Volume 168 — Wisconsin Reports

<p> Actions: Consolidation: Effect: County courts: Jurisdiction: Denying probate of will: Agreement by parties to create a trust: Appointment and discharge of administrator: Validity of trust agreement: Execution by minor heir: Ratification. </p> <p>1. An order consolidating two actions merges them into one new action, which is to be entitled and prosecuted as directed by the court, and the original actions are thereby terminated and superseded.</p> <p>2. Objection to the probate of a proposed will having been duly made in county court on the ground of mental incapacity of the decedent, and the issue thus made having been tried upon the evidence and the admissions of all persons interested that.the objection was well founded,.the court had jurisdiction to deny probate to the alleged will and to administer the estate as intestate, although said admissions were made pursuant to an agreement made out of court by the interested parties for the creation of a trust as to the property, of the decedent, and although, if the will were valid, such trust agreement would be void.</p> <p>3. An order of the county court in such case appointing as administrator a trust company to which the decedent’s property had been conveyed pursuant to said trust agreement, and a subsequent order discharging such company, as. administrator, made after due examination of its accounts and a finding that, as administrator, it had no property of the estate in its possession, were within the jurisdiction of the court and were valid and effective, even though such orders were made in recognition of the fact that the property had been conveyed to the trust company as trustee and were intended to give sanction to the trust agreement as a proper and valid disposition of the estate and, for that reason, the court did not decree a distribution of the estate under the law governing intestacy.</p> <p>4. The sole heir having, become the owner of decedent’s property at the time of his death, subsequent proceedings in the county court to transfer any possible interest which unborn children of said heir might have had in the estate under the alleged will had no legal efficacy.</p> <p>5. The fact that the trust agreement above mentioned was executed before tire alleged will was denied probate does not affect the validity of the trust evidenced by said agreement or of the trust deed made pursuant thereto, if they are otherwise valid.</p> <p>6. Although said trust agreement and deed were executed by the sole heir of the decedent, and by her general guardians, while she was still a minor, yet the terms of the trust so created being unobjectionable in law, and the execution of said instruments not having been induced by fraud, and said heir, after attaining her majority and after full investigation of the trust and its administration and with full knowledge of all the facts, having executed an express written ratification of the trust agreement and deed, they are valid and binding upon her.</p>

<p> Judicial notice: Boundaries of political subdivisions: Intoxicating liquors: Unlawful sale: Evidence as to time: Federal permit: Appeal: Harmless errors. </p> <p>1. The courts will take judicial notice of public records of the state defining the boundaries of its various political subdivisions.</p> <p>2. Although a county map or atlas showing, as part of a village,. a platted area adjacent to but outside of its original boundaries is sufficient to raise a question as to the exact boundaries, that question must be determined by the public records ; and the courts will take judicial notice that such boundaries ■have not been changed in the manner provided by statute since the original incorporation of the village.</p> <p>3. Where complaint was made on December 16th that defendant unlawfully sold liquor on the 14th, evidence that a man living seven miles away went to a village on December 14th and secured from a physician a prescription for a pint of whisky, and that he took the prescription to defendant’s drug store in the village and there secured the whisky, warranted an inference by the jury that the entire transaction took place on December 14th..</p> <p>4. Under sub. 2, sec. 1565c, Stats., evidence that at the time in question the defendant had a permit or special tax stamp from the federal government authorizing him to engage in the occupation of selling spirituous or fermented liquors, is prima jade evidence of an unlawful sale at that time.</p> <p>5. Where, upon the evidence, the jury could have failed to convict the defendant only by wantonly violating their official oaths, alleged errors in the charge to the jury cannot be held prejudicial.</p>

<p>This is an original proceeding in this court wherein the plaintiff prays that the defendant, as dairy and food commissioner of the state of Wisconsin, be enjoined and restrained from a threatened enforcement, as against the' plaintiff, of the provisions of ch. 480, Laws 1917 (Stats. 1917, sec. 1747m).</p> <p>An answer was interposed tO' the complaint and the issues of fact thereby raised were referred by this court to the Hon. A. G. Zimmerman, county judge of Dane county, as referee to take testimony, which he did, and thereupon made and filed his findings of fact herein.</p> <p>The material facts necessary for consideration in this case as they appear from these findings are substantially as follows :</p> <p>The plaintiff is a Delaware corporation doing business in Chicago, Illinois, and has not taken out a license under sec. 1770b, Stats., to do business in this state. It makes a high grade of oleomargarine and sells the same at a uniform price to jobbers all over the country. In compliance with the federal law this oleomargarine is put up at the factory in Chicago in weights of one, two, and five pounds, respectively, each such weight being wrapped in parchment paper, inserted in pasteboard cartons, which are then closed and packed in boxes containing generally either ten, twenty, twenty-four, thirty, sixty, or one hundred pounds of such packages and shipped in such boxes to the jobbing trade all over the United States. Such boxes of original shipment, unopened, are sold by jobbers to retail dealers or hotel keepers. No sales permitted of less than ten pounds. All sales at retail are required to be from such boxes of original shipment and such cartons are not to be removed therefrom until the sale at retail is made to the consumer.</p> <p>At the time of the packing of these pasteboard cartons at the place of business in Chicago there is inserted in each of them what is designated as a consumer’s coupon, substantially as follows:</p> <p> </p> <p> </p> <p>The form here given is such as is inserted in the one-pound carton. The only change in the other consumers’ coupons is the insertion of the larger amounts allowed for the redemption of the respective three- and five-pound weights.</p> <p>There is also1 attached to each carton, in such manner that it is detachable upon the opening of the carton, another coupon which in effect promises the clerk or person making the sale to the consumer a certain payment in cash redeemable in the same way. In each box as packed for shipment at plaintiff’s place of business there is inserted an additional and separate coupon, known as the dealer’s coupon, entitling the person or jobber to whom such original shipment is made to also receive a cash payment, the amount thereof dependent upon the number of pounds of oleomargarine in each such box, and substantially in form as on page 23.</p> <p>The United Profit Sharing Company is a Delaware corporation that has an office in the city of New York and not elsewhere. It has not been licensed to' do business in Wisconsin since 1915. Prior to December, 1917, the plaintiff and the United Profit Sharing Company did business under a contract of November, 1915, by which coupons then being issued on behalf of the plaintiff were redeemable in merchandise by such United Profit Sharing Company.</p> <p>After the determination by this court of the Trading Stamp Cases (State ex rel. S. & H. Co. v. Weigle), 166 Wis. 613, 166 N. W. 54, involving the construction of the same statute as here involved, a new contract in writing was entered into between such corporations which in substance provided that the United Profit Sharing Company was appointed sole and exclusive agent to redeem in cash for plaintiff and in its name all of its coupons in the state of Wisconsin with the sale of its goods; the plaintiff to refund monthly to the other company whatever amounts it paid for such redemption, together with a fee for the services as such agent of $2 for each 1,000 of such coupons as were</p> <p> </p> <p> </p> <p>issued by plaintiff and redeemed by the other company and when returned to the plaintiff properly bundled. The United Profit Sharing Company was also' obligated to have the coupons printed for plaintiff on a special kind of paper, charging at the rate of sixty and seventy-five cents per thousand for the respective forms of coupons. The referee also found that an oral contract was made at the same time, substituting the new written contract for the old one, and that there was no other contract or agreement between those two on this subject matter than as herein indicated.</p> <p>It was further found that the plaintiff used these coupons for the sole purpose of advertising its product and not otherwise ; that the cash redemption by the United Profit Sharing Company is done for the reason that that company can do it cheaper and give better service than if done by the plaintiff itself. Catalogs had been printed prior to the enactment of the law in question which had been distributed by the United Profit Sharing Company both in this state and in other states where no such prohibitions were in force, specifying the conditions upon which, and the kind and nature of the merchandise which could be obtained for the coupons as formerly used and issued by the plaintiff as well as by other concerns.</p>

B. Belden, Circuit Judge. There were originally two actions begun.

Appeals from a judgment of the circuit court for Milwaukee county. A. H. Reid, Judge. On the 4th day of January, 1913, /. P. Miley owned 600 shares, E. A. Heaney 300 shares, and G. M. Barrett 100 shares of the capital stock of the G. M. Barrett Company, which company was the proprietor of a department store in the city of Milwaukee.

Action in equity originally brought by Cornelia E. Win-diate to set aside, on the ground of fraud, a deed of 116 acres of farm land which she had executed and delivered to her daughter, the defendant Ida E. Markham. After trial and before judgment Cornelia died and her administrator was substituted as plaintiff and brings this appeal from judgment negativing fraud and dismissing the complaint.

This is an action brought by the plaintiff tO' compel the defendant to indemnify the plaintiff on a contractor’s employer’s policy.

<p> Appeal: Orders: New trial: Discretion: Order for judgment. </p> <p>1. Unless there was an abuse of discretion an order granting á new trial will not be disturbed and the appeal therefrom will be dismissed.</p> <p>2. An order for judgment dismissing an action against one of several defendants is not appealable under sec. 3069, Stats. Even if such an order could be considered a judgment it would not be a final judgment.</p>

<p>Appeal from a judgment of the circuit court for She-boygan county: Michael Kirwan, Circuit Judge.</p> <p>Malpractice. This action was brought to recover damages from the defendants, who are both physicians, for injuries alleged to have been sustained by reason of negligence on the part of the defendants in the care and treatment of a fracture of the tibia of the plaintiff’s left leg. The plaintiff, a woman, forty-nine years of age, on November 5, 1916, fractured the tibia of her left leg about two inches below the knee. The defendant Voskuil was sent for, and on arriving at plaintiff’s house and ascertaining the difficulty sent for the defendant Hess, and together they reduced the fracture and placed it in a fracture box in the ordinary way with Buck’s extension, attaching a weight of twenty-six pounds thereto. On December 20th the apparatus was removed by the defendant Voskuil, a part of the weight having been taken off one week previously. At the time of the removal of the apparatus the defendant Voskuil attempted to ascertain whether or not union had taken place, but desisted on account of complaints made by the plaintiff. He advised the plaintiff to use her leg. He called again on December 27th and then discovered that there was no union of the fragments. . He then advised an operation for the purpose of fastening the ends of the bones together. Plaintiff was then taken to a hospital in the city of She-boygan, where Dr. Arthur Genter performed an open operation and fastened the bones together by means of what is known as a Lane splint. Plaintiff remained in the hospital at Sheboygan for a period of ten weeks and then returned to her home. The bone was united perfectly, but plaintiff’s left ankle was stiff as a result of the long disuse.</p> <p>Plaintiff contends that defendants were negligent in the following respects: (1) In the application of a weight of twenty-six pounds to the broken leg, which, caused the ends of the bones at the point of fracture to separate; (2) that the defendants discharged the plaintiff as cured on December 20th and directed the plaintiff to use her injured leg, when in fact there was no union and the fracture was not healed; (3) for the reason that the defendants did not call to see the plaintiff or inspect her leg for about eight days after removing the apparatus; (4) that no X-ray picture of plaintiff’s broken leg was taken up to the time she was removed fio the hospital on December 28th.</p> <p>The case was submitted to the jury, and they returned a special verdict finding (1) that the defendants did not .use ordinary care and skill as physicians and surgeons in the treatment of the fractured leg; (2) that the present stiffened condition of plaintiff’s left ankle was the natural and probable result of the failure of the defendants to use ordinary care and skill; (3) that the plaintiff’s failure to exercise ordinary care contributed to produce the present stiffened condition of her ankle; and (4) assessed plaintiff’s damages at $1,800. There were seasonable motions on the part of the defendants, and after argument the court directed judgment for the plaintiff in the sum of $1,800, and from judgment rendered pursuant thereto both the defendants appeal.</p>

<p> Schools and school districts: Governmental duties: Liability for injury to pupil from pail in passage: “Maintaining” building: Cleaning floors. </p> <p>1. Where, in accordance with a custom, a pail containing hot water and chemicals, to be used in cleaning the floor of a school room, was placed by an employee in a passageway before the pupils had left the school building, such act must be deemed to have been done by the school district in the performance of its governmental duties, and the district is not liable for an injury to a pupil who, while passing from one school room to another, fell into such pail.</p> <p>2. The word “maintain” in ch. 588, Laws 1913 (amending secs. 2394 — 48, 2394 — 49, Stats.), which requires every owner of a public building to “so construct, repair or maintain” it as to render the same safe, relates to acts more closely related to the structure itself of the building than are the operations (such as the placing of the pail in question) involved in keeping the floors clean.</p>

<p> Landlord and tenant: Lease: Construction: "Option” for an extension. </p> <p>1. In a farm lease providing that “at the option” of either party “this lease can be extended for one year and at the end of each years least (sic) for a period of five years from the date of this lease,” the word “option” was not used in its literal sense, since the exercise of such option by one party in one way would nullify its exercise by the other party in a contrary way; and the provision is construed as giving to either party the right or privilege of continuing the lease as therein provided.</p> <p>2. Under said provision, at the end of the first year either party could extend the lease for either one or four years, and at the end of the second year either party could extend the lease for a period of three years.</p> <p>3. Where in such case the lessees held over after the expiration of the first year, their possession must be deemed to have been under the provisions of the lease, and their tenancy was not subject to termination as a tenancy from year to year; and at the end of the second year they were entitled, upon giving proper notice, to extend the lease for three years longer.</p>

<p>Appeal from a judgment of the circuit court for Grant county: George Clementson, Circuit Judge.</p> <p>This action was brought by the plaintiff to restrain the defendants from operating certain property in the city of Platteville as a hotel.</p> <p>The plaintiff is the owner of the Columbia Hotel in Platteville, which he, with his brother, Scott Huntley, bought in October, 1916, from Louis N. Patnaude and wife. The Patnaudes were owners of another hotel in Platteville, known as the Republican House, which was used by them to lodge guests when the Columbia Hotel was full. Part of the agreement under which the Huntley brothers purchased the Columbia Hotel from Louis N. Patnaude and wife was that the Republican House should not be operated as a hotel for a period of fifteen years. The deed of the Patnaudes to plaintiff and his brother of the Columbia Hotel property contained the following covenant: “that the said building known as the Republican Hotel shall not be used as a hotel for fifteen years from the date of the execution of this deed.” Murray Huntley is now the sole owner of the Columbia Hotel.</p> <p>On December 13, 1916, Louis N. Patnaude, then a widower, sold the Republican House property to Carl F. Bar-réis and wife, the deed containing a covenant that the property should not be used as a hotel for fifteen years. Carl F. Barréis and wife, on May 23, 1917, deeded the Republican Hotel property to Nina B. Schultz and Nellie E. Stanchfield, which deed contained a covenant that the property should not be used as a hotel for fifteen years from November 14, 1916.</p> <p>The complaint alleges that the defendants made improvements in the property and proceeded to- open the building as a hotel and to operate it as such in violation of the restrictive covenant in the deed by which the property was conveyed to them, and that the operation and use of the Republican House property (now known as the “Stanchfield”) has damaged the business of the Columbia Hotel.</p> <p>The defendants deny that they have operated the Republican House building as a hotel; or that there was any privity of estate between the plaintiff and Louis N. Patnaude as to the property known as the Republican House at the time the deed to- the Columbia Hotel was made. They further allege that neither the provision in the contract for the Columbia Hotel nor the condition named in the deed from Louis N. Patnaude to the plaintiff and Scott Huntley constitutes a covenant running with such land; that the conditions in the contract and deed from Louis N. Patnaude to plaintiff and Scott Huntley are not binding upon defendants.</p> <p>The trial court found that the defendants had not used the Republican House property as a hotel, but only as a lodging house, and that they had never at any time served meals on the premises, and that there had been no violation of the restrictive covenant in the conveyances.</p> <p>The judge dismissed the plaintiff’s complaint with directions that the defendants recover from the plaintiff their costs and disbursements. Appeal is taken from such judgment.</p>

<p> Telephone companies: Trimming of trees withoiit owner’s consent: Damages. </p> <p>1. The owner of land in a street or of land abutting the street is entitled to compensation for injuries to his shade trees in the street occasioned by their being trimmed without his consent by a telephone company; and no license from the city to maintain the telephone system can give the right to do such trimming.</p> <p>2. Under sub. 6, sec. 1778, Stats., if there have been no condemnation proceedings, a telephone company which destroys, trims, or otherwise injures shade trees along its line without the owner’s consent is liable to the owner for treble damages.</p>

<p> Appealable orders: Injunction: Preserving status quo: Judicial discretion: Corporations: Accounting: Sale of treasury stock: Right of stockholder to acquire his proportionate share: Waiver: Duty of directors: Corporate books: Examination. </p> <p>1. An order of the circuit court continuing, but modifying, a temporary restraining order made by a court commissioner, is appealable under sec. 3069, Stats.</p> <p>2. Where, upon an application for an order preserving the status quo pending the final result of an action, the papers show a reasonable probability of plaintiff’s ultimate success, it is well nigh an imperative duty of the court to grant such relief, even though there is a direct conflict' between the complaint and its supporting affidavits and the answer and affidavits on defendant’s behalf.</p> <p>3. In an action by a stockholder against a corporation for an accounting, the refusal to grant a temporary injunction preserving the status quo by restraining the sale of certain treasury stock was not justified by a claim, unsupported by the facts, that such sale was necessary to, and would, enable the company to become legally incorporated; nor was such refusal justified by the claim that the sale was necessary because of the indebtedness of the company, the amount for which the stock was in fact sold being so small as compared with the indebtedness that it could not affect materially the company’s financial standing.</p> <p>4. Where a corporation has purchased, retired, canceled, and placed in its treasury shares of its own stock it has thereby decreased its outstanding capital stock; and such shares cannot thereafter be sold and reissued without first giving to all the existing stockholders an opportunity to take their proportionate shares thereof.</p> <p>5. If shares of its own stock purchased by a corporation have been treated as still outstanding, being carried upon its books as a liability, and have also been treated as an asset of the corporation, a different question is presented; but in any event the directors can dispose of such shares only in the honest exercise of their discretion, acting with the utmost good faith for the benefit of all stockholders, and not so as to give one faction or group of stockholders a benefit or advantage over another.</p> <p>6. The right of a stockholder to acquire his proportionate share of a reissue of stock which had been purchased and retired by the corporation is not a mere privilege which is waived by his failure to offer to purchase the stock or attempt to bid therefor when it is offered for sale to the highest bidder; and especially is this so where the books of the corporation are so incomplete and fragmentary that the.real value of the stock cannot be ascertained.</p> <p>7. It is the duty of the directors to protect a stockholder in his right to acquire a proportionate share of an increase in the capital stock of the corporation, and to offer him such share at a fixed price. Ordinarily the existing stockholders cannot be compelled to pay a bonus.</p> <p>8. The statutory right of the stockholder to examine the. corporate books imposes upon the corporation not only the duty of keeping such books open for inspection at all reasonable times, but also the duty of keeping its stock subscriptions and accounts in such form that they may be examined and the condition of the corporate affairs ascertained therefrom.</p> <p>9. Under the circumstances disclosed in this action for a corporate accounting the status quo with respect to certain treasury stock should have been preserved, and an order authorizing the directors to sell such stock without recognizing or protecting plaintiff’s right to preserve his proportionate interest in the corporation is held an abuse of judicial power.</p>

<p>Appeal from a judgment of the circuit court for Iowa county: George Clementson, Circuit Judge.</p> <p>This action was brought in the county court of Iowa county to restrain a town board from laying out a highway. The defendant David Walker intervened and answered the complaint. The town board did not answer, and Walker was the only contesting defendant. The cause went to trial in the county court of Iowa county on the issue raised by Walker’s answer, resulting in a judgment in favor of the plaintiff. The court, however, declined to gran,t costs against the defendant Walker, and the plaintiff appealed from that part of the judgment to this court. The decision of this court will be found in 165 Wis. at page 356 (162 N. W. 169). It was there held that the county court of Iowa county had no jurisdiction of the case, and it was remanded with directions to the county court to1 certify it to some court that did have jurisdiction. It was accordingly certified to the circuit court for Iowa county. The defendant Walker moved in the circuit court for Iowa county for permission to withdraw from the case. The court refused to grant him permission to withdraw from the case, but did permit him to withdraw his answer, after which there was no issue left. The plaintiff submitted proof to support his complaint in the circuit court for Iowa county, and judgment was again rendered in favor of the plaintiff, with costs against the defendant Walker.</p> <p>The plaintiff served a bill of costs, which included all costs incurred in any manner in the county court of Iowa county, and which was allowed by the clerk. Upon motion to review such taxation of costs the circuit court held that it was without jurisdiction to tax any costs against Walker which were incurred in the county court, and allowed the taxation only of such costs as were incurred in the circuit court. Plaintiff brings this appeal from that part of the judgment of the circuit court which denies to him any costs accruing prior to the certification of the case to the circuit court. • ' ' ;!; ••!</p>

<p> Cancellation of instruments: Discretion: Mistake: Wills: Contract for different disposition of estate: Validity: Public policy. </p> <p>1. An application for cancellation of a contract is addressed to the sound discretion of a court of equity; and substantial mistake on the part of the party applying may be sufficient ground for relief, even though there was no intentional fraud.</p> <p>2. By an agreement between the legatees named in a will and the widow (for whom no provision was made), her objections to the probate of the will were to be withdrawn, she was to receive a large part of the estate, and the remainder was to be distributed among the legatees. This agreement was signed by the legatees under a mistake, both as to the size of the estate and their rights therein, resulting from affirmative misstatements made without intentional fraud by one who, with the approval of the widow’s attorneys, had undertaken to procure such signatures. Held, that in the absence of ratification or estoppel such agreement might properly be t canceled in a suit by the legatees.</p> <p>[3. Whether, no trusts being displaced and the parties with one exception being sui juris, said agreement was wholly void as against public policy, is not decided.]</p>

<p>Appeal from a judgment of the circuit court for La Crosse county: E. C. Higbee, Circuit Judge.</p> <p>Replevin to recover bank draft of $950 alleged to have been obtained from plaintiff through fraudulent representations of the defendant. Plaintiff, a farmer whose wife had been suffering from insane delusions for thirteen or fourteen months and had been at a hospital three times, engaged the defendant to treat her. Plaintiff testifies that defendant held himself out as a doctor and was called such, and it appears that he had used the title M.D. on his letter-heads; that he represented that he could by the use of hypnotic influences cure her, but that he must first destroy her mind entirely and make it like á child’s and then build it up again. He assured plaintiff he could cure her, but he had to have $50 per day. Plaintiff agreed to pay that, and at the end of ten days the defendant claimed she was cured thirty per cent, and that the nurse could probably take care of her, but the plaintiff wanted a complete cure and asked defendant to stay longer. He said he could not unless plaintiff made a contract for ten more days at $50 per day. This plaintiff agreed tO' and defendant remained. At the end of the ten days defendant said she was cured fifty per cent, but that he could not stay longer and that he must have his money. So plaintiff went to town and gave him $50 in cash and the draft in suit. Plaintiff further testified that he believed defendant could cure her and that he could not tell when the draft was given whether she was better or not; that he learned afterward that defendant was no' doctor and that his wife had not improved under defendant’s treatment. Plaintiff offered to prove by other doctors that his wife grew worse under the treatment given her, but the evidence was excluded, presumably because defendant did not claim that his treatment had been of any benefit to her. It appears that defendant was a native of India who had been in this country since October 30, 1913; that he had been educated in India as a physician in the University of Binjab, but not licensed to practice in the United States; that he had traveled considerably in this country lecturing on Indian subjects and had pursued some medical studies in Chicago and Los Angeles and obtained a medical degree from the latter school. He claims he used hypnotic suggestion only in his' treatment of plaintiff’s wife, but denies that he said he could cure her.</p> <p>At the close of the evidence the court directed a verdict for defendant on the ground that there was no' evidence in the case that defendant represented himself to plaintiff as a doctor or having the right or authority to practice medicine in Wisconsin, and on the further ground that plaintiff at the time he delivered the draft to defendant knew all he knew at the time of the trial and could not have relied upon any representations made by the defendant, who, professing to heal by spiritual or mental means, was not required to have a license in this state.</p> <p>From a judgment in favor of defendant entered upon the directed verdict the plaintiff appealed.</p>

Ray Stevens, Circuit Judge. The respondents Hynes and wife filed a claim with the Industrial Commission for compensation on account of the death of their minor son, alleged to have been accidentally killed while in the employ of the appellant mining company. The Commission made an award in their favor, whereupon the mining company and the insurance company which had insured the risk brought this action to set aside the award.

<p> Elections: License question: Madison city charter: Board of canvassers: De facto officers: Attorney general: Authority to bring yction: Supreme court: Original jurisdiction. </p> <p>1. Where the mayor and holdover aldermen of the city of Madison, claiming in good faith to be the legal board of canvassers, met and canvassed the votes cast at a referendum election on the question of license, they constituted a de facto canvassing board and the canvass was valid.</p> <p>2. Under the special charter of the city of Madison (ch. 36, Laws 1882) and sec. 1565a, Stats., the mayor and holdover aider-men constitute the proper canvassing board in that city, not only for the regular municipal election, but also for a referendum election on the question of license.</p> <p>3. The provision in sec. 10.42 Stats., that “except as otherwise provided by law, the common council of every city shall canvass the returns and declare the result of every annual, special or referendum election held in and for such city,” does not supersede or affect different provisions on that subject in special city charters.</p> <p>4. The objection that the attorney general had no right to bring an action in the circuit court should be raised by demurrer.</p> <p>5. Except as authorized by statute the attorney general cannot sue in the circuit court in the name of the state, or in his official capacity.</p> <p>6. Sec. 3236, Stats., relating to actions by the attorney general to restrain corporations or individuals from exercising corporate rights which have never been granted, is not applicable to an action involving only the question as< to which city officials should exercise a power (in this case the power to canvass the returns of an election in the city) which has been granted,</p> <p>7. Such an action can be brought by the attorney general in the circuit court only on request of the governor or of one branch of the legislature.</p> <p>8. Such an action, though publici juris, is ,of purely local concern and the remedy in the lower courts is ample; hence it is not within the original jurisdiction of the supreme court as that jurisdiction has been defined.</p>

<p> Judgment: On appeal: Matters concluded: Public utilities: Contracts for municipal lighting: Sibilation before railroad commission: Specific performance: Equitable estoppel: Injunction. </p> <p>1. A former decision in this court that the plaintiff company’s contract with a city for municipal lighting was valid and that a similar contract between the city and the defendant company was invalid, did not involve questions as to the city’s right to breach plaintiff’s contract or as to plaintiff’s right to enforce specific performance; and neither of those matters is res judicata.</p> <p>2. A contract with a city tó do municipal lighting may be specifically enforced where it has a distinctive and peculiar value other than a pecuniary one and where a remedy by way of damages for its breach would be inadequate.</p> <p>3. A stipulation between rival lighting companies, made in a proceeding before, and at the suggestion of, the railroad commission, providing, among other things, that if it should be determined (in pending or proposed litigation) that one of said companies was entitled to do certain municipal lighting it might for a time use the equipment of the other company for that purpose, was in the nature of a contract and enforceable as such.</p> <p>4. In view of the material change in plaintiff’s former status, induced by the conduct of the city and the defendant company connected with said stipulation, and the expense and delay occasioned by plaintiff’s prosecution of the former action in reliance thereon, the court should intervene, on the ground of equitable estoppel, to restrain the city from breaching the contract with plaintiff and to enforce specific performance of it and of the stipulation.</p> <p>5. Injunction is a proper remedy, in such a case, to enforce plaintiff’s rights and prevent irreparable injury.</p>

<p>This is an action of Mandamus brought in this court to compel the defendant W. J. Turner, as circuit judge, to revoke an order terminating the authority of the relator to act as court commissioner in and for Milwaukee county, and also to revoke an order appointing the defendant Max Nohl court commissioner in said county in place of relator.</p> <p>The facts in the case are set forth in the return to the writ. Prior to May 27, 1905, the relator held the office of court commissioner in Milwaukee county. On this date he held the office pursuant to an appointment which created a term to expire the first Monday of January, 1906. On May 27, 1905, he received and accepted the office of United States commissioner for a term of four years from the last named date. Thereafter the relator received successive appointments to these two offices. On September 18, 1913, defendant Judge Turner appointed the relator to' the office of circuit court commissioner, no term being stated. The relator claims the right to the office under this appointment. At the time of this appointment Judge Turner was holding office under a term which expired the first Monday in January, 1915. The relator after his first appointment, May 27, 1905, to the office of United States commissioner received, accepted, qualified, and served under successive re-appointments to said office, each for a term of four years, the last being dated May 10, 1917. The claim that the relator,by holding the federal office, had vacated his office of circuit court' commissioner was called to the attention of the defendant Judge Turner in December, 1917. The defendant Nohl had been circuit court commissioner, his term expiring January 7, 1918. The defendant Nohl applied to Judge Turner for appointment to- fill the vacancy alleged to exist by reason of relator’s acceptance of the federal office. The defendant Judge Turner was in Florida at the time, and after some communication with the relator appointed the defendant Nohl to fill the office formerly occupied by relator and which he regarded vacant on account of the acceptance by relator of the federal office. The appointment which was made in Florida was duly filed and the defendant Nohl qualified and entered upon the duties of his office. A question being raised as to the validity of the appointment made by Judge Turner while out of the state of Wisconsin and in Florida, Judge Turner, after his return to the state and while in Milwaukee county, reappointed the defendant Nohl and the latter again accepted and qualified.</p> <p>The relator demurred to the return and the issues before the court raise questions of law.</p> <p>contended, inter alia, that early in the history of the state Judge Miller of the United States district court decided that a United States commissioner did not hold an “office of profit or trust under the United States” within the meaning of sec. 3, art. XIII, Const. That decision was accepted and approved by federal and state judges, by the bar of the state, including the lawyers who were members of the constitutional convention, and by the public at large, and was carried into actual practice without dissent for more than sixty years. That construction is now binding and unassailable. See authorities cited in note to Ableman v. Booth, 11 Wis. 498, 522. “Under the United States” means under th% United States government, and the exception of postmasters indicates that the officers referred to were officers appointed by the same authority as were postmasters. The court commissioners appointed by the federal judges are mere arms of the court, to assist in discharging its' duties. U. S. v. Berry, 2 McCrary, 58. The United States government has nothing to do with their appointment and no power to remove them. The term of the relator as circuit court commissioner under the statute could not be abbreviated except upon due notice and hearing and due proof of misconduct or of disability. The claim that an arbitrary removal, as in this case, was warranted is inconsistent with the act fixing the term, with public interests, and with the state and federal constitutions. Perkins v. Auditor, 79 Ky. 306; Lucas v. Board of Comm’rs, 44 Ind. 524; Stua/rt v. Palmer, 74 N. Y. 183; Westervelt v. Gregg, 12 N. Y. 202, 209; Dartmouth College v. Woodward, 4 Wheat. 518. The appointment of a successor to the relator, made while the judge was outside of the state, was a nullity. Price v. Bayless, 131 Ind. 437, 31 N. E. 88; Buchanan v. Jones, 12 Ga. 612; State ex rel. Att’y Gen. v. Messmore, 14 Wis. 163; McIntosh v. Bowers, 143 Wis. 74, 126 N. W. 548; and other cases.</p>

<p>Error to review a judgment- of the' circuit court for Crawford county: George Clementson, Circuit Judge.</p> <p>Plaintiff in error, hereinafter called the defendant, was convicted of murder in the second degree for the shooting o.f Frank A. Drinkwater on the 25th day of March, 1918, at Bridgeport in Crawford county. In April, 1894, defendant married the deceased, and they had one son, Donovan, seventeen years old at the time of the trial in May, 1918. Defendant had been married prior to her marriage to deceased and had one daughter, Lola Andrews, by such marriage. At the time of the shooting she was forty-two years old and the deceased was thirty-nine. For at least fourteen years prior to his death the deceased had most of the time been either a bartender or saloonkeeper in various places in Southwestern Wisconsin, and the evidence showed that he drank considerably and steadily, though never to such an extent as to be helpless, and that especially when drunk he was quite quarrelsome and irritable, though the evidence on this subject is somewhat conflicting. In November, 1916, the defendant obtained a divorce from the deceased on the ground of cruel and inhuman treatment, and went to live at Prairie du Chien, but in November, 1917, at the solicitation of deceased, she returned to Bridgeport to- work for him at a salary of $10 a week. She was cook, housekeeper, and assisted in tending bar. It seems that a young man by the name of Roy Pugh was somewhat attentive to the defendant, at least the deceased so thought, and it made him angry and jealous. On the evening of the shooting Pugh came into the saloon and was waited upon by the defendant. He remained about fifteen or twenty minutes and then went down the street some distance. A-little later the defendant also went down the street followed by her son Donovan. Pugh was then standing in the street*. She.-returned to- the saloon, and as she was leaving-the second time she testified she heard the deceased say “I will get ’em” whereupon she went back in again, got a.revolver and put it inside of her stocking, and then went down the street and joined. Pugh. The two walked- across the covered bridge of the Wisconsin river, and while on the bridge defendant took the revolver out of her stocking because it hurt her and put it in her right-hand sweater pocket, where she had to hold it with her right hand to keep it from falling out. Upon returning to Bridgeport they went up past the saloon toward the post-office. As they did so the deceased, who had been drinking heavily that day, came out and told her in an angry tone that she did not need to get the mail because Donovan had gotten it. She replied that he did not get her mail, and she and Pugh continued to walk up the street. The deceased threw down some stove wood he had in his arms and followed them up to the postoffice and back again, during which time angry words passed between them. She says he told her that “you are going to start something that I am going to finish for you,” or that she had started something tonight and that if she was not “damn careful he would finish it.” When defendant and Pugh started to go down the street the deceased stood on the walk directly in front of them and so they stepped into' the street and went down the middle of it. The deceased kept pace with them on the sidewalk and the quarrel continued. As they approached the saloon the defendant walked over to the sidewalk and came quite close to it. While out in the street one Luther McKinley, a friend of both defendant and deceased, came out into the street and spoke a few words to her to the effect that she ought not to gO‘ with Pugh. She told him she was divorced from her husband and had a right to go with Pugh if she wanted to-. As she approached the sidewalk in front of the saloon deceased asked her in an angry tone if she was not going to come in. She replied that she was not in any hurry. He said, “Are you coming in here?” She said, “No, I ain’t,” and he replied, “By God, I will show you.” She also testified on both direct and cross examination that he said “Come on and get your damn rags and go to Prairie and take the cur over there and live with him,” meaning Pugh, and that when he said “By God, I will show you,” he grabbed hold of her left sleeve or arm with his right hand and pulled her towards the sidewalk; that he grabbed at her throat with his left hand, and then she took the revolver out, of her sweater pocket with her right hand and struck him on the hand twice, and his hand slipped down on her arm. He then got hold of her right arm with his left hand and with both hands pulled her towards him, and then the gun was discharged. The evidence of just what occurred at the scuffle is not very clear, and defendant, Pugh, and McKinley, all close eye-witnesses, differ some as to details. The deceased refused to make a statement to the doctor that evening, saying he would tell him later, but died early next morning without making any statement. The bullet entered his abdomen a little above and to the left of the navel.</p> <p>The court submitted to the jury the questions of whether defendant was guilty of (a) murder in the first degree; (b) murder in the second degree; (c) manslaughter in the second degree under sec. 4351, Stats. 1915; (d) manslaughter in the fourth degree under sec. 4362, Stats. 1-915; or whether the homicide was justified under sec. 4366, Stats. 1915. It refused to submit the question of whether the homicide was excusable under sec. 4367.</p>

<p> Criminal law and practice: Obtaining money by false pretenses: Sufficiency of information and of evidence. </p> <p>1. Acts or conduct may constitute false pretenses.</p> <p>2. An information following the language of sec. 4423, Stats., and charging defendant with obtaining by false pretenses a power of attorney to mortgage certain land of another person and, by placing a mortgage thereon, designedly and with intent to defraud obtaining money, is held sufficient, even as against an objection made before trial, — the false representations, which consisted largely of conduct and a course of dealing rather than oral misrepresentations, being stated as fully as the circumstances would permit, and defendant being fully apprised thereby of the offense with which he was charged.</p> <p>3. Where such information alleged that the woman who signed the instrument had by the false representations of defendant been led to believe that it was a paper which would assist him in selling the property for her, and that she was induced by his false pretenses and representations .to deliver to him a power of attorney to mortgage the land, an allegation in terms that she relied upon the representations was not essential.</p> <p>4. The evidence in such case (stated in the opinion) is held sufficient to sustain a conviction.</p>

Action to recover damages for injuries sustained on a highway of defendant town caused by a thirteen-ton tractor falling through an iron and steel bridge fifty-two feet long constructed prior to July 12, 1911, but repaired subsequent thereto. The defendant demurred to the complaint, which alleged these and other appropriate facts. From an order sustaining the demurrer the plaintiff appealed.

Park, Circuit Judge. From the pleadings it appears that the defendants, co-partners engaged in the produce business, shipped two carloads of potatoes from Waupaca county in this state to Indianapolis, Indiana, and were sued by plaintiff, a common carrier, for the freight charges. The defendants as consignors made themselves consignees, with directions to the plaintiff to notify a prospective customer by the name of Wilkerson at Indianapolis.

<p>Appeal from a judgment of the circuit court for Portage county: Byron B. Park, Circuit Judge)</p> <p>Action for libel. The plaintiff was a physician by profession, and at the time of the publication of the article upon which this action is based was mayor of the city of Stevens Point. The following is the article:</p> <p>“MAYOR GOES ‘THE LIMIT’ IN CLEANUP,</p> <p>“Stevens Point Cowboy Executive in Lone-handed Reform.</p> <p>“MAKES RAID ALONE.</p> <p>“Dashes in Taxi to Hotel, Arrests Four for ‘Shooting Craps.’</p> <p>“FIGHTS OLD MAN.</p> <p>“Sustains Kicked Shins from City Controller, Aged 65.</p> <p>“Stevens Point, Wis., Nov. 20. — (Special).—F. A. Walters, Stevens Point’s doctor-cowboy-lecturer-mayor, is ‘going the limit — perhaps beyond the limit,’ to- clean up his city. He said so Monday morning.</p> <p>“Already he has gone a long way toward ‘the limit.’ He has gone as far as participating in raids on alleged gambling joints and alleged illegally operated saloons, employing detectives from out of town, threatening suits against the newspapers of the city, personally arresting two men in a hotel, and openly stating his intention of obtaining dismissal of the chief of police.</p> <p>“Mayor Walters’s home was in Fond du Lac. Then he went out west and was a cowboy. When he came back it was as a homeopathic doctor, but he retained, like Chicago’s wild and woolly mayor, traces of his rough-and-ready career on the cattle ranges in the form of a sombrero and other ‘trimmings.’ For twenty-five years he lived here and at Wausau, Wisconsin. Then four years ago he was elected mayor. After three years in that office he was defeated for re-election by L. P. Pasternacki, Polish dentist. At the last election Mr. Walters was candidate again and was elected for his fourth term.</p> <p>“ADOPTS DRASTIC PROGRAM.</p> <p>“Then he .started his trip- toward ‘the limit.’</p> <p>“ ‘The townspeople insinuated that things weren’t run the way they ought to- have been run when I was mayor before,’ he said. ‘So now I’ll show them that I can run things strictly.</p> <p>“ ‘We’ve got the cleanest little city in the state. But there are a few gamblers and sports here who have been living on the community for years. It’s time for them tO' .go.’</p> <p>“So, - shortly after his inauguration, he issued warning that gambling ordinances and the Sunday-closing law would be enforced to- the letter. He started with the automobile tail light and the traffic laws.</p> <p>“Presently, detectives appeared in Stevens Point. Then one Sunday morning the mayor personally assisted in raiding an alleged gambling resort over a saloon. Four men were arrested. One of them/‘Candy Pete’ Mosel, was charged with running a gambling house, and another, Tom Leonard, with being a gambler. Next Mayor Walters and his purity squad raided the premises of the tailoring shop of Walter Glinski and arrested John Kutella on the charge of selling liquor on Sunday. The mayor’s evidence sought to establish that there was a ‘posted men’s club’ in the city through which the men on the blacklist were furnished with liquor.</p> <p>“WOMEN INDORSE HIM.</p> <p>“About this time the mayor began to reap- the rewards of the reformer. The Stevens Point Women’s Club and a massmeeting of 300 citizens in the Baptist Church passed resolutions indorsing him.</p> <p>“But opposition developed also. The mayor criticised Chief of Police John S. Hofsoos and tried L> obtain dismissal of Patrolman Jadd Chenevert. But the police and fire commission refused to back him up.</p> <p>“He charged that a new $20,000 sewer project was not being inspected properly by the board of public works. When the board of public works resented this criticism, the city council abolished the board and put its work into the hands of a committee of its own members. The board of public works, however, had friends; one of them was George Rogers, sixty-five years old, city controller and fo'rmer mayor. The mayor became involved in an altercation with the aged official. They clinched. The cowboy mayor had Mr. Rogers by the chin and arm, and Mr. Rogers had scored several kicks upon the mayor’s shins. Then the rest of the city administration separated the antagonists.</p> <p>“POLITICIANS LINE UP.</p> <p>“Some time later a committee of citizens waited upon Dr. Pasternacki, Mayor Walters's predecessor, and asked him if he would be candidate for mayor at the next election. Both the Stevens Point Daily Journal and the Weekly Gazette published this news, omitting the names of the committee. Whereupon the publishers were visited by Attorney A. L. Smongeski, who said that unless they divulged the names of the committeemen they would be sued for libel. Saturday night was their last hour of grace, but by 10 o’clock Monday morning no papers had been served on the publishers.</p> <p>“Meanwhile the chief of police had caught the reform feve'r and had caused two arrests. The mayor appeared in court asking the dismissal of both actions, stating that one of the saloonkeepers, Winn Cowelsok, had kept open late to furnish liquor to a sick man, and that the other liquor dealer, John Lukaszewicz, had kept his place open because he was compelled to by four customers. The cases were dismissed.</p> <p>“MAKES DRAMATIC RAID.</p> <p>“Friday afternoon Mayor Walters received a tip that gambling was going on in the Soo Hotel on the south side of the city. He leaped into a taxicab, sped southward, dashed into the barroom, whipped out his trusty revolver, and arrested four men. He charged them with shooting craps. They we're arraigned on Saturday, but the case was dismissed for insufficient evidence,</p> <p>“On Monday morning Stevens Point was prepared to watch the trial of Leo Boyanowski, charged with being keeper oí a gambling joint. The outcome of the trial will determine the result of one of the mayor’s raids. The other cases will follow.</p> <p>“But besides that, Stevens Point was prepared for almost anything. The mayor has promised that within a week or ten days he will have new evidence pertaining to the dismissal of Chief of Police Hofsoos. And, furthermore, he has promised that he ‘will go the limit — perhaps beyond the limit.’ ”</p> <p>The jury returned the following special verdict: (1) that a person of average comprehension, upon reading the article, would have understood that it was therein stated and charged that the plaintiff attacked and assaulted Mr. Rogers ; (2) that such statement and charge was, in substance, not true; (3) that a person of average comprehension, upon reading the article, would have understood that it was therein stated and charged that the plaintiff, Dr. Wulters, had not obtained a proper medical education, training, or diploma and that he was a quack doctor practicing as such; (4) that a person of average comprehension, upon reading the article, would have understood that it was therein stated and charged that the plaintiff was performing his duties of mayor oí said city of Stevens Point in a ridiculous, foolish, and silly manner and was a subject of ridicule and contempt; (5) that said statements and charges were, in substance, not true; (6) that the article published, taken as a whole, was not a fair comment on the acts of the plaintiff in his capacity as mayor of the-city of Stevens Point; (7) that the defendant was not actuated by express malice in causing said article to be published; and (8) damages $4,000.</p> <p>The court granted the plaintiff judgment upon the verdict on condition that he remit all damages in.excess of $1,800, which condition was met by the plaintiff, and judgment was, accordingly, entered against defendant for $1,800. From the judgment so entered the defendant appealed.</p>

<p>Appeal from a judgment of the circuit court for Buffalo county: George Thompson, Circuit Judge.</p> <p>Plaintiff, as resident, voter, and taxpayer of the school district of the town of Glencoe, Buffalo- county, brought this action in equity on behalf of others in said district as well as himself to enjoin the officers of that school district from in any manner paying certain notes of said school district or raising any tax or making any loan for such purpose.</p> <p>At the annual meeting of the school district on July 3, 1911, resolutions were adopted to build a new schoolhouse, brick veneered, size 36 x 24, to have furnace heat, and with privilege of making larger; and that the board borrow $1,700 from the state trust fund.</p> <p>At a special meeting on August 24th more formal resolutions were adopted for the making of the $1,700 loan; purchasing the site; raising by tax a sum sufficient to pay the principal and interest on such loan; to dispose of the old school; and authorizing and directing the school board to proceed with the construction of the new schoolhouse.</p> <p>In September, 1911, a contract was entered into between the school board and one J. G. Schneider for the construction of a new schoolhouse at the price of $2,238. The building was completed early in 1912 and used from that time on' by the district for school purposes. The $1,700 borrowed from the state trust fund was paid to the contractor as well as $100 received on the sale of the old building, and on May 7, 1912, a note for $450, which seems to have been an agreed balance due on the contract, was executed on behalf of the school district by its officers with their individual guaranties and delivered to said J. G. Schneider, who sold the same to the Bank of Arcadia. No meeting of the school district or of the school board was held to authorize the giving of this-note. The note was renewed from time to time thereafter by the then town officers, the renewal notes all to the Bank of Arcadia adding the accrued interest to the principal, so that at the time of the commencement of this action the amount of the principal and interest was $532.49.</p> <p>At the annual meeting in July, 1912, the only reference to this matter was as follows: “Motion made and carried. that if we can get out of paying the $450 to J. G. Schneider we will.”</p> <p>At a special meeting of the district August 24, 1912, a resolution was duly carried that there be raised $477 for the purpose of paying the balance of the cost of the construction' of the schoolhouse. At the annual meeting in July, 1913, a resolution was adopted that “said school building be accepted by the district at the contract price of $2,150 and all the acts of said school board be hereby ratified and accepted.” And also “that we raise by tax $470.25; during the year 1913 $150, during the year 1914 $175, and during 1915 $206.21.”</p> <p>At the meeting on June 7, 1915, designated by the findings and so treated by the parties as the annual meeting, there was adopted by 21 to 6 votes, expressed by written ballots, a formal resolution reciting the -holding of the special meeting of August 24, 1911; the voting to build a new schoolhouse; that the school board proceed to build at a cost of $2,250; the raising of the $1,700 from the school trust fund, and the sale of the old schoolhouse for $100; the paying of the sum of $1,800 on the cost of its construction; the leaving of a balance of $450 due thereon “at the time of the completion and acceptance of said building, to wit, February 7, 1912;” that said balance of $450 with interest amounts to $532.49, which is still unpaid by said district; that the schoolhouse has been used as such since its erection and the school district has accepted the same; that the school board acted in good faith and for the sole purpose of carrying out the intention and wishes of the qualified electors of said school district as expressed August 24, 1911; that the school district has had the use and benefit of said building and it has been satisfactory; that said school building be accepted by said school district at the contract price thereof and all the acts of said school board be hereby ratified, approved, and accepted; that the school district board be authorized to borrow $532.49, «payable in four annual instalments (specifying amounts and dates), with interest, for the purpose of paying the balance of the cost of building said schoolhouse; and lastly, that a sum sufficient to pay the interest and principal of said loan as it becomes due be and the same hereby is levied upon the taxable property of said district. •</p> <p>On June 8th the school district officers met and borrowed $532.49 from the Bank of Arcadia and executed notes therefor in amounts and dates corresponding with the provisions made at the meeting of the day before. These notes were taken by the bank in lieu of the last renewal note for the first one of May 7, 1912.</p> <p>After the trial the court made findings determining the facts as stated above, and also a finding numbered (9) which is copied hereafter in the opinion; and further that the electors of the school district had full knowledge of the actions of the board at all times, and that with such knowledge they duly ratified, confirmed, and approved of such acts.</p> <p>As conclusions of law it was found that the notes of June 8, 1915, are valid and subsisting obligations against said district and that the tax provided in said resolution is valid and effective, and that plaintiff’s complaint be dismissed on the merits. From a judgment entered thereon plaintiff has appealed.</p>

This action was brought for the recovery of seven manure spreaders and other machinery, or, in lieu of the return thereof, $700, the value of the machinery, together with the costs of the action: The Wiedenbeck-Dobelin Company is a corporation doing business at Madison, Wisconsin. The defendants are brothers.

B. Belden, Judge. Action to recover a two per cent, commission for the sale of defendant’s farm of 185 acres, founded upon a written contract stating that defendant “gives to party of the first part [plaintiff] the exclusive sale of” his farm upon specified terms for a period of four months from December 13, 1916, the date of the contract.

<p>Motion to dismiss an appeal. The action was for breach of promise of marriage and was tried before a jury, which returned a special verdict deciding the issues in plaintiff’s favor May 23, 1918, and assessing her damages at six cents. A motion for new trial on the minutes of the court was thereafter made by the plaintiff which was not decided by the trial judge until July 30th, when a written decision was filed to the effect that the verdict be set aside for inadequacy of the damages and that a new trial be granted. The court had not by order extended the time for the hearing and decision of the motion, nor had there been any waiver by the attorneys in the case of the provision of sec. 2878, Stats. 1917, requiring the motion to be made, heard, and decided within sixty days after rendition of the verdict, and if not that it “shall be taken as overruled.” The plaintiff appeals from the “constructive denial” of her motion for new trial resulting from the failure to decide the motion for a new trial within sixty days after the verdict, and the defendant moves to dismiss that appeal.</p>

<p> Workmen’s compensation: Injury by freezing: Exposure increased by nature of services: “Caused by accident.” </p> <p>1. Under the statute, compensation is not given for an injury resulting from exposure to a hazard (such as freezing) which is not peculiar to the industry or substantially increased by reason of the nature of the services which the employee is required to perform.</p> <p>2. The causative danger need not have been foreseen or expected, but after its event it must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a rational consequence.</p> <p>3. Where, by reason of a misunderstanding of orders, a woodsman was, on a very cold day, obliged to work harder than usual in getting out logs for hauling, and as a result his feet became wet from perspiration and froze as he returned to camp, it is held that the exposure to injury by freezing was substantially increased by reason of the nature of the services he was obliged to perform, and that the injury was proximately caused by accident within the meaning of sub. (3), sec. 2394 — 3, Stats.</p>

<p>Workmen’s compensation: Performing services growing out of and' incidental to his employment: Death from dynamite explosion: Presumption against suicide.</p> <p>Where the foreman of a crew engaged in constructing a logging road and dynamiting stumps therein was instantly killed during the noon hour, while the other men were at dinner, by an explosion of dynamite under circumstances indicating that he may have been attempting to blow up a small tree or a partly blasted stump which had been left in the roadway, a finding by the industrial commission that he was at the time performing service growing out of and incidental to his employment is held to have been warranted. The presumption against suicide was properly applied.</p>

<p>Appeal from a judgment of the circuit court for Dane county: G. N. Risjord, Judge.</p> <p>The plaintiff, an attorney at law, sued the defendants, his former clients, to recover a bill for professional services and the sum of $200 advanced by him to settle a certain litigation. There is no controversy here except as to the $200 item, and as tO' this the defense was that, in order to induce the main defendant, Jennie T. Stewart, to^ consent to the settlement, the plaintiff so carelessly and negligently misstated the law to her that it amounted to fraud upon her and thus induced her to settle. The action was tried before a jury and resulted in a special verdict negativing any fraud, on which judgment for the plaintiff was rendered, from which the defendants appeal.</p> <p>The facts were these: Mrs. Stewart and her two children (her'codefendants) owned a farm with a large amount of stock and other property thereon which Mrs. Stewart managed and leased tO' one Hilleque for a year beginning February 15, 1916, under a complicated sharing agreement. The parties soon disagreed as to the terms and meaning of the agreement and their legal rights thereunder, especially as to the right of the lessee to sell stock. In December, 1916, the plaintiff, by Mrs. Stewart’s direction, brought an action in equity against Hilleque, claiming that the leasing arrangement made the parties partners, that Hilleque had violated the agreement in many ways, especially in the selling of stock, and asking for the appointment of a receiver to take possession of the personal property. The action was defended by Hilleque, a receiver was appointed who took possession of some at least of the personal property and sold hogs and cream to the amount of $609.24. Some attempts were made to settle the litigation, but they failed. At the end of the leasehold year Hilleque declined to vacate and plaintiff brought unlawful detainer proceedings and obtained judgment of ouster, on which a writ of restitution was issued to the sheriff March 9, 1917. Still Hilleque did not vacate, and the sheriff demanded a bond of indemnity before enforcing the writ of restitution; then Hilleque’s attorney made to plaintiff an offer to' settle both cases, transfer the personal property, and vacate the farm on payment of $200. The plaintiff called Mrs. Stewart to' his office and strongly advised settlement. She claims that plaintiff told her that if she did not settle it would cost her $40 to have the sheriff execute the writ and that Hilleque would undoubtedly file a petition in bankruptcy, and in that case she would have to- pay Mr. Hilleque $200 anyway. This is the fraudulent misstatement of the law of which the defendants complain, and they claim that Mrs. Stewart yielded assent under its influence. It is denied by the plaintiff. The settlement was made, the plaintiff advanced to Hilleque’s attorney $200, and Hilleque vacated the premises, transferred to the defendants his interest in the personal property, and a stipulation was made that the receiver pay over the money in his hands, $328.70, less $75 for certain expenses, to Mrs. Stewart, and that the partnership action be dismissed without costs. The stipulation was carried out, and the court made an order directing the receiver to make the stipulated payments. Mrs. Stezvart received the balance of the money from the receiver and at once took possession of the farm and the property thereon and leased the same to another tenant. There is no testimony which shows or tends to show' that the settlement was not a wise settlement or that the defendants were in any way damaged by it.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>The appeal is from a judgment granting a peremptory writ of mandamus directing defendant to recognize plaintiff as entitled to an annuity of $325.</p> <p>On October 7, 1911, the plaintiff, Kate F. Murphy, then and for years prior thereto a qualified teacher in the public schools of the city of Menomonie, Dunn county, in this state, made the proper application to come within the provisions of ch. 323 of the Laws of 1911, and on May 22, 1913, gave the required notice of her application for the annuity provided for under the provisions of that chapter, the so-called teachers’ retirement act. It was stipulated by the parties that under the conceded facts the petitioner was entitled to full credit for twenty-three years of time under the provisions of the law in question, and the only question litigated was as to' whether or not, under the facts as shown, of her employment and occupation during the years from' 1910 to 1913, there was a sufficient compliance with the law to entitle her to credit for the twenty-five years and there- • fore to the annuity.</p> <p>Fbr a considerable period prior to the fall of 1910 Miss Murphy taught and had charge of the art work in the; public schools of the city of Menomonie, her salary being for some time at the rate of $1,200 and later on $1,400 a year. In the fall of 1910 she was employed as a teacher in the Stout manual training school at Menomonie at a yearly salary from that school of $1,200, and was at the head of its art department and continued in that capacity during that year and the following two years. She was at the same time receiving a salary from the city .of Menomonie of $200 per year for each of these years as a teacher and having control and supervision of the art work of the public schools of said city. During the same years the city employed another teacher, Miss Anderson, in the art department of its public schools at a salary of about $360 per annum.' The same» work was carried on by the joint services of the petitioner and Miss Anderson in the city schools that had theretofore been done by Miss Murphy. During these years she conducted two' classes a day of pupils from the public schools of Menomonie in two periods of fifty minutes each and at the Stout Institute.</p> <p>By some contract not clearly defined under the evidence in the case before us, between the city of Menomonie and the Stout Institute during these three years, the said city paid the Stout Institute $4,050 per year, and under that arrangement the classes in art of the public schools were to use the art department of the Stout Institute and all the art work of the city schools was to be done there.</p> <p>Plaintiff’s contributions to the retirement fund during these years in question were computed by the city clerk of Menomonie and deducted by him from the $200 paid by the city to her and amounted to $3.96 for the years 1911-1912 and $4 for the following year, instead of the two per cent, on the annual salary she received those years óf $1,400. The question of her right to such annuity upon her application was before the defendant board at various meetings between December 20, 1913, and its final action on March.20, 1916, the board then deciding that there was not sufficient evidence to warrant them in giving the petitioner credit for the twenty-five years of service 'required under the law. These •proceedings were instituted in March, 1917.</p> <p>The trial court held that the rules adopted and relied upon by .defendant board as a justification for its denial of the annuity to plaintiff were contrary to the provisions of the. statutes, void, and of no effect, and that the petitioner wás entitled to the relief for which she prayed upon her paying into the fund $317.04 as required under the statute; and from a judgment entered in accordance therewith the defendant board has appealed.</p>

<p> Railroads: Collision at highway crossing.: Failure to give statutory signals: Proximate cause of injury: Slight want of ordinary care by injured person: Look-and-listen rule: Questions for jury. </p> <p>1. Under sub. 6, sec. 1809, Stats. 1917, — providing that a recovery for personal injury or death caused by negligent omission of a railroad company to comply with the requirements of that section shall not be barred by a slight want of care on the part of the person injured or killed — there must be a corresponding relaxation of the rigid look-and-listen rule formerly applied to the traveler on a highway at a railroad crossing.</p> <p>2. In an action for fatal injuries to plaintiff's intestate caused by-collision between his automobile and defendant’s train at a highway crossing, the evidence, showing, among other things, that as the deceased approached the crossing his view of the train was partially obstructed by trees, that the train was running at a high rate of speed, and that the statutory warnings of its approach were not given, is held to sustain findings by the jury that the failure to ring the bell and blow the whistle was a proximate cause of the injury and that the deceased was guilty of but a slight want of ordinary care.</p> <p>3. There could be in such case no assumption that the deceased neither looked nor listened for the train; nor, the burden of proving that there was an absolute failure to look and listen being laid by the statute upon the defendant, was the evidence such that the jury was bound to find such absolute failure.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>This action was brought by the plaintiff to set aside an order of the Industrial Commission of Wisconsin dismissing his application for compensation for injuries which he claims to have received in the course of his employment by the Wisconsin Motor Mamtfacturing Company.</p> <p>While helping to operate an automatic screw machine in the factory of the Wisconsin Motor Manufacturing Company the plaintiff claims that, on.November 8, 1917, he slipped and received an injury which .'resulted in hernia.</p> <p>The Industrial Commission found that the evidence did not justify a finding that the hernia was proximately caused by the alleged accident and dismissed the application on the following grounds :</p> <p>“Inguinal hernias rarely result from accident. They come from inherited or acquired weakness and develop gradually. Because of this, it has been necessary for the Commission to require definite proof that the hefnia was produced by accident. The applicant must prove that the accident was such as could produce a hernia; that the hernia appeared immediately after the accident; that it was followed by pain immediately disabling the applicant; and that the applicant gave immediate notice of the injury to the respondent. We have carefully examined the evidence in this case, together with the written statement of admissions made by the applicant, and we are satisfied that he has failed in his proof. If the applicant had sustained a hernia on November 8th he would have suffered pain and would not have been able to continue with his work for two weeks.”</p> <p>The circuit court, on review of the award, held that the undisputed evidence shows that the alleged accident was the proximate cause of the hernia. Judgment was entered setting aside the order of the Industrial Commission and remanding the matter for further proceedings. This is an appeal from such judgment.</p>

<p> Certiorari: Motion to supersede: Appealable orders: Reassessment: Powers of tax commission. </p> <p>1. A motion to supersede a writ of certiorari is in fact a demurrer, and the order thereon is subject to the same right of appeal that applies to decisions on demurrers.</p> <p>2. The authority of the.tax commission, under secs. 1087 — 45, 1087 — 51, 1087 — 57, Stats., to order a reassessment may be exercised in the case of a current assessment, even though the tax roll has been delivered to the treasurer for collection.</p> <p>[3. Whether it would be an abuse of discretion to order a reassessment, under said statutes, where one or more assessments had intervened, is not decided.]</p>

<p> Highways: Collision with automobile: Law of the road: Violation: Contributory negligence: Question for jury. </p> <p>Where plaintiff, riding southwesterly on a bicycle about four feet from the right-hand curb of a street, was injured in a collision with an automobile which, coming from the northwest on an intersecting avenue, had, in turning to the northeast, cut the corner and come unlawfully upon the left side of the street on which plaintiff was riding, the question of plaintiff’s contributory negligence was for the jury, even though his view of the avenue was unobstructed and he knew that vehicles approaching thereon from the northwest had the right of way.</p>

B. Quinlan, Judge. The defendants John Sieber and Hannah Sieber are husband and wife. At the time of their marriage Hannah Sieber was the owner of eighty acres of land and John Sie-ber owned twenty-seven acres of land which he farmed in connection with a rented forty. Certain farm machinery was bought which was used in cultivating both farms. Whether the defendant Hannah Sieber was liable for any of this farm machinery may be said to be a controverted question.

Spencer, Judge. Action upon a life insurance policy. The defense was that the application for the policy contained a provision that it should not take effect unless the first premium was paid and the policy delivered to the insured while he was in good health, and that as matter of fact the insured was seriously ill at that time, which fact was concealed from the company.

<p> Divorce: Denial: Custody of children: Separate sttpport. </p> <p>Under sec. 2366, Stats., a judgment denying a divorce may award to the wife the custody of the minor children and require the husband to pay a reasonable amount for her and their support living apart from him; and such a judgment in this case is held not to have been an abuse of discretion.</p>

<p> Mandamus: Motion to quash: Appealable orders: Foreign corporations: Annual reports: Fees: Statute construed: "Capital stock.” </p> <p>1. A motion to quash an alternative writ of mandamus is in substance a demurrer raising the question of sufficiency of the facts stated in the petition and alternative writ, and the order granting or denying such motion is appealable.</p> <p>2. The words "capital stock,” as used in sub. 7 (e) of sec. 17706, Stats., mean the stock actually issued and paid for, not the authorized capital stock of the corporation.</p>

<p>Appeal from a judgment of the circuit court for La Crosse county: E. C. Higbee, Circuit Judge.</p> <p>This is an action brought by the plaintiff, for money damages, alleging a conspiracy to defraud, and for deceit. The complaint states that the plaintiff, a practicing physician of the city of La Crosse, in July, 1912, acting on the advice of the defendant, bought 100 shares of the capital stock of the U. S. Operating Company for the sum of $1,500, paying $1,000 by check to the U. S. Operating Company, the other $500 being paid to the company by the defendant- in com-sideration of plaintiff’s canceling a note on which the defendant owed him $500; that the U. S. Operating Company was in 1912 and is now completely insolvent, such facts being well known to the defendant; that prior to the month of July, 1912, the defendant entered into- a conspiracy and agreement with other persons whereby they organized among themselves a company known as the U. S. Operating Company, with an authorized capital stock of $1,000,000; that immediately after such organization the defendant and his associates, George and Henry Salzer, caused to be issued to themselves capital stock of said corporation amounting to $240,000, and that from time to- time thereafter and before July, 1912, additional capital stock was issued to defendant and his associates without any consideration; that defendant and his associates sold other stock to innocent parties,’among them the plaintiff, and that considerable cash was in this manner paid into- the treasury of the U. S. Operating Company, but that all said cash was paid out for salaries, expenses, or squandered in mismanagement.</p> <p>The complaint further alleges that the plaintiff, who had been for a number of years a close friend of the defendant, told him some time prior to July, 1912, that he would like to invest some of his savings, whereupon defendant induced him to make the above arrangement and investment, representing to- plaintiff that he knew about the U. S. Operating Company and that an investment in the same was a safe, conservative, as well as profitable one. Plaintiff further alleges that, in order to deceive him, defendant and his as-sociales caused to be declared and issued to plaintiff two cash dividends of $20 each on said stock, whereas the U. S. Operating Company in fact never had any earnings whatever, the so-called dividends being paid out of money obtained from the sale of stock to innocent persons and for the purpose of deceiving the plaintiff, and that in addition a stock dividend of six shares was issued to- plaintiff in March, 1913, for the same purpose.</p> <p>The complaint further alleges that in 1916, when the plaintiff discovered the true status of the U. S. Operating Company, he offered and tendered to the defendant the said certificate of stock and everything that he had received by reason of the transactions hereinbefore set forth, and gave him notice that he rescinded the purchase of such stock and demanded of the defendant that he pay back the sum plaintiff had paid for the stock; all of which tenders, offers, and demands were refused by the defendant.</p> <p>The answer of the defendant denies that he was in any way connected with plaintiff’s purchase of U. S.' Operating Company stock; that defendant was at any time an officer in that corporation or that he had participated in its organization or that he ever at any time had any interest, pecuniary or otherwise, in selling such stock to plaintiff.</p> <p>By special verdict the jury found that prior to the time plaintiff purchased the stock in the U. S. Operating Company defendant represented to plaintiff that the stock was worth $15 a share; that defendant had not theretofore agreed to advise plaintiff in respect to his investments; that defendant represented this stock as being worth $15 a share for the purpose of inducing plaintiff to purchase'the stock; that •this representation was false at the time he made-it, but that plaintiff believed such representation and on the strength-of it purchased the stock; that such representation was made as a statement of fact and that defendant did not know it was false at the time he made it; that plaintiff whs wanting in the exercise of ordinary care in making the purchase of the stock; and that the value of the 100 shares of stock on the day plaintiff purchased them was $100.</p> <p>Judgment was awarded the plaintiff in the sum of $1,954.66. From this judgment appeal is taken.</p>

<p>Appeal from a judgment of the circuit court for Monroe county: E. C. Higbee, Circuit Judge.</p>

Ray Stevens, Circuit Judge. Action by the plaintiff, a wholesale dealer in Illinois coal at Chicago, to recover of defendants, who were retail dealers at Madison, a balance of about $1,200 alleged to be due on purchases of coal between July 10 and October 31, 1916. The defendants by answer admitted the indebtedness claimed, but interposed three counterclaims for failure to deliver coal under three certain contracts, and claimed damages amounting tO' nearly $2,500.

<p> Master and servant: Implied promise to pay for services: Attorneys at law: Liability to pay client’s brother, a lawyer, for assisting in suit. </p> <p>1. A promise to pay for services rendered by request will usually be implied from the very fact of the request; but the relations or the circumstances of the parties may be such that no such implication will arise.</p> <p>2. A finding by the jury in this case that the plaintiff, a lawyer, was employed by the defendants, a firm of lawyers, to assist them in a lawsuit in which they were attorneys for plaintiff’s brother, with the understanding that defendants were to be personally liable for his services, is held not to be supported by the evidence. Eschweiler and Kerwin, JJ., dissent.</p>

<p>Error to review a judgment of the civil court of Milwaukee county: A. J. Hedding, Judge.</p> <p>Bastardy. On March 2, 1918, a warrant was issued on a complaint charging the plaintiff in error, hereinafter called the defendant, with bastardy. He was arrested April 1, 1918, and at a preliminary hearing on April 8, 1918, he was held for trial and was tried on May 28, 1918. Upon the trial it was found that the defendant was the father of a bastard child born December 21, 1917, and he was adjudged to pay the sum of $50 lying-in expenses and to pay $15 a month for the support of the child until the child should arrive at the age of sixteen years. ■ He was further required by the judgment to give a bond with sureties to secure the payment of-the instalments, and in default thereof it was ordered that he be committed to the house of correction of Milwaukee county, there to be held until he should pay the sum specified in the bond or until otherwise discharged by law. Upon the trial the defendant claimed immunity from prosecution on the ground that he had been inducted into the military service of the United States on the 24th day of May, 1918, basing his claim upon the provisions of ch*. 409, Laws 1917, published . June 16, 1917. His claim was denied, and to review the judgment rendered against him the defendant has sued out a writ of error.</p>

<p> Vendor and purchaser of land: Land contract: Foreclosure: Objections to title: Oral trusts: Direction as to what persons shall join in deed. </p> <p>1. Objections to the title to be conveyed under an obligation to give a good or marketable title must raise at least a reasonable doubt as to the validity of the title upon a question of law or fact.</p> <p>2. Some years after a land contract to defendants had been executed by the holder of the legal title (Mrs. C.) and her sister (the plaintiff), who held a mortgage on the land, Mrs. C. conveyed the land to plaintiff subject to said contract. Thereafter a daughter of Mrs. C., by a written contract reciting that such conveyance was made by Mrs. C. without consideration and while she was incompetent and under duress, employed attorneys to have it set aside; and this contract, and also a conveyance by the daughter to the attorneys of an interest in the land, were recorded. In an action by plaintiff to foreclose the land contract it was conceded that at the time of its execution Mrs. C. was competent to contract, and the court found that there was no evidence of her subsequent incompetency or that her conveyance to plaintiff was not her free and voluntary act. Held, that the claims asserted by the daughter and her attorneys did not constitute any cloud upon or imperfection in the title which the defendants would receive under a conveyance to them pursuant to the land contract, and hence did not constitute a defense to the action.</p> <p>3. No oral understanding at the time Mrs. C. conveyed the land to plaintiff that whatever might be left of the property after plaintiff had cared for Mrs. C. until her death should be transferred to Mrs. C.’s daughter could create any rights which might be asserted hostile or superior to those given the defendants by the land contract. [Whether, in view of sec. 2302, Stats., such an oral trust could be recognized or enforced at all, is not decided.]</p> <p>4. A direction by the court in the foreclosure action that both the plaintiff and Mrs. C. should join in a warranty deed to be delivered to defendants upon payment, of the purchase price, was proper and within the province of the court.</p>

<p> Venue: Clerical error: Income taxation: Exemption: Educational corporation conducted for pecuniary profit. </p> <p>1. A manifest clerical error in entitling an action as one in M. county circuit court instead of one in W. county circuit court was properly disregarded by the latter court.</p> <p>2. Where an educational corporation organized to conduct a private enterprise on the plan of a profit-sharing corporation, with capital stock owned by shareholders, receives from its business an annual income in excess of its expenses and applies the excess to improving its properties, thus enhancing the value of the holdings of the stockholders, its income is not exempt from taxation under sub. 2, sec. 1087m — 5, Stats.</p>

<p> Wills: Implied revocation: Death of all beneficiaries: Nature of estate given: “Heirs and assigns:” Evidence to show intention, contrary to will: Refusing probate: Harmless errors. </p> <p>1. Where all the beneficiaries named in a will, none of whom was related to the testator, died during his lifetime, the will was .impliedly revoked and became inoperative.</p> <p>2.. Where by such will property was given to persons named “and to their heirs and assigns,” the latter words were merely words of limitation, descriptive of the nature of the estate given; and no estate passed to such heirs or assigns.</p> <p>3. The language of the will being plain and certain in meaning, testimony to show that the testator intended that in case of the death of the beneficiaries the property should go to their heirs was not admissible.</p> <p>4. There was in such case no material error or irregularity in denying probate to the will when it was first presented, rather than admitting it to probate and afterwards holding it inoperative because there were no beneficiaries who would take under it.</p>

<p>Appeal from a judgment of the circuit court for Wauke-sha county. Chester A. Fowler, Judge.</p> <p>Action for an accounting between the executor of the will of T. E. Ryan, deceased, and the defendants as surviving partners of the law firm of Ryan, Merton, Newbury & Jacobson. Immediately after the death of Mr. Ryan Mr. Newbury purchased from the executor of his estate all the tangible property belonging to it which had been used in the partnership business. The circuit court held that the estate was not entitled to share in the proceeds received for legal services rendered after Mr. Ryan’s death, and construed the partnership agreement to entitle Messrs. Newbury and Jacobson to- their proportionate interest in-the accounts of the firm outstanding at the time of Mr. Ryan’s decease. From. a judgment entered accordingly the plaintiff appealed.</p>

Woodard, Judge. The parties hereto are farmers residing in Dodge county. The defendant advertised a sale of stock, machinery, and other personal property to beheld September 22, 1917. The sale was conducted by one Eli Keel as'auctioneer.. A horse' was brought out of the defendant’s barn by an employee of the defendant aiid offered for sale by the auctioneer. The plaintiff made an offer of $25, which'was the only offer received.

Ray Stevens, Circuit Judge. In the summer of 1914 Mathias Karls was the owner of eighty acres of land in Adams county, Wisconsin. The defendant, Clarence Drake, was the owner of certain real estate in the city of Madison, Wisconsin. One day, while engaged in carpenter work at Black Earth, Wisconsin, he was called on the telephone and asked to come to Madison. He came on an evening train and went to the office of a real-estate agent, where he found Mr. Karls, the plaintiff.

Ray Stevens, Circuit Judge. This action was brought by the plaintiffs to set aside an award of the Industrial Commission by which Hermeline Lesperance was awarded $2,016 as compensation for the death of her husband from injuries which it is alleged he suffered while in plaintiff’s employ and which arose out of and0were incident to his employment.

: E. Ray Stevens, Circuit Judge. The appeal is from a judgment setting aside an order of the Industrial Commission awarding to appellant Sam Be-bemt $259.03 as compensation and expenses. Appellant Sam Bebeau was in the employ of the Holt Lumber Company as a sawyer at one of its camps.

<p>Appeal from a judgment of the circuit court for Polk county: Frank A. Ross, Circuit Judge.</p>

Lueck, Circuit Judge. The appeal is from an order denying an application to restrain plaintiff from proceeding under sec. 4096, Stats., in a proposed examination of certain defendants before pleading. The plaintiff commenced an action by summons and sought to examine the defendants George R. Mayhew and Garret Bruggink before pleading under the provisions of sec. 4096.

<p> Sales: Acceptance of engine: Retention after time allowed for trial: Inducement by seller. </p> <p>Although at the time of the sale of a gasoline engine it was agreed that the buyer should have thirty days for trial thereof before he need accept it, his retention and use of the engine for a longer period did not constitute ■ an acceptance if the seller urged and induced him to keep and use the engine as long as he did, representing that it would eventually prove satisfactory.</p>

<p>Appeal from a judgment of the circuit court for Brown county: Henry Graass, Circuit Judge.</p> <p>This is the second appeal in this action, the first being from an order sustaining a demurrer to the complaint. 157 Wis. 604, 147 N. W. 1058. The case has been tried by the court and judgment rendered for the defendant dismissing the complaint on the ground that the contract (for breach of which this action is brought) is void because contrary to both the federal and state anti-trust statutes.</p> <p>■ The contract sued on will be found printed in full in the report of the former appeal and need not be printed here. Jt will be sufficient now to say that by its terms the plaintiff, a corporation engaged in the business of purchasing pulp wood for others, contracted with the defendant, a paper manufacturing corporation at Green Bay, to use diligence to procure and furnish to the defendant 5,000. cords of spruce, 17,500 cords of hemlock, and 2,000 cords of balsam pulp wood during the year 1905, and the defendant agreed that it would accept and pay for the pulp wood delivered to it under the contract. It appears further by the recitations of the contract that the plaintiff had also contracted to purchase and deliver during the same year to various other paper-making concerns located in the Fox River Valley or its immediate vicinity specified amounts of pulp wood aggregating 116,950 cords, making a total, including that contracted for by the defendant, of 141,450 cords; and the agreement provides that the defendant will accept and pay for its pro rata share of all the pulp wood which the plaintiff company shall of necessity deliver in order to operate economically during the season, even though in excess of said 141,500 cords, and will also accept in discharge of the contract its pro rata share of the pulp wood which the plaintiff is able to deliver during the season, even if the same is less than 141,500 cords. The agreement also provides that the defendant shall ultimately pay for the pulp wood delivered its pro rata share of the cost thereof, including all “expense of operating” and seven per cent, interest on the capital employed in the business, payments of a certain base or invoice price per cord being provided for as deliveries are made and a settlement to be had at the end of the season, when the excess or deficiency in the amount already paid as the invoice price is to be determined and made right by return of the overpayment, if any, to the defendant, or the further payment by the defendant of any amount necessary to make up its pro rata share of the total expense of operation and interest on the capital employed. The contract further provides that the defendant shall not purchase pulp wood of any other person during the year. The complaint showed that this contract was one of a series of annual contracts of similar content covering the years from 1904 tO' 1909, inclusive.</p> <p>It was stipulated on the trial that the defendant had made the base or invoice payments stipulated for during, the time-covered by all of the contracts and that the aggregate of such payments was all that the total pulp wood actually delivered was reasonably worth on the market.</p> <p>The action is brought to recover (1) the defendant’s pro rata share of a large loss resulting from the failure of one Perry to carry out a contract made with the plaintiff in 1903 to cut and deliver spruce pulp wood, it being claimed that such loss was a legitimate part of the cost of producing the pulp wood, and (2) certain claims for damages on account of the refusal of defendant to accept delivery of pulp wood on the contracts; also claims for interest charges upon delayed payments for pulp wood and a claim to recover the difference between the base or invoice price of the wood delivered under the contract of April 14, 1908, and the defendant’s pro rata share of the cost of getting out and delivering the season’s wood.</p> <p>The action was referred to W. L. Evans to hear, try, and determine, and he made findings tO' the effect that the contracts in question were void because they constituted a part of a scheme or combination to destroy competition and acquire a monopoly in the purchase and sale of pulp wood in Northern Michigan and Wisconsin and also to control prices and unreasonably restrain trade in pulp wood, to the material injury of the public. He concluded that the contracts were void and offended against the federal and state anti-trust laws as well as against the common law. The findings of the referee were confirmed by the circuit court and judgment rendered for the defendant, from which judgment this appeal is taken.</p>

<p>Appeal from a judgment of the circuit court for Brown county: Henry Graass, Circuit Judge.</p> <p>This action was brought by the town to recover the sum of $1,214, with interest and costs and disbursements, for sums alleged to have been illegally expended by the defendants as town officers.</p> <p>The complaint alleges that Louis Schoen, Eugene Panure, and John Pigeon were supervisors of the town of Humboldt and that Fred Clabots and Joseph Baumgart were respectively clerk and treasurer; that at the annual meeting of the town held April 6, 1915, the following resolution was adopted by the electors of the town: “Motion made and seconded that the town of Humboldt be brought under and is hereby brought under the county and state drainage system, and be it further resolved, that the town board of supervisors of said town shall lay out the different districts and fix the number of districts in said town at their first meeting after this daythat the town board, without lawful authority other than that mentioned in the resolution, made a contract with the Steller Engineering Company to survey and lay out a system of drainage ditches in the town, and thereafter town orders payable to the Steller Engineering Company and other persons so employed were issued to the amount of $1,214; that the orders were issued by direction of the defendant Schoen as being audited by the town board, and countersigned by the’ defendant Fred Clabots as town clerk, and were paid by Joseph Baumgart as town treasurer out of the funds of the town which had been raised for general town purposes and for highway purposes and in part by a special tax levied by the town board, all of the officers thus mentioned presumptively knowing that the funds in the town treasury could not lawfully be used for this purpose.</p> <p>The answer of the defendant Schoen alleges that the various acts of the town board were performed by authority given them by the town meeting under the resolution and subsequent appropriation of money in part payment of the amount sued for that the board acted in good faith; that the work of procuring the survey was a necessary preliminary to the establishment of a drainage system for the town; that the work covered a period of about one year, and that at all times the residents and taxpayers of the town knew of the work and acquiesced in it; that the acts of the town officers were fully approved at the town meeting held in April, 1916. The answer further alleged that the town contained a population of more than 500 and had one or more incorporated villages located therein and that the town board was therefore vested with authority, under sub. (13), sec. 776, Stats., to- incur these town obligations under the resolution adopted at the town meeting held on April 6, 1915.</p> <p>A joint answer, filed by the defendants Pcmure, Pigeon, Clabots, and Baumgart, alleges that the sum of $500 had been raised by the town for the purpose of meeting a part of the indebtedness mentioned in the complaint and that this special fund had been used by the defendant Louis Schoen towards paying the indebtedness; that by authority from the electors of the town the remainder of the money so used was paid by money borrowed by due authority of the electors of the town; that the defendants Eugene Pcmure and John Pigeon never authorized the payment of the money and had nothing to do with the payment thereof; that the defendants Fred Clabots and Joseph Baumgart performed the acts relative to the payment of the money in good faith, not knowing of any illegality and believing that they had full authority in the matter; that at the regular meeting subsequent to the payment of the money the clerk reported the matter concerning the payment of the money to the electors and that the electors acquiesced in the payments; that by reason of their silence and acquiescence the town and its electors are estopped from claiming any illegality of such payments and from recovering the same from the defendants.</p> <p>The jury found by special verdict, among other facts, that Louis Schoen and Fred Clabots, as officers of the town, issued town orders in payment for the survey for drains to the amount of $1,214 and that the same were paid by the treasurer, Joseph Baumgart; that the town orders were signed by Louis Schoen and Fred Clabots before the tax for the payment of such orders had been voted by the electors of the town; that Louis Schoen and Fred Clabots issued and signed these orders before the town board had audited and authorized the issuance of them; that Fred Clabots issued and signed them knowing that no tax for their payment had been voted by the electors and knowing that the town board had not audited them; that Joseph Baumgart, the treasurer, paid the orders knowing that the electors had never voted a tax for the drainage fund and knowing that the town board had not audited the claims; that the town board placed $500 in the tax levy for the year 1915 which was purposely raised as a drainage fund; that the town electors at their annual meeting in 1916 voted a fund of $500 and authorized the borrowing of $200 as a fund to pay for such survey work.</p> <p>A verdict was directed in favor of the defendants Panure and Pigeon. The court, upon motion after verdict, dismissed the action against the treasurer, Fred Baumgart, and judgment was entered against the defendants Schoen and Cla-bots for the amount demanded in the complaint, with interest and costs.</p> <p>From this judgment appeal is taken.</p>

<p>Appeal from an order of the circuit court for Brown county: Henry Graass, Circuit Judge.</p> <p>The appeal is from an order sustaining the demurrer to the following portions of the appellant’s answer:</p> <p>“Further answering, and as and for a second and separate defense, this defendant alleges upon information and belief that said plaintiff was injured on or about the 19th day of June, 1912, at Appleton, Wisconsin, while in the employ of the Appleton Coated Paper Company, of said place, and defendant further alleges that he, as a physician and surgeon, was employed to treat the injury so received by said plaintiff ; and further answering, defendant alleges that after the happening of the accident and injury to said plaintiff on or about the 19th day of June, 1912, and before the commencement of this action, to wit, on the 25th day of September, 1913, the plaintiff, in consideration of the sum of three thousand dollars ($3,000) paid by the said Appleton Coated Paper Company, executed and delivered h> the said Appleton Coated Paper Company a release', a copy of which is hereto attached marked ‘Exhibit A,’ and made a part hereof with the same force and effect as though set out at length herein; that by reason thereof and by reason of the execution and delivery of said release, said plaintiff has accepted compensation in full for the injury so received by him and has received full satisfaction for the injury so received, and said plaintiff has thereby released this answering defendant from any and all liability, and that the claim of plaintiff, if any, against the defendant has thereby been fully satisfied and discharged.</p> <p>“Further answering, and as and for an offset and partial defense and in mitigation of plaintiff’s alleged claim for damages, this defendant alleges upon information and belief that said plaintiff was injured on or about the 19th day of June, 1912, at Appleton, Wisconsin, while in the employ of the Appleton Coated Paper Company, of said place, and defendant further alleges that he, as a physician and surgeon, was employed to treat the injury so received by said plaintiff; and further answering, defendant alleges that after the happening of the accident and injury to said plaintiff on or about the 19th day of June, 1912, and before the commencement of this action, to wit, on the 25th day of September, 1913, the plaintiff, in consideration of the sum of three thousand dollars ($3,000) paid by the said Appleton Coated Paper Company, executed and delivered to the said Appleton Coated Paper Company a release, a copy of which is hereto attached marked ‘Exhibit A,’ and made a part hereof with the same force and effect as though set out at length herein.”</p> <p>The plaintiff demurred to each of the foregoing portions of the answer on the ground that the same did not state facts sufficient to constitute a defense.</p> <p>The release executed and delivered to the Appleton Coated Paper Company by the respondent is as follows :</p> <p>For the sole consideration of the sum of three thousand and no 100 dollars, this 25th day of September, 1913, received from Appleton Coated Paper Co., I do hereby acknowledge full satisfaction and discharge of all claims, accrued or to- accrue, in respect of all injuries or injurious results, direct or indirect, arising or to arise from an accident sustained by me on or about the 19th day of June, 1912, while in the employment oí the above.</p> <p>$3,000 Reinhard Hooyman. (Seal.)</p> <p>Settlement. Witness, Herman Hagen,</p> <p>F. J. Rooney, Address, Black Creek.</p> <p>F. W. Grogan, Witness, Nicholas Hermann, Jr.</p> <p>Att’ys for Plaintiff. Address, 915 College Ave., Appleton.</p> <p>The clajln of the respondent as set out in the complaint is that the appellant is liable for damages on account of malpractice in the treatment of the aforesaid injury.</p>

<p> Master and servant: Injury to railway employee: Wrecking operations: Warning of danger: Duty of employer: Assumption of risk: Evidence: Pleading. </p> <p>1. Plaintiff, a section hand, while working in defendant’s yard near a wrecking outfit, was injured by a rail which flew backward from a pile of wreckage from which a pair of trucks was being pulled by said outfit. The jury found, upon sufficient evidence, that the defendant railway company did not know, before starting to remove said trucks, that a rail was so located that it might be caught by them, and did not fail to use ordinary care for plaintiff’s safety by failing to examine the wreckage to discover the rail which injured him; but it is held that the jury did not thereby find that there was no danger in the work which was or could have been known to defendant by the exercise of ordinary care, and that the evidence sustains further findings by the jury to the effect that the defendant failed to use ordinary care for plaintiff’s safety by omitting to warn him of the dangers incident to the work, and that such lack of ordinary care was a proximate cause of the injury.</p> <p>2. The work which plaintiff was doing at the time of the accident being other than his usual work and the first of its kind in his experience, and being under the direction of a vice-principal other than the one in charge of the wrecking crew, his position as to the wrecking operation was different from that, of the members of the wrecking crew, and it was within the province of the jury to find, as they did, that there was no assumption of the risk by him.</p> <p>3. An allegation in the complaint that “without giving the plaintiff any warning” the defendant negligently operated the derrick of the wrecking outfit so as to cause the trucks mentioned to come in contact with the rail and to hurl it toward the plaintiff, was sufficient, liberally construed, to raise an issue as to defendant’s duty to warn plaintiff of the dangers incident to such work.</p>

<p>Appeal from a judgment of the circuit court for Fond du Lac county: Chester A. Fowler, Circuit Judge.</p> <p>This is an appeal from a judgment affirming the disal-lowance by the county board of Fond du Lac county of plaintiff’s claim for salary as clerk and phonographic reporter of the county court of said county from September 1, 1915, to February 23, 1916.</p> <p>The facts were stipulated and were in substance as follows; Plaintiff on September 1, 1915, was, and for some time prior thereto had been, the duly appointed and qualified clerk and phonographic reporter of the county court of Fond du Lac county, at a salary of $1,000 per year, payable in equal monthly instalments. By ch. 518, Laws 1915, said county court was in terms abolished and all its functions and powers transferred, on and after September 1, 1915, to a court called in that act the superior court of said county, of which new court F. W. Chadbourne was appointed judge by the governor. Said Chadbourne entered on his duties September 1, 1915, and the judge and clerk of the county court at that time gave up possession of the office and records under protest, claiming the act creating the new court to be void. Judge Chadbourne declined to appoint the plaintiff to the position of phonographic reporter in the new court and on the 2d clay of September, 1915, appointed one Harriet G. Morse phonographic reporter of said last named court, and from that time until February 22, 1916, said Harriet G. Morse performed all the. duties of phonographic reporter and clerk of said superior' court and excluded the plaintiff therefrom, at a salary of $75 per month, which was regularly paid by the county for five months, i. e. up to February 1, 1916. On February 22, 1916, in a quo warranto action brought in this court, it was held that the act creating said superior court was void. State ex rel. Richter v. Chad-bourne, 162 Wis. 410, 156 N. W. 610. On February 23, 1916, said Chadbourne and his appointees vacated their supposed offices and the county judge and the plaintiff resumed the active performance of their duties. They announced their readiness to- perform their duties at the time of their ouster from office, and the plaintiff filed a claim for his monthly salary each month, each time stating that he was ready ánd willing to perform his official duties. June 15, 1916, the county paid to Miss Morse $56.25, being her salary from February 1 to February 23, 1916.</p> <p>The trial court held that the plaintiff was removed from office by the de facto judge of the county court and that such removal was a valid act, just as much as a judgment or purely judicial act of said de facto judge, and hence that the plaintiff was rightly denied any salary.</p>

<p>Appeal from a judgment of the circuit court for Dane county. E. Ray Stevens, Circuit Judge.</p> <p>The appellant is a corporation and at the time of the accident had a salesroom in Milwaukee. August 5, 1917, the deceased, Carl Healey, was in the employ of the appellant as a mechanic, working at the warehouse, getting $25 a week and overtime at the same rate. Automobile races had been arranged for by the Wisconsin Auto Racing Association at the State Fair Park, near Milwaukee, Saturday, August 4, and Sunday, August 5, 1917. Different dealers entered cars in these races for the purpose of promoting the names of their various cars and getting them before the public. This was the purpose of the appellant. The appellant had on other occasions entered cars in similar races, although entering cars in races was not a part of the regular work of appellant.</p> <p>Each company entering cars had assigned to it certain space inside of the track near the starting mark, called a pit, and was permitted to have two men in each pit for the purpose of handing out spare parts, gasoline, etc. Healey, after doing work on the racing cars, was given charge of the pit of the appellant and was instructed to work on the cars at the pit and see that they were properly tuned up and to remain there. On the afternoon of the day of the accident Healey had gotten out of the pit and was standing on the fence at the inside of the track. One of the appellant’s cars stopped a short distance from the pit, and Healey, seeing the car stop-, ran up to- where it was standing, and after getting in front of it he was run into by another car and killed.</p> <p>The Industrial Commission awarded Nettie Healey $2,782.85 against the appellant because of the death of her husband, Carl Healey. The court below confirmed the award of the Industrial Commission and rendered judgment accordingly, from which this appeal is taken.</p>

<p>Appeals from a judgment of the circuit court for Dane county: James Wickham, Judge.</p> <p>Certiorari proceedings to- review the action of the board of review of the city of Madison in affirming the assessment made of relator’s property by the assessor. The circuit court held that certain property assessed as real estate should have been assessed as personal property, in which particular the action of the board of review was reversed and in all other respects affirmed. Both parties appeal.</p>

<p>Appeal from a judgment of the circuit court for Shaw-ano county: Edgar V. Werner, Circuit Judge.</p> <p>This action was brought to recover damages growing out of an alleged breach of duty by the defendant as agent of the plaintiff. The breach of duty consisted ■ in causing a policy of insurance to be issued by the plaintiff upon the property of one Anna Huntington upon her application, which defendant knew to be false.</p> <p>The case was here before and is reported in 162 Wis. 165, 155 N. W. 918. In the former case, after the evidence was in, the court directed a verdict for the defendant, dismissed the complaint, and upon plaintiff’s appeal the judgment was reversed, and the cause remanded for retrial. Upon retrial the court submitted the case to the jury on a special verdict consisting of twenty-two questions, among others the following :</p> <p>“(2) Was the answer to the following question false, to wit: ‘How many acres of land do you own? A. 41.’ A. Yes.</p> <p>“(3) Was the answer to the following question false, to wit: ‘What is the cash value of your land alone? A. $600-$800 at present.’ A. Yes.”</p> <p>“(9-B) Did the defendant know that the answer to the following question was false: ‘Q. How many acres of land do you own? A. 41.’ A. Yes.</p> <p>“(9-C) Did the defendant know that the answer to the following question was false: ‘Q. What is the cash value of your land alone? A. $600-$800 at present.’ A. Yes.</p> <p>“(18) Did the plaintiff or any of its authorized officers, authorized to accept said insurance, believe said answers and information and rely upon said answers and information in accepting and issuing said insurance policy? A. Yes.</p> <p>“ (19) Did the answers to said questions and information in said application for insurance exert a material influence upon the minds of the officers of the plaintiff company, authorized to accept and issue said insurance policy, so1 as to induce said plaintiff to accept said risk'and issue said policy? A. No.</p> <p>“(20) Under all the facts and circumstances of this case, ought the officers of the plaintiff company, authorized to accept said risk and issue said insurance policy, to have relied upon the answers to said questions and information set forth in said application? A. Yes.</p> <p>“(22) What sum did the plaintiff pay Anna Huntington as a loss caused by fire, under said policy? A. $900, December 20, 1913.”</p> <p>The court changed the answer of the jury to the nineteenth question from ‘‘No” to “Yes” and ordered judgment upon the verdict as amended. Judgment was entered accordingly, from which this appeal was taken.</p>

Ray Stevens, Circuit Judge. The defendant insurance company issued its “Special Accumulative Accident Policy,” form ED 9229, to the plaintiff April 14, 1915, describing him in such policy as being under a preferred classification and by occupation “buying and selling of real estate, office duties and traveling only,” and providing, in case of total disability, for a weekly indemnity of $25.

On October 10, 1911, the defendant Annie Bergevin commenced in the same circuit court an action for divorce against her then and now husband, the plaintiff herein, Neis Bergevin. In the complaint she charged her husband with cruel and inhuman conduct and excessive drinking. The usual application was made and notice thereof properly given for alimony and suit money, but such motion was never heard by the court and no further proceedings were had in the divorce action.

<p>Appeal from a judgment of the circuit court for Eau Claire county: E. C. Higbee, Judge.</p> <p>Action on bond. The Eau Claire Cornice & Heating Company, hereinafter called the Company, was under contract with the plaintiff tO' furnish materials to complete a heating, ventilating, and humidity system for a certain building then in process of construction. The Company became bankrupt, the trustee did not elect to perform the contract, and the Company was in complete default. The Marylcmd Casualty Company was surety on the Company’s bond, and after the Company’s default the plaintiff notified the Casualty Company of the default and the Casualty Company declined to complete the contract. In the letter exercising its option not to complete the contract the Casualty Company said:</p> <p>“We suggest that you award separate contract' to the American Foundry and Furnace Company to complete referred to contract, as in our opinion they are prepared and willing so to do at correct figures.”</p> <p>Pursuant to this suggestion and after having obtained some informal bids, the plaintiff entered into a contract with the American Foundry and Furnace Company for the completion of the original contract for the sum of $2,825. This action was brought to recover this amount less the amount remaining due to the Company on the original contract. Plaintiff had judgment for $1,147 with costs, from which judgment the defendants appeal. Other facts are stated in the opinion.</p>

<p> Towns: Duties of clerk: Power of town board to employ another person to make out tas: roll: Reassessment. </p> <p>1. A town is a mere q?<im-corporation, possessing only such powers and functions and subject only to «such liabilities as are provided by statute. It must function in the manner prescribed by the legislature, and courts can sanction no other.</p> <p>2. It is the duty of the town clerk to make out the tax roll of the town; and prior to the enactment of sec. 1084a, Stats, (ch. 274, Laws 1917), a town board had no authority to employ another person to perform that duty, even though, by reason of orders of the tax commission requiring reassessments of the property of the town for previous years, the work of making out the roll became so complicated and difficult that neither the clerk nor any other qualified elector of the town was capable of doing it in the manner required by sec. 1087 — 57, Stats.</p>

<p>Appeals from judgments of the circuit court for Oconto county: W. B. Quinlan, Circuit Judge.</p> <p>These are appeals from three separate judgments. The actions were commenced separately and tried together and three separate judgments entered. The original complaint of Minnie Lingelbach sets forth false and fraudulent representations relied upon by the plaintiff respecting stock which the defendant had for sale in a corporation known as the Home Stores Company. The complaint was amended by adding the following:</p> <p>“That if the said defendant A. H. Luckenbach could procure any of the shares of the capital stock for plaintiff that he would be glad at any time to repurchase the same from her for the same price that she would pay therefor.”</p> <p>The complaints of Charles Lingelbach and Sigmund Lingelbach were substantially the same in all material respects as the amended complaint of Minnie Lingelbach. The complaints also contained an allegation that the defendant A. H. Luckenbach had organized a corporation known as the Luckenbach Realty Company to which he transferred his property to defraud his creditors.</p> <p>The answer interposed by each defendant denies generally the allegations of the complaints except as to the incorporation of the Home Stores Company and the Luckenbach Realty Company, and also admits the relationship of the parties.</p> <p>The actions were tried by the court, findings of fact and conclusions of law made, and judgment ordered for each plaintiff separately. The court found that all the representations concerning the stock of the Home Stores Company were false and known by the defendant A. H. Luckenbach to be false, and were relied upon by plaintiff; that at the time of the sale of stock to the plaintiffs said A. H. Luckenbach individually and for a valuable consideration contracted with the plaintiffs to purchase the shares of the capital stock from plaintiffs at the price they had paid therefor, if the plaintiffs became dissatisfied with the purchase, or if the statements made by said A. H. Luckenbach should be found to be untrue; that the defendants A. H. Luckenbach and Katherine S. Luckenbach caused the incorporation of the Luckenbach Realty Company, one of the defendants, and transferred certain real estate owned by A. H. Luckenbach to said company, which transfer was made in fraud of the rights of the plaintiffs; that the plaintiffs on or about the 14th day of July, 1915, became dissatisfied with the purchase of said stock and aware of the falsity of said statements and tendered to' said A. H. Luckenbach the shares of stock and demanded payment of the amounts paid therefor, and deposited the stock with the court in pursuance of said tender, and that plaintiffs brought action within a reasonable time after the discovery by them that the statements made by the défendant A. H. Luckenbach were false.</p> <p>As conclusions of law the court found that the defendant A. H. Luckenbach was indebted to the plaintiffs in the respective sums paid for the stock, with interest, and that execution might be had against the real estate held by the Luckenbach Realty Company, and that upon payment of the judgments the clerk of the court deliver to said A. H. Luckenbach said shares of stock, and ordered judgment directing that said A. H. Luckenbach, Katherine S. Lucken-bach, and the Luckenbach Realty Company, its officers and agents, be enjoined from selling, conveying, incumbering, or disposing of its real estate. Judgment was entered accordingly.</p> <p>Counsel fo:r defendants requested several findings, which were refused, and filed exceptions to the refusal to give the findings as requested, and also filed exceptions to the findings made.</p>

<p>Appeal from a judgment of the circuit court for Mari-nette county: W. B. Quinlan, Circuit Judge.</p> <p>The plaintiff, a foreign corporation, which had never' complied with the provisions of sec. 17706, Stats., by filing a copy of its articles of incorporation with the secretary of state and therefore never had been licensed to do business in this state, and whose home office was in Brooklyn, New York, sold in June, 1911, to one Albert E. Schwittay of Marinette, Wisconsin, a certain unitype machine, together with type material, all of which was shipped from New York and delivered at the city of Marinette. It was done under a conditional sale contract properly filed with the city clerk, by the terms of which the title to the unitype machine and the material was to remain in the plaintiff until the entire purchase price of $1,500 should be fully paid. The machine was set up by said Schwittay and used in the printing office conducted by him at Marinette. Schwittay made payments on account of the purchase price upon notes having been made by him for that purpose in sums of $28 per month in reduction of the principal sum and interest. He died January 19, 1913.</p> <p>His widow, Gertrude Schwittay, the defendant and respondent herein, was duly appointed administratrix of the estate of her deceased husband by the county court, and September 1, 1913, was fixed as the last day to file claims. Plaintiff was notified by correspondence with the defendant of such proceedings and as to such time for filing claims but filed no' claim. The printing business conducted by the husband was continued after his death by the defendant both before and after the settlement of the estate and the machine remained in the same place of business and was used during all that time as it had been before.</p> <p>Between August, 1913, and December 13, 1913, negotiations -were had between the plaintiff and defendant with reference to this machine. About December 13th it was agreed by plaintiff’s agent, then at Marinette, and defendant that the plaintiff would reduce the balance still due on the purchase price of $1,153.12 to' $1,000 and would place a new attachment, valued at about $50, upon the machine and would clean the same, and that the defendant would then pay the $1,000 by notes of $20 each, monthly thereafter, and that a new conditional sale contract should be made; and with the further understanding that the unpaid notes of the deceased should be surrendered and the old conditional sale contract canceled. A written proposition tO' this effect, which omitted, however, any reference to the placing of the new attachment, the cleaning of the machine, or the surrender of the old notes and cancellation of the former sales agreement, was signed by Mrs. Schwittay and sent to the home office of the plaintiff for approval, as was required by the terms of this proposal, and was there approved on December 26th. Upon its return to- Marinette plaintiff’s agent caused it to be filed with the city clerk, received Mrs. Schwittay’s notes, released the old agreement, and the unpaid notes of the deceased were surrendered. A number of these new notes were paid by defendant, and then after default was made by her as to seventeen of them this action was brought. The only defense interposed was that the notes were unenforceable by reason of plaintiff’s failure to comply with sec. 1770b, Stats.</p> <p>Both parties having moved for a direction of the verdict, the court made his findings of fact and conclusions of law, by the latter of which he determined that the sale of the machine with its attachment was doing business in the state of Wisconsin in violation of sec. 1770&, Stats., and that therefore the plaintiff’s complaint should be dismissed and the notes signed by the defendant in payment for said machine be held void and returned to her, and judgment was ordered in accordance therewith, from which judgment the plaintiff has appealed.</p>

<p>Appeal from a judgment of the circuit court for Oconto county: W. B. Quinlan, Circuit Judge.</p> <p>A garnishment action was begun in justice’s court against appellant and the Abrams State Bank in aid of an execution on a judgment against A. F. Mart, the husband of appellant. The Abrams State Bank answered, disclosing that it had a deposit of $501.02 in the name of appellant, with authority tO' honor checks thereon signed by A. F. Mart, her husband, who had drawn checks thereon. The appellant failed to answer or appear in the justice’s court and judgment was rendered against her on April 28, 1917v May 11, 1917, she appealed to the circuit court; the record was filed therein May 25, 1917, and the case was properly triable at the next term of that court beginning June 4th. She duly served and filed a motion for leave to’ answer returnable on the first day of the term or as soon thereafter as counsel could be heard. The motion was not called to the attention of the court till June 16th, when the case was called for trial. When the motion came on for a hearing the clerk erroneously announced that no record from the justice had been filed, and the plaintiff’s attorney thereupon moved to* strike the case from the calendar, to which motion the appellant consented. The next term of the circuit court began November 12, 1917, and on December 1, 1917, when the case was called for trial, the appellant again moved for leave to file an answer. The court held that under the provisions of sec. 4 of Circuit Court Rule XXIX it had no' power to grant such a motion at that time and entered a judgment against her for $186.43 and costs as upon a default, from which judgment she appealed.</p>

<p>Appeal from an order of the circuit court for Racine county: E. B. Belden, Circuit Judge.</p> <p>On the 8th day of September, 1916, a petition for the laying out of a highway was duly made to the supervisors of the town of Norway, Racine county. On the 5th day of December, 1916, the town board made out notices in which the 18th day of December, 1916, was fixed as the time when they would meet and decide upon said petition. The town board met pursuant to said notices on the 18th day of December, 1916, at the place therein fixed, at which time they were not satisfied that the notices given had been served as required by law, and adjourned until the 10th day of January, 1917, to ascertain whether notices to all the owners of the land had been duly given in accordance with the statute. They did not give any notice of adjournment. On the 10th day of January, 1917, the town board again met pursuant to said adjournment, at which time they were not satisfied that the notices of the meeting of December 18th had been given and served as required by law. They then decided to get out new notices. New notices were accordingly given fixing the 27th day of January, 1917, as the time when said board would meet and decide upon the petition. On the 27th day of January, 1917, they met at the time and place fixed in the notice and denied the petition. On the 20th day of February, 1917, the petitioners appealed from the order of the town board refusing to lay out the highway, and applied to the county judge of Racine county for the appointment of commissioners to review such order or determination under the provisions of sec. 1276, Stats. Said county judge duly appointed commissioners to review said order and determination of the town board. The commissioners met pursuant to law, reversed the action of the town board, and ordered the highway laid. Thereafter and on the 12th day of April, 1917, the town board met and ássessed the damages of certain owners whose lands were taken by the laying out of said highway. An entry was made in the books of the town clerk setting forth that the said town board met as above mentioned and that such meeting was pursuant to the reversal of their order and determination previously made on January 27, 1917. The town board, however, never made nor filed any formal order with the town clerk and has at all times refused so to 'do. The petitioners thereupon filed a petition in the circuit court for Racine county praying for a peremptory writ of mandamus commanding the town board to open the highway and to do all other things contemplated and provided for by statute in order to insure to petitioners their full rights to the use of such highway. Upon such petition an alternative writ of mandmius issued. The town board made return thereto, setting up, among other things, the facts herein-before recited, contending that by reason thereof they had lost jurisdiction to act in the matter. The petitioners demurred to the return, which demurrer was overruled by the court. This appeal was taken from the order overruling the demurrer.</p>

<p> Parent and child: Right to custody: Child’s welfare paramount: Unfitness of mother: Marriage within year after divorce. </p> <p>1. The paramount right of the father to the custody of his children, recognized by the common law and by the words of our statute (secs. 3964, 3965, Stats.), has become a mere prima facie right. The welfare of the child is now the controlling consideration; and with regard to children of tender years, especially girls, preference will ordinarily be given to the mother, other things being equal and she not being unfit.</p> <p>2. The fact that, within three months after divorce from the father, the mother of a girl of tender years was, in violation of our divorce statute, in form married to another man in another state and thereafter lived with him as his wife in this state, does not conclusively show depravity of heart or moral unfitness to bring up the child.</p> <p>3. Where, in such case, the mother claimed, and there was a probability, that she supposed the second marriage would be lawful, and there was no other suggestion of unfitness, the child should not be taken from her care; especially when it ap-_ peared that with her the child had a good home and was well taken care of, and that the father would probably not be able to give her personal attention but expected to leave her care to grandparents.</p>

<p> Partition of land: Division of proceeds of sale: Rental charge against part owner in possession: Accounting. </p> <p>In a partition suit for the determination of the respective rights of the parties in a farm and to the proceeds of a sale thereof, a finding by the trial court that one part owner was chargeable with $2,000 as rent for one year during which he had possession of the farm is approved, except that the amount is reduced to $1,600 as being the proper rental charge; an allowance is made to said part owner for improvements and for plowing; an account is stated; and the judgment and order of distribution made by the trial court are modified accordingly.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: John J. Gregory, Circuit Judge.</p> <p>This is an action brought in the civil court of Milwaukee county to recover damages resulting from a collision of an automobile, owned by defendants and appellants and driven by appellant W. W. Lange, with a milk wagon belonging to the plaintiff. It was tried by the court without a jury.</p> <p>The evidence shows that between 1 and 2 o’clock in the morning of August 4, 1916, plaintiff’s milk wagon was proceeding in a southwesterly direction on Kinnickinnic avenue in the city of Milwaukee. Somewhere between Homer and Otjen streets on said Kinnickinnic avenue, an automobile, owned by defendants and appellants and then driven by defendant and appellant W. W. Lange, ran into the milk wagon from behind, throwing the milk wagon against the curb, causing the horse to run away, resulting in considerable damage to the wagon and its contents. There is evidence that the night was foggy, but to what extent does not appear. Ordinarily there were street lights at the intersection of Kinnickinnic avenue and Homer street and also at the intersection of Kinnickinnic avenue and Otjen street. At the time of the collision the street lamp at the Homer-street intersection was out, but the one at the Otjen-street intersection was burning. At the time of the accident the milk wagon and automobile were proceeding from Homer street to Otjen street. The automobile was equipped with four lights in front, two sidelights and two strong front lights. At the time of the accident the front lights were out and only the sidelights were turned on. Other material facts will appear in the opinion.</p> <p>Findings of fact and conclusions of law were filed, wherein the defendants were acquitted of negligence and the plaintiff was held guilty of contributory negligence. Judgment was rendered for the defendants and appellants. Upon an appeal to the circuit court for Milwaukee county the judgment of the civil court was reversed and a new trial ordered. The case is here on appeal from that order.</p>

<p> Criminal law: Obtaining money by false pretenses: Confidence game: Gross fraud or cheat. </p> <p>1. One who, knowingly and with intent to defraud, falsely advertises and represents that a certain entertainment and celebration conducted and managed by him is for the benefit of the Red Cross, when it is not; that “the committee” (posters being so signed) is acting for the Red Cross or some part of the public, when it is not; and that he is engaged in the business of securing funds for the Red Cross, when he is not, and who by such means obtains moneys which he would not otherwise obtain, is guilty of the offense of-obtaining money under false pretenses as defined by sec. 4423, Stats. 1917.</p> <p>2. Such acts do not constitute the offense of playing the confidence game mentioned in sec. 4568m, Stats. 1917. That statute seems to contemplate that some visible material token or symbol shall be used or manipulated in such a manner that the confidence of the victim is gained, or in such a manner as to inspire confidence in the victim that he can beat the manipulator at his own game.</p> <p>[3. Whether such acts constitute a gross fraud or cheat at common law, under sec. 4430, Stats. 1917, not considered.]</p>

<p> Vendor and purchaser of land: Assumption of mortgages: When contract and deed cannot he contradicted by parol: Authority of agent. , </p> <p>1. By a written contract, unambiguous and complete in itself, a land company agreed to convey to one C. certain land in consideration of his deeding to it certain other land “subject to mortgages amounting to” a certain sum, and the subsequent - deed from C. to the company recited that it was “subject to the following mortgages,” naming them; but neither in the contract nor the deed did the company assume and agree to pay the mortgages. Held, that the terms upon which the company agreed to part with its land and the terms upon which it was to receive the land of C. were contractual terms, and that parol testimony was not admissible to show that the consideration actually agreed upon included the assumption and payment of the mortgages by the company.</p> <p>2. The provision as to consideration in the contract did not merge in the deed so that, as a mere recital in the deed, it could be contradicted by oral testimony. -</p> <p>3. A finding by the trial court that an agent of the land company, who acted for it under written instructions in the matter of the execution of the conveyances, and who, it was claimed, at that time orally agreed on behalf of the company to assume and pay the mortgages, had no authority to vary the terms of the original written contract, is held to be supported by the evidence.</p> <p>Kerwin and Siebecker, JJ., dissent.</p>

T. Fairchild, Circuit Judge. The case was tried before Judge Oreen T. Williams, then referred tO' him as referee after his term had expired. The referee’s report having been filed, an order approving it was made and judgment entered dismissing the complaint.

<p>■Milwaukee civil court: Costs,, when, not discretionary: Offer of , .judgment: Trial de novo on appeal: Interest.</p> <p>1. Thé- special provision in sec. 14 of the Milwaukee civil court -act jch, 549, Laws 1909, as amended by ch„ 320, Laws 1913), .. relating-to costs in actions governed by the. statutes applicable • justices’ 'courts, is controlling as against the general pro- " vision in sec. 24 that costs are in the discretion of the judge before whom the action is. tried.</p> <p>2. Under sec. 3628, Stats., if the plaintiff does not accept an offer of judgment duly made and fails to recover a more favorable judgment, he cannot recover costs made after the making of such offer., but must pay costs so made to the defendant.'</p> <p>3. The fact, in such a case, that the action is tried de novo in the circuit court on appeal does not affect the defendant’s rights under sec. 3628, Stats.</p> <p>4. In an action upon an open unliquidated account, the amount of which was fairly open to dispute, where the amount for which judgment was recovered had been tendered to plaintiff before the action was commenced plaintiff was not entitled to interest.</p>

<p> Contracts: When parties become bound: Acceptance of order: Waiver of countersignature: Delays in filling order: Waiver: Bailments':' Deposits for safe-keeping: Óffset against debts. </p> <p>1. Parties may become bound by the terms of a written contract eveh though they do not sign it, where their intention to become bound is otherwise indicated.</p> <p>2. In a written order by plaintiff for a motor truck, to be manufactured by defendant company, a provision that in order to constitute a valid contract the order must be countersigned by an officer of defendant was waived, and the acceptance of the order sufficiently shown, by defendant’s retention of a down payment and by the facts that defendant started work on the truck to the knowledge of plaintiff, who himself worked on it as an employee in defendant’s factory, that delay in its completion was the subject of frequent complaint and discussion, and that plaintiff took the truck out on trial trips. Consolidated W. P. Co. v. Nash, 109 Wis. 490, distinguished.</p> <p>3. The defendant in such case, having become bound by the contract, acquired the right to enforce it against the plaintiff.</p> <p>4. Even if time was of the essence of a contract for the building of a truck to be delivered to plaintiff on or about April 1st, that feature was waived by plaintiff serving notices requiring delivery by certain later dates, and by his agreement on May 7th that if delivery was made by May 12th he would be satisfied. He could not rescind such last-mentioned agreement on May 10th.</p> <p>5. In an action to recover moneys which plaintiff had deposited with defendant not as payments oh the truck but for safekeeping only, it being found that the amount thereof was due to defendant on the purchase .price of ’the truck, it was proper for the trial court so to apply it and end the controversy.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: John J. Gregory, Circuit Judge.</p> <p>This is an action to recover damages for injuries alleged to have been received by the plaintiff through the negligence of the defendant.</p> <p>Yellick, a man fifty-six years of age, was a laborer employed on July 14, 1916, by Michael Byrne & Brothers Company, cement contractors. On the date above mentioned the Byrne Company was engaged in laying a cement sidewalk at certain premises on the west side of Sixth street, between Chestnut and Prairie streets, in the city of Milwaukee. A concrete mixer had been placed in the street in front of the premises, and it was part of the plaintiff’s duty to wheel the mixed cement from this machine by means of a wheelbarrow over a temporary board walk and onto the premises, and while performing this duty he at times came close to the west or south-bound track of the street railway company. The plaintiff had taken a position near the mixing machine preparatory to getting a load in his wheelbarrow and was standing between the handles at the time, when the handles of the barrow were struck by a street car. The plaintiff claims that he suffered great injuries from the accident, and alleges that the accident was due to carelessness and negligence on the part of the motorman of the defendant company.</p> <p>It appears that the work at which the plaintiff was engaged had been conducted for two days preceding the accident; that the job was to be completed during the afternoon of the day the accident occurred. William Hein, in charge of the work, stated that the concrete mixer stood two and one-half feet from the street-car tracks; that the car struck the handles of the barrow; that plaintiff was turning and was going to lift the wheelbarrow; that plaintiff was then in the path of the car; that no bell was sounded, and that the car was going at “a pretty good gait; it was about the speed they usually go along the street.”</p> <p>At the close of plaintiff’s testimony the trial judge, on motion of the defendant, awarded a nonsuit and costs against the plaintiff. From this judgment an appeal is taken.</p>

<p>Appeal from a judgment of the circuit court for’ Milwaukee county: E. T. Fairchild, Circuit Judge.</p>

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

<p> Contracts: Oral testimony to contradict writing: Sales: Order for books. </p> <p>In the absence of proof of duress, fraud, mistake, excusable neglect, or other adequate reason, a written contract (in this case an accepted order for books) which speaks plainly, declares itself to be the entire contract, and is complete in itself, which negatives prior or contemporaneous oral agreements, and which says there are no conditions existing not expressed therein and that it is irrevocable, cannot be contradicted by parol testimony that there was a collateral agreement or condition not stated therein, such as, in this case, that the books were ordered subject to approval.</p>

<p> Party walls: Agreement construed: Use in construction of adjoining building. </p> <p>1. In an action involving an agreement under which a party wall had been built by defendant’s predecessor in title and, if it was thereafter used in the construction of a building by plaintiff, the latter is liable for one half of the cost, the evidence is held to show that such wall does not support plaintiff’s building or any part of it; that by reason of its structural character it was incapable of being useful in the construction of plaintiff’s building and was in fact a hindrance and obstruction; and hence that there was no such use thereof as the agreement contemplated.</p> <p>2. The fact that, for the mutual protection of the party wall and the adjoining wall of plaintiff’s building, plaintiff inserted metal flashings near the top of the party wall to cause water falling thereon to be shed upon the roof of plaintiff’s building, did not constitute a use of the party wall within the meaning of the agreement.</p>

Fritz, Circuit Judge. The appellant herein was receiver in this mortgage foreclosure action. Pursuant to- the judgment the premises were sold on December 24, 1917. On January 4, 1918, the receiver paid out of funds then in his hands the city and county taxes for 1914.

<p> Appealable orders: Guardian’s action for money of ward: Courts. </p> <p>1. Neither an order refusing to dismiss an action nor an order of reference is appealable.</p> <p>2. It seems that an action by a general guardian to recover money belonging to his ward may be brought in the circuit court.</p>

Action by the trustee of the P..B. Mann-Anchor Company, a bankrupt Minnesota corporation, against the defendant, a Wisconsin corporation, to recover $3,646.63 on account of the proceeds of grain consigned by the bankrupt tcf the defendant for sale on commission.

Gregory, Circuit Judge. The appeal is from a judgment affirming a judgment of the civil court of Milwaukee county in an action of unlawful detainer, in favor of the plaintiff and against the defendant. Charles Toy, the plaintiff, owns a six-story building located on the east side of Second street, between Grand avenue and Wells street, Milwaukee.

Perrin, Judge. This action was brought to recover the forfeiture provided by sec. 1087 — 56, Stats. The complaint is as follows: “The plaintiff above named complains of the defendant and for cause of action alleges: “1.

C. Backus, Judge. Plaintiff in error was found guilty in the municipal court of Milwaukee county of practicing optometry as defined in sec. 1435/ — 35, Stats., without first having obtained a license authorizing him so to do. He brings writ of error to review the judgment of conviction. The uncontradicted evidence shows that on the 17th day of January, 1917, one Mrs. Helen Bauer, who had broken her glasses, called at his office to have them fixed.

W. Hogan, Judge. This action was brought by the plaintiff to recover damages for injuries alleged to have been suffered by a race horse belonging to him while in shipment from Ottawa, Illinois, to Manitowoc, Wisconsin.

J. Monahan, Judge. The plaintiff, a man about forty years of age, had been for many years a section hand for defendant and claimed .to have been, injured July 28, 1916, by jumping to the ground from the doorway of a box car in which he had been working unloading ties. His work required him and the others to frequently get in and out of such cars. He being five inches shorter than the average man, frequently received assistance by way of boosting in getting into such cars.

T. Fairchild, Circuit Judge. This is an action by the widow of one Cyprian Glatz to recover damages for the death of her husband resulting from a collision between an automobile truck operated by the defendant and a motorcycle on which the deceased was riding at about 12:30 p. m. February 9, 1917, at the intersection of Nineteenth and Galena streets in the city of Milwaukee. Galena street runs east and west and Nineteenth street north and south.

Halsey, Circuit Judge. Demurrer. The complaint alleges that the plaintiff is a taxpayer in the city of Milwaukee, a municipal corporation, city of the first class; that Peter F. Leuch is the city clerk; sets out the provisions of sec. 1, ch. 50, Laws 1903, which authorizes the common council of any city of the first class to publish its proceedings, requires that advertisements inviting bids shall be published, how and when the bids shall be opened, requires the clerk to…

Prior to January, 1911, the plaintiffs, copartners and attorneys at law in Chicago, Illinois, principally engaged in patent litigation, had been employed by defendant Maurice H. Glauber and his brother, Joseph H. Glauber, now deceased, the two being then and thereafter copartners under the firm name of Glauber Brass Manufacturing Company, at Cleveland, Ohio, to conduct litigation against a firm in Illinois which it was claimed was infringing on the rights secured by letters…