Volume 167 — Wisconsin Reports

<p>Appeal from a judgment of the circuit court for Jackson county: James OENeill, Circuit Judge.</p> <p>Claim for $2,000 against the estate of John Smock made by Laura M. Davis, a married woman, for board and care during the last eleven years of the life of the deceased. Smock died January .19, 1914, a childless widower of the age of sixty-nine years, at the farm home of the claimant and her husband, where he had made his own home for more than eleven years except for occasional absences when he visited other relatives. The claimant was a niece of Smock’s deceased wife, and called him “Uncle.” The relations between the parties were always of the kindest. There was no contract between them. Smock did more or less choring and odd jobs about the farm. He was not in good health and was confined to the bed at various times (how long does not appear) with lung and bowel difficulties. At times he lost control of his bowels and his care at such times was necessarily, an unpleasant task. The claimant and her husband lived on ' an eighty-acre farm. The title to the homestead forty was . in the claimant’s name, she'having paid $200 of the purchase price out of her own money. The title to the other forty was in her husband’s name, and both were worked as one farm. There were several children. The husband managed the farm, the claimant kept the house, and the business was carried on about as usual under similar circumstances, groceries and other supplies being purchaséd in the name of the husband and products sold in his name. The claimant testified, however, that it was understood between herself and her husband'that the hens were her individual property and that whatever was due or received for board or care furnished to Smock was the claimant’s individual and separate property. Smock had disposed of his own farm and home when he took up his residence with the claimant, and had at that time a piece of land of thirty-four acres adjoining the Davis farm, some ready money (how much does not appear), and a pension of $24 a month from the United States government. July 9, 1908, Smock loaned to claimant’s husband $475, taking a mortgage on one forty of the Davis farm as security. Interest on this mortgage was paid up to July 9, 1912, and the principal and remaining interest was paid by' claimant’s bnsband to the executors of the Smock estate shortly before this claim was filed. December 9, 1913, Smock by warranty deed conveyed the thirty-four-acre piece before mentioned to the claimant’s husband “in consideration of one dollar and other good and valuable considerations.” There is no evidence tending to explain or contradict this recital of the consideration contained in the deed itself. At the time of Smock’s death he had $2,500 on deposit in a bank, besides notes (including the Davis note of $475 above mentioned) . amounting to about $800. The quarterly pension vouchers which Smock received were generally taken by him to the village of Irving, near by, and cashed, but the claimant and her husband cashed them several times at the request of the deceased. Smock had $77 in cash on his person at the time of his death.</p> <p>The court found on ample evidence that on the 16th day of January, 1914 (three days before his death, being then fatally ill but entirely competent), he sent for a scrivener to draw his will, and after the scrivener’s -arrival asked that the claimant be called into the room. When she came in he asked her how much he owed her.for board and care, and she replied, “You owe nothing; you have paid us over and over again,” and left the room crying. Thereupon the deceased had his will drawn and left to the claimant a bequest of $200. The claimant admits that she was called into the room and that Smock asked the question what he owed her for board, and she replied, “Nothing, Uncle John, I only wish you could get well and live a while longer.” She admits also that she knew he was making a will and explains'that she made the statement just to pacify him in his weak condition, and didn’t expect he would understand by it that he did not owe her anything. •</p> <p>On these facts the circuit court dismissed the claim on two grounds: first, because the claimant, a married woman, was carrying on no separate business of her own, and that there was no evidence from which it was possible to separate the nursing and care furnished by the wife alone from the board and maintenance furnished by husband and wife jointly; and second, that the deceased relied on the claimant’s statement that he owed her nothing and drew his will in reliance thereon; hence that she is estopped from now making any claim. The trial judge further added that the inference “is very-strong that the deceased had from time to time been paying the plaintiff and her husband for board and care.” The .claimant appeals.</p>

Fowlee, Circuit Judge. This action was commenced in justice’s .court, and from a judgment there rendered in the plaintiff’s favor the defendant appealed to the circuit court, where a trial resulted in the judgment in the plaintiff’s favor from which this appeal is taken.

<p>Appeal from a judgment of tbe circuit court for Eoud du Lac county: E. Y. WekNER, Judge.</p> <p>An action in equity to compel an accounting and establish a trust in favor of the plaintiffs. Frederick G-lander and Augusta G-lander, his wife, had five children: Albert, Carl, Leo, Ewald, and Minnie, married Heise. Albert, Carl, and Leo left home before attaining their majority. Ewald remained to work the farm. Ewald married one Amelia, and to them was born one child, the plaintiff Lau-retta. Ewald purchased eighty acres of land on credit, and being unable to meet his obligations he conveyed the land to his father in December, 1891. In November, 1893, the wife, Amelia, commenced an action against Ewald for divorce, claiming that the deed to the father had been made in fraud of her rights. The divorce was denied, and in April, 1895, Ewald began an action against Amelia for divorce, which resulted in a judgment of divorce in favor of Ewald, alimony of $350 being awarded to Amelia. Ewald continued at home, and on October 10, 1897, married Anna Brus-ser, who is the mother of the other plaintiffs: Elsie,, Nettie,. Frederick W.^ and Loretta. On September 24, 1908, Ewaldi was accidentally killed. The trial court found that some time between December 31, 1895, and October 10, 1897, Frederick and Augusta Glander entered into an agreement with Ewald wherein and whereby it was agreed that Ewald was to clothe and support and maintain the father and mother jointly and severally during their and each of their lives and care for them in old age, and that in consideration thereof it was agreed by the father and mother that they would convey to Ewald all their personal property and the premises in controversy here; that at the time of the making of said agreement and by virtue thereof Frederick and. Augusta delivered to Ewald the absolute possession of their-personal property and tbe premises referred to; that Ewald took actual and physical possession of the said personal property and real estate by virtue of said agreement and assumed the performance of the obligations contained in the agreement ;.that the agreement was not reduced to writing nor was a deed of the lands executed, but it was understood and agreed that the farm and property were to belong to Ewald on performance of the terms of said oral agreement, and that Ewald continued in the possession of said property and fully performed the terms of the agreement.</p> <p>On April 22, 1891, the father, Frederick, through a third party, deeded the farm and personal property in question to the mother, Augusta. Frederick died August 10, 1899. The mother continued to live with Ewald until March 1, 1900, when she went to live with her daughter, Mrs. Heise, where she remained until May 8, 1900, when she was taken to Leo's house, where she died September 4, 1901. On July 2, 1901, the mother, Augusta, made a conveyance to Leo of-the real estate in question and the personal property thereon. Ewald, however, remained in the undisputed possession of the property, treating it as his own, and had the exclusive control and management thereof down to the time of his death, neither his right to the personal property nor to the real estate being in .any way brought in question by Leo or Albert. The tidal court further found that on October 12, 1901, Leo negotiated for the sale of and sold for $3,000 a part of the lands conveyed to him by the mother, the entire proceeds of the sale going to Ewald, he using the money so received to make improvements on the lands in question and in paying off incumbrances then outstanding. The court further found that upon the death of Ewald the defendants Albert and Leo falsely represented to Anna, the ' widow of Ewald, that Leo was the sole owner of all the personal property and real estate of which Ewald had possession, and that in order to carry out their fraudulent design Leo and Albert represented to Anna that they would cause the said land and personal property to be conveyed to her; that in consideration thereof Anna agreed to pay a certain mortgage of $1,400 then outstanding on the lands and to pay the judgment of $750 in favor of the first wife, Amelia, and she was induced to make and execute a certain mortgage to Leo dated November 10, 1908, for $9,850; that in order to carry out their fraudulent design Leo and Albert represented to Anna, the widow of Ewald, that the said sum of $9,850 would be saved and set aside for the children of Ewald, the plaintiffs in this action, the only heirs at law and next of kin of Ewald, and that the mortgage so taken by Leo should be in his, name but upon their behalf as their guardian; that Anna, relying upon the promises of Albert and Leo, signed and delivered the mortgage and entered into the transaction with Leo in the belief that the heirs of Ewald would derive the full benefit thereof. On January 26, 1911, Anna sold the premises in question, the full amount of the mortgage, $10,757.20, being paid to Leo in satisfaction of the mortgage. The court further found that the said sum so paid to Leo was received by him in trust for the plaintiffs; that Leo and Albert are guilty of fraud and have converted the proceeds of said mortgage to their own use, and that they refused to pay the same to the plaintiffs and are jointly and severally liable to the plaintiffs herein; that the purchasers of the premises purchased the same with no knowledge of the claims made by the plaintiffs herein.</p> <p>Upon the facts as found by the trial court judgment was entered by which it was adjudged that the defendants held the sum of $10,757.2Q as trustees for the plaintiffs, and that plaintiffs should recover from the defendants the said sum of $10,757.20 with interest, amounting in all to $14,667.43, with costs and disbursements. Erom the judgment so entered the defendants appeal.</p>

<p>Appeals from judgments of tie circuit court for Dane county: John J. GbegoRY, Judge.</p> <p>These are two actions brought under sec. 1797 — 16, Stats., to vacate an order of the Railroad Commission of Wisconsin commanding the respondent the Chicago & NoHhwesiern Railway Company to condemn the right of way for, construct, and operate a spur track one and one-half miles in length from the terminus of one of its branch lines to certain timber lands owned by the respondent the Oconto Company. The Menasha Woodenware Company owns the land through which the spur track is to be laid, and owns nearly one third of the capital stock of the Wisconsin & Northern Railroad Company, a commercial railroad corporation operating a railroad a few miles to the west thereof. The situation will be more easily understood by reference to the accompanying map:</p> <p> </p> <p>The Kingston branch of the Chicago & Northwestern Railway (which connects with the main line road near a station called Kingston, some fifteen miles southeast of the south end of the branch as shown on the map) terminates at the south line of section 31, town 32 north, of range 15 east. The proposed spur extends northeastward about a mile and a half through unoccupied timber lands of the appellant the Menasha Woodenware Company, and there reaches a body of lands the timber upon which is owned by the Oconto Company. These timber lands extend northwestward from this point in a fairly compact shape through townships 32' and 33, and amount to somewhere near 16,000 acres, with standing timber thereon estimated to be about 160,000,000 feet. The Oconto Company has for many years owned and operated a lumber mill at Oconto, Wisconsin, the plant being valued at about $180,000, employing nearly 300 men, and having a capacity of eighteen to twenty million feet per an-num when run in the daytime only. The testimony tended to show that this timber was purchased by the Oconto Company -for the purpose of supplying its mill at Oconto, and that it has no other source of supply. Desiring to obtain railroad facilities for the transportation of this timber to their mill at Oconto, the Oconto Company induced the Chicago & Northwestern Railway Company in May, 1916, to apply to the Railroad Commission for a certificate of convenience and necessity to extend the Kingston branch line about nine miles in a general northwesterly direction through town 32 and ending near the center of section 27, town 33, range 14. Before this application was passed upon the Wisconsin & Northern Company applied for a certificate of convenience and necessity to construct a branch line from its station of Hollister northeasterly and then southeasterly, practically along the dotted line indicated on the map, a distance of' eight or nine miles, and the Commission denied the application of the Northwestern Company and granted the application of the Wisconsin & Northern Company. About a mile and a half of said extension has been built, but not sufficient to serve the needs of the Oconto Company. This authorized extension is indicated on the map by the dotted line.</p> <p>The Wisconsin & Northern Railroad does not reach Oconto, but runs to Shawano, fifty-two miles south of Hol-lister. In order to reach Oconto from Hollister freight must be sent to Shawano and then transshipped over the Chicago & Northwestern line a distance of forty miles to Oconto, paying two tariff rates, amounting in the aggregate to 3.2 cents per hundred pounds. The distance from the terminus of the Kingston branch to Oconto on the line of the Northwestern Railway ds about forty-nine miles, and the freight rate on logs 1.6 cents per hundred, making a difference of $2.10 in freight charge on every thousand feet of logs shipped to Oconto. If the spur in question is built it is the intention of the Oconto Company to build logging railroads on its own lands running northwestward (very nearly or quite along the surveyed line of the proposed extension which the Railroad Commission refused to allow the Northwestern Railway Company to build), so as to bring its timber to the Kingston branch for transport to its mills at Oconto.</p> <p>Both the Menasha Company and the Wisconsin & Northern Railroad Company appeared before the Railroad Commission and opposed the making of the order directing the spur to be built upon several grounds, which are practically the same grounds taken by them in the present actions and may be briefly stated as follows: (1) The proposed spur track is not to serve any “industry or enterprise” within the meaning of sec. 1197 — 11m, Stats.; (2) even if this objection be held untenable, still the spur track is not practically indispensable to the successful operation of any industry or enterprise; (3) the building of the spur track will be unreasonably harmful to the public interest; (4) the application for the alleged .spur track is not in fact an application for a spur track, but is an application for an extension of the Kingston branch of the Chicago & Northwestern Railway Company under the name of a spur track, and could not legally be granted because a certificate of necessity and convenience for such extension was refused in October, 1916, and under the statute no second application for the same extension can be made within two years from such refusal (sec. 1797 — 49, Stats.).</p> <p>The Railroad Commission by a majority of its members found that the proposed spur “is practically indispensable to the successful operation of petitioner’s industry and enterprise, and its construction and operation is uot usually unsafe and dangerous and is not unreasonably harmful to public interest.”</p> <p>The circuit court upheld these findings of fact and sustained the order of the Railroad Commission. The court also held that the Wisconsin & Northern Railroad Company was not a party in interest within the meaning of sec. 1797 — 16, Stats., and hence not entitled to bring action to vacate the order of the Commission. Both complaints were dismissed on the merits, arid the plaintiffs appeal.</p>

<p> Rape: Resistance: Evidence: Weight and sufficiency: New trial: Newly discovered evidence. </p> <p>1. Although the circumstances of the crime were unusual, the testimony of the prosecutrix, corroborated by the facts that her hymen was ruptured and that the accused attempted to settle the matter, is held to sustain a conviction of rape.</p> <p>2. Where rape is alleged to have been committed upon a girl in her sixteenth year before the age of consent was raised to sixteen, her youth and her ignorance of the true character of the act - are entitled to much weight in determining whether there was . a sufficient showing of the utmost resistance.</p> <p>8. Where alleged newly discovered evidence tended to prove an alibi which was hut a branch of an alibi which defendant had attempted to establish at the trial, and -his attorney was aware of such evidence before the close of the trial, a new trial was properly denied.</p>

Lueck, Circuit Judge. Judgment was entered in this action in the court below June 30, 191J, adjudging the plaintiff in error, hereinafter called defendant, to be the father of a bastard child born alive on the 18th day of September, 1916. The defendant brings the record here by writ of error for review upon errors assigned.

<p>Appeal from a judgment of the circuit court for Rusk county: James Wickham, Circuit Judge.</p> <p>Action upon two promissory notes. The defense was that plaintiff was not a holder in due courses; that defendant was induced by the false and fraudulent representations of the Frost Engine Oompany to purchase the electric lighting plant at Weyerkauser, for a part of the purchase price of which the notes in suit were given; and that there was a breach of the written warranty contained in the contract of sale accompanying the notes. Such written contract specified, among other things, the plant sold, provided for its removal by the vendor to another location, and for certain future services at fixed prices. The provisions as to payments and warranty were as follows:</p> <p>“The said Theo. Kurth hereby agrees to' pay for this plant the sum of four thousand dollars ($4,000) as follows-: One note of $1,000 bearing six per cent, interest, payable within three years, or any time after one year from date. This note to be secured by real-estate mortgage. Balance of $3,000 payable in monthly instalments the 20th of each month in sums of fifty per cent, or more of the monthly earnings of the plant. Said payments to be indorsed on one or more of five notes to be given by said Theo. Kurth, for the sum of $600 each. ... In case of serious accident to the plant in case of storm, etc., it is agreed that payments may be deferred on the above notes until the cost of needed repairs can be paid for out of the earnings of the plant. The Frost Engine Company hereby guarantees the above material for a period of one year, and any defective parts or workmanship will be replaced free of cost.”</p> <p>The court submitted the issues to the jury in a special verdict, and the jury found: (1) When negotiating for the sale of tbe lighting plant to the defendant, E. S. Erost, the agent of the Erost Engine Company, represented in substance to the defendant, in order to induce him to purchase said property, that the engine had 'a capacity of at least twenty-eight horse power and that the lighting plant had sufficient capacity to properly 'light the village of Weyer-hauser as it then existed without ¿making additions to the plant for several years; (2) the defendant purchased said property relying upon said representations and believing them to be true; (3) said representations were false; (4) the defendant, considering his intelligence and experience, was justified in relying upon the truth of said representations; (5') the difference in value, including interest, between what the lighting plant was worth and what it would have been worth had it been as represented, was $1,520; (6) the lighting plant, including the engine, generator, and batteries, at the time the plant was delivered to the defendant, was in. a defective condition; (7) the difference in value, including interest, between what said property was worth and what it would have been worth if.it had been free from such defects and in the condition as guaranteed by the written contract, was $880; (8) at the time George L. Pullen, the president of the plaintiff bank, purchased the notes in question on behalf of the bank, he had actual notice of the existence and contents of the written contract; (9) plaintiff did not pti-r-chase said notes in good faith without any notice of the fraud or other unlawful means by which said notes were obtained; and (10) the court found that the face amount of said notes, with interest to date of verdict, less payments made thereon, was $1,102.08. The court entered judgment for defendant dismissing plaintiff’s complaint and it appealed.</p>

<p> Carriers: Stoppage in transitu: Rights and liabilities of carrier: Conversion: Goods taken under legal process: Notice to owner: Bankruptcy of consignee: Summary order to take property: Jurisdiction of bankruptcy court: Collateral attack: Duty as to protecting shipper’s interest: Assumption of responsibility: Estoppel. </p> <p>1. Upon, the exercise of the right of stoppage in transitu the carrier must, at its peril, deliver the goods to the person entitled to them. If in doubt, it should insist upon full investigation and may retain possession until it is satisfied; or, if both vendor and vendee are demanding the goods and threatening suit therefor, it may by interpleader compel them to settle the question between, themselves.</p> <p>2. Where the vendor of lumber shipped it to Chicago but, upon learning of the vendee’s bankruptcy, duly stopped it in transit while it was still in Wisconsin, the carrier did not, by afterwards transferring the lumber to its station yards in Chicago, convert it or become liable to the vendor for its value, the vendor not being injured by such transfer, since the carrier did not thereby part with possession of the lumber or render itself uriable to comply with its duty to the vendor.</p> <p>3. The fact, in such case, that after reaching Chicago the lumber was, pursuant to an order of the bankruptcy court, delivered to the receiver of the vendee, did not render the transfer to Chicago a conversion, since the same court might have compelled such delivery if the lumber had remained at the place of stoppage.</p> <p>4. A carrier cannot be held responsible for goods taken from its custody by valid legal process, provided it gives the owner prompt notice of the suit so that he may have an opportunity to protect his interest.</p> <p>5. Where the vendor of lumber stopped it in transit but, pursuant to a summary, ex parte order of a bankruptcy court, the carrier thereafter delivered it to the vendee’s receiver in bankruptcy, such order constituted “legal process, fair on its face,” relieving the carrier from liability to the vendor if the carrier promptly notified him of such action.</p> <p>6. The jurisdiction of the bankruptcy court to make such, summary order cannot be questioned collaterally in an action in a state court by the vendor against the carrier to recover the value of the lumber.</p> <p>7. Whether a bankruptcy court has jurisdiction to proceed in a summary manner to vest its receiver with possession of property claimed to belong to the bankrupt’s estate depends upon the facts disclosed by the record from time to time, and, while it may have jurisdiction to institute such proceedings, it may be ousted of such jurisdiction by a presentation of facts showing that the title to such property is claimed by another, in which case such other is entitled to have his right to the possession determined in a plenary suit.</p> <p>8. Even if the order of the bankruptcy court was not “legal process, fair on its face,” the delivery of the lumber to the receiver did not render the carrier liable to the vendor, since the receiver’s claim of the right of possession raised a controversy which the carrier had no power to determine, and the property was not by such delivery lost to the vendor, but was turned-over to a proper tribunal in which the vendor might assert his claim.</p> <p>9. The carrier was not bound, in such case, to go into the bankruptcy court and establish the vendor’s right to the lumber, but only to notify the vendor promptly of what had been done; and the vendor slept upon his rights by not appearing seasonably in that court to establish his claim.</p> <p>10.After issue was joined in this action by the vendor against the carrier for the value of the lumber, in correspondence between the attorneys of the respective parties it was asked on behalf of the carrier whether the vendor would settle for a certain sum if, the carrier could obtain a refund of that amount from the bankruptcy court, and the reply was that the vendor would accept that amount but that, as no definite offer of settlement had been made, he would notice this action for trial and proceed as if there had been no negotiations. Held, that the carrier did not thereby assume responsibility for recovering the value of the lumber from the bankrupt estate, and since there was nothing to indicate that the vendor had intended to present a claim in the bankruptcy court or that his conduct was in any way influenced by the correspondence, the carrier was not es-topped from contending that the vendor should have sought á remedy in said court.</p>

<p> New trial: Improper argument to jury. </p> <p>In an action against a city for personal injuries caused by an obstruction on a sidewalk, an order of the trial court granting to ' plaintiff a new trial on the ground that defendant’s counsel had been allowed to use and did use .improper argument to the jury, is affirmed.</p>

<p>Appeal from an order of tibie circuit court for Kenosha county: E. B. Belden, Circuit Judge..</p> <p>The appeal is from an order overruling plaintiff’s demurrer to parts of defendants’ answer to the amended complaint.</p> <p>The complaint of the plaintiff states that the defendants are owners of a large building in Chicago, Illinois, in which the plaintiff had leased and still occupies rooms as a tenant; that defendants Rad equipped the building with patent window-cleaning devices to be used by the plaintiff and other tenants in the building; that said devices were unsafely constructed; that one John Mantello, an employee of the plaintiff, on April 27, 1915, attempted to use the window-cleaning devices, and as a result of their dangerous and insecure character the devices were pulled out of the window shafts or frames, precipitating John Mantello from a fourth-floor window to the ground; that he suffered a fractured skull and other injuries, from which he died an hour later. The complaint alleges that the unsafe and dangerous character of the devices was known, or by exercise of due care should have been known, to the defendants. The complaint further alleges that the plaintiff and John Mantello, as plaintiff’s employee, were subject to the provisions of the workmen’s compensation act of Illinois; that under this act plaintiff became liable as employer and has been compelled to pay to the widow of John Mantello the amount of $2,500, and it therefore demands judgment against the defendants for that sum and its costs.</p> <p>A second cause of action is alleged under the provisions of an ordinance of the city of Chicago which provides that the owner or agent of every building embraced in the ordinance shall equip every window of the building above the first story with safety devices which will permit the cleaning of the exterior of each and every window above the first story without danger to the person doing the work.</p> <p>A third cause of action alleged that under an Illinois statute the personal representative of Mantello is entitled to bring an action for the benefit of the widow for the wrongful killing of Mantello, and that under the workmen’s compensation act the plaintiff is subrogated to the rights of the widow and the representative of Mantello for the recovery of damages proximately caused by the wrongful and negligent action of defendant resulting in Mantello’s death.</p> <p>A fourth cause of action is a repetition of the third, with additional allegations of defendant’s liability under the Chicago ordinance set forth in the second cause of action.</p> <p>To each cause of action defendants interposed a general demurrer. This demurrer was noticed for hearing, but was withdrawn before decided and an answer served. The answer alleges that the plaintiff ought not to have this action against defendants because the Marshall-J ackson Company and John Mantello were operating under the workmen’s compensation act of the state of Illinois; that at some time subsequent to the date of the alleged accident to John Mantello-the widow of John Mantello made claim against the plaintiff under the provisions of the act; that the plaintiff was insured under a contract with the Ben Franklin Mutual Casualty Company by which the casualty company agreed to indemnify, save, and hold harmless the plaintiff against any damages and loss and to pay any and all liabilities arising out of or resulting to plaintiff’s employees from injuries of the kind and nature alleged in the complaint; that the Ben Franklin Mutual Casualty Company did pay the claim of the widow of John Mantello against the Marshall-J ackson Company to the amount of $2,500; that that amount was all the widow was entitled to receive under the workmen’s compensation act of Illinois; that the sum of $2,500 so paid by the Ben Franklin Mutual Casualty Company for the benefit of the widow of John Mantello is the identical sum of money which the plaintiff is attempting to recover from the defendants in this action.</p> <p>The defendants also alleged other defenses which need not be stated for the purposes of this appeal.</p> <p>The plaintiff demurred to the part of the answer alleging that the $2,500 paid by the Ben Franklin Mutual Casualty Company for the benefit of the widow of John Mantello is the identical sum of money sued for by the Marshall-J ack-son Company, on the ground that the allegations do not state facts sufficient to constitute a defense. The demurrer was overruled by the court. An amended complaint was served hy the plaintiff on November 8, 1916, which is identical with the original complaint with the exceptions that a copy of the workmen’s compensation act of Illinois is attached, as well as of the Chicago ordinance., with the additional allegation that the defendant- at the time of the injury to Mantello had elected to be governed by the Illinois compensation act.</p> <p>The part of the Illinois workmen’s compensation act material to the issue presented by the answer and plaintiff’s demurrer thereto and involved in this appeal is as follows:</p> <p>“§ 29. Where injury caused under circumstances creating a legal liability in some person other than the employer. Where an injury or death for which compensation is payable by the employer under this act was not proximately caused by the negligence of the employer or his employees, and was caused under circumstances creating a legal liability for damages in some person other than the employer to pay damages, such other person having also elected to be bound by this act, then the right of the employee or personal representative to recover against such other person shall be subro-gated to his employer and such employer may bring legal proceedings against such other person to recover the damages sustained, in an amount not exceeding the aggregate amount of compensation payable under this act, by reason of the injury or death of such employee. Where the injury or death for which compensation is payable under this act was not proximately caused by the negligence of the employer or his employees and was caused linder circumstances creating a legal liability for damages on the part of some person other than the employer to pay damages, such other person having elected not to be bound by this act,’ then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation.under this act, but in such case if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall.be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative: Provided, that if the injured employee or his personal representative shall agree to receive compensation from the employer'or to institute proceedings to recover the same or accept from -the employer any payment on account of such compensation, such employer shall be subrogated to all the rightSi of such employee or personal representative and may maintain, or in case an action has already been instituted, may continue an action either in the name of the employee or personal representative or in his own name against such other person for a recovery of damages to which but for this section the said employee or personal representative would be entitled, but such employer shall nevertheless pay over to the injured employee or personal representative all sums collected from such other person by judgment or otherwise in excess of the amount of such compensation paid or to be paid under this act and, all costs, attorneys’ fees and reasonable expenses 'incurred by such employer in making such collection and enforcing such liability.” [Hurd’s R. S. 1915 — 16, ch. 48, § 152&.]</p> <p>The answer to the amended complaint is identical with the answer to the complaint and is demurred to in the same manner.</p> <p>The demurrer was overruled on January 4, 1917, from which order this is an appeal.</p>

<p>Appeal from a judgment of the circuit court for Kenosha county: E. B. Belden, Circuit Judge.</p> <p>The appeal is from a judgment dismissing plaintiffs complaint.</p> <p>The plaintiff arrived on March 16, 1916, in the forenoon, at defendant’s depot in the city of Kenosha. Defendant maintains a double-track system through the city of Keno-sha, the north-bound trains running on the west of such tracks. Passengers arriving, as did plaintiff, on a northbound train step upon a platform on the west side of the tracks and from there down a flight of stairs and on to the east side through a tunnel under the two tracks and into the basement of the main depot. From this basement flights of stairs lead to the first floor of the depot, one such flight leading to the apartment set aside as the-men’s waiting room and the other to the women’s waiting room. Plaintiff, a stranger to the city, went up the flight of stairs leading to the men’s room and from there out of the building to the hotels in the neighborhood, and returned' to the women’s waiting room. •</p> <p>Plaintiff had come to Kenosha in response to a long-distance telephone message that she had received at her home in Iowa from her son, apparently at some other point in Iowa, requesting her to meet him at Kenosha, no definite time having been fixed for his arrival there, and he did not arrive until the following day. This women’s waiting room was about twenty-three feet by twenty feet in size. On the west of the room, being the track side, was a door about three feet away from the north wall and leading out onto the platform. It was three feet four inches wide, with a transom above, and apparently, from a photograph taken the day after the accident, it swung, when opened, against the radiator which was against the same wall and three feet three inches south of this door. The radiator was three feet ten inches long, and directly above it was a window three feet ten inches wide and eight feet high. A little less than three feet south of this window was another window about the same size and directly over the stairway. Near the top of this west wall were four small windows fifteen by fifteen inches. The south end of the radiator extended to practically the outer edge of the top step of the stairs which led straight down to the subway, which was about eleven feet below the level of the waiting-room floor. This stairway was of white enamel with a light over the south end. A railing ran along the east edge of the stairway in the waiting room, and against that were placed benches. The plaintiff was seated near the east wall of the waiting room about opposite thé center of the stairway, so that the same was within range of her vision.</p> <p>Upon hearing the noise of an approaching train she arose and walked across the waiting room to the west wall for the purpose of seeing if her son was on the coming train. Several persons were occupying the open doorway and she went and looked out of the -window which was directly over this radiator, and stood south of the center of .the window and therefore near the south end of the radiator. As the train passed by the depot she turned slightly in order to look further down the {rack, and, stepping hack after having so looked, fell down the stairway, receiving severe injuries.</p> <p>The special verdict of the jury found that the waiting room ivas not in a reasonably safe condition for public use at the time in question and that such condition was the proximate eause of plaintiff’s injury; that there was no contributory negligence on plaintiff’s part, and assessed her damages.</p> <p>After motions by both parties upon such verdict the court changed the answers of the jury to the questions as to defendant’s and plaintiff’s negligence and directed judgment for the defendant upon the evidence notwithstanding said verdict, and from the judgment so entered the plaintiff appeals.</p>

B. BeldeN, Circuit Judge. The appeal is from a judgment dismissing appellant’s petition. On May 27, 1908, TIomer Brooks, father of the appellant, ,in due form made his last will, the essential parts of which ara as follows: “First.

Appeai, from an order of the circuit court for Calumet county: Geo. W. BueNerr, Circuit Judge. Plaintiff is a property owner in the city of Chilton. In 1898 he owned and occupied, as a dwelling, property situated at the northwest corner of the intersection of State and School streets in said city.

W. BubNell, Circuit Judge. Mortgage foreclosure. The original complaint was in the usual form and the action was originally brought against the mortgagor and his grantee alone. By order of the court the insurance companies who are appellants were made defendants. There is no bill of exceptions.

W. BueNEll, Circuit Judge. Tbe appeal is by tbe State of Wisconsin from a judgment of tbe circuit court in all things confirming a judgment of tbe county court determining tbe inheritance taxes due on the transfer of tbe estate of Benjamin F. Carter, deceased, late of Los Angeles, California.

<p>. Appeal from an order of the circuit court for Winnebago county: Geo. W. BueNell, Circuit Judge.</p> <p>This action was commenced by a petition for a peremptory writ of mandamus to compel the city authorities of the city of Manitowoc to enter upon the record of the minutes of the board of aldermen a resolution providing for vacation of a street. The petition set forth, among other things, that on the'16th day of June, 191J, the petitioner filed in writing in the office of the city clerk of the city of Manitowoc a petition directed to the mayor and board of aldermen praying that that part of South Seventh street in said city from the north line of Quay street to the Manitowoc river be discontinued and vacated; that said petition was signed by more than twenty resident freeholders of the .First ward in said city, said part of said street, asked to be vacated, being located in the First ward; that said petition was signed by the owners of all the frontage of the lots and lands abutting upon the portion of said street sought to be discontinued and vacated and by the owners of more than one half of the frontage of the lots and lands abutting on all that portion of the remainder of said street which lies, 2,650 feet from the ends of the portion proposed to be discontinued; that said petition was presented to the board of aldermen of said city at a regular meeting and referred to a committee of said board; that said committee duly considered said matter and ordered hearing thereon and notice to be duly given; that due proceedings were had thereon and notice given and the matter afterwards considered at a regular meeting of the board of aldermen on the 6th day of August, 1911, and consideration thereof continued to the 4th day of September, 1911, and a resolution for vacating and discontinuing in accordance with the petition was duly considered by the board of aldermen of said city of Manitowoc, all the aldermen and the mayor being present; that a vote upon said resolution was duly taken and recorded; that eight of the aldermen voted in favor of the adoption of said resolution and six voted against it; that thereupon the mayor announced that said resolution was lost or defeated; and that the petitioner demanded that the mayor declare said resolution adopted and the city clerk make an entry in the minutes to that effect, but the mayor and city clerk each refused so to do. The mayor refused to declare the resolution adopted on the ground that it required a two-thirds vote of the members of the board of aldermen elect to vacate a street.</p> <p>An alternative writ of mandamus "was issued and- return thereto duly made. The return set forth that the reason why the board of aldermen could not comply with the requirements of said writ was because said resolution vacating and discontinuing said street was not legally adopted. The . petitioner, respondent here, demurred to said return, which demurrer was sustained, and from the order sustaining it this appeal was taken.</p>

<p>Appeal from a judgment of tbe circuit court for Sheboy-gan county: W. B. QuiNLAN, Judge.</p> <p>Plaintiff was chairman of the town of Greenbush, which had voted to pay a portion of the cost of the construction of four bridges within its limits. By virtue of sub. 8 (4), sec. 1317m — 5, Stats. 1915, that made him ex officio a member of the county state load and bridge committee. As such member, but without any specific direction of the committee, he superintended the construction of the four bridges. Sub. 8 (1), sec. 1311m — 5, provides for the compensation of such services by the county board. His per diem and expenses amounted to $23.90, and for that amount he rendered a bill which was unanimously approved by the comity state road and bridge-committee before it was presented to the county board for allowance. The county board first allowed the claim, then five days later rescinded its action, and the next day disallowed it. Plaintiff' appealed to the circuit court for Sheboygan county, and from a judgment of that court affirming the action of the county board he appealed to this court.</p>

<p>Appeal from a judgment of the circuit court for Sheboy-gan county: Chester A. Eowlee, Judge.</p> <p>The appeal is from a judgment admitting the will of Johanna Bocker, deceased, to probate.</p> <p>March 29, 1916, Johanna Bocker, a widow for over thirty years and more than that length of time a resident of the city of Sheboygan, died. She left property valued at between $25,000 and $30,000 in mortgages, which she had accumulated by her work as a midwife and by a life of the most rigid economy. She left as her only surviving heirs one grandchild, Mrs. Theresa Clark, four great-grandchildren, children of two predeceased granddaughters, and 'an adopted daughter, Selma Mueller, who is the proponent herein. The will, which was executed January 20, 1916, and admitted to probate in the county and circuit courts below, after the usual clause directing the payment of debts and funeral expenses gave to the grandchild and the great-grandchildren each $5 in cash. By the third paragraph all the rest; residue, and remainder of .the estate, both real and personal, was given to her adopted daughter, Selma,, and recited further:</p> <p>“It is the declared purpose by this my will, to restrict and limit my said grandchild and my said great-grandchildren’s interest in my estate under this my will, in any event to the bequest of five dollars given each and no more.”</p> <p>Selma was appointed executrix of-the will, and request was made that she be allowed to settle the affairs of the estate without giving a bond.</p> <p>Selma, who was a child of a sister of the deceased, came to Sheboygan, Wisconsin, from her birth place in Germany' at the request of the deceased about thirty-one years preceding 1916, then a child of about thirteen years of age, and lived with the deceased from that time continuously until the death. Selma was required by the testatrix to perform a great deal of drudgery and, hard work and at times had gone to work in a factory and at other places and turned her earnings in to the deceased. In 1908 Selma was formally adopted by Mrs. Bocker, and in 1913 married one Bhilip Mueller. Shortly after the marriage the homestead, worth between $3,000 and $4,000, was conveyed by Mrs. Bocker to Selma, who, with her husband, continued to reside there with Mrs. Bocker. Neither Mrs. Bocker nor Selma had educational advantages to speak of and could barely read or write. Mrs. Bocker was a woman of vigorous and dominant personality and extremely secretive about her business affairs; apparently no one other than a Mr. Clarenbach, who looked after her investments, knew, prior to her death, the amount of her property.</p> <p>Three of the great-grandchildren -lived in Sheboygan, and the grandchild visited there occasionally, and these four were visitors at the home of Mrs. Bocker from time to time, but there was evidently no great amount of affection between them, and the situation in that regard appears to have undergone no change for many years preceding the death of Mrs. Bocker. The adopted daughter, Selma, was, as it would appear from the record herein, somewhat below the average in mentality, and until the last few years at least quite absolutely under the control and direction of Mrs. Bocker.</p> <p>Several wills had been executed by the testatrix prior to the one of January 20, 1916. The last preceding will was drawn by an attorney in Sheboygan and executed by Mrs. Bocker sometime in the fore part of December, 1915. About December 28th Mrs. Bocker had a Dr. Tasche, a long-time friend and one who occasionally attended her as a physician, come to her house and had him read and translate to her the will that had been executed a few' days before. This was done in the presence and hearing of Selma, and after it had been read and translated it was torn up by Mrs. Bocker and at her direction burned.</p> <p>The will of January 20, 1916, was drawn by a neighbor engaged in the real-estate business who had never done any business for Mrs. Bocker before.</p> <p>Both the county and circuit courts found that there was no undue influence exercised upon the testatrix by Selma Mueller and that the will should be admitted to probate, and from such determination by the circuit court the contestants appeal.</p>

<p> ’Replevin: Counterclaim for fraud: “Connected with the subject of the action:” Special verdict: Omissions: Presumed findings by court: Judgment: Granting relief to both parties: Evidence as to fraud: Sufficiency. </p> <p>' 1. In replevin for personal property which plaintiff was to receive ' in exchange for land conveyed to defendant, although no contract or transaction was set forth in the complaint the defendant properly pleaded a counterclaim for fraud of the plaintiff by which defendant was induced, at the time of making the exchange, to accept a deed of the land by the terms of which he assumed a mortgage thereon instead of getting a clear title,— such cause of action being “connected with the subject of the action” within the meaning of sec. 2656, Stats.</p> <p>2. A special verdict in such action containing a finding, of the fraud but no finding as to whether or not defendant was negligent in accepting the deed, was defective, but'under sec. 2858m, Stats., no request for a submission of the latter question having been made, the fact must be deemed to have been found by the court against the plaintiff in conformity-with the judgment against him.</p> <p>8. No reformation of the deed having been sought, the defendant, who recovers damages for the fraud, will be bound by the terms of the deed and must pay the mortgage debt.</p> <p>4. In replevin for personal property which plaintiff was to receive in an exchange, where defendant counterclaimed for plaintiff’s fraud in connection with the exchange, a judgment awarding the property to plaintiff and damages to defendant on his counterclaim was proper in form and did not constitute two judgments.</p> <p>5. Recovery may be had in cases of fraud where the fraud is established by a clear and satisfactory preponderance of the evidence.</p>

This action was commenced in the Milwaukee county circuit court by the service of summons early in the month of January, 1914, for the recovery of damages for fraud alleged to have been committed by the defendants on the plaintiff. Defendant Broechert lived in Manitowoc county. The defendants Stahl lived in Racine county. January 8, 1914, Broechert’s attorneys served notice of retainer and appearance. January 20th complaint was served on Brdech--ert’s attorneys.

<p>Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>One August PanJconen was injured in his foot while in the employ of the Wisconsin Lakes Ice & Cartage Company, which company was insured against loss by the Wisconsin Employers Exchange. The injury resulted in a fracture of the tibia and a permanent impairment of the use of the ankle. Both employer and employee were under the provisions of the Workmen’s Compensation Act. The Industrial Commission allowed tbe employee sixty-two weeks’ and two days’ compensation for his temporary total disability and sixty per cent, of the compensation.for loss of a foot at the ankle joint, less ten per cent, on account of the employee’s age, for his permanent disability. This resulted in a total allowance for a period of 134 weeks and two days; or for fourteen weeks and two days more, it is claimed by the appellants, than could have been allowed under the schedule in sub. (5) (a) (28), sec. 2394 — 9, Stats. 1915, which provides for a compensation for 120 weeks for the loss of the foot at the ankle; and because of such alleged excess allowance the employer and insurance company appealed from the judgment of the circuit court affirming the award of the Industrial Commission.</p>

<p> Highways: Application of tar and oil: Injury from slippery condition: Contributory negligence: Notice of danger: Automobiles. </p> <p>1. One who, in broad daylight, knowingly drives his automobile over a highway which is at the time in a slippery and dangerous condition by reason of a recent application of tar and oil, is guilty of contributory negligence as- a matter of law and cannot recover for injuries sustained by reason of such slippery condition.</p> <p>2. The fact that the county highway commissioner did not, as he might under sub. 7, see. 1317m — 6, Stats., suspend travel on such highway, or that no warning, by putting up signs or otherwise, was given of its defective condition, cannot affect the rights of a traveler who from the visible condition of the road itself had notice of the danger.</p> <p>Vinje, J., Winslow, C. J., and Siebecker, J., dissent.</p>

Tbe defendant was surety on a bond of $120,000, given to tbe United States government to secure proper performance by tbe firm of Orman & Crook on work to be done on a large dam and distribution canals called tbe Belle Fourcbe project in South Dakota under a contract made in November, 1905. Tbe contractors carried on tbat work until tbey went into bankruptcy in January, 1908.

<p>Appeal from a judgment of the circuit court for Marathon county: A. H. Reid, Circuit Judge.</p> <p>On the 30th day of March, 1916, Thomas Cerney and Charles Prey, copartners, residents of the state of Illinois and doing business under the firm name of Conducive Paving Company, entered into a contract with the city of Wau-sau for the construction and laying of a certain paving in that city, and to assure the faithful performance of that contract said Conducive Paving Company made and executed to the said city of Wausau a bond with the defendant Chicago Bonding & Surety Company as surety.</p> <p>Pursuant to a contract made with the said Conducive Paving Company on the 16th day of February, 1916, the plaintiff herein, Builders Lumber & Supply Company, during the months of August and September, 1916, sold and delivered to said Conducive Paving Company certain materials consisting of lumber, cement, and brick for use in the performance of its said contract with said city, which said materials were so used.</p> <p>This action is brought by the said Builders Lumber & Supply Company against the Chicago Bonding & Surety Company to recover an unpaid balance due to it from said Conducive Paving Company on account of such material so furnished and delivered. The defendant interposed a demurrer to the complaint, which demurrer was overruled. The defendant then answered, and .upon a trial of the case judgment was rendered in favor of the plaintiff. Erom this judgment defendant appealed. Such portions of the contract and bond as are pertinent to the liability of the Surety Company in this action are sufficiently referred to in the opinion.</p>

<p> Telegraphs: Divulging contents of news message: Property interest of sender-..Damages: Mental anguish: Punitory damages: Ratification of agent’s act: Questions for jury: Assessment of puni-tory damages discretionary. </p> <p>1. A newspaper reporter who, having a contract to furnish certain news to one paper exclusively, delivered the message to the telegraph company selected by that paper for its transmission, thereby parted with his property interest in such news, and cannot recover its value as an element of compensatory' damages in an action against the company for divulging to other newspapers the contents of the message.</p> <p>2. Nor can there be any recovery in such action for plaintiff’s mental anguish or worry over the situation, whether the action be for breach of contract or in tort. Sub. 5, sec. 1778, Stats. 1915, fixing a maximum penalty for negligence of telegraph companies in receiving, copying, transmitting, or delivering messages is not applicable.</p> <p>3. A telegraph company is not liable in punitory damages for the unauthorized and wilful act of its agent in divulging the contents of a message unless it ratified such act.</p> <p>4. The question whether or not there has been a ratification of an agent’s wilful act is generally for the jury; but the evidence may be so clear and uncontradicted that the court may decide the question as one of law.</p> <p>5. A party is never entitled to have punitory damages assessed; their assessment, when the proper facts are shown, being in each case a matter within the sound discretion of the jury.</p> <p>6. Where a telegraph company denounced the act of its agent in divulging the contents of a message and offered to discharge him, but was requested by plaintiff not to do so, and did not, it cannot be said to have ratified his act so as to be liable in punitory damages.</p>

Geegoey, Judge. Tbe appeal is from an order sustaining a demurrer to tbe complaint.

<p>Appeal from a judgment of tbe circuit court for Ricbland county: Geoege OlemeNtsoN, Circuit Judge.</p> <p>Tbe appeal is from a judgment of eviction in an action for unlawful detainer.</p> <p>Tbe defendant in October, 1914, entered into possession of a farm of about 200 acres near Ricbland Center belonging to tbe plaintiff. ..Several prior interviews were bad between tbe parties with reference to tbe terms and conditions under which defendant should take possession. A form of agreement or lease was drawn by plaintiff’s wife, and prior to taking possession of tbe farm it was -read to .or by tbe defendant, wbo then, as be now claims, objected and claimed that tbe writing was not tbe agreement that bad been arrived at be-' tween tbe two. He however entered into possession of tbe farm and continued in possession thereof for more than a year thereafter. Plaintiff served written notice in April, 1915, requiring defendant to give up possession on October 6th following. On October 7, 1915, unlawful detainer proceedings were commenced in justice’s court and judgment rendered in favor of tbe plaintiff, from which judgment defendant appealed to tbe circuit court.</p> <p>In tbe complaint in justice’s court plaintiff recited, among other things, that, being in possession of tbe real estate in question, be let tbe defendant into possession upon an agreement by which tbe plaintiff was to furnish tbe farm machinery, to pay one half of tbe feed and seed purchased for tbe farm, and to furnish certain stock, and to pay tbe defendant fifty cents per rod for tiling done on tbe farm by tbe defendant; that defendant was to work tbe farm in a first-class manner, cultivate tbe same, and feed tbe stock thereon on what is known as tbe “intensive basis,” under tbe directions of tbe plaintiff, and that defendant was to furnish tbe repairs and material for operating tbe machinery and to cut and haul for plaintiff bis firewood to Richland Center, and to build and keep fences on tbe farm in repair, and that they were to share equally in tbe income and profits; that by tbe agreement between them tbe defendant was to deliver up possession of tbe premises on October 6, 1915, and that there bad been an unlawful withholding of tbe premises after that date.</p> <p>Tbe defendant’s answer admits tbe making of an oral lease and alleges that tbe same was to be thereafter reduced to writing, and was for tbe term of three years and not one year, as claimed by plaintiff, and admitted that certain of tbe terms and conditions therein were as alleged by plaintiff, and particularly tbe promise by plaintiff to pay defendant fifty cents per rod for tiling tbe farm, and denied certain of tbe other terms and conditions recited by plaintiff in bis complaint.</p> <p>Defendant also set forth, in what was denominated as a separate defense and counterclaim to the action, a repetition of' the answer as to the making of the agreement for the period of three years and the taking possession thereunder; and alleged further that defendant was to build a barn on the premises and was to tile the whole farm wherever it needed tiling, which would take the spare time of the defendant during the whole of the three years, and was to be paid by plaintiff fifty cents per rod for such tiling; that .it was further understood that the agreement as reduced to writing was to contain a provision that the defendant should have the option of purchasing the farm at any time during the three years he was in possession at the agreed price of $22,000; that defendant .relied upon this oral agreement and moved on the farm with-his family of ten children and with a certain amount of feed for the stock and proceeded to build fences, do the tiling, and repair the buildings on the farm. That defendant made the improvements upon the farm relying upon the agreement that he could purchase the place under the alleged option, and that the farm is worth considerably more with these improvements than it was before, and demanded that the oral agreement between the parties be specifically enforced, and for other relief.</p> <p>Upon the trial in the circuit court the court submitted to the jury but one question, which the jury answered by finding that the oral agreement under which the defendant went into possession contained a provision that the lease contemplated by the parties was to be for the term of three years and not one. It was a conceded fact that the defendant was, under the agreement, to do some tiling on the farm. It is an undisputed fact that three to four hundred rods of such tiling was done by defendant.</p> <p>After respective motions by the parties the court finally directed the entry of judgment to the effect that there was an unlawful detainer by the defendant and the plaintiff was entitled to restitution of the premises. The case was tried in the circuit court in April, 1916, and the decision of the court and judgment were entered in September, 1916, and from that judgment thus entered the defendant appealed to this court.</p>

<p> Workmen’s compensation: Accident resulting in death: Evidence: Report and answer of employer: Hearsay: Harmless error: Witnesses: Competency: Claimant widow: Transactions with deceased: Failure to give notice of injury: Effect: Burden of proof. </p> <p>1. Where an employee fell from a ladder and nine days later died of pneumonia, the employer’s report of the accident, stating that the employee was not injured, and the answer before the industrial commission, stating that the injuries were slight and had no connection with his death, were evidence of the accident only.</p> <p>2. Evidence in such case that the employee was externally bruised and suffered much pain, together with testimony of physicians tending to show that the trauma caused by the fall was likely to result in pneumonia, which caused his death, is held to support a finding by the industrial commission that the death proximately resulted from the fall.</p> <p>3. In an action to review an award by the industrial commission the admission of hearsay evidence was harmless error where the trial court, in its opinion, expressly states that such evidence was not considered, and there is sufficient competent evidence to support the decision.</p> <p>4. The widow of a deceased employee, claiming compensation under the statute for his death, is not incompetent under sec. 4069, Stats., to testify to transactions and communications (not private) with the decedent.</p> <p>6. Failure to give the notice required by sec. 2394 — -11, Stats., did not preclude recovery of compensation for the death of an employee, where the employer had actual notice of the accident within ten days and there was no intention to mislead the employer and he was not in fact misled by said failure.</p> <p>6. The burden of proof, in such a case, is upon the employer to show that he was misled and prejudiced by the failure to give the statutory notice of injury. .</p>

Ray SteveNS, Circuit Judge. This is an action brought to recover taxes paid to the city of Madison, on tbe ground tbat tbe property on which they were levied is exempt from taxation. Appellant is a corporation organized under tbe provisions of cb. 86 of tbe Statutes, without capital stock.

<p> Sighways: Sufficiency: Injury from defect: Questions for jury: In structions to jury: Terdict: Perverseness. </p> <p>1. A highway which crossed a ravine thirty feet wide upon a fill or embankment about four feet deep at the deepest place and having a hard, smooth surface about twelve feet wide at the narrowest point, and not wide enough at any point for two automobiles to pass each other safely, was not defective as a matter of law, where the highway was straight at that place so that cars coming in either direction could be seen at a considerable distance.</p> <p>2. An instruction to the jury under which it was left to.them to consider, in passing upon the sufficiency of such highway, the depth of the fill, its precipitous sides, the absence of a barrier, the presence of growing brush, and all the other facts and circumstances shown by the evidence, is held to have been correct and adequate.</p> <p>3. In an action against a town for injuries alleged to have been caused by an automobile running off from a narrow embankment upon which a highway crossed a ravine, there being evidence which would have warranted the jury in finding that the car did not go over the embankment but down the side of the ravine, the court properly charged the jury upon the subject of a traveler voluntarily or without causé leaving the traveled track.</p> <p>4. An instruction in such case that if the town prepares a traveled track reasonably safe and wide, and sufficient for travel, it is not liable for accidents occurring thereon, was not improper on the ground that it informed the jury of the effect of their answer, in the special verdict, to the question as to the sufficiency of the highway.</p> <p>5. The giving to the jury of general rules of law appropriate to the particular question of the special verdict in connection with which such rules are given, is not error.</p> <p>6. In an action for injuries alleged to have been caused by a defective highway, a special verdict finding that the highway was sufficient and that the plaintiff’s damages were “nothing,” is held not to have been perverse because of the latter' finding, it appearing that the jury understood the effect of the first finding and naturally concluded that plaintiff was entitled to no damages.</p>

<p>Appeal from an order of the circuit court for Douglas county: EbaNK A. Eoss, Circuit Judge.</p>

B. KieKLAND, Judge. Tbe appeal is from an order sustaining a general demurrer to tbe complaint of tbe plaintiffs. Tbis action is brought to restrain tbe defendants, as city officers, from carrying out proceedings to pave Whitewater avenue in tbe city of Fort Athinson with a permanent pavement having a concrete foundation.

<p>Appeal from a judgment of the circuit court for Wauke-sha county: E. T. Eaieohild, Judge.</p> <p>This is an appeal from a judgment dismissing the plaintiffs’ complaint, and also from two intermediate orders, the first order striking out part of the plaintiffs’ complaint and the second setting aside a general verdict of the jury.</p> <p>The complaint alleges in substance that the defendants were employed as attorneys to foreclose a land contract and to recover back plaintiffs’ farm freed from the lien of said contract and to take such proceedings as might be necessary to cancel and satisfy of record said land contract, and for such services plaintiffs agreed to pay defendants such sum as would fairly compensate them for their services and expenses; that plaintiffs relied upon defendants to take such action as would best subserve and protect their rights. The answer, among other things, alleges that the defendants were employed to foreclose the land contract and recover the plaintiffs’ farm or to recover in full the amount due upon said land contract, and denies that plaintiffs employed defendants for any other purpose than to foreclose upon said land contract.</p> <p>The defendants collected $6,512.50, and, after paying $1,050 incumbrances due on the property held under the land contract, deducted $325 for their services and $5.16 expenses incurred, and paid over to plaintiffs the balance, $5,132.34.</p> <p>The appellants, claiming that the charges of the defendants for services were excessive, commenced an action to recover a portion thereof. The action was tried to the court and a jury, and the jury returned a Verdict in favor of the plaintiffs in the sum of $100. The court below set aside this verdict and dismissed the plaintiffs’ complaint.</p>

<p>Appeal from a judgment of tbe circuit court for Wauke-sha county; MaetiN L. LueoK, Circuit Judge.</p> <p>This is an action by the plaintiff to recover from the defendants on alleged breaches of several contracts. ■</p> <p>The plaintiff is a corporation organized and existing under the laws of the state of New Mexico and is authorized to do business in the state of Wisconsin, where it maintains a branch office. The defendants are alleged to be the members of a copartnership under the name of the Mississippi-Alabama Live Stock Association to carry on a live-stock business and to be engaged also in the buying and selling of farm lands. The plaintiff alleges that in May, 1913, it entered into four contracts with the defendants in regard to the delivery of several groups of horses to defendants to be bred, trained, and cared for by defendants under certain conditions ; that tbe terms of the contract were not complied with, which resulted in loss to it.</p> <p>Neither the defendant A. H. George nor any of the other defendants appeared within the prescribed time to answer or demur to the complaint and an affidavit of nonappearance was filed by the plaintiff’s attorneys for the purpose of obtaining judgment under the default, but the default was opened before judgment and the defendant George was granted leave to appear and answer in the action. After service of the summons A. H. George filed a petition with the clerk of the courts of Waukesha county for the removal of the cause to the district court of the United States for the Eastern division of the Southern district of Mississippi. The application was denied. The defendant George thereafter appeared in the action and served an answer wherein he counterclaimed for damages resulting from alleged breaches of the contracts with the plaintiff involved in the plaintiff’s alleged cause of action.</p> <p>The case was tried before the court and a jury. The jury found that the plaintiff was not entitled to recover upon its complaint and that the defendants were entitled to recover the sum of $9,852.45 upon the counterclaim. The plaintiff’s motion for a new trial was denied and judgment was ordered in favor of the defendants for recovery from plaintiff of the damages awarded by the jury, with costs. The pleadings and pther proceedings of the record in the case are so very voluminous that a restatement of them here is not practicable and a reference thereto as they appear in the record and printed case must suffice.</p> <p>This is an appeal from the judgment entered in the case.</p>

<p>Appeal from a judgment of the circuit court for Wauke-sha county: MabtxN L. Luecic, Circuit Judge.</p> <p>The appeal is from a judgment granting plaintiff certain equitable relief.</p> <p>The appeal in this case (no bill of exceptions being before us in the record) presents only the pleadings, findings, and judgment for review. Erom these findings it appears:</p> <p>That the defendant Humphrey and his predecessors have for many years operated a grist-mill at the outlet of Lake Nagawicka in Waukesha county. Lake Nagawicka has an area of 1.41 square miles and its waters are held and maintained, to a certain extent, by a dam owned and controlled by defendant Humphrey at this outlet. The stream forming the inlet and outlet to this lake is Bark river. One mile below Lake Nagawicka and on Bark river plaintiff and his predecessors had for many years also maintained a dam and operated a similar mill. The mill-pond at this point was about twenty-five acres in extent and held only sufficient water supply to run plaintiff’s mill for a few hours. The mill and water power of defendant Humphrey was the elder of the two.</p> <p>That in 1906 the State of Wisconsin established a fish hatchery just below Nagawicka lake with ponds numbered 1, 2, and 3, just below the lake and on the north side of the Bark river, and ponds numbered 4, 5, and 6 south thereof. Ponds-1, 2, and 3 were supplied with water from a spillway on Lake Nagawicka; ponds 4, 5, and 6 by a twelve-inch pipe running from the waters of Lake Nagawicka through or under ponds 1, 2, and 3 and the Bark river. The waters from these six ponds, save, such as is lost by seepage or evaporation, ultimately find their way into Bark river above the plaintiff’s dam. The total fall between the two dams is ten and one-half feet.</p> <p>That for upwards of twenty years prior to 1906, as the two water powers were being operated by their respective owners, and with the natural flow of the Bark river between them, the upper mill had been operated practically every day continuously and the plaintiff was thereby enabled to also operate his mill continuously.</p> <p>That by a written contract made in 1906 between the defendant Humphrey and the State of Wisconsin it was agreed that the State might place and maintain in Lake Nagawicka for the purpose of drawing water for use in the fish hatchery the twelve-inch pipe connected with the ponds numbered 4, 5, and 6, and might use for the hatchery so much of the waters of Lake Nagawicka as could be drawn through such pipe, and that if at any time such use by the State and by defendant Humphrey in connection with his mill should lower the waters in the lake to a point twelve inches below a certain high-water mark, then the said Humphrey, his. heirs and assigns, would absolutely desist and refrain from using any water from said lake for the running of the mill property or for any other purpose until the waters of said lake should again reach a point within twelve inches below such high-water mark.</p> <p>That the defendant State, by reason of such agreement, claimed to have the right to and did exercise practical control over the waters at said dam and did at several times subsequent to 1906 shut off the outflow of the waters in Lake Nagawicka so that for periods of one or two weeks each the plaintiff was practically deprived of the use of the waters of Bark river and forced thereby to shut down his mill. That the natural flow of water from Lake Nagawicka into Bark river and from thence on into Upper Nemahbin lake is sufficient to operate the two mills in question, and that each of such mills is reasonably adapted to such watercourse, and the ordinary operation of the fish hatchery maintained by the State of Wisconsin is also a reasonable use of the natural flow of Bark river. That it is not necessary for the maintenance of the fish hatchery and its efficient operation that the defendant State of Wisconsin should avail itself of the attempted grant of power under the agreement between itself and the defendant Humphrey, and that the exercise of such attempted grant of power on its part is to impair the power and destroy the use of the mill of plaintiff in dry or low-water seasons. The operation of plaintiff’s mill prior to the agreement between defendants in 1906 was of substantial value to him, but by the exercise by the State of such claim of right under the agreement there has been a substantial interference with, if not destruction of, the plaintiff’s business.</p> <p>That the mill of the defendant Humphrey may be efficiently operated, although not to its full capacity, when the waters of Lake Nagawieka are down as low as a point fifteen inches below such high-water mark. By lowering the water in Lake Nagawieka proportionally more and more water is needed to generate the same amount of power in Humphrey’s mill, and that therefore, as riparian owner, defendant Hu/m-phrey has the optional right, when the water in the mill-pond is as low as twelve inches below high-water mark, to either close his mill so that more water and power may be accumulated or to run his mill under low-water pressure.</p> <p>As conclusions of law the court found that the defendant State of Wisconsin has made an unreasonable use of the waters of Lake Nagawieka and Bark river and that both defendant State and the defendant Humphrey should be restrained from exercising or attempting to exercise the power attempted to be given under the agreement between them so far as it affected the detaining of the water from Bark river in such manner as theretofore done under such claim of right and except only when such detention is a reasonable one having relation to the correlative rights and duties existing between the plaintiff and the defendant Humphrey as riparian owners. From such judgment the defendants appeal.</p>

<p> Life insurance: Mutual heneftt association: Warranty in application: Falsity: Evidence. </p> <p>In an action upon a policy or certificate of life insurance issued by a mutual benefit association, the evidence is held to show conclu- ' sively, contrary to a finding by the jury, that the assured did not fully and truthfully answer the question, in her application, as to when and for what she had sought the advice of a physician or surgeon during the three years prior to making such application.</p>

Tbe appeal is from an order overruling a general demurrer to tbe complaint.

<p> Wills: Provision for widow: Interest in annuity: Election not to tahe under the will. </p> <p>After certain specific bequests and after devising to the widow the homestead for life and giving to her the household furniture, a will gave the residue of the testator’s estate in trust, providing that during her widowhood and until both of the two sons should arrive at the age of twenty-five years the trustees should pay to the widow $5,000 annually “for the support, care, nurture, and education of my said sons under twenty-five years of age;” that one fourth of the remainder of the estate as it should ' then exist should be -delivered tci each of the sons when he became twenty-five years old; that when the younger son reached that age, and until she should die or remarry, the trustees should pay to the widow $3,000 annually; that if the widow should remarry “the annuities hereinbefore provided for her shall then cease and no longer be paid to her,” and the trustees should provide suitable support, maintenance, and education for the sons until they became twenty-five years old, and pay to the widow, upon her remarriage, $10,000.- The widow elected not to take under the will. Held, that it was the testator’s intention to give to the widow, as a part of the provision made for her, a beneficial interest to the extent of $3,000 each year in the $5,000 which was to be paid to her annually until both sons reached the age of twenty-five years; that such interest ceased when she renounced the provision made for her in the will; and that the amount to be paid to her annually thereafter for the care and education of the sons is $2,000.</p>

<p> Divorce: Division of property: Estate of wife “derived from the husband:’’ Agreement between husband and wife: Validity: Public policy: Awarding property to wife charged with payment to husband. </p> <p>1. The subject of divorce and distribution of property in divorce proceedings is regulated by statute in this state, and the distribution in any particular case must be one authorized by the statute.</p> <p>2. The theory of our divorce statutes is to provide for an equitable division of the property of the parties, including such property of the wife as shall have been derived, either mediately or immediately, from the husband.</p> <p>3. Money and labor put by the husband into the wife’s property, greatly enhancing the value of her estate, constitute estate “derived from the husband,” within the meaning of sec. 2364, Stats. Martin v. Remington, 100 Wis. 540; Frackelton v. Eraakr elton, 103 Wis. 673, and other cases, distinguished.</p> <p>4. An agreement between husband and wife that property originally purchased with the wife’s money, but into which the husband had put money and labor greatly enhancing its value, should be sold and that out of the proceeds a definite sum should be paid to the husband as a full and final division of the estate and property of the parties, is held in this case to be void as against public policy.</p> <p>5. Independent of said void agreement, the division of property therein provided for is, upon the evidence in a divorce action between the parties thereto, held to be a just and equitable division.</p> <p>6. A divorce judgment awarding all the property of the parties to the wife, subject to the payment of a certain sum to the husband as his share therein, but not adjudging any personal liability against the wife for such payment,’ is valid and proper. Gallagher v. Gallagher, 89 Wis. 461, distinguished.</p>

N. Risjoed, Circuit Judge. Action for damages for deceit. Tbe plaintiff operates a box factory. Tbe defendant’s son, Alfonse, Jr., was employed by tbe plaintiff in bis factory October 14, 1914, and injured in tbe course of that employment December 11, 1914.

<p>Appeal from a judgment of the circuit court for Marathón county: A. H. Reid, Circuit Judge.</p> <p>Plaintiff was a salesman in tbe employ of defendant, wbo bad a contract with the Ford Motor Company for an agency in this state. Defendant’s contract expired August 1, 1915. During June and July of that year and while still in defendant’s employ as such salesman the plaintiff and a third person circulated and obtained signatures to a petition recommending plaintiff and such other person to the Ford Motor Company for appointment to the agency then held by the defendant for the new term commencing at the expiration of defendant’s then existing contract.</p> <p>The efforts of plaintiff were unsuccessful in that regard and defendant obtained a renewal on his contract. Defendant did not know of such efforts by the plaintiff until after August 1st, and then refused to- pay a balance claimed by plaintiff under the contract between them on the ground that there had been a breach of duty By plaintiff towards the defendant in so soliciting such new contract for himself while in defendant’s employ.</p> <p>The action was tried without a jury, and the court found that plaintiff’s efforts to secure the agency did not constitute a breach of his contract with defendant and did not work a forfeiture of tbe amount claimed by him, and granted bim judgment for tbe amount claimed. From tbis judgment defendant appealed.</p>

<p> Principal and agent: Ratification of unauthorized, contract: Fire insurance: “Procuring" further insurance: Avoidance of policy. </p> <p>1. A person cannot retain the avails of an unauthorized contract, made for his benefit by another assuming to act as his agent, and repudiate the responsibilities of such contract, and any attempt so to do, with full knowledge of the facts, constitutes a ratification of the unauthorized act and creates a liability on the part of such person to the same extent as if such contract were originally authorized.</p> <p>2. After a father had, in February, insured his dwelling in the defendant company, his son gave him a policy in another company ' which he had procured in the previous December as a Christmas present. The father accepted the policy from the son, retained it, and, after the dwelling was burned, was paid by that company its share of the loss. Held that, whether the act of the son was an agency transaction, the making of a contract by one for the benefit of another, or a gift, the father had, by ratification or acceptance, “procured” further insurance in violation of a condition in defendant’s policy.</p>

<p>EeR,oe to review a judgment of the municipal court of Milwaukee county: A. 0. Bacxus, Judge.</p> <p>The plaintiff in error was tried, convicted, and sentenced (under sec. 4587&J Stats.) for enticing and interfering with the custody and personal liberty of a girl fourteen years of age, and brings error to reverse the judgment.</p> <p>Sec. 4587b reads as follows:</p> <p>“Any person who shall entice or seek to entice any child away from the person or place to which it has been committed for safe-keeping pursuant to law, or who shall interfere in any manner with the care, custody, control, personal liberty or education of any such child, except pursuant to law, shall be punished by fine not exceeding one hundred dollars or by imprisonment in the county jail not more than six months.”</p> <p>The evidence shows that the plaintiff in error, meeting the girl in the street, offered her twenty-five cents to go into the alley with him for immoral purposes, but that she refused to go. The girl lived with her parents and had never been committed for safe-keeping to any person or place.</p>

Luece, Circuit Judge. . Tbe complaint alleges tbe corporate character of tbe defendant; tbat tbe plaintiff and one Lora L. Yan Alstine were on tbe 24th day of December, 1910, tbe owners in fee simple of tbe lands described; tbat on said date tbe plaintiff and tbe said Lora L. Van Alstine entered into a written agreement with tbe defendant in tbe form of a proposition and acceptance thereof by tbe common council for tbe dedication of tbe lands hereinafter described as a…

The appeal is from a judgment denying probate of the alleged will of Eliza J. Hall, deceased. Eliza J. Hall died in 1914 at the age of eighty-nine years, and the alleged will propounded was executed about a year before her death. Eor a period of about eight years before her death she was blind or partially so. Her signature to the will was written by one Whitenack, with her mark attached thereto. The witnesses to the attestation clause are Anton Eay and Nora Elkey.

for Columbia county: Chester A. Eowler, Circuit Judge. This matter was brought in tbe county court on application for partial distribution of tbe estate of Warren Gilbert, deceased. It was beld there that notes of A. C. Gilbert,, hereinafter mentioned, should be set off against his interest in his father’s estate, and judgment was rendered accordingly. Appeal was taken to the circuit court from the judgment of the county court by Helen Gilbert, as administratrix of A. 0.

<p>RepoRted from tbe municipal court of Milwaukee county: W. J. TurNer, Judge.</p> <p>Tbis is a proceeding under sec. 4721, Stats., to secure from tbis court answers to two questions certified by tbe municipal court of Milwaukee county.</p> <p>Tbe defendant was found guilty by a jury in tbat court on a charge of knowingly receiving stolen property. Tbe information charges tbe defendant with tbe commission of four distinct offenses under sec. 4417, Stats., and also, as a fifth count, under see. 4738, a prior conviction of an offense on February 1, 1916. Tbe defendant filed a plea in abatement to tbis information, in which, among other things, be raised tbe question as to whether or not tbe facts stated in tbe fifth count of tbe information were sufficient to constitute a prior sentence under sec. 4738. The plea in abatement was overruled without prejudice, whereupon tbe defendant pleaded not guilty to tbe first four counts of tbe information and entered a plea of guilty to the fifth count.</p> <p>Tbe jury found tbe defendant guilty on tbe first, third, v and fourth counts of tbe information, acquitting him on the second count. The defendant then moved for a new trial and in arrest of judgment and requested the trial judge to certify certain questions to this court concerning the sufficiency of the count as to the prior conviction and sentence and of the correctness of the trial court’s instructions, to which exception had'been taken and filed.</p> <p>The questions reportéd are:</p> <p>(1) Did the court err in its charge to the jury in instructing the jury in connection with its entire charge as follows:</p> <p>“The law is that if the defendant did purchase the stolen property from Mr. Euog knowingly, or under such facts and circumstances that he ought to have known it, in other words, that he is charged with notice of it, that then he would be guilty of the offense charged against him.”</p> <p>(2) Did the following count in the information charge facts sufficient to constitute a prior conviction of said defendant under secs. 476 6, 4737, and 4738 of the Statutes, namely:</p> <p>“And I, Winfred C. Zabel, district attorney for Milwaukee county, aforesaid, hereby further inform the court that on the 1st day of February, 1916, in the municipal court of the county of Milwaukee, Wisconsin, the above named defendant, Harry E. Jacobs, was convicted of the crime of buying stolen property and upon said conviction was sen-. tenced by said court to pay a fine of one hundred (100) dollars and costs, or in default thereof to be committed to the house of correction of Milwaukee county until said fine and costs be paid; but such imprisonment not to exceed in all a period of six months, which said conviction still remains of record and unreversed.”</p>

<p>Appeal from a judgment of tbe circuit court for Eau Claire county: James WioehaM, Judge.</p> <p>Claim against tbe city of Eau Qlaire for aid furnished to a poor person while in Green Lake County. A nonresident poor person whose residence is alleged to be in the city of Eau Claire, while at the city of Berlin in Green Lake County was taken suddenly ill and was furnished necessary surgical and medical attendance and hospital service, the reasonable value of which is alleged to be $120. Green Lake County paid this bill, and on March 29, 1916, filed its duly verified claim against the city of Eau Claire with the city clerk. On April 25, 1916, the claim was disallowed by the common council of the city of Eau Claire. On April 14, 1916, the city clerk of the city of Eau Claire mailed a notice of dis-allowance to the county clerk of Green Lake County by registered mail, which notice was received by the clerk of Green Lake County on April 15, 1916. Green Lake County, by its district attorney, undertook to appeal from the decision, of the common council to the circuit court for Eau Claire county, and on May 12, 1916, mailed to the city clerk of the city of Eau Claire a notice of appeal, which was received by the city clerk on May 13, 1916, twenty-seven days after the notice of disallowance was received by the county clerk of Green Lake Qounty. The papers were transmitted to the circuit court for Eau Olaire county, and upon motion judgment of the court was entered dismissing the appeal, and from the judgment so entered plaintiff appeals.</p>

<p> Marriage: Divorce: Effect of final judgment: Right to remarry: Validity of marriage: Epileptics: Public policy: Voidable marriage in another state: Action to affirm: Annulment. </p> <p>1. Where an interlocutory decree of divorce was properly entered under ch. 323, Laws 1909, the final judgment was properly entered under the regulations of and with the effect provided for in said law of 1909, even though not applied for until after the enactment of ch. 239, Laws 1911 (which provides that the judgment entered in a divorce action, so far as it affects the status of the parties, does not become effective until the expiration of one year from the date of entry). .A final judgment of divorce, therefore, entered in 1915, based upon an interlocutory decree properly entered in 1909, left the parties free to marry again without waiting a year.</p> <p>2. Under sec. 7090, Gen. Stats. Minn. 1913, construed in connection with secs. 7095 and 7106, a marriage contracted by a person who is an epileptic is voidable only, and valid until dissolved by judicial decree.</p> <p>3. Although a marriage valid where contracted is valid everywhere, it has when properly challenged in a sister state no more immunity from attack than it would have had if the parties, instead of returning to such sister state, had gone on living in the state to which they went to have the ceremony performed and the action had been instituted there.</p> <p>4. The public policy of Minnesota in prohibiting an epileptic from contracting a lawful marriage cannot be held to have been contrary to the public policy of this state in 1915, since in this state the marriage of insane persons and idiots was then prohibited and, although there is a distinction between epilepsy' and insanity, the courts may take judicial notice that epilepsy is a serious mental disease and tends to weaken the power of the afflicted person and to injure his posterity; and especially since, by ch. 218, Laws 1917, the prohibition in this state against marriage has been extended so as to apply to epileptics.</p> <p>5. The state has the right to control and regulate by reasonable laws the marriage relationship of its citizens, and the wishes and desires or even immediate welfare of the individual must yield to the public welfare as determined by the public policy of the state. Hence, in an action properly involving the question of' the validity of a marriage, the duty of the court in deciding that question is not altered by the expressed wishes of the parties.</p> <p>6. In an action under sec. 2352, Stats., to have a marriage declared valid, where the evidence showed that such marriage was voidable in the state where it was contracted and was not entitled to be recognized as valid under the public policy of this state, the court should have proceeded to annul and declare void such marriage, even though there was no counterclaim, and no desire on defendant’s part, to have it annulled.</p>

<p>Appeal from a judgment of tbe county court of Iowa county: Axdro JeNics, Judge.</p> <p>Action by a real-estate agent to recover commissions for finding a purchaser of a farm of 290 acres. Tbe action was tried before a jury. It appeared tbat the farm was owned by ten brothers and sisters (adults) subject to the dower and homestead rights of their mother, Mary Goodlad. Three of the brothers (the appellants here) made a written agreement with the plaintiff January 11, 1916, in which they agreed, on behalf of themselves and the other owners, that the plaintiff should have the exclusive sale of the farm at the price of $16,000, of which $1,500 was to be in cash and the balance in specified deferred payments, plaintiff to receive a commission of three per cent, for his services. The plaintiff claims that immediately after this written agreement was executed an oral agreement was made between himself and the three appellants (acting for all the owners) by which it was agreed that the plaintiff, in addition to the three per cent., should have as commission all money or property received on the sale in excess of $16,000.</p> <p>Through the efforts of the plaintiff a purchaser of the farm was found in the person of one Thomas, to whom the owners sold the farm on contract for $18,000, of which sum $2,500 was represented by a house and lot traded in.</p> <p>The jury returned the following special verdict:</p> <p>“After the written agreement of January 11, 1916, was made and entered into, was it agreed between the plaintiff and the defendants Richard Goodlad, O. II. Goodlad, and Ernest Goodlad, that the plaintiff, in addition to the commission of three per cent, provided for in the written contract, should also have as compensation for making a sale of the Goodlad farm all moneys or property received on such sale in excess of $16,000 ? A. Yes.</p> <p>“After the defendants, Richard Goodlad, G. H. Go'odlad, and Ernest Goodlad, had employed the plaintiff to find a purchaser for the Goodlad farm, they assuming to act on behalf of all the owners thereof, was such employment of the plaintiff communicated by them or some of them to the other defendants herein and assented to and ratified by them? A. No.</p> <p>“Was the Goodlad farm sold by the defendants to William EL Thomas for the sum of $18,000 by and through the acts and services of the plaintiff in procuring him as a purchaser thereof? A. Yes.”</p> <p>Judgment was rendered against the three defendants who signed the written contract for $2,480, and the action was dismissed as to the remaining defendants, whereupon the three defendants aforesaid appealed.</p>

<p>Appeal from a judgment of tbe circuit court for Sauk county: James O’Neill, Judge.</p> <p>Tbis is an action to recover assessments paid on a benefit certificate in tbe appellant organization isshed to one T. J. White, which were paid by tbe plaintiff and her sister, Margaret Nichols, since the death of T. J. White and since the death of the beneficiary, his mother, Ellen White.</p> <p>An action to recover on this benefit certificate has been before this court and is reported in 16§ Wis. 418, 162 N. W. 441. In that action recovery of the amount of the policy and of the premiums paid by the beneficiary after the disappearance of the insured, T. J. White, to the time of her own death was adjudged. The trial court found that T. J. White died in July, 1901.</p> <p>The complaint in this action alleges, as was alleged in the former complaint, the disappearance and death of White, and asks for a judgment for recovery of the assessments made by the defendant association and paid by respondent and her sister, Margaret Nichols, on this certificate from the death of their mother, the beneficiary, up to the time of the commencement of this action in December, 1915. Respondent alleges that she and her sister were induced to keep paying the assessments upon the representations made to them by officers of the local lodge that the policy would be kept in force, upon payment of the assessments and dues, until they received knowledge whether or not T. J. White was dead.</p> <p>The association alleges that any and all premiums which were paid by the plaintiff and her assignor were paid voluntarily for the purpose of keeping in force the certificate so that when the death of the insured was in fact proven the amount of the certificate might be received by the beneficiary or her heirs; that the premiums were paid in the usual and regular manner; that the plaintiff and her sister were fully informed of the conditions and circumstances surrounding the disappearance of T. J. White, and that, fully cognizant of these facts, they continued to pay these premiums for the purpose of keeping valid the certificate so that a recovery of the amount could be had by them.</p> <p>Defendant alleges that plaintiff’s right to recover herein is barred by sec. 4222, Stats., that since the time of com.mencement of tbis action and since tbe joining of issue upon tbe original answer tbe judgment of tbe circuit court referred to in these pleadings was affirmed by tbe supreme court and that all costs b'ave been fully paid, and that tbe amounts thus paid include any and all dues and assessments wbicb were paid on tbe policy up to tbe time of tbe death of tbe beneficiary, Ellen White, and by reason thereof tbis plaintiff has no cause of action; and that tbe cause of action was not instituted within tbe time required by tbe constitution and bylaws of tbe association nor by tbe certificates of insurance set forth and referred to in plaintiff’s complaint bearing date of February 18, 1901, and January 1, 1907.</p> <p>Upon service of tbe complaint there was a demurrer to plaintiff’s capacity to sue and as to its sufficiency, wbicb was overruled by tbe court and exception taken. There was likewise a demurrer ore tenus before tbe introduction of any testimony, wbicb was overruled and exception duly taken.</p> <p>Tbe court ordered judgment in favor of tbe plaintiff for .the sum of $301.97 damages, together with tbe sum of $38.52 costs. Tbis is an appeal from such judgment.</p>

<p>Appeal from a judgment of the circuit court for Polk county: EeANK A. Ross, Circuit Judge.</p> <p>Action for the assignment of .dower and for widow’s allowance under the law. Levi Davis, a resident of Polk county, Wisconsin, died testate on September 8, 1914. Letters testamentary were issued to Harris, the executor therein. The respondent, claiming to be the widow of the deceased, filed in the county court her election to take the provisions made for her by law and petitioned that her dower be assigned to her. The county court found as facts:</p> <p>“That on the 19th day of March, 1871, the .decedent, Levi Davis, and the said petitioner, Naomi Davis, were married at the city of Port Wayne, in Allen couilty, Indiana; that sometime in the month of June, 1871, the said Naomi Davis abandoned the said Levi Davis and departed from his home and ever since has lived separate and apart from him; that in 1874 a child was born to said Naomi Davis begotten by one Solomon Watson; that in tbe month of July, 1877, she entered into a marriage with one Walton Brádfield at Payne, Ohio, without having been divorced from said Levi Davis, and ever since that time until the death of said Walton Brad-field on the 1st day of February, 1914, lived with him as his wife; that as the issue of said supposed marriage were born nine children; that the said Naomi Davis never made any effort to ascertain whether or not the said Levi Davis was yet living when she entered into the marriage relation with said Walton Bradfield.”</p> <p>As conclusions of law it held that Naomi Da-vis and Levi Davis were husband and wife up to the death of the latter, but that owing to her adultery Naomi Davis was not entitled to dower or to a widow’s allowance. Upon appeal to the circuit court it. was stipulated that the facts found by the county court should be the facts in the case. The cir- • cuit court held that as the widow of Levi Davis Naomi Davis was entitled to dower and her widow’s allowance under the law, and judgment was entered accordingly. From this judgment the executor and devisees of the deceased appealed.</p>

Lueoe, Judge. Petition by tbe Central Locomotive & Car Works to recover possession of a combination passenger and baggage car sold to tbe Chicago & Lake Superior Railway Company, an insolvent corporation. At tbe time tbe petition was filed tbe car was in tbe possession of Frank W. Lucas, tbe receiver of tbe corporation.

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Ray SteveNS, Circuit Judge.</p> <p>Workmen’s compensation. Pat Duane bad been employed by tbe Foster-Latimer Lumber Company as a planing-mill fireman for many years. Tbe planing mill was situated about one-balf mile east of Méllen, Duane living about a quarter of a mile west of Mellen. A switch track ox tbe Soo Railway runs from Mellen to tbe north side of tbe planing mill, at which place there is a loading platform. On leaving bis work Duane ordinarily walked tbe length of tbe platform westerly, descended tbe steps at tbe end of tbe platform, and then on over the track to streets and highways leading to bis home. On tbe day of tbe accident, after finishing bis work, he came onto tbe platform as usual, but is unable to say just what occurred thereafter, except that be went around two lumber trucks and the next thing be knew he was on tbe railroad track, injured. Application was made to tbe Industrial Commission for compensation, and upon tbe bearing tbe Commission found as follows, omitting tbe formal matters:</p> <p>“That while engaged in performing services growing out of and incidental to bis employment tbe applicant accidentally sustained personal injury; that at tbe time of tbe accident tbe applicant was going from bis employment in tbe ordinary and usual way while on tbe premises of bis employer; that tbe injuries sustained by tbe applicant were proximately caused by tbe accident,”</p> <p>and compensation was awarded accordingly. Plaintiff appealed from tbe decision of tbe Commission to tbe circuit court for Dane county, and tbe circuit court set aside tbe award of tbe Commission. Erom tbe judgment of tbe circuit court tbe Commission appeals.</p>

<p> Service of summons by publication: Defective order: Action to set aside conveyance procured by fraud: Dismissal: 'Notice of Us pendens. </p> <p>1. An order for service by publication directing that “plaintiffs or their attorneys deposit a copy of the summons and complaint in the above entitled action, be sent to the last known address of. the defendants, if the same can be ascertained, and if not, a mailing of a copy of the summons and complaint to be omitted,” was fatally defective under sec. 2640, Stats., there being a substantial failure to comply with statutory requirements jurisdictional in their nature.</p> <p>2. Where the proceedings in an action to set aside a conveyance of land alleged to have been procured by fraud were regular up to and including the filing of notice of lis pendens, defects in an order for service by publication, while they may require, the setting aside of such service, do not require the dismissal of the action, since a new and valid order of publication may be procured.</p>

<p> Mills and milldams: Eminent domain: Compensation for lands made unfit for agriculture: Statutes construed: “Injure." </p> <p>1. Under ch.. 189, Laws 1907, granting power to build and maintain a dam across the Wisconsin river at Prairie du Sac, the licensees must make compensation for the injury to lands which are made permanently unfit for agricultural purposes by the backing up of the water, as well as for lands which are actually overflowed.</p> <p>2. The word “injure” in sec. 2, ch. 189, Laws 1907, and in sec. 1777e, Stats. 1898, should not be construed in its technical legal senáe, as referring merely to an actionable wrong, but rather in the popular and usual sense, as applying to any damage inflicted.</p>

<p>Appeal from an order of tbe circuit court for Columbia county: Chestee A. Eowxeb, Circuit Judge.</p> <p>Tbe appeal is by John O. Pederson,- Jacob Postad, and, Knute Hoverson, resident freeholders of tbe town of Leeds, Columbia county.</p> <p>Tbis is a proceeding under tbe statutes to compel tbe supervisors of tbe town of Leeds, on notice, to meet and award damages to tbe aforementioned freeholders for alleged damage caused to their lands by a town drain installed in 1914. Tbis drain of tbe town of Leeds was ordered by tbe town board in 1913 and constructed in 1914. No notice was served upon tbe complaining freeholders, as their lands lay beyond and lower than tbe end of tbe ditch. In 1916 tbe water from tbe ditch flowed in a natural course onto their lands, first onto tbe lands of Pederson, then onto tbe lands of Postad, and then onto tbe lands of Hoverson.</p> <p>Tbe three property owners made application to the supervisors requesting them to meet and award them damages for such flowage. It was then discovered that tbe supervisors bad, at tbe time of tbe installation of tbe ditch, awarded damages to Pederson in tbe sum of $100, and to tbe owner of tbe lands now owned by Postad tbe sum of $100. No damages bad been awarded to Hoverson. Tbe sums bad not been paid and tbe time for an appeal bad expired. Appellants claim that these sums are inadequate for tbe damage resulting from tbe alleged overflow from tbe ditch. Tbe supervisors refused to meet, so. appellants applied to tbe circuit court for an order under sec. 136Y/i, Stats., compelling them to meet and determine the damages. The circuit court dismissed their petition, from which decision appeal is taken.</p>

<p>Appeal from an order of tbe circuit court for Columbia county: Chestee A. Eowlee, Circuit Judge.</p> <p>Action to enforce a stockholder’s liability. On or about October 10, 1910, the defendant, a resident of this state, through transactions carried on entirely within this state, subscribed and paid for five shares of stock of the par value of $100 each in the O. W. Kerr Company, a Minnesota corporation that had not complied with the provisions of sec. 1770&, Stats. 1898, and of which company the plaintiff was appointed a receiver on the 13th day of March, 1915, because it was then hopelessly insolvent. Defendant received his certificate of stock at about the time he subscribed and paid for the stock and has owned and retained the same ever since. Under the provisions of sec. 3 of art. 10 of the constitution of Minnesota every stockholder of the corporation becomes liable to creditors in an amount equal to the amount of stock owned or held by him. By due proceedings in the Minnesota court an assessment equal to the amount of stock held by each stockholder was levied upon and ordered collected from every stockholder whether resident or nonresident. The receiver brought this action to collect such assessment from the defendant, who set up the defense, among others, that the O. W. Kerr Company had not complied with the provisions of sec. 17705, Stats. 1898, and acts amendatory thereof, and therefore his transactions with the corporation were wholly void. Plaintiff demurred to this defense, and from an order overruling the demurrer he appealed.</p>

<p>Appeal from a judgment of the circuit court for Eau Claire county: A. H. Reid, Judge.</p> <p>Action to establish claim against the estate of one joint debtor. The facts will be stated only so far as is necessary to present the questions raised on this 'appeal. It appears that on or about April 16, 1902, C. W. Hunter & Company, a copartnership consisting of C. W. Hunter and E. W. Tschudy, entered into a contract in writing with W. E. Smith Lumber Company, a Wisconsin corporation, by the terms of wbicb Hunter & Company agreed to sell to tbe Smith Lumber Company all of tbe merchantable lumber wbicb Hunter & Company might manufacture from certain timber wbicb they bad just purchased under an executory contract from tbe Rust Land & Lumber Company in Mississippi. Hunter & Company were to build a mill and proceed with tbe manufacture. They needed money to carry on tbe operation. By tbe contract tbe Smith Lumber Company agreed to make certain advances in order to make tbe first payment on tbe timber and to -enable Hunter & Company to build a mill and put it in operation, and certain advances thereafter on monthly estimates of lumber put on sticks. Tbe mill was built in tbe ■year 1902, sawing was begun in December, 1902, and finished in August, 1909, during wbicb time and immediately thereafter sixty million feet of lumber Was manufactured and delivered to tbe Smith Company. Tbe deceased, Daniel Eitz-hugh, was not originally a member of tbe partnership of Hunter & Company, but became a member thereof by purchasing tbe interest of C. W. Hunter therein and by then and there legally assuming liability for tbe indebtedness of tbe said partnership and for tbe further performance of tbe contract; so that be may be treated as a partner from tbe beginning. Daniel Eitzhugh died in March, 1909, being then a resident of Eau Claire county, and tbe latter part of tbe contract on behalf of said Hunter & Company was carried out by tbe surviving partner, Tschudy. No settlement of tbe affairs of tbe partnership of Hunter & Company has ever been made, and said partnership has no assets excepting about 3,100 acres of land located chiefly in tbe state of Mississippi, tbe title to wbicb is held by tbe plaintiff, Smith Lumber Company, as security taken in accordance with tbe terms of tbe aforesaid contract.</p> <p>A claim was filed in county court against the estate of Eitzhugh for tbe amount due tbe plaintiff. It was contended, in tbe answer to tbe petition setting up tbe claim, that if any liability existed on the part of the estate of Daniel Eitzhugh to the plaintiff it was a joint liability; that Tschudy is the sole surviving partner of C. W. Hunter & Company, residing at Memphis, Tennessee, and should he made a party, and that the claim of the plaintiff should be satisfied out of the partnership assets, and set out the fact that the partnership is still the owner of a large amount of land. There was a trial before the county court and judgment in favor of the .plaintiff, from which the defendant appealed to the'circuit court. In the circuit court the entire matter was retried, and the account between C. W. Hunter & Company and the plaintiff restated. Judgment was directed against the estate of Daniel Eitzhugh for the sum of $60,201.87, with simple interest at six per cent, per annum on the principal sum of $42,879.45 from April 17, 1916, to the date of judgment, but with a stay as hereinafter stated. Judgment was entered accordingly, absolute in form, but subsequently an order was entered staying the enforcement of the judgment “until further application shall be made to the court therefor, and report made of the steps taken and the progress made in the state of Mississippi to first exhaust the assets of O. W. Hunter & Company before resorting to the assets of Daniel Eitzhugh in the state of Wisconsin.” Erom the judgment so entered the defendant appeals.</p>

B. QuotlaN, Circuit Judge. Action in equity by busband and wife to set aside, on tbe ground of fraud, a mortgage of $2,000 upon- tbe wife’s separate property, given to secure tbe payment of $2,000, being a part of tbe consideration wbicb ber busband bad agreed to pay to tbe defendant by tbe written contract hereinafter set forth.

Eeitz, Judge. The complaint in this case was amended on the trial and as amended states substantially that the plaintiff was the owner of certain personal property and also certain real estate at the time alleged in the complaint; that in October, 1914, the defendants were the owners of a $700 note secured by a mortgage upon plaintiff’s property, and that thereafter defendants sold said note and mortgage and guaranteed the payment of the note; that in July, 1915, while said…

B. Beldew, Circuit Judge. On the 21st day of February, 1916, the city of Kenosha contracted with the plaintiff for. the construction of a concrete filtration plant for the sum of $86,800. Extras were afterwards agreed upon and furnished pursuant to the terms of the contract in .the sum of $5,927.24. The plant was constructed and accepted by the city. Plaintiff brings this action to recover an unpaid balance of $14,202.79.

J. TueNee, Circuit Judge. Tbis action was brought by tbe plaintiff to recover damages for personal injuries alleged to bave been suffered by him while in the defendant’s employ.

Fbitz, Circuit Judge. Tbis action was brought by the plaintiff to recover from the defendant money paid under protest, claimed by the defendant city under a license fee of $15 a car per year for 812 cars.

J. Turher, Circuit Judge. Action begun in the civil court to recover a balance of rent due on the lease of a flat, vacated by defendant because he claimed adequate heat was not furnished as provided for in the lease. Defendant rented the flat in August, 1913; paid rent till the 1st day of March, 1914, and vacated it the latter part of February of that year.

■ Appeals from a judgment of the circuit court for Outa-gamie county: E. Y. WeeNee, Circuit Judge. In a collision between the defendant Chicago & Northwestern Raihuay Company, hereinafter called Raihuay Company, and the Wisconsin Traction, Light, Neat & Power Company, hereinafter called Traction Company, Al. M. Frederick and Ben Schneider were injured and each commenced suit against both companies to recover damages.

Eowlbe, Circuit Judge. ' Tbe appeal is from an order setting aside tbe verdict and granting a new trial. Tbe action was brought against tbe defendant Thrall as sheriff and bis sureties on tbe official bond of tbe sheriff. Tbe defendant sheriff sold real estate of tbe plaintiff on execution. Tbe certificate of sale to tbe purchaser, H. R. Laing,-bore date September 19, 1908. Tbe land sold for $820.-Plaintiff took steps to redeem from tbe sale prior to September 19, 1909.

Tbe appeal is from an order denying a motion to quasb an alternative writ of mandamus. Tbe Black river is tbe boundary line of La Crosse and Trempealeau counties in tbis state and was crossed by a bridge from tbe town of Caledonia in Trempealeau county to tbe town of Holland in La Crosse county on wbat was known as tbe McGilvary highway. Tbis highway connects, among other points, tbe county seats of tbe respective counties.

AppKal from an order of tbe circuit court for Milwaukee county: E. T. Eaieciiild, Circuit Judge. Tbe appeal is from an order reversing a judgment of tbe civil court of Milwaukee county in favor of tbe plaintiff in tbe sum of $1,500, and granting a new trial in tbe circuit court.

Fowlee, Judge. Action for damages resulting from an alleged conspiracy and conversion of property belonging to the estate of Sarab A. Auspitz, deceased.

Halsey, Circuit Judge. Action for damages. Plaintiff is an automobile owner living in tbe city of Milwaukee. Sometime during tbe early part of January tbe defendant, a plumber, under permit issued by tbe public authorities, dug a trencb from tbe north line of Knapp street extending south six feet, tbe trencb being two feet wide and eight feet deep. After making a sewer connection tbe defendant filled tbe trencb, using water and clay which bad been removed from tbe excavation.

Eeitz, Circuit Judge. The , appeal is from an order sustaining a general demurrer to the complaint.

<p> Life insurance: Benefit societies: Vested rights of beneficiary: Endowment certificate: Assignment to creditor: Validity: Witnesses: Competency: Transactions with person since deceased. </p> <p>1. The beneficiary named in a certificate issued to a member of a fraternal benefit society does not acquire absolute and indefeasible rights until the death of the member.</p> <p>2. Where a member of a benefit society, holding an endowment certificate upon which her son had been paying the dues and assessments, made an oral agreement with him by which she was to make him her beneficiary under such certificate and he was to continue to make such payments and was also to give her a home and care for her during her remaining years, and pursuant thereto she changed her certificate for a new one in which the son was named as beneficiary, such attempted assignment or pledge was void under provisions in the constitution of the society, made a part of its contract with the member, that “an endowment certificate cannot be made payable to a creditor, nor held wholly or in part, nor assigned, to secure any debt which may be owing by the member,” and that “any assignment of an endowment certificate . . . shall be void;” and the son acquired no rights or interest in or to the certificate and its proceeds.</p> <p>[3. Whether, after the mother’s death, the son was a competent witness to testify to the oral agreement with her, under sec. 4069, Stats., is not decided.]</p>

Gbegoey, Circuit Judge. Personal injury. Tbe plaintiff bad worked for a number of .years at different plants located on Commerce street in tbe city of Milwaukee, and at tbe time of tbe accident in question was working for Conrad Brothers Tannery on said street. He reported for work in tbe morning, was advised that bis services were not needed on that day, and started to return borne, walking southerly on Commerce street.

Tbe appeal is from a judgment reversing a judgment of tbe civil court of Milwaukee county and dismissing tbe plaintiff’s complaint.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Osoae M. Eeitz, Circuit Judge.</p> <p>Sometime prior to January 14, 1915, one Frederick Klein-schmidt died testate, leaving among his heirs three Sons, Fred E., Albert H., and Edward Kleinschmidt. By the terms of his will, which was dated on or about December 14, 1911, his son Edward was bequeathed $5. After the death of Frederick Kleinschmidt and as his will was about to be offered for probate, the son Edward, being dissatisfied with the provisions of the will and threatening to contest the probate thereof, entered into an agreement with his two brothers wherein it was agreed that</p> <p>“in consideration of the said Edward Kleinschmidt refraining from contesting said will, and for the further consideration of one dollar paid by said Edward Kleinschmidt to Fred E. Kleinschmidt and Albert H. Kleinschmidt, and each of them, the receipt whereof is hereby acknowledged, said - Fred E. Kleinschmidt and Albert H. Kleinschmidt agree to pay within sixty days after the death of their mother, Albert-ina Kleinschmidt, to said Edward Kleinschmidt, each, the sum of $1,500, or $3,000 in all, said sum not to bear any interest whatever until after the expiration of said sixty days hereinbefore set forth. The above and foregoing, together with a quitclaim deed of certain property situated in South Milwaukee, which has this day been delivered to said Edward Kleinschmidt, he, the said Edward Kleinschmidt, accepts in full of all claims and demands that he now has or that may hereafter accrue to him against his father’s estate.”</p> <p>Said agreement was dated January 14, 1915. Albert H. Kleinschmidt died sometime prior to October 25, 1916, and administration of his estate was had in the county court of Milwaukee county. On October 25, 1915, that court made an order fixing the first Tuesday of May, 1916, as the last day on which creditors might file their claims against said estate. The mother died February 12, 1917. On May 5, 1917, Edward Kleinschmidt filed his claim against the estate of Albert H. Kleinschmidt for $1,500, based upon the agreement above mentioned. The county court disallowed the claim. An appeal was taken from such judgment of disal-lowance to the circuit court for Milwaukee county, where the judgment of the county court was reversed and the claim was allowed. From the judgment of the circuit court for Milwaukee county this appeal was taken by the minor heirs of the said Albert H. Kleinschmidt and his executrix.</p>

<p>Appeal from an order of tbe circuit court for Milwaukee county: LawbeNoe W. Halsey, Circuit Judge.</p> <p>Tbe appeal is from an order overruling a general demurrer to tbe complaint. Tbe action is to recover on two fire insurance policies covering certain farm buildings owned by plaintiff. It appears by tbe complaint and map attached tbat there were five frame structures in tbe group of farm buildings on tbe plaintiff’s farm, viz.: a dwelling bouse, a horse barn, a cow bam, a bay barn, and a wagon shed with chicken coop attached, tbe same being used for bitching and feeding of horses and tbe bousing of buggies, wagons, and farm machinery. Tbe several buildings mentioned were detached each from tbe other. Tbe wagon shed and chicken coop was twenty-four feet distant from tbe bouse and fifty-eight feet distant from the cattle barn and was not in any way attached to or connected with any other building. This building was burned and tbe action is to recover for its loss. It is not specifically named in either policy. In tbe Sun policy of $3,500 tbe sum of $2,200 is placed on the frame dwelling “and additions thereto/’ $500 on the frame horse barn “and additions thereto,” $500 on the frame cow barn “and additions thereto,” and $300 on the frame hay barn “and additions thereto.” In the other policy of $1,000 the sum of $500 is placed on the frame cow barn “and additions thereto.” The trial court held that the wagon shed, though not physically connected with any other building, was included within the words “additions thereto” and hence covered by the policies.</p>

W. Halsey, Circuit Judge. Action for damages begun in the civil court of Milwaukee county. In the fall of 1915 the defendant was operating a licensed Ford jitney bus in the city of Milwaukee. Its route was Fond du Lac avenue.

<p> Parent and child: Guardianship of children committed to state public school: Parent’s right to custody: Petition: Amendment: Jurisdiction of county and circuit courts. </p> <p>1. An order made by a county judge committing children to the state public school at Sparta is not an order appointing a guardian or reviewable as such by the circuit court. The state board of control becomes the guardian of children so committed, not by appointment, but by force of the statute (sec. 573d).</p> <p>2. No notice of the proceeding for commitment of children to the state public school being required by the statute to be given to the parents, such commitment does not foreclose the right of • the parent, when competent, to resume the care and custody of the children; and the fact that the parent was present at the hearing before commitment is immaterial.</p> <p>3. Where children were committed to the state public ^school on the ground that their father had abandoned them and their mother was not a fit and proper person to have their care, custody, and control, the county court has jurisdiction after-wards, upon a proper petition by the mother stating the facts and alleging her present ability to support and care for the children and that because of reformation or for some other reason she is now a fit and proper person to have their care and custody, to determine the question whether such care and custody should be awarded to her and to make an order accordingly.</p> <p>4. A petition by the mother in such a case, asking that she or some other suitable person be appointed guardian of the children, is treated as-asserting the mother’s right to their care and custody, and the amendment thereof so as to state the proper grounds upon which to proceed is permitted.</p> <p>5. The proceeding upon a proper petition in such case is not strictly a proceeding to appoint a guardian, but is nevertheless one which affects the person and the right to the custody of minors who, under sec. 573/ and the general provisions of the statutes relating to guardianship of minors, are in effect wards of the court.</p> <p>6. The jurisdiction of the county court in such a case is concurrent with that of the circuit court in like matters; but such jurisdiction of the circuit court will not be exercised originally unless it appears that the county court cannot grant relief as adequate, complete, prompt, and efficient as can be granted by the circuit court.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>Action to vacate an award of the Industrial Commission allowing compensation to the defendant Wallum for injuries sustained by him while in the employ of plaintiff Holmen Creamery Association. There is no dispute in the facts. Wallum was hired by the manager of the Creamery Association to make some repairs on the creamery consisting of mason work and plastering inside and outside of the building. He started to work about 10 o’clock in the forenoon of November 26, 1916, and was injured'about 3 o’clock in the afternoon of the same day. He had previously worked for the Creamery Association off and on and had built part of the building, but bad never been steadily employed by it. He was always hired specially whenever be did repair work for it, and was paid by the hour or day. It was understood that when these repairs were completed bis employment terminated and that if be rendered further services it would be under a new employment. The circuit court vacated the award on the ground that the employment of Wallum was but casual within the meaning of sub. (2), sec. 2394 — 7, Stats. 1915. The Industrial Commission and Wallum appealed. a</p>

<p>Workmen's compensation: Who are employees: “Casual employment:” “Mistake” in award: Correction after action brought: Modification of award, how and when made. •' ,</p> <p>1. Wliere one was called in at irregular intervals when extra help was'needed or when a regular employee was absent, and worked . at the regular business carried on by his employer, his employment was not “casual,” within the meaning of sub. (2), sec. 2394 — 7, Stats. 1915. . .</p> <p>2. Where at the time of the hearing before the industrial commission all parties to the proceeding supposed that the only injury to the claimant was the loss of the fingers of one hand, and the award was made on that .supposition, but it was afterwards discovered that there was also a loss of a part of the bones of the hand, this was a “mistake,” within the meaning of sec. 2394 — 17, Stats., which might be corrected by the commission by modifying the award, even though an action to review the award had already been brought.</p> <p>3. Modification of an award, when authorized by sec. 2394 — 17, Stats., may be accomplished as well by vacating it and entering an entirely new award as by making simply an order of modification and letting the original award stand as modified.</p> <p>4. Where 'the mistake is such that a further hearing is necessary and, because ten days’ notice of the hearing must be given to parties interested, the modification of the award cannot be made “within twenty days from the date thereof,” as provided in sec. 2394 — 17, Stats. 1917, that requirement of the statute is satis- - fled if the proceedings to correct the mistake be commenced and the notice of hearing be given within the twenty-day period and pressed to a conclusion with all convenient speed.</p>

<p> Workmen's compensation: Failure to give notice of injury: Employer not prejudiced. </p> <p>A finding by tfie industrial commission and a holding by the trial court, to the effect that the failure in this case to give the notice required by sec. 2394 — 11, Stats., within thirty days after an injury to an employee, .was not with the intention of misleading the employer and that he was not in fact misled thereby or prejudiced by being deprived of an opportunity either to investigate the claim or to furnish surgical aid which would have saved the employee’s life, are held to have been warranted by the evidence.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Rat Stevens, Circuit Judge.</p> <p>This is an appeal from a judgment of the circuit court confirming an award of the Industrial Commission.</p> <p>The appellant, A. 0. White, was on November 10, 1916, under contract with the United States government to transfer mail fiom the station of the Chicago, Milwaukee & St. Paul Railway Company to the station of the Chicago & Northwestern Railway Company in the city of Madison. One Andrew Behrend was at said time and for four weeks prior thereto in the employ of the appellant. On the evening of November 10th, shortly before the arrival of the train over the Portage division of the Chicago, Milwaukee & St. Paul Railway,' Behrend was on the platform of the Northwestern station for the purpose of receiving the mail and making the transfer. About the time the train was coming to a stop he climbed upon the side of the mail coach, took hold of the bars on each side of the middle door, slipped, and fell under the train, and received injuries from the effects of which he died.</p> <p>The evidence shows that the appellant under his contract was required to meet the incoming train at the station, receive the mail, and convey it to the other station. There was evidence in the case that usually, when the train came to a stop opposite the Northwestern station or the intersection of the tracks, the employee of the appellant would be standing there and the mail dispatched to him at that point, but sometimes when the train did not stop, or when the mail clerk was busy and did not have time to dispatch the mail at that point, the employee of the appellant would board the train and ride across the street to the station of the Chicago, Milwaukee & St. Paul Railway Company, where the mail would be dispatched to him.</p> <p>At the time in question the side door of the mail car was closed when the train approached on said evening of November 10th, and Behrend climbed upon the car, evidently with the idea of attracting the attention of the mail clerk and receiving the mail. There is evidence that employees did hoard the train under such circumstances.</p>

<p>Appeal from a judgment of tbe circuit court for Ashland county: G-. N. Risjoed, Circuit Judge.</p> <p>Action of quo warranto to try title to tbe office of chairman of tbe town of Barksdale and tried in tbe court below without a jury, a jury trial having been duly waived. Tbe court found as follows:</p> <p>That at the spring election of 1917 in tbe town of Barks-dale, Bayfield county, tbe relator and defendant were candidates for chairman, the defendant being a candidate for reelection; that tbe canvassing board certified that the relator had received sixty votes at said election and the defendant sixty-one; that both qualified, and tbe defendant assumed the office of chairman of the town, wbicb office be bas since beld and now bolds; that at said election the votes of a number of unmarried “guards” at the Dupont de Nemours Company’s plant in said town were challenged for the alleged reason that they were not residents and not legally entitled to vote at said election; that the number set out in relator’s complaint as having been illegal votes was somewhat over thirty, but upon the trial it was agreed that the only votes in question were those of Adolph Nelson, Albert Johnson, L¡ Olson, John McGilvary, Ben Hanson, P. Farley, Edgar Hunt, B. Hicks, Neil McIntosh, Dennis Kelly, Clarence En-helder, Ben F. Ganski, and Chris Bekken, who voted for the defendant, and 0. A. Olson, Fred Brace, Lewis Hanson, H. McCluskey, Lawrence Cox, Glen Kellar, J. O. Sabon, and Clyde Aitken, who voted for the relator. On the trial it was further conceded by counsel for the relator that the votes cast by 0. A. Olson, Fred Brace, and Lewis Hanson for the relator were illegal, and no evidence was offered as to the legality of the votes of'H. McCluskey, Lawrence Cox, Glen Kellar, J. O. Sabon, and Clyde Aitken. The relator’s complaint, however, alleges that the votes cast by the last five persons named were illegal votes, so that it was conceded that the relator at any rate did not receive to exceed fifty-seven legal votes. It was also conceded that the vote of Albert Zipperer, who voted for the defendant, had not been shown to be illegal, so the controversy hinges on the legality of the votes of the other thirteen above named who voted for the defendant.</p> <p>That the said guards above named who voted for defendant were single men, and while employed as guards live in so-called barracks, which are buildings owned and controlled by the company and located inside of a wire fence surrounding the plant, and which barracks were fitted with places to eat, sleep, and bathe and with provisions for entertainment of the guards, consisting of card tables, books, etc.; that the barracks are used practically for the keeping of the guards only, and there is no access permitted to the barracks by any one but the guards except upon permission given by the chief of the guards or the superintendent of the plant or other officer at the office of the plant located upon the grounds; that the barracks are not intended for occupancy by any one but guards and those employed there as cooks or otherwise, and when a guard’s employment as such .terminates he cannot make the barracks a 'home or place of residence; that the guards on duty are stationed at certain intervals along the wire fence surrounding the plant, and it is their duty to see that no one but employees or persons specially authorized enter the .grounds inside of the fence; that said plant is located in the town of Barksdale and near a station called Barksdale; that most of the employees live at Washburn and are taken in and out by special trains, but some of the employees live in the neighborhood of the plant, mostly in the town of Barksdale, which town has no other industry of any consequence than the “Dupont plant” within its border, except farming; that the employment as guards at the plant is of indefinite duration and long service is encouraged in various ways by the company; that it seeks to-obtain men who will remain permanently, and there is nothing to indicate how long the guards may be kept at the plant, but perhaps as long as the plant is running some guards at least will be retained; that the guards in question had no other domicile than the barracks and intended to remain at the barracks and in the company’s employ as guards as long as the job lasted; that they are of various ages, all dependent rtpon their own earnings for their maintenance; that none of them who testified at the trial had a present intention to remove, though if their employment as guards terminated they would probably not remain in the town of Barksdale; that the fence had existed and guards had been employed for two or three years; that the company started out with about forty-five guards and at the time of the trial the number had increased to about eighty; that the plant was originally built for the purpose of manufacturing dynamite principally, but since the European war started it has been largely engaged in tbe manufacture of war munitions.</p> <p>That tbe foregoing facts apply generally to' all tbe guards above named wbo voted for tbe defendant, except that some of them bad been at tbe plant longer than others, and tbe fol-' lowing guards, namely, Albert Johnson, L. Olson, John Mc-GKlvary, Ben Hanson, Peter Earley, Neil McIntosh, and Dennis Kelly, voted in tbe town of Barksdale at the fall election of 1916 without their votes being challenged, while the others cast their first vote in the town at tbe spring election of 1917; and that they were all guards except Clarence En-helder, who was a cook at the barracks; that Albert Johnson, L. Olson, John McGrilvary, Ben Hanson, Peter Earley, B. Hicks, Dennis Kelly, and Ben E. Granski were still guards at tbe time of tbe trial of tbe action, while Adolph Nelson, Edgar Hunt, Clarence Enl^elder, and Chris Bekken had left, all because of having been discharged, except Adolph Nelson, who left because he expected to be discharged; that all of them were employed by tbe company on the day of election, and all who testified upon the trial stated that they considered Barksdale and the barracks their home.</p> <p>Tbe court concluded that all of the thirteen guards above named who voted for the defendant were legal voters in the town of Barksdale at the spring election of 1917, therefore defendant received sixty-one legal votes and the relator not to exceed fifty-seven, consequently defendant has a legal right to hold the office of chairman of the town of Barksdale.</p> <p>Judgment was entered accordingly, from which this appeal was taken. The following • errors were assigned: (1) The court erred in holding that the thirteen guards who voted for defendant were legal voters; (2) in holding that defendant received sixty-one legal votes; (3) in holding that the defendant has a legal right to hold the office of chairman of the town of Barksdale; (4) in ordering judgment in this action for the defendant.</p>

<p>Ebroe to review a judgment of the circuit court for Grant county: George ClemeNtsoh, Circuit Judge.</p> <p>Christine Kuhl, wife of plaintiff in error, died Friday, August 27, 1915, having b'een unconscious from 9 o’clock in the evening of Wednesday, August 25th. The plaintiff in error, her husband, was charged with the murder, of his wife, and upon the trial a verdict of guilty of manslaughter in the fourth degree was returned. The motion for a new trial was denied and the defendant, plaintiff in error, sentenced to two years in the state prison, and brings such judgment here for review.</p>

<p>EbROR to review a judgment of the municipal court of Milwaukee county: A. 0. Backus, Judge.</p> <p>Plaintiff in error ivas convicted of manslaughter in the fourth degree. The evidence shows that on the 26th day of September, 1915, in the city of Milwaukee, without provocation, plaintiff in error struck one James C. Davis across the face with the flat of his hand; that Davis immediately fell on the sidewalk, unconscious; that he was placed in an ambulance, taken to the hospital, and was dead upon his arrival there. Deceased’s skull had been trephined a number of years before, and the region from which the bone had been removed by this operation was filled in with tough connecting tissue, to which was adherent a corresponding area of braid tissue. The doctor who performed the autopsy testified that this brain tissue had been torn away from the left hemisphere of the brain — torn out of the brain substance of the left hemisphere which corresponded in size to that of the bone defect. In the opinion of the doctor the cause of the tearing away of the brain tissue was a sudden motion of the yielding substance of the brain within the rigid container. The tissue which had supplanted and taken the place of the bone tore, as the result of the application of force, a certain propulsion of the skull which the brain could not follow, or a sudden interference with the motion of the skull to which the brain could not adapt itself. The doctor testified that the force was the result of either a blow or a fall.</p> <p>The defense was that the blow inflicted by the plaintiff in . error was not of sufficient force to produce the resulting death of the deceased, nor was it sufficient to knock him down; that the deceased must have fallen to the sidewalk from some cause unknown, and that the impact of his head upon the sidewalk caused the brain disturbance which resulted in his death.</p> <p>Erom a judgment of conviction of manslaughter in the fourth degree plaintiff in error brings this writ of error.</p>

<p>Appeals from a judgment of the county'court of Milwaukee county: J. 0. Kaeel, Judge.</p> <p>The acting judge of the juvenile court of Milwaukee county placed Herman Scholl and Max Tolland, boys ten and eleven years of age respectively, in charge of the probation officer of the court as delinquents, under the provisions of the juvenile court law, and an appeal was taken by each.</p> <p>The chief contention of the appellants is that the juvenile court law is unconstitutional because it denies a jury trial and authorizes conviction of crime without due process of law, and perhaps for other reasons. In order that this question may be understood it will be necessary to state the substance of the law, the same being found in sec. 573 — 1 to 573 — 10 inclusive of the Statutes. Sec. 573 — 1 defines dependent, neglected, and delinquent children for the purposes of the act. It is only necessary here to insert the definition of a delinquent child, which is as follows:</p> <p>“2. The words 'delinquent child’ shall include any girl under the age of eighteen years and any boy under the age of seventeen years, who violates any law of this state, the penalty for which is not imprisonment in the state prison, or who violates any city or village ordinance; or who is incorrigible; or who knowingly associates with thieves, vicious or immoral persons; or who is growing up in idleness or crime; or who knowingly patronizes any place where any gaming device is or shall be operated; or who knowingly visits, or enters a house of ill repute; or who patronizes, visits or enters any stall saloon, or wine room, or any saloon frequented by men or women of bad repute; or who attends, visits or enters any dance held in any room or hall in connection with a saloon, unless accompanied by parents or legal guardian; or who loafs or congregates with groups or gangs of other boys at or about any railroad yard or tracks; or who habitually uses obscene, vulgar or profane language, or is guilty of immoral conduct in any public place, or about any schoolhouse; or who is habitually truant or habitually insubordinate in any school.”</p> <p>Sec. 513 — 2 provides (1) for the designation in each county by the judges of the several courts of record in such county, at intervals not exceeding one year, of one or more of their number to hear all cases coming under the act; (2) that the findings of the court shall be entered in a record book and the court called for convenience the “juvenile court” or the “juvenile branch of the court,” the clerk and the stenographer of the court of which the judge is a membér being the clerk and stenographer respectively of the “juvenile court” (with certain exceptions not material here), all courts of record in the state being given concurrent jurisdiction with the circuit courts in all cases coming under the act; (3) for the appointment, compensation, and removal of probation officers, there being a chief probation officer provided for in counties having a population of 150,000; (4) for the trial of cases under the act by a jury of six on demand of any person interested, or on the judge’s own motion.</p> <p>Subsequent sections provide for (5) the duties and powers of probation officers, among which are “to make such investigations as may be required by the court; to be present in court in order to represent the interests of the child, when the case is heard; to furnish the court such information and assistance as the judge may require, and to take such charge of any child before and after trial as may be directed by the court;” (6) for the commencement of proceedings in any case of a neglected, dependent, or delinquent child by the filing of a verified petition setting forth the facts, signed by a reputable resident of the county; (7) for the issuance of a summons to the person having custody of the child, and its parents, requiring them to appear with the child, and for the hearing and disposal of the matter upon the return of the summons with tbe child in a summary manner; (8) for the commitment of a child under sixteen years old found to be dependent or neglected to the care and custody of some state or county institution as provided by law, or to some incorporated association organized for the purpose.of receiving such children, also for the temporary care and custody of such child in the care of the probation officer or some suitable person or institution for a period not exceeding one year; (9) for the commitment of a child found to be delinquent to the care of a duly appointed probation officer, allowing the child to remain at home subject to visitation by and regular report to the probation officer, and to return to the court for further proceedings on the original petition if necessary. Other provisions are made so that delinquent children may be placed in a family, home, or institution, or boarded out in a home, or committed to an industrial school or institution.</p> <p>It appears by the record returned that a police officer, after investigation by himself and Probation Officer Killey, made a verified complaint in the present case and presented the same to the juvenile court, County Judge JohN 0. ELaeel presiding, charging that eighteen boys (including the boys in question), ranging in age from ten to fourteen years, during October and November, 1917, loitered about the yards of the Chicago, Milwaukee & St. Paul Railway in Milwaukee, jumped on and off moving freight trains, and were incorrigible, and prayed that the court inquire into the delinquency of the boys; that the parents of the children were summoned and a hearing was had before Judge Karel November 23, 1917, all the boys being present, and a number of the parents, among them the father of the appellant Scholl; that the probation officer, who had investigated the matter, was present, and stated that the boys individually and collectively had confessed to him that they were frequently about the railroad tracks; and that a number of the boys were already in probation and under his cafe for former delinquencies. ISTo sworn testimony was taken, and no question seems to Rave been raised as to the main fact, namely, that the boys frequented the railroad yard and cars, except that the appellant Scholl denied that he frequented the railroad tracks and claimed that he was only at the foot of a slight elevation adjoining the tracks on one occasion and was helping his friend Polland pick up coal which rolled down the hill from the cars. Two other boys, however, stated that they were on a freight car throwing off coal, and that Scholl and Polland were picking it up.</p> <p>The result of the hearing was that the boys were placed on probation under Mr. Killey. Some were detained at the detention home for a few days, but the appellants Scholl and Polland were simply placed under probation and allowed to go home.</p>

<p>EeeoR to review a judgment of the municipal court of Milwaukee county: A. C. Backus, Judge.</p>

<p>Eebob to review a judgment of the municipal court of Milwaukee county: A. 0. Backus, Judge.</p> <p>Plaintiff in error was convicted of violating the provisions of sec..1636 — 195, Stats. 1915, which forms a part of ch. 394 of the Laws of 1909, being the tenement house act, applicable to cities of the first class. The section reads:</p> <p>“No room in the cellar or basement of any apartment, tenement, lodging or boarding house shall be constructed, altered or occupied for living purposes unless all of the following ’conditions are complied with: Such rooms shall be at least eight feet high in every part from the floor to the ceiling ; the ceiling of such room shall be at least four feet above the level of the lot; such room shall have a window or windows opening upon the street, yard or outer court and the total window area shall be at least one tenth the superficial floor area of the room; one half of sash of such window shall be made to open the full width; the walls and floor of such room shall be dampproof and waterproof, and fit for human habitation as determined by the departments charged with the enforcement of sections 1636 — 180 to 1636 — 201, inclusive.”</p> <p>Plaintiff in error contends that the law is unconstitutional in so far as it is construed to apply to him, because the evidence shows that his building was in existence at the time of the passage of the act and has remained unchanged ever since; that the act was intended to apply only to buildings constructed or remodeled after its passage and not to existing buildings; that if applicable to such it is unconstitutional because retroactive and unreasonable.</p>

<p>Appeal from a judgment of the circuit court for Douglas • county: E. B. Beldef, Judge.</p> <p>This action was brought by the administrator of tbe estate of Bernard M. Oonway, deceased, to recover damages for personal injuries sustained by said deceased while in tbe employ of tbe defendant as a brakeman in its yards in tbe city of Superior on tbe 20tb day of March, 1910, and for tbe loss resulting to Bridget Oonway, bis mother, on account of bis death resulting from tbe accident. Tbe case was tried before a jury and tbe following special verdict returned;</p> <p>“(1) Was tbe deceased, Bernard M. Oonway, injured by falling from defendant’s car ? A. Yes.</p> <p>.“(2) If you answer tbe first question ‘Yes,’ then answer this: Was such fall caused in whole or in part by tbe grab iron in question giving way ? A. Yes.</p> <p>“(3) Was tbe grab iron in question defective at tbe time in question ? A. Yes.</p> <p>“(4) If you answer tbe first, second, and third questions ‘Yes,’ then answer this: Did tbe fact that such grab iron was • defective contribute in whole or in part to cause Conway’s injuries complained of ? A. Yes.</p> <p>“(5) If you answer tbe fourth question ‘Yes,’ then answer this: Was Conway’s death caused in whole or in part by tbe injuries so sustained by him? A. Yes.-</p> <p>“(6) Did any want of ordinary care on tbe part of Oon-way proximately contribute to cause bis injuries and death ? A. No.</p> <p>“(7) What sum of money will reasonably compensate Bridget Oonway, mother of Bernard M. Oonway, for her pecuniary loss sustained by bis death ? A. $2,000.</p> <p>“(8) What sum of money will be reasonable compensation for tbe physical and mental p@¿n and suffering endured by Conway from tbe time of bis injury, if be was so injured, to tbe time of bis death, as tbe result of such injury? A. $1,500.”</p> <p>From a judgment rendered in favor of tbe plaintiff on such special verdict tbe defendant appealed.</p>

<p>Appeal from a judgment of the circuit court for Eau Claire county: A. II. Reid, Judge.</p> <p>April 24, 1893, at Eau Claire, Wisconsin, one Daniel Eitz-hugh and W. A., R. E., and A. J. Rust, Join S. Owen, and W. E. Gilchrist entered into a written contract for the purchase of land in the South which is recited in the opinion following.</p> <p>In May, 1894, Bust Land & Lumber Company, defendant herein, was organized by certain of the signers of said agreement other than Eitzhugh, and, by agreement, whatever had been purchased under said contract at that time was conveyed to and the contract thereafter carried on by the defendant corporation in lieu of the individuals.</p> <p>Daniel Eitzhugh was a woodsman of many years’ experience, and after the signing of said contract proceeded to look over lands in the states of Mississippi and Arkansas, which were then purchased pursuant to such agreement by the other individuals therein interested or by said corporation after its organization. Large holdings were so purchased during the years 1894 and 1895 for an amount aggregating more than $61,000. In 1902 sales were made of certain portions of said property so purchased for an amount exceeding $100,000 and in considerable excess of purchase price, taxes, and all other expenses in connection with the same up to that time. The accounts concerning such transactions were kept by the defendant corporation and no statement thereof appears, so far as the record discloses, to have been submitted to Daniel Fitzhugh until May, 1907, when what purported to be a statement of the transactions from 1894 to February 25, 1907, was inclosed in a letter to him asking him to examine the same. He acknowledged the receipt thereof on the following day and added that he had not then had time to examine it. 'Nothing further appears to have been said or done by either of the parties to such agreement with reference to such statement of the account Up to the time of the death of Eitzhugh in March, 1909. After his death the plaintiffs, Thomas B. Keith and the widow of Daniel Eitz-hugh, Bertha M. Fitzhugh, were appointed administrators of his estate, and those two as such administrators, Bertha M. Fitzhugh as widow, together with William and Daniel Fitz-hugh, the only children of Daniel Eitzhugh, deceased, commenced an action against the defendant corporation for an accounting in the transactions between the defendant and said Eitzhugh regarding such lands, and that there might be conveyed to such of the plaintiffs as were heirs of Eitzhugh an undivided one-sixth interest in any and all of the lands so purchased still remaining unsold, and the payment to them of the proportionate share in any and all profits derived from prior sales of said real estate.</p> <p>Erom April 24, 1899, a separate account had been kept by the defendant corporation with Daniel Eitzhugh, involving looking after other land matters in which the defendant corporation was interested besides those included in the purchases made under the agreement of .1893, and which account included, from time to time, allowances to him for salary and for disbursements made by him on account of such other matters for the defendant as well as some disbursements made in connection with the lands purchased under the agreement of 1893. In the later years of this accoirnt no credit was made on account of the salary, and the balance was in favor of the defendant and particularly in the year 1908, when, on the written order of Eitzhugh, over $7,500 was directed to be paid to satisfy a certain judgment that had been obtained against him in favor of the representatives of one W. A. Rust.</p> <p>An appeal was taken from the county court on this last mentioned account to the circuit court, and there, on the trial of'the action brought by the administrators and the heirs of Daniel Eitzhugh for an accounting under the contract of 1893, it was agreed by stipulation that the two matters might be heard together. Evidence was taken and the two proceedings disposed of by one judgment herein, which was in substance that there was due and owing to the Bust Land & Lumber Company under the separate account for transactions with Mr. Eitzhugh personally the sum of $14,199.21; that there was due to the estate of Daniel Eitz-hugh, as his interest in the transactions under the contract of 1893, a balance of $7,987.16; and further adjudging that the heirs were entitled to an undivided one-sixth interest in the real estate still remaining undisposed of in Mississippi and Arkansas, with the condition, however, that such real estate should be subject to a lien in favor of the defendant corporation in an amount equal to the balance between the $14,799.21 and the $7,987.16, amounting to $6,812.05.</p> <p>An appeal was taken by those designated as plaintiffs in the equity action from so much of the judgment as fixed the balance of $6,812.05 as being due the defendant, and from that part of the judgment declaring such sum to be a lien upon such real estate.</p>

<p>Appeal from an order of the circuit court for Kenosha county: E. B. BeldeN, Oircuit Judge.</p> <p>The appeal is from an order sustaining a. demurrer to plaintiff’s complaint.</p>

J. TueNee, Circuit Judge. On tbe 14tb day of October, 1915, tbe plaintiff was a passenger for bire in an automobile operated by defendant Schwab, going from Hales Corners to tbe city of Milwaukee, both in tbe county of Milwaukee. Tbe automobile was proceeding in a northeasterly direction on what is known as tbe Janesville Plank Road.

<p>Appeal from a judgment of the circuit court for Milwaukee county: John 0. Ludwig, Circuit Judge.</p> <p>Damages on contract. The plaintiff claims that in December, 1905, the defendant made an oral contract with the plaintiff by the terms of which it was agreed that the plaintiff should stop the prosecution of a certain suit then pending in the state of Utah and refrain from bringing further action against the defendant and the Cliff Mining Company, a corporation in which the defendant was interested, and was to turn over to the .defendant certain documents and memo-randa; that the defendant would in consideration thereof cause to be transferred to the plaintiff a certain amount of stock in the Cliff Mining Company. The action was tried in 1909 before the late Hon. John 0. Ludwig and a jury, resulting in a verdict for the plaintiff for $20,987.50. The defendant moved for judgment notwithstanding the verdict, and in the alternative for a new trial. On July 12, 1912, the trial court entered an order that plaintiff be allowed to remit from the verdict all sums in excess of $5,000, and in case the plaintiff so remitted within twenty days that he be allowed to enter judgment for that amount; but that “in case the plaintiff fails to remit as aforesaid within twenty days from and after the date of this order, then and in such case the said verdict is hereby set aside and a new trial of the issues in this action is ordered.” On thé same date the following entry was made on the court j ournal: “Plaintiff moves for a stay of proceedings on the twenty-day clause until twenty days after return of remittitur on the appeal about to be taken from the order of July 12, 1912. Motion granted.”</p> <p>Prom the order of July 12, 1912, both parties appealed to the supreme court, and the plaintiff'failed to file any remitti-tur within the twenty days specified in the original order. The appeal was continued in this court from time to time, and finally a stipulation was entered into by the attorneys for the parties, pursuant to which an order dismissing the appeal was entered on January 12,-1915, the remittitur being filed in the office of the clerk of the circuit court for Milwaukee county on December 9, 1915.</p> <p>Plaintiff claims that the case was continued here from time to time against his objection,' that the stipulation made by his attorney by virtue of •which the appeal was dismissed here was without his authority or consent, and that he had no knowledge of the dismissal of the appeal until July, 1916. Other attorneys were employed, and in December, 1916, a motion was made in this court for a reinstatement of the appeal, based upon affidavits tending to show negligence on the part of plaintiffs attorney and want of authority in him to act in the premises. The motion to reinstate the appeal was opposed, counter affidavits were filed, and on February 13, 1911, the motion to reinstate the appeal was denied. Tn May, 1911, the plaintiff procured from the circuit court for Milwaukee county an order requiring the defendant to show cause why judgment should not be entered against him for $5,000 and interest, with costs, in accordance with the order of July 12, 1912. There were supporting affidavits, the motion was opposed and counter affidavits filed, and on August 1, 1911, the matter was heard before Hon. E. T. Eairchild, the benefit of sec. 2832, Stats., being claimed by the plaintiff; and on August 29, 1917, a formal order was entered directing judgment in 'favor of the plaintiff for the sum of $5,000 and interest from the 9th day of October, 1909. Judgment was entered accordingly in favor of the plaintiff, from which the defendant appeals.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: W. J. Tdekteb, Circuit Judge.</p> <p>The defendant conducts a department store in the city of Milwaukee. On June 11, 1917, the plaintiff, accompanied by one Mrs. Stockman, was shopping in said store, and, for the purpose of reaching the second floor, made use of one of the elevators operated therein. She and Mrs. Stockman testified that the elevator stopped about a foot below the level of the floor; that Mrs. Stockman attempted to leave the elevator while it was in such position; that the operator of the elevator, without closing the doors and without any warning, suddenly set the elevator in motion for the purpose of bringing it to a level with the floor, throwing Mrs. Stockman through the door and giving plaintiff a sudden jerk which threw her against the side of the elevator, as a result of which she sustained certain injuries, for which she brings this action. She claims negligence on the part of the operator of the elevator in unexpectedly setting the same in motion when the doors were open and passengers were leaving the same.</p> <p>It rather conclusively appears that the elevator is so constructed as to make it impossible to move the same either up or down while the doors are open. The doors are opened by a lever, which disengages a knife-and-fork switch, so that the moment the doors are opened the knife pulls out of the fork, disconnecting the power, setting the brakes, and rendering the elevator inert. This safety device was placed on the elevator for the purpose of preventing it from being moved while the doors were.open and to prevent accidents similar to the one claimed to have occurred. It further appears, however, that there is an electric button located beneath a glass plate covering the same, by means of which the elevator can be used when the doors are open. This was placed on the elevator to be used in cases of emergency. It cannot be reached, used, or manipulated when the glass covering is on. The glass covering may be broken or taken off by removing the screws which hold it in position. It appeared in evidence that this glass covering was generally removed when the elevator was being greased or repaired; and at such times, by use of the electric button, it moved freely up and down when the doors were open. The elevator operator and the store electrician testified positively that this glass plate or covering was in its proper position at the time of the accident.</p> <p>The case was tried in the civil court of Milwaukee county, where a verdict was directed in favor of the defendant. Plaintiff appealed to the circuit court, where the judgment of the civil court was reversed and a new trial ordered. Prom this order of the circuit court defendant appealed to this court.</p>

This is a proceeding brought under tbe original jurisdiction of this court praying for a writ of mandamus to compel tbe dairy and food commissioner of tbe state of Wisconsin to issue to tbe petitioners and those similarly situated licenses in accordance with tbe law without payment of tbe fee prescribed by ch. 648, Laws 191Y, tbe purpose of this proceeding being to test tbe constitutionality- of sec. Y, cb. 648, Laws 191Y. Tbe original petition has been twice amended.

EeboR to review a judgment of the circuit court for Dane county: E. Rat Stevens, Circuit Judge. The plaintiff in error (hereinafter called defendant) was convicted of the offense of having used instruments in the treatment of a pregnant woman with intent to procure a miscarriage, as denounced by the provisions of sec. 4583, Stats.

B. Quinlan, Judge. The appeal is from a judgment changing the answers of a special verdict and granting judgment for defendant. This action is brought by the plaintiff to recover for his expenses and the loss of services arising from an injury to his son Ernest in being run over by a freight car of defendant on its tracks in the city of Green Bay, Wisconsin, May 5, 1914.

Geegoey, Circuit Judge. The action is to recover damages for the death of John Ewig, a locomotive engineer in the employ of the defendant company,'which occurred December 23, 1914, in the roundhouse yard of the company at Milwaukee. A verdict for the defendant was directed at the close -of the trial, and from the judgment entered thereon the plaintiff appeals.

J. TueNee, Circuit Judge. Action on bond. On July 16, 1912, George Crilley entered into a contract in the city of Milwaukee for the construction of certain sewers. The defendants became parties to the contract as sureties for George Crilley.

Ray SteveNS, Circuit Judge. Tbe appeal is from- a judgment confirming an award of tbe Industrial Commission in favor of Albertine Loferski. Tbe Industrial Commission awarded compensation to tbe respondent Albertine Loferski on account of tbe death of her husband, Peter Loferski, as against tbe appellant F. G. Cross & Brothers Company as employer and- Wisconsin Employers Exchange as insurer. Tbe appellant employer conducted a packing industry in Milwaukee.

Appeals from a judgment and an order of the circuit court for Milwaukee countj: LawReuce W. Halsey, Circuit Judge. Plaintiff appeals from that part of the order which allows the defendant attorneys’ fees on her motion to set aside the judgment. Defendant appeals from the judgment and also from that part of the order which denies her motion to set aside the same judgment.

T. Eaibchild, Circuit Judge. . Tbis action was brought to recover commission, $3,000, claimed to Rave been earned in procuring a purchaser able, ready, and willing to purchase at the price of $150,000 certain real estate owned by the defendant. The plaintiffs offered evidence tending to show that they procured a purchaser able, ready, and willing to purchase according to the terms of the contract, and the defendant offered evidence tending to show the contrary.

Ray Stevens, Circuit Judge. Workmen’s compensation. On April 20, 1917, the deceased, Joseph Kohn, was an electrician and employed by the plaintiff as a part of an electrician’s gang consisting of eight men. On that day Ilohn and Pearson, a fellow workman, were engaged in cutting a piece of conduit to be used in the installation of a motor.