandamus to compel the city treasurer, mayor, and councilmen of the city of Oshkosh to transfer certain funds in the city treasury to the police pension fund. Oshkosh is a commission governed city of the third class, and since 1901 the city has maintained a permanent police pension fund, pursuant to secs. 925 — 52h to 925 — 52-y, Stats.

Appeals from a judgment of the circuit court for Iowa county: Geoege Olemebttsoh', Circuit Judge. Action to recover damages alleged to have been sustained by plaintiff’s decedent by reason of ■ fraudulent representations, made by defendants, whereby said decedent was induced to exchange a stock of goods for 480 acres of land in Mercer county, North .Dakota, at a time when, it is alleged, he was of unsound mind and incompetent to transact business.

Ray SteveNS, Circuit Judge. Tbis 'is an action by tbe plaintiff, Casper Boeser, to recover damages for alleged personal injuries wbicb be claims were caused by a defective highway of the county of Sauh. Tbe plaintiff presented a claim for damages to tbe county board.

Rat Stevews, Circuit Judge. Tbe complaint in tbis action sets forth substantially tbe following facts: That tbe plaintiff and Eritz Scbwenn intermarried September 30, 1902; that prior to tbe marriage a written antenuptial contract of marriage settlement was made between tbe parties, a copy of wbicb contract is attached to tbe complaint; that on October 18, 1909, in an action by tbe plaintiff against said Eritz Scbwenn judgment of absolute divorce was entered in favor of…

Ray Stevens, Circuit Judge. Action to recover $1,000 commission for the sale of real estate. November 11, 1916, the defendants in writing appointed plaintiff to sell their farm, stating therein that “our price for this property is $20,000 net to us,” and that in event of a sale for $20,000 or less to a customer of plaintiff they would pay him a reasonable commission. Seven days later defendants sold the land to a customer of plaintiff’s for the sum of $21,000.

Appeai. from a judgment of the circuit court for Dane county: E. Ray Steveeís, Circuit Judge. Action for specific performance of a contract for tbe exchange of land. There was a counterclaim asking that the alleged contract be canceled. Plaintiff engaged one O. N. Robbins to. sell or exchange his farm. Defendant employed one Delaney to sell or exchange his flat building.

<p> Garnishment: Salaries of state and municipal employees: Piling of judgment: Validity of statute: Bankruptcy: Liens, how far avoided: Provable debts: Judgment on tort claim: Discharge: Effect upon lien on salary. </p> <p>1. Sec. 3716a, Stats. 1915, — providing for the filing of judgments against officers or employees of the state or of any municipal corporation, and for the payment after thirty days to the owner of the judgment, by the disbursing officer of the state or municipality, of the salary or wages due at the time of filing the judgment or thereafter becoming due to such officer or employee, not exceeding the amount of the judgment and not including such sums as are by law exempt from garnishment, — is a valid law. Difficulties in administering it are not a ground for holding it unconstitutional.</p> <p>2. The right given by said sec. 3716a is a “lien obtained through legal proceedings” within the meaning of sec. 67 f of the federal bankruptcy act, and hence, so far as it affects wages or salary due at the time of the filing of a petition in bankruptcy by the judgment debtor, it is rendered “null and void;” but the judgment itself is not affected by said sec. 67 f, and the lien acquired by the judgment creditor under said sec. 3716a remains in full effect upon the salary accruing after the adjudication of bankruptcy, such salary being the property of the bankrupt and not a part of his estate which passes to the trustee in bankruptcy.</p> <p>3. A tort claim which had been reduced to judgment prior to the commencement of bankruptcy proceedings is “a fixed liability .. . evidenced by a judgment . . . absolutely owing at the time of the filing of the petition,” and is a provable debt, under sec. 63 of the bankruptcy act.</p> <p>4. Where such a judgment is simply one for damages resulting from a negligent act which was not wilful or malicious, it will be discharged if the bankrupt be granted a discharge.</p> <p>5. Where a judgment is discharged by a discharge in bankruptcy, a lien acquired by the judgment creditor under sec. 3716a, Stats. 1915, is discharged as to salary of the bankrupt falling due after the adjudication of bankruptcy.</p> <p>Eschweilek, J., dissents.</p>

V. HogaN, Judge. Action on a death benefit certificate issued by the defendant, a mutual benefit association, to one Arthur E. Zimmerman, deceased, husband of the plaintiff, the defense being that the deceased committed suicide. The case was tried before a jury and a special verdict rendered negativing suicide. Judgment being rendered for the plaintiff thereon, the defendant appeals.

Outagamie county: Edgae V. Weewee, Circuit Judge. This action was originally brought to recover on a'promissory note against John J. Rettler and Matt Rettler.

Spenoeb, Judge. This action was brought to recover for services in teaching school in the defendant’s district for the period of nine months commencing on the 6th day of September, 1915, at $45 per month. The complaint alleged that the plaintiff was a duly qualified school teacher and held a certificate authorizing him to teach in the public schools in the county of Outagamie, Wisconsin.

Ross, Circuit Judge. Action to quiet title to forty acres of land the title to which was in plaintiff prior to the issuance of a tax deed under which defendants claim title. Such tax deed was issued to the defendant Qua/rcmteed Investment Company June 11, 1912, and recorded on said date, at which time the land was wild and unoccupied.

Ross, Circuit Judge. A general demurrer to the complaint on the part of the respondent, Pemberton, was sustained, and the plaintiff appeals. The action was brought against the respondent, Pemberton> and one Ricardo and three other persons, for breach of an optional contract to convey certain lots in the city of Superior.

This is an action by tbe plaintiff railway company to recover freight charges _ and demurrage from the defendant, the lloclcing Valley Fire Clay Company, a corporation which manufactures salt-glazed brick at Nelsonville, Ohio. Three carloads of brick were shipped on October 2/Tth and 28th by the defendant to the Bailey-Marsh Company, contractors at Orookston, Minnesota.

Ross, Circuit Judge. In a divorce proceeding and in settlement of property rights, tbe defendant J ohn E. Pavelka conveyed to tbe plaintiff… Held: an action in partition was begun in tbe court below by Hatton, and plaintiff and McDowell made parties defendant; that McDowell also acted as counsel for Hatton; that an answer on behalf of tbe plaintiff was served in tbe action, signed by Homer Morris, her attorney, which was returned because not signed by a Wisconsin attorney,…

Ross, Circuit Judge. Action by plaintiffs, as general taxpayers and as owners of property affected by a proposed improvement, to restrain the city of Superior and the Russell Construction Company from the performance of a contract between them for the paving of one of the streets within the defendant city, on the ground that said contract was void because the fact that (a) no specifications for a concrete base had been adopted when bids were received; (b)' the contract was…

Appear from a judgment of the circuit court for Polk county: EraNk A. Ross, Circuit Judge.’ Action to foreclose mortgage. Counterclaim by defendants for damages for false representations. Plaintiff sold the farm in question to the defendants and they gave back a mortgage upon the premises for the unpaid part of the purchase price, which is the mortgage sought to be foreclosed here.

Ross, Circuit Judge. Prior to 1891 there bad been granted by the plaintiff a franchise to the Douglas County Street Railway Company, defendant’s predecessor.

Geoege Geimm, Circuit Judge. The action is brought by the insured under an accident insurance policy for the total loss of one eye. A general demurrer to the complaint was overruled, and the defendant appeals.

<p>Appeal from an order of tbe circuit court for Rock county: Geouge Geijim, Circuit Judge.</p> <p>Tbis is an action to compel tbe defendant, as city treasurer of tbe city of Edgerton, to accept personal property tax receipts as an offset against income tax due from the relator, which is a foreign corporation licensed to do business in tbis state.</p> <p>Prior to the year 1916 tbe relator bad neglected to make any report of its income subject to taxation. During tbe year 1916 tbe Wisconsin tax commission assessed and levied an income tax upon the relator’s income for tbe omitted years, 1912 to 1915, inclusive, and placed it upon tbe 1916 tax roll. It was payable in January, 1917. Tbe income tax for tbe years 1912 to 1915, inclusive, as assessed by tbe tax commission, amounted to $14,400.70. During tbe years 1912 to 1915, inclusive, tbe relator paid taxes on personal property in various taxing districts in Wisconsin to tbe amount of $9,793.25. On January 31, 1917, tbe relator tendered to tbe defendant tbe personal property tax receipts for the amount above stated as an offset against tbe above income taxes, together with tbe cash for the difference. Tbis tender was refused.</p> <p>Tbe relator brought mandamus proceedings against tbe defendant. Tbe defendant moved to quash tbe writ. Tbe court denied tbe defendant’s motion to quash tbe alternative writ of mandamus and directed tbe peremptory writ to issue. Tbis is an appeal from such order.</p>

Appeai. from a judgment of the circuit court for Rock county: Geoeg-e Geimm, Circuit Judge. The plaintiff, executrix of the will of Dr. Edmund E. Woods, deceased, brings this action to recover for the death of Dr. Woods, who had a policy of accident insurance in defendant company, upon the ground that he died from injuries effected solely by external, violent, and accidental means wbicb caused bis immediate death.

Action to recover the purchase price of certain lands which plaintiffs by a contract in writing agreed to sell defendant and to which thej' claimed, and agreed to transfer, a merchantable title.

<p> Navigable streams: Title to bed: Qualified title of riparian oioner: Obstructions: Nuisances: Abatement: State policy: Stare de-cisis: Rule of property: Tested rights: Buildings on piles in Rock river at Janesville: Taking of private property ivithout compensation. </p> <p>1. Upon the organization of the several states the title to the beds of all streams navigable in fact vested in the states in trust for public purposes.</p> <p>2. At common law a navigable stream was a public highway subject to public use, and the right of passage over it extended to all parts of the channel, and to abate an obstruction as a nuisance it was not necessary that the obstruction should actually have interfered with navigation; it was sufficient if it rendered it less convenient and less useful.</p> <p>3. By the enactment of ch. 72, Laws 1853, as re-enacted and reaffirmed at various times, the legislature declared the policy of the state with reference to all streams included within its terms, and thereby gave to all the waters therein described the incidents of navigable streams at common law, so far as they were navigable in fact; and the distinction theretofore existing between tide and nontidal waters as to navigable character was abolished.</p> <p>4. The title of a riparian owner on a navigable stream extends to the center or thread of the stream, but his title to the bed of the stream is a qualified one and subject to the public right of navigation with all its incidents.</p> <p>5. The right to maintain a navigable river free of all obstruction to navigation, as that term was understood at common law, is not inconsistent with such private ownership of the bed of the stream.</p> <p>6. If the right of the public to have the public streams of the state kept free from obstruction has been modified to any extent, it has been so modified by the force and effect-of a state policy; and this modification, if such it is, having been sanctioned by the courts and long adhered to, must, under the doctrine of stare decisis, be held to have established a rule of property, and at least so far as rights have accrued thereunder they will not be disturbed.</p> <p>7. The decisions in State v. Carpenter, 68 Wis. 165, and Janesville v. Carpenter, 77 Wis. 288, to the effect that buildings standing upon piles driven into the bed of Rock river at Janesville, of substantially the same kind and extent as the building involved in this case, were, by reason of the peculiar circumstances found, in connection therewith, structures which could not be abated as nuisances at the suit of the state or private parties, are adhered to and followed, for the protection of vested property rights.</p> <p>8. Sec. 1596, Stats., as amended by ch. 652, Laws 1911, does not affect the rights of property owners, with respect to structures of the character mentioned and similarly situated, which had ae-.crued before the enactment of said ch. 652. Such owners cannot be deprived of their property rights without just compensation.</p>

<p> Rape: Degree of resistance required: Evidence: Sufficiency. </p> <p>1. In order to constitute the crime of rape there must he not only lack of consent but the utmost resistance by all means within the woman’s power.</p> <p>2. What constitutes the utmost resistance in a particular case must depend largely upon the facts of that case, such as the temperament of the victim, the relations of the parties, her state of health, her physical strength, her age, her experience, her courage, her nervous condition at the time, and perhaps other circumstances naturally affecting her powers of resistance. Brown v. State, 127 Wis. 193, and McLain v. State, 159 Wis. 204, explained and reconciled.</p> <p>3. Upon the evidence in this case, so grave a doubt remains as to whether the prosecutrix made that resistance which the law requires in view of all the surrounding circumstances, that a conviction of the crime of rape is reversed.</p>

<p>Appeal from a judgment of tbe circuit court for Milwaukee county: Oscar M. Feitz, Circuit Judge.</p> <p>This action was brought to recover for personal injuries sustained by tbe plaintiff while in tbe employ of tbe Milwaukee Western Fuel Company. Tbe complaint charges that tbe plaintiff’s injuries were caused by tbe negligence of tbe defendant in the construction of a coal-handling device which the defendant furnished the Milwaukee Western Fuel Company under a contract with said fuel company. It is further alleged that subsequent to receiving the injuries complained of plaintiff made claim against his employer, Milwaukee Western Fuel Company, for compensation on account of such injuries under the provisions of secs. 2394 — 1 to 2394 — -31, Stats., inclusive, and thereby plaintiff’s cause of action against the defendant was by operation, of law assigned to said Milwaukee Western Fuel Company; that subsequently and on July 21, 1915, said Milwaukee Western Fuel Company assigned and set over to plaintiff said cause of action against the defendant, which is a cause of action in tort, and that this plaintiff brings this action as assignee thereof.</p> <p>The action was tried to the court and a jury and the following special verdict returned:</p> <p>“(1) Was the manner of fastening the rail, as constructed by the defendant, imminently dangerous to life and limb when used as it was intended to be used ? A. Yes.</p> <p>“(2) If you answer question number 1 ‘Yes,’ then answer this question: Did the defendant have knowledge that that manner of fastening the rail was imminently dangerous to life and limb when used as it was intended to be used? A. No.</p> <p>“(3) If you answer question number 1 ‘Yes,’ then answer, this question: Was the defendant guilty of negligence in fastening the rail in that manner? A. Yes.</p> <p>“(4) If you answer question number 3 ‘Yes,’ then answer this question: Was such negligence on defendant’s part the proximate cause of plaintiff’s injury ? A. Yes.</p> <p>“(5) Did any want of ordinary care on plaintiff’s part proximately contribute to produce his injury? A. No.</p> <p>“(6) What sum of money will reasonably compensate the plaintiff for the injury which he sustained on July 1, 1914? A. Six thousand dollars.”</p> <p>Motions to change the answer to the second question of the special verdict from “No” to “Yes” and for a new trial were made by plaintiff and denied. Defendant’s motion for judgment on the verdict was granted, and judgment ordered accordingly, from which this appeal was taken.</p> <p>They contended, inter alia,, that the defendant in furnishing this platform and railing for the use of the employees of the Milwaukee Western Fuel Company which they might use in the doing of their work, in effect invited and induced the plaintiff and other employees to make use of such railing in the performance of their work as such employees, and that the defendant company is liable to the plaintiff or any other workman if injured while using such platform and railing as such employee, if such injury was due to the defective and unsafe condition of the railing-caused by negligent construction thereof. < Bright v. Barnett & Record Go. 88 Wis. 299, 60 1ST. W. 418; Huber v. La Crosse Gity R. Go. 92 Wis. 636, 645, 66 1ST. W. 708; Heaven v. Pender, 11 Q. B. D. 503, 509; HasbroucJc v. Armour & Go. 139 Wis. 357, 12Í 1ST. W. 157; Meyer v. Menominee & M. L. & T. Go. 151 Wis. 279, 285, 138 FT. W. 1008; Inder-maur v. Dames, L. R. 1 O. P. Cas. 274; 'Winterbottom v. Wright, 10 M. & W. 109; Thomas v. Winchester, 6 FT. Y. 397; Goughtry v. Globe W. Go. 56 FT. Y. 124; Gilbert v. Nagle, 118 Mass. 278; Iluset v. J. I. Gase T. M. Go. 120 Fed. 865; Devlin v. Smith, 89 FT. Y. 470; Kahner v. Otis E. Go. 96 App. Div. 169, 89 FT. Y. Supp. 185; Lisle v. Anderson (Okla.) 159 Pac. 275, L. R. A. 1917A, 128. Such liability may also rest upon the duty which the law imposes on every one to avoid acts imminently dangerous to the persons or lives of others, when the defect is such as to render the construction in itself imminently dangerous and serious injury to any person using it is a natural and probable consequence of its use. Bright v. Barnett & Record Go. 88 Wis. 299, 307, 60 FT. W. 418; Hasbrouch v. Armour & Go. 139 Wis. 357, 121 FT. W. 157; Kerwin v. Chippewa S. M. Go. 163 Wis. 428, 157 N. W. 1101; Devlin v. Smith, 89 N. Y. 470; Kah-ner v. Otis E. Go. 96 App. Div. 169, 89 N. Y. Supp. 185; Statler v. George A. Ray M. Go. 125 App. Div. 69, 109 N. Y. Supp. 172; Holmvik v. Parsons B. G. & S. F. Co. 98 Minn. 424, 108 N. W. 810; Berger v. Standard Oil Go. 126 Ky. 155, 103 S. W. 245, 11 L. R. A. w. s. 238; Ileindirk v. Louisville E. Go. 122 Ky. 675, 92 S. W. 608, 5, L. R. A. s', s. 92; Olds M. Works v. Shaffer, 145 Ky. 616, 140 S. W. 1047, 37 L. R. A. si. s. 560; Pierce v. G. 11. Bidwell T. Go. 153 Midi. 323, 116 N. W. 1104, 1106; Lisle v. Anderson (Olda.) 159 Pac. 275, L. R. A. 1917A, 128; Loehring v. Westlake C. Go. 118 Mo. App. 163, 94 S. AV. 747; MacPherson v. Buick M. Go. 217 N. Y. 382, 111 N. E. 1050.</p> <p>argued that the general rule, applicable to the situation here, is that when a contractor has turned over the results of his work to the contractee, and the work has been accepted and the contractor has been discharged of his contract, the liability for negligence or defects in the work later appearing shifts from the contractor to the proprietor or occupant of the premises. The theory is that the contractor owes no duty toward any person except the contractee. Zieman v. Kieckhefer E. M. Go. 90 AVis. 497, 501, 63 N. AV. 1021; Ilas-brouck v. Armour & Go. 139 Wis. 357, 121 N. W. 157; Ker-win v. Chippewa S. M. Go. 163 Wis. 428, 157 N. W. 1101; Haley v. Swift & Go. 152 Wis. 570, 140 1ST. AV. 293; Huset v. J. 1. Gase T. M. Go. 120 Eed. 865; Galbraith v. III. S. Go. 133 Eed. 485; Gurtin v. Somerset, 140 Pa. St. 70, 21 Atl. 244, 12 L. R. A. 322; Daugherty v. Herzog, 145 Ind. 255, 44 N. E. 457, 32 L. R. A. 837; Fowles v. Briggs, 116 Mich. 425, 74 N. W. 1046; Qasey v. Wrought Iron B. Go. 114 Mo. App. 47, 89 S. W. 330; Wood v. Sloan, 20 N. Mex. 127, 148 Pac. 507; Lebourdais v. Vitrified W. Go. 194 Mass. 341, 80 N. E. 482; Cadillac M. O. Go. v. Johnson, 221 Eed. 801; Du Bois E. Go. v. Fidelity T. & T. Co. 238 Eed. 129. The exception suggested by Timlin, I., in tbe Hasbrouclc Gase is in general based upon a foundation of tort involving fraud and deceit rather than negligence. Actual knowledge of the existence of the defect with an intent to wilfully conceal such defect seems to be the foundation of liability as expressed in the cases which are authority for this exception to the general rule. Knelling v: Bodericlc Lean M. Go. 183 N. T. 78, 75 N. E. 1098; Peaslee-Gaulbert Go. v. McMath’s Adm’r, 148 Ky. 265, 146 S. W. 770; Ileizer v. Kingsland & D. M. Go. 110 Mo. 605, 19 S. W. 630; O’Brien v. American B. Go. 110 Minn. 364, 125 N. W. 1012, 32 L. R. A. n. s. 98.</p>

Gregory, Circuit Judge. Tbe appeal is from an order setting aside a verdict as unsupported by tbe evidence and granting a new trial. Held: practically agreed upon the trial that the specified dates for delivery of the marble were conditional upon the progress of the work at the building demanding deliveries. The cause was submitted to the jury for a verdict.

Halsey, Circuit Judge. This is an appeal from a judgment of the circuit court affirming the judgment of the Gounty court denying probate to an instrument propounded as the last .will and testament of Maria Nachtsheim, deceased, upon the ground of undue influence. The will was presented for probate by one Wallace J. Kircher, who is named in the instrument as executor and made chief beneficiary under the alleged will, and who was not related to the deceased.

<p>Appeal from a judgment of the circuit court for Sheboy-gan county: Michael KibwaN, Circuit Judge.</p> <p>Action for malpractice. October 31, 1915, plaintiff, then, about eighteen years of age, fractured the femur of her right leg. She employed the defendants to treat her, and charges that by reason of their negligent and unskilful treatment the ends of the broken bone were not put in apposition but were-negligently allowed to override and unite, thus causing a shortening, lameness, weakness, and pain in the leg. The jury found: (1) the defendants failed to use ordinary care and skill as physicians and surgeons in their treatment of the fractured femur of plaintiff’s right leg; (2) the injury which she had sustained in the deformity and shortening of her-right leg was the natural and probable consequence of the failure on defendants’ part to use such ordinary care and. skill; (3) there was a failure on plaintiff’s part to use ordinary care which contributed to produce the deformity and' shortening of her leg; and (4) the damages which she.sustained as the natural and probable consequence of defendants’’ negligence and. want of skill were $2,000. Judgment for plaintiff was entered upon the special verdict, and defendants appealed. <</p>

<p> Real-estate brohers: Right to commissions: Bad faith: Concealment of material fact. </p> <p>Where plaintiffs, real-estate brokers, in negotiating for defendant an exchange of properties and in inducing her to sign a contract therefor, intentionally concealed from her the fact that the other party, to the contract would be unable to carry it out unless they secured for him a large loan upon defendant’s property, with which to discharge incumbrances on the property which he was to convey to her, and because of their inability to secure such loan the contract was not consummated, such concealment of a material fact was an act of bad faith precluding a recovery by them of any commission from defendant.</p>

Ross, Circuit Judge. Action under sec. 3180a., Stats. 1915, to abate as a nuisance defendant’s wholesale liquor business in the village of Oliver, Douglas county.

<p> Highways: Injury from defect: Stone near traveled track: Negligence of town: Contributory negligence: Questions for jury: Automobiles: Passing other vehicles: Special verdict: Subdividing questions: Evidence: Sufficiency. </p> <p>1. Whether a town was negligent in permitting a stone about twenty-one inches long and projecting nine to twelve inches above the ground to remain for years in the highway about five feet from the traveled track and in a space grown up with grass and clover, and whether there was negligence on the part of the driver of an automobile which, after turning out to pass a horse and buggy, struck such stone in regaining the traveled track, are held, upon the evidence, to have been questions for the jury.</p> <p>2. A violation of sec. 1636 — 49a, Stats, (which makes it unlawful for the driver of an automobile, in passing another vehicle going in the same direction, to go within three feet of such vehicle at a greater rate of speed than ten miles an hour), is negligence per se, but not necessarily gross negligence.</p> <p>3. Where the question of contributory negligence is submitted in a special verdict under prope'r instructions, there is no error in refusing to subdivide such question into different elements.</p> <p>4. Notwithstanding possible inconsistencies or apparent contradictions in the testimony as to some of the details of the accident, a verdict in favor of plaintiff, who was injured when the automobile in which she was riding struck a stone in the highway, is held to have sufficient support in the evidence.</p>

<p> Pleading: Defenses: Waiver of rights: Sales: Breach of warranty: Notice. </p> <p>1. Matters of defense not called to tñe attention of the court and opposing parties during the trial so that in the determination of the issues they may be given due consideration, are effectually waived and cannot thereafter be urged as grounds for a new trial or for reversal of the judgment on appeal.</p> <p>2. Thus, in an action to recover damages for breach of a warranty that a cow sold to plaintiff was sound, where the answer admitted that at the time of the sale the cow had a certain disease and the sole defense was that plaintiff accepted the animal with knowledge of that fact, it was too late, after a verdict for plaintiff and upon a motion for a new trial, for defendants to assert for the first time, as a defense, that plaintiff had not given them notice of the breach of warranty, as required by sec. 1684f — 49, Stats.</p>

<p>Appeal from an order of the circuit court for Dodge county: MaetiN L. Luece, Circuit Judge.</p> <p>The appeal is from an order affirming the order of the county court of said county dismissing a petition.</p> <p>On June 13,1911, one Clara Staab made what was claimed to be her last will. June 1, 1914, upon hearing in the county court of Dodge county, findings were made to the effect that at the time of the making of the will said Clara Staab was of full age, of sound mind and memory, and that said will was duly executed, and thereupon it was admitted to probate. No appeal was taken from the judgment or order so admitting it to probate.</p> <p>On June 11, 1915, Melita Ileinz and Edmund Teichmiller made petition to the same county court in substance alleging as follows: That Clara Staab was, upon due proceedings had, committed to the Northern Hospital for the Insane at Oshkosh in June, 1890, and remained at that institution under such commitment until the time of her death; that a guardian was also appointed for her property prior to June 13, 1911; that she left no children, her nearest relatives being sons and daughters of her deceased sister and brother; that the petitioners were two of the children of the deceased sister and were not named in the will; that other nieces and nephews named in the petition were legatees and devisees under the will; that, as petitioners were informed and verily believed, at the time when the last will was executed and signed the said Clara Staab was not of sound mind and memory, was incapable of making such will, and was under undue influence exerted by the legatees and devisees named therein; that she never had been discharged from the hospital for the insane to which she had been committed in 1890; that she was under guardianship and incapacitated to execute a last will and testament; that the petitioners intended in good faith to contest probate of the pretended will upon the grounds as above stated, but that without fault on their part they did not do so, and did not appeal from the order and judgment admitting the alleged will to probate or file any claim against the estate within the time required by law for the reasons that all of the legatees and devisees named in said will, knowing and having been informed that the petitioners intended to contest said last will and testament, and knowing that the said deceased was not competent to execute said will for the reasons above stated, promised and agreed, in consideration of the petitioners surrendering their rights to contest the will, that the petitioners should be paid out of the estate of said deceased the sum of $700 each; that the petitioners relied upon the statements made by the legatees and devisees and believed that the agreement would be performed; and then found, the time to appeal from such order having expired, that the legatees and devisees did not intend to perform their part of the agreement.</p> <p>The petitioners asked that the agreement between them and the legatees and devisees be ratified and a trust created in favor of petitioners upon the funds in the hands of the executor to the amount of $1,400, and that such trust be declared a lien upon the property, and that the executor be not discharged from his duties until he had paid to the petitioners the $1,400; and for such other and further order or relief as under the circumstances may be just and equitable.</p> <p>The will is not in the record before us and nothing is here shown as to the nature of the property she left or the manner of distribution. No testimony was taken upon this petition in either of the courts below.</p> <p>Objections treated as a demurrer to this petition were interposed on behalf of the executor of the estate of the deceased and one of the heirs at law and legatees, and a motion by them for the dismissal of the petition was granted by the county court. An appeal was taken to the circuit court, the order of the county court was affirmed with leave to the petitioners to amend the petition, and from the order of the circuit court an appeal was taken to this court.</p>

Brown county: Henby Gbaass, Circuit Judge. This is an action to recover damages for personal injuries sustained by the plaintiff on October 9, 1911, when one of the defendant’s passenger trains ran into and collided with a freight train of the defendant on which the plaintiff ivas employed as conductor.

B. Quinlan, Judge. Action for specific performance of a written contract to exchange lands. A part of tbe land wbicb defendant agreed to convey was bis homestead. No valuations of the separate parcels owned by each of the parties or of the whole thereof were contained in the agreement. Defendant’s wife was named as a party in the contract to exchange, but she did not sign it, and she refused to join in a conveyance.

N. Risjoed, Circuit Judge. Plaintiff began an action in ejectment to recover the possession of certain land in Bayfield county. The defendant answered setting up a counterclaim claiming title by virtue of five certain tax deeds and asked to liave its title quieted as against the plaintiff. A jury was waived. Upon the opening of the trial it was stipulated that the plaintiff was the owner in fee of the lands, subject to the right of the defendant under its tax deeds.

1ST. Risjord, Circuit Judge. Action for personal injuries.. The plaintiff, a hoy fifteen years and some months of age, was hired hy defendant Saturday, May 27, 1916, to throw edgings from live rollers carrying hoards and edgings, without a permit first having been obtained under sec. 1728a, Stats. 1915.

These are actions in tbis court by tbe plaintiffs to restrain tbe defendants from enforcing tbe provisions of cb. 480, Laws 1917, as unconstitutional and invalid. Tbe attorney general, in answer to tbe several complaints, filed a demurrer upon tbe ground that it appears on tbe face of tbe complaints that tbe same do not state facts sufficient to constitute a cause of action. Tbe cases were argued together.

Action of mandamus, brought originally in this court, to compel the town clerk of the town of Kimball in Iron county to place upon the tax roll for 1917 the proportionate share of said town of the amount due for the years 1915, 1916, and 1917 upon a loan of $25,000 made from the state trust funds to the Union free high school district, composed of the towns of Kimball, Saxon, and Gurney. The loan was made to the district in 1914.