Volume 169 — Wisconsin Reports

Fritz, Circuit Judge. This action was commenced in the civil court of Milwaukee county. At the conclusion of the trial a verdict was directed in favor of defendant on the ground that plaintiff was guilty of contributory negligence as a matter of law. Plaintiff appealed to the circuit court for Milwaukee county, where the judgment was affirmed. From the judgment of affirmance plaintiff appeals.

Walter Schinz, Circuit Judge. The appeal is from an order reversing a judgment of the civil court in plaintiff’s favor and dismissing the action. The action was brought by the plaintiff to recover damages she sustained through the injuries suffered by her minor son while in the employ of the defendant. The defendant operates a box factory in the city of Milwaukee.

B. Quinlan, Judge. Action begun in the civil court of Milwaukee county to recover damages for personal injuries sustained while plaintiff was a passenger on one of defendant’s cars. He boarded the car at about 6 o’clock in the afternoon on or about April 14, 1915, in company with two of his fellow workmen, and told the conductor that he wanted to get off at Lincoln avenue.

The plaintiff owned a lot twenty by ninety feet facing west on Edison avenue in the city of Milwaukee upon which was a three-story-and-basement brick building twenty by eighty-six feet, the north wall of which was just on the line between plaintiff’s lot and one belonging to former defendant Jacob Wellauer. Prior to 1890 a two-story brick'barn twenty by twenty-five feet stood there on a foundation eight to ten feet high of rubble stone about twenty-two inches thick.

Appeals from a judgment of the circuit court for Milwaukee county; Martin L. Lueck, Judge. This is an independent action in equity commenced by the plaintiff August 20, 1915, in the circuit court for Milwaukee county, for the purpose of vacating an order affirming'a foreclosure salé'of corporate stock under date of February 16, 1^10. From a judgment vacating and setting aside an orcL > i,i. confirmation and ordering a resale of the stock the defendants appealed.

<p> Evidence: Privileged communication to physician: Contempt of court. </p> <p>The privilege granted by sec. 4075/ Stats. — providing that no physician shall be permitted to disclose information acquired in attending a patient and which was necessary'to enable him to prescribe, — is the privilege of the patient, not of the physician. The refusal of a physician, therefore, to disclose such information upon his adverse examination under sec. 4096, Stats., in an action against him for malpractice, after the patient had expressly waived said privilege and he had been ' ordered by the court to answer, was a contempt of court.</p>

T. Fairchild, Circuit Judge. This is an action by Bertha Will, as administratrix of the estate of Herman Will, to recover from the Milwaukee Electric Railway & Light Company and Fred Beguhl damages for the death of Herman Will, her husband. The death of Will, it is claimed, resulted from injuries inflicted by Fred Beguhl, a motorman for defendant corporation.

<p>Appeal from a judgment of the circuit court for Milwaukee county.: W. J. Turner, Circuit Judge.</p> <p>Action to recover damages for alleged unlawful expulsion from the defendant '.order. The plaintiff Patrick Callahan joined his wife, Emma, as a party because she was a beneficiary in a benefit certificate issued to him by the order. Hereafter he will be referred to as the plaintiff. The defendant is a voluntary unincorporated fraternal order organized under the laws of Iowa, whose members are railway conductors of the United States and Canada. It has a constitution and set of laws denominated statutes under which it is governed. It has a president and board of directors, general committees, and a grand division composed of certain officers and delegates from local divisions that meets triennially at a place designated by it. The powers of the grand division as defined by the constitution are: “First, legislative; second, executive; third, judicial. All general powers, legislative, judicial, and executive, not expressly, delegated to subordinate divisions, and all powers necessary to enforce or carry into effect this constitution or any laws hereafter enacted, repose in the grand division.” The constitution also provides that the president “shall interpret all laws of the order, subject to appeal to the next session of the grand division.” Sec. 32 of the statutes provides that:</p> <p>“The proceedings and evidence in any trial shall, upon the request of any member, be submitted to the president for review, and he shall have the power to set aside and annul any trial, and remand it for a new trial, to either the division having original jurisdiction, or to any one of the three divisions nearest the one having original jurisdiction.</p> <p>“Request for review of trial must be made within three months from date of trial, and proceedings and evidence must be submitted to the president within six months of date of trial. If the trial result in a verdict of expulsion and the decision of the division is affirmed by the president, the records reviewed by the president, and his decision, shall be submitted to the board of directors at their first meeting thereafter, and the decision of the board of directors shall be final in the case.”</p> <p>Sec. 33 provides that:</p> <p>“Any member shall have the right to appeal to the president from the decision of any division and, except as provided in sec. 32 of the statutes, from the decision of the president to the grand division, provided such appeal is taken before the close of the fiscal year following that in which the decision appealed from was made.”</p> <p>Sec. 43 provides that:</p> <p>“Any- member, including complainant, who by verbal or written communication to the railroad officials or others interferes with a grievance that is in the hands of a committee, shall be expelled when proven guilty.”</p> <p>In April, 1914, charges were preferred by one O’Malley against plaintiff to the effect that he with others sent a written communication to Mr. -Dailey, superintendent of the Wisconsin division of the Chicago & Northwestern Railway Company, interfering with a matter involving the seniority rights of three conductors of said road which Dailey then had for adjustment with the general committee. Plaintiff was a member bf division 46 at Milwaukee and was tried before said division and acquitted. O’Malley appealed to the president, and the verdict of acquittal was-set aside and the case sent to division 293 at Chicago, which division also acquitted him. O’Malley again appealed to the president, and he again set aside the verdict of the division and sent the case to division 41 at Blue Island for trial. Plaintiff objected to the jurisdiction of this division for reasons stated in the opinion, but his objections were overruled and he was tried and convicted. He appealed to the president and his conviction was affirmed. The case then went to the board of directors, and upon its affirmance of the conviction he was expelled and his benefit certificate canceled. To review the validity of the proceedings of the order expelling him plaintiff instituted this action. The trial court entered judgment dismissing the complaint upon the merits, and plaintiff appealed.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: John J. Gregory, Circuit Judge,</p> <p>The appeal is from an order setting aside the service of the summons upon defendants Emily Griswold, Ellen Griswold, and Morris Tucker, service having been secured pursuant to an order of publication.</p> <p>It appears from the complaint that on the 31st day of' June, 1894, one Joseph L. Griswold by a deed of trust conveyed to Henry D. Laughlin and Charles W. Baker, trustees, certain securities consisting of first-mortgage bonds aggregating $40,000, to hold in trust for and during the remainder of the natural life of Emily A. Griswold, the interest and income therefrom to be devoted in the manner therein provided to the maintenance and support of' said Emily A. Gris-wold. The trustees were directed to keep said bonds at all times in the vault of some safe-deposit company, to be designated by the trustees; the coupons were to be clipped from said-bonds and deposited with the defendant Central Safe Deposit & Trust Company, of Cincinnati, for collection, and when collected said Trust Company is required by the terms of the deed of trust to pay $200 per month to Emily Gris-wold so long as she shall live. Said trust deed contains a provision that “The box in which said securities are kept is to be opened only in the presence of both trustees, or by one of them in the presence of said Joseph L. Griswold, but an actual inspection of the trust securities at least once a year is enjoined;” also that “In the event of the death of Henry D. Laughlin prior to that of said Emily A. Griswold, then said Joseph L. Griswold shall, by an instrument in writing under his hand and seal, and acknowledged before a notary public, appoint his successor in this trust, and the person so appointed shall thereupon succeed to all the rights and obligations, in respect of this trust, granted or imposed by this instrument on said Laughlin. In the event of the prior death of said Baker, said Emily A. Griswold may nominate his successor, and if acceptable to said Joseph L. Griswold he shall be appointed by the joint instrument of both, executed in the manner above described; otherwise his successor shall not be appointed, but the trust thenceforth administered by the surviving trustee, or his successor.” No other provision is made for the appointment of successors to the trustees.'</p> <p>It is further provided that all moneys on hand and still unexpended proceeds of coupons collected as well as the original bonds (except five certain bonds of the value of $5,000 which said Emily A. Griswold was empowered to dispose of by her last will and testament) were to be returned to Joseph L. Griswold upon the death of said Emily A. Gris-wold, and that the trustees may dispose of certain of the bonds and reinvest the proceeds in other securities under certain conditions.</p> <p>On the 25th day of September, 1911, by an appropriate instrument, said Joseph L. Griswold conveyed to his daughter, ■ Ellen Griszvold, all his right, title, and interest in and to said securities, and directed that his trustees turn over said securities to said Ellen Griswold upon the death of Emily A. Gris-wold. Joseph L. Griswold died May 3, 1915; Charles W. Baker, one of the trustees, died April 14, 1917, and thereupon defendant Ellen Griswold assumed to appoint Morris Tucker as successor to Charles W. Baker.</p> <p>At the time of the commencement of this action said securities were deposited in a box in the vault of the Wells Building Company, of Milwaukee. The complaint alleges that the said Wells Building Company refuses to allow plaintiff access to said deposit box and to the securities deposited therein, which access is necessary to the plaintiff to enable him to inspect the trust securities as by said trust deed required, and clip the interest coupons therefrom as they become due and payable, and otherwise perform the duties of said trust; that Morris Tucker claims the right to act as co-trustee with plaintiff under said deed of trust and claims the right of joint possession of said bonds and securities, which claim the plaintiff refuses to recognize. It is also alleged .that the defendant John M. Wood and Ellen Griswold are the executors of the will of Joseph L. Griswold, deceased, and as such executors claim the right to said securities.</p> <p>The complaint demands judgment that the plaintiff be adjudged and decreed to be the sole trustee of said trust and to have the sole possession of the securities belonging to said trust fund; that the defendant Wells Building Company be required to admit plaintiff to its vault and to have access to said securities, and that defendants Morris Tucker, John M. Wood, and Ellen Griswold be enjoined and restrained from interfering or attempting to interfere with the bonds and securities now deposited in the safe-deposit box in the vault of the defendant Wells Building Company, or interfering with plaintiff’s right of possession thereto as trustee under said deed of trust; that the rights and interest of all parties to this action to said trust fund and income therefrom, and the bonds and securities comprising the same, be ascertained and determined by the court, and that plaintiff as such trustee have the judgment and direction of the court as to execution of said trust and the final disposition of said trust fund. Service was made on all defendants except Wells Building Company pursuant to an order pf publication. Respondents appeared specially and moved to set aside the service of the summons as to them, resulting in an order setting the service aside and dismissing the action as to them, from which order plaintiff appealed.</p>

J. Turner, Circuit Judge. The appeal is from a judgment of the circuit court affirming an order of the county court allowing a claim against the estate of Frederick C. Gillen, deceased. The facts are simple. Frederick C. Gillen in March and April, 1915, executed and delivered to the claimant certain notes aggregating over $3,800.

J. Turner, Circuit Judge. On March 29, 1917, in an action, in the civil court involving, apparently, more than $200 in both complaint and counterclaim, a verdict was found in defendant’s favor upon his counterclaim, for $64.06 damages. On May 28th judgment on the verdict in favor of defendant was ordered, and on June 19th the judge signed an order for such judgment and apparently judgment was then entered.

.Gregory, Circuit Judge. This action was brought in the civil court of Milwaukee county by the plaintiff as administratrix of the estate of Frank Kuehnl against the Milwaukee Typographical Union No. 23 to recover a death benefit of $300. Plaintiff recovered in the civil court, defendant appealed to the circuit court, where the judgment was affirmed, and from the judgment of the circuit court defendant brings this appeal.

W. Burnell, Circuit Judge. Action upon a promissory note executed by the defendants to the order of the Lyon-Taylor Company. The defense was that the note was obtained by fraud and was void because given as a part of a gambling transaction. The action was tried by the court without a jury and the trial court found against the defendants as to both defenses.

N. J. Monahan, Judge. The writ was obtained to secure a new trial for Hugh McVey under the provisions of sec. 4719, Stats., after judgment and motion made within a year after the trial of the case. McVey was arrested November 24, 1916, charged with assault with intent to murder. He was given a preliminary hearing and bound over for trial. No plea of insanity of McVey was regularly interposed in the trial court.

C. Backus, Judge. The plaintiffs in error, hereinafter called the defendants, Peter Bianchi, Vincent Fratesi, Amedeo Lilli, Adolph Fra-tesij Louis Serafini, Angelo Pantaleoni, Gavina Denurra, Daniel Belucci, Pasquale Nardini, Mary Nardini, and Bar-tolo Testolin, were each charged with and convicted of the crime of an assault, being armed with a loaded revolver, with intent to murder, and each was sentenced for a term of twenty-five years in state prison.

Action to recover upon open book accpunt. The plaintiff, which is the owner of the sole and exclusive right for the sale of Blaugas plants and systems in Richland county, Wisconsin, with other territory, on the 29th day of October, 1915, entered into a written contract with defendants by which it granted to defendants the exclusive right to take orders for sale of Blaugas cooking and lighting systems, together with all necessary equipment, fixtures, stoves, etc., in certain…

C. Higbee, Circuit Judge. Action to recover freight and storage charges on 314 bales of nursery moss shipped over plaintiff’s line by the defendant. The action was tried by the court without a jury, and the material facts were not seriously in dispute. In the fall of 1909 the defendant inquired of the plaintiff’s agent at Sparta the freight rate on a carload of nursery moss from Mather to Cape Town, South Africa, and was given a through rate.

J. Monahan, Judge. Personal injury. The defendant company is a Wisconsin corporation, having its principal place of business at Green Bay. Joseph Boncher was a resident of Wisconsin, an employee of the defendant company. The business of the company, a dealer in scrap iron and steel, was carried on almost entirely within the state of Wisconsin. N early all of Bon-cher’s services had been rendered within the state.

: Oscar M. Fritz, Circuit Judge. This action was commenced by the plaintiff against the defendants Stephen H. Eller and William Froedtert upon an agreement in writing, a copy of which is set out in the findings of fact. After the commencement of the action William Froedtert died, and the action was revived against his executors. The complaint contains three causes of action.

Ray Stevens, Circuit Judge. Plaintiff was injured August 30, 1916, at Superior, while working for the Lake Superior Terminal & Transfer Rail-zvay Company, hereinafter referred to as the Raihvay Company. At the time of the accident he was engaged in switching a string of empty box cars from the yards of the Northern Pacific Railway Company to the C. Reiss Coal Company’s dock in the city of Superior.

. This action was brought to recover damages sustained by plaintiff on April 6, 1916, while riding on one of defendant’s interurban cars, which collided with another car at Thiens-ville, Wisconsin. Plaintiff recovered and defendant appealed.

T. Fairchild, Circuit Judge. This is an action for damages growing out of false representations alleged to have been made by the defendants to the plaintiff, which induced him to invest $8,300 in the Racine Underwear Mills. The plaintiff was bom in Austria, came to this country about thirty-two years ago, and for the last twenty-five years has been in the restaurant, saloon, and hotel business, principally in the city of Milwaukee, in which business he accumulated some money.

The appeal is from a judgment dismissing plaintiff’s complaint. The plaintiff seeks to recover damages as a result of having been forcibly prevented from entering one of defendant’s cars by the conductor in charge. On May 18, 1916, the plaintiff attempted to become a passenger, being ready to pay his fare, on one of the cars used by defendant in interurban traffic between Kenosha and Racine to and into the city of Milwaukee.

This is an action brought to recover damages for personal injuries resulting from an automobile accident. On October 12, 1916, plaintiff procured a load of kindling wood to be delivered in front of his house in the city of Milwaukee. The wagon in which the wood was delivered backed up to the curb in front of plaintiff’s house and the wood was dumped out of the rear end.

Werner, Circuit Judge. Action to recover damages for personal injuries sustained in a collision between two of defendant’s cars. Plaintiff, a young girl twenty-one years of age, claimed that by reason of the shock and fright suffered in the collision her nervous system has been permanently injured, and there is medical testimony to sustain her claim.

Fritz, Circuit Judge. Mandamus to compel defendant to extend its lines of railway upon certain streets in the city of Milwaukee. The plaintiff seeks to compel the extension of a double-track street railway upon Mitchell street in the city of Milwaukee from 4116 intersection of Mitchell street with Forest Home avenue over the route indicated in the map on page 185 to the intersection of Burnham street with Twenty-sixth avenue.

<p>Federal control of telegraphs and telephones: Congressional resolution: “Possession:” “Control:” “Operation:” “Police regulation:” Suits' against United States officers and agents: Use of property: Torts: Personal liability: Injunction: Suits against United States: Consent: Constitutional law: Police power. ■</p> <p>1. The term “police power,” in its limited sense, includes simply regulations for the protection of the lives, health, and property of citizens and the promotion of good order and good morals.</p> <p>2. A Congressional resolution authorizing the President “to supervise or to take possession and assume control of” and “operate” any telegraph or telephone system for the duration of the war, and providing that the resolution should not be construed to affect the police regulations of the state, is held to authorize the fixing of intrastate rates, the words “possession,” “control,” and “operation” importing absolute power oyer the subject without interference, and “police regu- . lations” referring merely to regulations to insure the lives, health, and welfare of the public and the employees.</p> <p>3. Where the United States by its officers is rightfully in possession of property and is using it in governmental operations, such use is not to be interfered with by injunctions or other writs issued out of state courts in actions brought against such officers.</p> <p>4. The sovereign cannot be sued except with its own consent and in courts of its own choice.</p> <p>5. United States officers or agents may be held personally liable in actions of toft to private persons whose rights of person or property have been wrongfully invaded or injured while acting under the authority of the United States.</p> <p>6. United States officers or agents may be enjoined from carrying out a threat to wrongfully invade or injure rights of property of private persons while acting under the authority of the United States.</p> <p>Eschweiler and Owen, JJ., dissent.</p>

<p> Drains: Delinquent assessments: Statutes construed: Penalties belong to district: Remedies: Mandamus to county treasurer: Claim against county: Limitation of actions: Waiver: Delay in mandamus action. </p> <p>1. Under sub. 5, sec. 1379 — 25, Stats., the provisions of secs. 1090, 1112, and 1129 relating to penalties in the case of delinquent general taxes apply to the collection of drainage assessments.</p> <p>2. The word “principal” in sub. (b) and sub. (c) of sec. 1379 — 25a, Stats., relating to drainage district accounts, includes, in addition to the amounts of the delinquent drainage assessments, the penalties of two and twelve per cent., above referred to, imposed by secs. 1090, 1112, and 1129; the word “face” in sub. (d) of sec. 1379 — 25a has the samé meaning; and the word “interest” in said sub. (d) means the interest on the certificates from the date of the sale to the county up to the date of the deed.</p> <p>3. The penalties so added by law to delinquent drainage assessments belong to the drainage district, and not to the county. The county, in all its transactions relating to the collection of such assessments, acts.in a trust capacity only for the benefit of the drainage district.</p> <p>4. Where the county treasurer has collected the penalties upon delinquent drainage assessments and still has the moneys in his possession, the proper remedy is by mandamus to compel him to turn such moneys over to their owner, the drainage district. Under such circumstances the district has no remedy against the county itself, and disallowance of a claim filed against the county for the moneys in the treasurer’s hands is of no consequence.</p> <p>5. Whether the statute of limitations applies to actions of mandamus is not decided. It seems that long and unreasonable delay in commencing the action will be ground for refusing relief, especially where such delay has been prejudicial to respondent’s rights; but whether there has been such delay must depend on the facts of the particular case.</p> <p>6. The objection that an action is barred by the statute of limitations is waived if not taken by demurrer or answer.</p>

<p>Appeal from a judgment of the circuit court for Portage county: Byron B. Park, Circuit Judge.</p> <p>This action was brought to recover for personal injuries sustained by plaintiff on October 21, 1916, while traveling on a public highway in defendant town.</p> <p>The complaint alleged a defective highway on account of stumps and roots of trees in the traveled track such as to render the highway defective. Defendant denied liability. The court answered the first and second questions of the special verdict “Yes,” which found that plaintiff was injured and that the highway was insufficient for public travel.</p> <p>The other questions in the special verdict the jury found as follows: (3) insufficient condition of the highway was the proximate cause of the injury; (4) that the officers of defendant town did not employ plaintiff to blast stumps out of the highway at the point in question; (5) that plaintiff’s hired man did not plow up the traveled track which extended north and south directly east of the place where the plaintiff was injured and within the three-rod limit of the highway; (6) that there was no want of ordinary care on the part of the plaintiff which proximately contributed to his injury; (7) that the damage sustained was $5,000.</p> <p>A motion for a nonsuit and several other motions were made by defendant and overruled and judgment entered for plaintiff on the verdict, from which this appeal was taken.</p>

<p>Appeal from a judgment of the circuit court for Pierce county: George Thompson, Circuit Judge.</p> <p>One John Joseph Jansa, for many years a resident of Pierce county, for about fifteen years prior to his death had .been subject to epileptic convulsions. On May 15, 1913, he was adjudged insane and committed to a hospital. On December 14, 1915, he was declared sane and his guardian discharged. In September, 1916, he went to Minneapolis, and while there met the respondent, á widow twenty-five years of age. About three weeks thereafter he applied for a license to marry the respondent in Wisconsin. On October 3, 1916, he obtained a second license, and was married to the respondent in Minnesota on October 9, 1916. The appellants are sisters of the deceased Jansa. The estate of Jansa was administered and assigned to the respondent as the widow. An appeal was taken to the circuit court, which held the marriage valid and affirmed the judgment of the county court. From that judgment plaintiffs appeal.</p>

<p>Appeal from a judgment of the circuit court for Outa-gamie county: Edgar V. Werner, Circuit Judge.</p> <p>On February 19, 1915,.one Mrs. Henrietta Pioch,’then seventy-four years of age or more, was dangerously ill with pneumonia in the city of Seymour. At the express request of Dr. Finkle, chairman of the committee on poor of the common council of said city, and with the knowledge and consent of other members of that committee, the plaintiff was hired to care for and nurse Mrs. Pioch, and provide board and room, in plaintiff’s own house. The plaintiff did so nurse and care for Mrs. Pioch from that time until April 19, 1915.</p> <p>At the time of this employment Mrs. Pioch had no immediate family of her own and no property, means of support, or resources other than a claim against her nephew, Herman Eich. This claim was based upon the situation arising between Mrs. Pioch and the nephew by reason of the conveyance, ten or twelve years prior to that time, by her to him of real estate then owned by her, with an agreement by-him that he was to provide and care for her during the balance of her life. Subsequent to such conveyance there had been a bond given, apparently as additional security by the nephew to Mrs. Pioch, with a penalty of $500 expressed therein, conditioned upon his complying with the agreement aforesaid upon which the conveyance had been made. Mrs. Pioch had left her nephew for a long time prior to February, 1915, and had received no support from him in any manner for quite a time. The plaintiff’s attorney herein, E. C. Smith, had, shortly before February 29th; been substituted as Mrs. Pioch’s attorney in that other lawsuit, and negotiations were then pending for a settlement of the same.</p> <p>It was settled in June, 1915, by the payment by the nephew to Mr. Smith, as such attorney, of the sum of $825, and a release was then given by Mrs. Pioch to the nephew of all claims on her part against him. A part of the $82 5 thus received was used by Mr. Smith in paying certain claims against Mrs. Pioch, some of which were outstanding at the time of the employment of the plaintiff in February, 1915. Among such bills so paid was one to Dr. Holtz of about $36 for medical attendance during this particular illness, and another of about $160 to a Mrs. Rohloff, with whom Mrs. Pioch had been living after leaving her nephew’s home and prior to going to the home of the plaintiff. On April 16th Dr. Finkle with several other members of the committee on poor of the common council, together with one Carl Eich, brother of Mrs. Pioch and father of Herman Eich, came to plaintiff’s home and with money furnished to Dr. Finkle by Herman Eich offered to pay the plaintiff the amount of her bill. There is some dispute as to what was said at the time, but it appears that the money was not received by Mrs. Elkey then, and there is testimony tending to show' that she then stated she would not look to the city for the compensation for her services but instead would look to Mr. Smith, the then attorney for Mrs. Pioch. The money to pay plaintiff’s claim was not actually tendered at the time nor was it subsequently paid into court or held for plaintiff’s use in any manner.</p> <p>Plaintiff filed a claim for such services to the amount of $72.75. with the common council. She appealed from what she claimed was a disallowance of the claim to the circuit court, and the issues that appeared to be raised between the parties on such trial are sufficiently indicated from the special verdict which was submitted to the jury and which was in substance, as answered, as follows:</p> <p>“(1) Was Henrietta Pioch, on or about the 19th of February, 1915, in need of relief as a poor person and without money or property to pay her support and maintenance and medical aid? A. No.”</p> <p>(2) Plaintiff did nurse, board and lodge Mrs. Pioch between February 19th and April 19th.</p> <p>(3) The plaintiff was so employed by the committee on poor of the defendant city.</p> <p>(4)' The services rendered and the board and lodging furnished by plaintiff were reasonably worth $72.75.</p> <p>(5) The committee on poor offered to pay the plaintiff’s claim on April 16th at the time her brother came to take Mrs. Pioch away from plaintiff’s residence.</p> <p>(6) The committee at that time had the money or means ready to pay the claim of the plaintiff.</p> <p>(7) Between February 19 and April 19, 1915, Mrs. Pioch owned a mortgage securing a bond for her support on real estate given by her nephew and then in full force and effect.</p> <p>(8) The plaintiff on April 16th refused to accept any pay from the defendant city and informed the committee that she would not look to the defendant city but would look to Smith, Mrs. Pioch’s attorney, for her pay.</p> <p>(9) There was an agreement or understanding between Smith and the plaintiff that the said Smith would collect any claim the plaintiff may have agajpst the defendant for the nursing, board, and lodging of Mrs. Pioch from Herman Eich out of any funds received in the action then pending between those two.</p> <p>(10) It was a part of the consideration of the settlement between Mrs. Pioch and Herman Eich that the claim of the plaintiff was to be paid out of the $825 paid on such settlement by Herman Eich.</p> <p>■The plaintiff moved to change the answers,returned by the jury to questions (1), (5), (8), (9), and (10) and to strike out the answer to the sixth question, and for judgment or for a new trial.</p> <p>The plaintiff’s motions were severally denied and the defendant’s motion for judgment upon the verdict was granted, and thereupon judgment was entered dismissing the plaintiff’s complaint with costs. From such judgment plaintiff has appealed.</p>

W. Hogan, Judge. This is an action of mandamus brought in the municipal court of Langlade county to compel the Board of Education of the City of Antigo to reinstate and admit petitioner’s son to the public schools of said city. From a judgment in favor of the petitioner the defendant Board of Education appealed. Merritt Beattie, thirteen years of age on March 27, 1918, son of petitioner, has been a resident of the city of Antigo since he was two years of age.

<p> Appeals from justices’ courts in Outagamie county: To what court taken: Jurisdiction: Waiver of objections: “Subject matter:” Trial de novo: Defective appeal: Supplying affidavit inadvertently omitted. </p> <p>1. An action in a justice’s court of Outagamie county wherein judgment was rendered for the defendant for costs only was not an action “where the amount of damages or value of property recovered, exclusive of costs, [did] not exceed fifty dollars,” within the meaning of sec. 39, ch. 23, Laws 1907, which limits appeals in such actions to the municipal court of the county. The class of actions so described was intended to be confined to cases in which some damages or property is recovered.</p> <p>2. Appellate jurisdiction in certain cases appealed from the justices’ courts in a county may be vested in the municipal court of the county, to the exclusion of the circuit court.</p> <p>3. Where, under sec. 39, ch. 23, Laws 1907, an appeal from a justice’s judgment was authorized either to the circuit court or to the municipal court of Outagamie county at the election of the defendant (the successful party), and plaintiff appealed to the circuit court and return was duly made to that court, the defendant, under sec. 2836a, Stats., waived all objections to the jurisdiction of that court over person or subject matter by appearing therein and procuring a continuance before objecting to its jurisdiction. The words “subject matter” in said sec. 2836a are used in the narrow sense as meaning the subject matter of that particular lawsuit.</p> <p>4. Where, in such case, the plaintiff so appealing desired a trial de novo, but inadvertently omitted at the time to file an affidavit, under sub. (2), sec. 3768, Stats., that he had a valid claim exceeding $15, the appeal was defective within the meaning of sec. 2836a, Stats., and the circuit court thereafter properly allowed such affidavit to be filed.</p>

judgment of the circuit court for Outar gamie county: Edgar V. Werner, Circuit Judge. This action was brought by the plaintiffs to enjoin trespass by defendants on plaintiffs’ lands. Robert and Ida Behrend and Fred Buchmann were owners of adjoining lots in the village of Hortonville, Wisconsin, on November 12, 1914.

W. Hogan, Judge. The appeal is from a judgment in favor of plaintiffs entered in a consolidation of several actions upon several insurance policies in the municipal court of Langlade county. On October 4, 1917, a fire destroyed a quantity of lumber on the premises of and near the sawmill of the firm of Ment-ing & Hickey at Pence Lake, Langlade county, Wisconsin.

Appeals from a judgment of the municipal court of Langlade county: T. W. Hogan, Judge. Action to recover damages for breach of a contract to deliver certain tan-bark sold to plaintiff. June 25, 1915, defendant wrote plaintiff at Buffalo, New York, as follows: “Your card of the 23d received. I am peeling about a thousand cords of bark this year; have now between 600 and 700 cords peeled from the tree.

Ross, Circuit Judge. This action was brought by Louisa Williams, as adminis-tratrix of the estate of Louis Williams; to recover damages for the death of Louis Williams through alleged negligence of the Duluth Street Railway Company. On and prior to March 13, 1917, Louis Williams, a resident of the city of Superior, was employed at a shipbuilding, plant located on Rice’s Point in the city of Duluth, Minnesota.

<p> Vendor •and purchaser: Making of contract: Meeting of minds: Option: Ratification of new terms: Rejection of contract: Trial: Recital of evidence in findings of fact. </p> <p>1. Findings of fact should not be a recital of the evidence or a history of the litigation, but should cover only the ultimate issues raised.</p> <p>2. The minds of the parties to a contract must meet upon the essential contents thereof.</p> <p>3. Where the purchaser of land wired acceptance of an offer by the vendor’s agent of an option for a certain period at a certain price, hut sent a written contract providing that the amount paid for the option be deducted from the purchase price and warranting the agent’s authority to give the option— terms which the vendor’s agent had not agreed to, — there was no contract, the minds of the parties not having met upon essential terms.</p> <p>4. The vendor’s agent, by notifying another agent having the property listed that he had granted the option, did not assent to new terms, where he had not received the contract stating such terms when notice was given.</p> <p>5. The vendor’s failure to notify the purchaser of the rejection of the contract because it contained terms not agreed to, was no ratification of the contract, where the bank to which it was sent was told of the refusal to sign and of the nonacceptance of the contract.</p> <p>6. The vendor’s agent did not ratify the option sent by the purchaser for signature but containing terms to which the agent had not agreed, by writing another agent having the land listed that the deal was apparently going through or by writing the purchaser’s agent that he was getting the option “altered a little bit,” for at such time the vendor’s agent, in view of the purchaser’s telegram accepting his offer, thought the vendor would consent to eliminating objections so as to make the contract correspond with his offer.</p>

Ross, Circuit Judge. Demurrer. It appears from the complaint that on March 24, 1916, the defendant issued to the plaintiff's intestate a certain policy of insurance upon the life of said intestate in the sum of $10,000. The. following provisions were contained in the application, which formed a part of the policy: “Military or naval service or work in connection with zvar-fare.

<p>Appeal from a judgment of the circuit court for Wauke-sha county: Martin L. Lueck, Circuit Judge.</p> <p>This action was brought by the plaintiff to recover the sum of $3,239.97 on account of steel castings alleged to have been made, sold, and delivered to the defendant under a contract. The defendant counterclaimed for $8,150 damages on account of alleged defective castings and delay in delivery.</p> <p>On March 24, 1915, the plaintiff and defendant entered into a contract whereby the plaintiff agreed to furnish steel castings to the defendant for a certain railroad bridge known as the V., S. & P. bridge at Shreveport, Louisiana. This bridge was to be built for the Vicksburg, Shreveport & Pacific Railway Company by the Blodgett Construction Company of Kansas City, and the defendant company was under contract with the Blodgett Company for certain portions of the work. The castings were to be furnished by the plaintiff to the defendant, which in turn bought them to use in filling its contract with the Blodgett Company.</p> <p>The plaintiff claims that the castings were made and delivered, and that, allowing the defendant credit on the account in the sum of $2,925.05 because of castings returned and credited at the same rate as purchased, there is now owing to the plaintiff from the defendant the sum of $3,239.97 and interest thereon at the rate of six per cent, per annum from and after the 31st day of August, 1915.</p> <p>■ The defendant alleges that the plaintiff, failed to deliver the castings within the time specified in the contract; that from time to time the plaintiff sent castings which failed to pass the inspection of R. W. Hunt & Co., as provided by the contract, and that on September 1, 1915, the defendant ordered the plaintiff to return the patterns for the castings and placed the order for them with another company; that due to the inability of the plaintiff to make the castings and the delay in the deliveries the defendant was prevented from carrying out the terms of its contract with the Blodgett Company, and was obliged to pay the Blodgett Company heavy damages for such delay and to pay an increased cost for the castings to the second company contracted with and to spend large sums for machining the defective Hastings furnished by the plaintiff. •</p> <p>The case was tried before the court without a jury.</p> <p>The court found, among other things, that the contract between plaintiff and defendant provided that the castings must pass the inspection of R. W. Hunt & Co. and must be shipped complete forty days after receipt of drawings, all defective castings to be replaced without charge; that prior to the execution of the contract between plaintiff and defendant, defendant had entered into a contract with the Blodgett Construction Company of Kansas City for the fabrication and superstructure of the swing-span bridge, which fact was well known to the plaintiff, by the terms of which contract defendant was to deliver all the steel and machinery necessary for the bridge on or before August 15, 1915; that the detailed drawings were sent to the plaintiff company on May 13, 1915 ; that plaintiff failed to furnish the castings required within the time specified by the contract; that seventy per cent, of the castings furnished by the plaintiff for inspection were rejected as defective when ten per cent, should have been the maximum rejections; that defendant company was delayed in the construction of the bridge to such an extent that on or about September 1st it removed its patterns from the possession of the plaintiff and entered into a new contract with the Falk Company of Milwaukee for the furnishing of the steel castings still remaining unfinished at that date; that the'defendant company was justified in canceling its contract with the plaintiff and placing it elsewhere; that through the fault of the plaintiff defendant was' forced to pay the Blod-gett Company $2,000 damages; that because of the delay defendant company was deprived of the use o'f $41,872 for seven months, which sum Represents the amount which should have been paid them by the Blodgett Company on September 15, 1915, but which was not paid until April 15, 1916; that defendant company also suffered from the increased cost of the castings furnished by the Falk Company when defendant canceled the contract with the plaintiff and from the cost of machining defective castings.</p> <p>In awarding damages the court found that the claim of the plaintiff company against the defendant for castings furnished under the contract' hereinbefore set forth and for castings furnished under other contracts prior thereto aggregated the sum of $6,133.86; that defendant is entitled to set off against this as credits by virtue of damages paid, interest, and increased cost of castings and cost of machining defective castings, the sum of $6,684.67; that there is therefore due and owing to the defendant upon its counterclaim the sum of $551.39. Judgment to this effect was entered, from which appeal is taken.</p>

<p> Limitation of actions: Contracts between husband and wife: Note maturing before marriage: Continued running of statute: Effect of partial payment: Evidence: Transactions with person since deceased. </p> <p>1. The rule that the statute of limitations does not run between husband and wife on contracts made by them during coverture does not apply to contracts made, and upon which the statute had commenced to run, before coverture.</p> <p>2. Where a promissory note was given by husband to wife, and the statute of limitations had commenced to run upon it, before their marriage, the statute continues to run after the marriage, and a payment made, during the marriage, upon the note before it was barred does not prevent its becoming barred six years later. Such a payment does not have the effect of making a new contract, but is merely a recognition of the old obligation, operating as an extension of the time of payment. [Whether, if such a payment were made during the marriage and after the note was barred, the statute would still continue to run, is not decided.]</p> <p>3. Testimony of a husband, in a proceeding to contest his wife’s will, respecting a payment by him, during coverture, upon a note which he had given to her before their marriage, was admissible when offered in evidence by her administratrix in an action against him on the note; but after the admission of such testimony it was competent for the husband, under sec. 4069, Stats., to explain or contradict it.</p>

<p>Appeals from a judgment of the circuit court for Dodge county: Martin L. Lueck, Circuit Judge.</p> <p>Proceedings begun in the county court of Dodge county to collect a claim for personal services against the estate of Martha L. Sherman, deceased.</p> <p>Claimant, a woman about seventy-two or seventy-three years of age in 1912, maintains that in the fall of that year she entered into á contract with the deceased, a widow, then eighty-seven or eighty-eight years old, to care for her the rest of her life in consideration of the deceased giving claimant one half of her personal estate, which at the time of her death amounted to $9,605.52. She entered upon her services December 24, 1912, and continued the same till January 14, 1917, when Mrs. Sherman died. The defendant claims that the agreement between the parties was that Mrs. Sherman should give claimant the use of her homestead for life, the use of a sufficient sum of money to maintain herself there, and $1,000 in cash, and that such compensation should be made in Mrs. Sherman’s will, and that it was in substance so made. In her last will Mrs. Sherman gave claimant $200 in cash, the use of the homestead for life, and the use for life of the personal estate less about $7,300 in specific legacies, or the use of about $11,911.05, which with $615, admitted to have been paid claimant in the lifetime of Mrs. Sherman, and $300, the value of a diamond ring given her, besides providing for her funeral expenses, would amount to substantially what was agreed to be given her, according to defendant’s contentions.</p> <p>The jury found (1) "that the reasonable value of claimant’s services was $6,330 and (2) that it was agreed between claimant and the deceased that claimant was to receive one half of the personal estate left by deceased. The trial court entered judgment in favor of claimant for the sum of $8,432.52, being $9,605.52, or one half the estate, less the sum of $615, admitted to have been paid claimant in the lifetime of deceased, of $300, the value of the diamond ring, and of $258, the stipulated value of the use of the homestead, on condition that she renounce her claim under the will. Both parties appealed from the judgment.</p>

<p>Appeal from an order of the circuit court for Juneau county: Martin L. Luecic, Circuit Judge.</p> <p>The defendant is the head of a family. For about six years prior to the time in question he had occupied a house in the city of Waupun. In 1912 he purchased a place at Burnett, consisting of a lot upon which there was a residence, and adjacent to the residence he built a saloon. He continued his business at Waupun and continued to live there, renting the saloon at Burnett. On May 6th, while the family of the defendant was still at Waupun, the defendant in the meantime having taken over the saloon at Burnett, the residence and saloon were destroyed by fire. There was upon the property at the time a policy of insurance .issued by the garnishee defendant. The plaintiff commenced suit against the defendant and garnished the moneys in the hands of the garnishee defendant. The trial court held that the insurance was exempt because it was in effect the proceeds of a homestead. Sub. (17), sec. 2982, Stats. From the order of the circuit court plaintiff appeals. Other facts are stated in the opinion.</p>

Ross, Circuit Judge. This is an action of mandamus, brought to compel the defendant as county treasurer of Polk county to accept the plaintiff’s bid made by him upon the sale of certain lands for delinquent taxes' and to issue certificates thereon as provided by law. Acting under sec. 1138m, Stats., the county board directed the defendant to bid in and purchase for the county all lands sold for taxes.

<p>Appeals from a judgment of the circuit court for Milwaukee county: E. T. Fairchild, Circuit Judge.</p> <p>This is an action in equity brought by the plaintiff, the owner of fifty shares of stock of $100 each in the Milwaukee Knitting Company (a corporation), against the other stockholders to obtain a judgment declaring the total amount of legally issued stock of the corporation to be 250 shares instead of 430 shares (the amount actually issued), thus making him the owner of one fifth of the capital stock, and to obtain other incidental relief such as the formal cancellation of the stock issued exceeding 250 shares, the setting aside of the election of directors as well as the proceedings of the acting board of directors, and the calling of a new meeting of legal stockholders for the election of directors.</p> <p>The fundamental undisputed facts are that the Milwaukee Knitting Company in December, 1914, had an authorized capital stock of $50,000 divided into 500 shares of $100 each, of which only 250 shares had been issued, owned as follows: the defendant Sattler 99 shares, the defendant H. M. Levy 100 shares, the defendant L. E. Trevett 50 shares, and one Idzal, son-in-law of Sattler,' one share, and that the plaintiff in August, 1916, orally agreed to purchase fifty shares of stock of the defendants Sattler and H. M. Levy, •purchasing twenty-five shares of each respectively, but as a part of the same transaction. The share in the name of Idzal was in fact the property of Sattler.</p> <p>The principal question in the case is whether these shares purchased by the plaintiff were part of the issued and paid-up stock, as claimed by plaintiff, or were shares to be issued out of the 250 shares still unissued and called treasury stock by the parties to this litigation.</p> <p>It is claimed by the defendant Sattler and found by the court that prior to this sale of stock to the plaintiff the defendants Sattler and H. M. Levy, who were respectively president and secretary-treasurer of the corporation, agreed that they would purchase the entire 250. shares of unissued stock in equaj, shares. To this agreement Trevett was not a party, and nothing had been done under it prior to the sale of stock to the plaintiff. The court found that by the terms of the plaintiff’s oral contract of purchase he was to receive from each of the defendants Sattler and H. M. Levy twenty-five shares of the stock subscribed for and to be issued, paying therefor $100 per share, and in addition a bonus to be later determined, the stock to be transferred upon payment of the purchase price and after distribution of accumulated surplus, dividends, and profits-for the year ending December 31, 1916, and that as part of the same transaction the plaintiff agreed that he would give up his business at Duluth and enter the employ of the corporation. The court further found that about December 1, 1916, the plaintiff began to work for the corporation and left Milwaukee in that service early, in January, 1917, not returning until March following, and that on December 12, 1916, Sattler and H. M. Levy each was credited on the books with $6,700, the credit being made up in each case of moneys theretofore advanced by him to the company, $2,000 salary theretofore voted for the yepr, and $1,916 being his share of the net profits and surplus for the year, and that on January 2, 1917, a debit of $6,700 “capital stock” was entered on each account, which amounted to payment for sixty-seven shares of the previously unissued stock.</p> <p>Further findings of the court were to the effect that on January 6, 1917, it was agreed by the plaintiff and Sattler and H. M. Levy that the bonus to be paid by the plaintiff for his stock should be $900; that on January 24th the plaintiff paid $5,000 in cash for his fifty shares of stock directly to the corporation; that on February 15, 1917, H. M. Levy opened an account on the ledger denominated “A. J. Levy Capital Account,” entering a debit charge thereon of $5,000 for fifty shares; that on January 6, 1917, the defendant Sat-tler. made a written assignment of fifty shares of his stock to the defendant Brin, his son-in-law, which assignment was entered on the books of the corporation, and that immediately after this transfer a stockholders’ meeting was duly held at which Sattler, H. M. Levy, Trevett, and Brin were elected directors of the corporation, and said Brin has since acted as such; that in March, 1917, plaintiff was informed of the subscriptions of /. B. Sattler and H. M. Levy for the unissued $25,000 of stock and that there had been assigned to him fifty shares without any subscription rights attached thereto, and accepted said fifty shares as transferred to him on the books of the corporation, and that the plaintiff then became advised that Brin had been elected director and was assuming to act as such; that certificates of stock with stubs in accordance with the holdings and transfers hereinbefore set forth were made out and signed by H. M. Levy in June, 1917, but, although approved by the president, were never signed by him nor delivered, except that Trevett has received a certificate for his original fifty shares; that a directors’ meeting was held in July, 1917, at which Trevett resigned as vice-president and Brin was unanimously elected to the office; that the defendants I. B. Sattler and H. M. Levy acted in good faith in said transactions and in good faith believed themselves entitled to subscribe for the additional shares of stock which they took over and'above the original $25,000 of full-paid stock held by them, but that Trevett had no knowledge of their action and never waived his right to participate in the subscription for stock unissued prior to January 1, 1917; and that in October, 1917, Trevett, learning of the subscriptions of Sattler and H. M. Levy for the unissued stock and their subsequent transactions, brought action for relief against them and the corporation, which action was settled by agreement-between Trevett and the board of directors in December, 1917, in which he (Trevett) ratified the various transactions and was given the right to subscribe for forty-six of the remaining sixty-six unissued shares of stock.</p> <p>The trial court concluded from these facts that Sattler and H. M. Levy lawfully own 167 shares each of the capital stock and are each entitled to subscribe for twenty-five additional shares of unissued stock; that the plaintiff on January 24, 1917, became the owner of fifty shares of the additional stock (over and above the 250 shares originally outstanding), and by his acts has estopped himself from claiming otherwise; that 'Brin has been since January 6, 1917, a director of the company; that Trevett is entitled to subscribe for forty-six additional shares of the unissued stock of the company in accordance with the agreement of settlement aforesaid; and that the complaint of the plaintiff should be dismissed.</p> <p>The defendant H. M. Levy by answer interposed a cross-complaint against his codefendants, attacking the validity of the various transactions connected with the issuance of all shares of stock not included in the 250 shares originally issued, and asking that such transactions be set aside. This cross-complaint was also dismissed on the merits. The plaintiff and the defendant H. M. Levy both appeal.</p>

<p>Appeal from a judgment of the circuit court for Portage county: Byron B. Park, Circuit Judge.</p> <p>The appeal is from a judgment affirming the judgment of the county court in determining the amount of inheritance taxes assessable against the estate of Andrew R. Week, deceased.</p>

<p>Appeal from a judgment of the circuit court for Polk county: Frank A. Ross, Circuit Judge.</p> <p>The plaintiff is a farmer and entered into a contract of agency with the defendant,- a real-estate broker, which contract, after describing the property and the amount of in-cumbrance thereon, recited:</p> <p>“Lowest price and terms of sale $20,500. This is to certify that I have listed the above described land with Henry Johnson for sale or trade for a period of twelve months, and I agree to pay five per cent, commission out of first money received on sale.</p> <p>“Dated November 23, 1915. Jens P. Pederson.”</p> <p>On February 10, 1916, the defendant, in the name of his. principal,’ entered into a so-called earnest-money contract of sale, which acknowledged the receipt from one A. R. Mudge of $1,000 “as earnest money and in part payment for the payment of the following described property,” describing the same property described in the option, “which I have this day sold and agreed to convey to the said A. R. Mudge for the sum of $20,500 on terms as follows, viz.: $1,000 in hand paid as above and $8,000 or more on or before March 1, 1916; $3,000 to be settled by mortgage on above described land; $8,500, now a first mortgage, to be assumed by purchaser, with interest,” etc. The option then recited other agreements and continued:</p> <p>“And it is agreed that if the title to said premises is not good and cannot be made good within thirty days from date when first payment shall become due, this agreement shall be void, and the above mentioned thousand dollars ($1,000) refunded. But if the title to said premises is then good, in the name of grantor, and said purchaser refuses to accept the said same thousand dollars ($1,000) shall be forfeited to Henry Johnson as liquidated damages.</p> <p>“Jens P. Pederson,</p> <p>“By Henry Johnson, Agent.”</p> <p>A few days later the defendant secured the plaintiff’s signature to a copy of the contract of sale under circumstances found by the trial court as follows:</p> <p>“I further find that said plaintiff was not, either 'at the time of' signing said Exhibit 4 [copy of earnest-money contract] nor at any time prior thereto, able to write and read the English language, and that the said defendant did not in any manner read or explain the terms of said Exhibit 4 to said plaintiff, but, oh the contrary, told said plaintiff that the paper which defendant then signed and there requested said plaintiff to sign was a paper which was necessary to be signed to close the deal and which paper was to be sent to said Mudge to effect that purpose, and that said plaintiff, relying upon the statements thus made to him by said defendant, signed said paper and not otherwise.”</p> <p>This finding is not assailed. The $1,000 was paid to the defendant by means of a draft, which was deposited for collection and thereafter protested. The draft was indorsed by one Peltier, a subagent of the defendant, who then went to Minnesota, the home of the purchaser, procured the payment of the $1,000, returned with the money, paid $600 of it to the defendant, and retained the $400 for. himself as claimed compensation for his services as subagent. The purchaser forfeited the earnest money and was released from the contract. Some time afterwards the plaintiff discovered the fact that $1,000 had been paid on account of the. contract and made demand for payment thereof to him, and, upon the defendant’s refusal to pay, brought this action to recover the $1,000. The case was tried by the court without a jury. The court found the material facts as stated and other facts, and upon such findings the plaintiff had judgment for $1,000, from which judgment the defendant appeals.</p>

<p>Appeal from a judgment of the municipal court of Brown county: N. J. Monahan, Judge.</p> <p>This action was brought for personal injuries claimed to have been received by plaintiff while being ejected from one of defendant’s passenger trains at Rhinelander, Wisconsin, on October 16, 1916, at about 11 o’clock p. m.</p> <p>Defendant admitted the purchase by plaintiff of a ticket for passage on its train from Rhinelander to Appleton Junction, and by way of answer alleged that when plaintiff presented himself as a passenger to board the train, he was intoxicated and under the influence of liquor; that he was refused entrance to the train by the defendant’s employees, and that in spite of such refusal he forced his way on to such train, and that immediately thereafter the train was stopped and the plaintiff, carefully and without unnecessary force and without injury to him, lawfully removed and ejected from the said train, the sole reason being his intoxicated condition.</p> <p>Upon the trial the defendant was permitted to amend its answer by alleging as an additional reason in justification for the ejection of the plaintiff the alleged fact that the plaintiff while upon said train used violent, abusive, profane, and indecent language, and for which use the plaintiff was lawfully removed and ejected without injury from the train.</p> <p>The substance of the special verdict and the answers returned by the jury thereto were as follows:</p> <p>(1) The defendant company accepted the plaintiff as a passenger on its train on the night in question.</p> <p>(2) The plaintiff was not intoxicated when he entered upon the train.</p> <p>(3) He did not use and utter abusive, profane, and indecent language while upon said train.</p> <p>(4) The defendant’s employees used excessive force upon plaintiff in causing his ejection.</p> <p>(5) The defendant’s employees did not use proper care in causing his ejection.</p> <p>(,6) The plaintiff sustained injuries to his person while on and being ejected from the train.</p> <p>(7) Such injuries were caused by the act or omission of defendant’s employees.</p> <p>(8) The amount assessed for plaintiff’s damages was $8,000.</p> <p>From a judgment thereupon in favor of the plaintiff, defendant has appealed.</p>

<p>Appeal from a judgment of the circuit court for Ke-waunee county: W. B. Quinlan, Judge.</p> <p>Action to recover the purchase price of a tractor, upon rescission for breach of warranty. On the 25th day of September, 1916, plaintiff purchased of defendant, an implement dealer, a Moline Universal tractor. It was warranted to work equal to any other first-class machine made for doing the same work, if not better, under proper management. It was agreed that the purchaser should have the use of the machine for one day on trial, and in case anything proved defective due notice should be given to the seller or his agent and time allowed to send a person to put it in order, after which, if it did not work and the fault was in the machine, it would be taken back or the defective parts replaced or the money or notes given in payment refunded. It was also provided that further use would be considered an acceptance of the machine by the purchaser.</p> <p>• The tractor was delivered on plaintiff’s farm on the 28th or 29th of September. Defendant went out the next morning to start it. A stone broke the gearing. It was fixed by noon, or a little after, and Barta tried it out in the afternoon. According to plaintiff’s testimony he did not use the tractor on the succeeding day, but did attempt to plow with it on the following day and he could not operate it. Barta came up and found one of the nuts from one of the'gears was gone. He took it to. town and did not return it for more than a week. When returned, another trial was made. Svoboda attempted to plow with it the next day, but after plowing about two hours the engine stopped working. He again had Barta come out to look it over, and the shifting lever was found to be broken. It .took a week to have this repaired. It was fixed in the forenoon and plowed all right in the afternoon. It worked about two or three hoúrs the next day and then the engine stopped again. Svoboda told Barta he must fix it so it works or take it back. Barta said he would come and fix it and that it would have to work.</p> <p>It was then concluded to install a new engine on the tractor, which took until about Christmas. It was then started, and they attempted to cut feed with it. While they were operating it a shaft that runs water around the cylinder broke, which had to be taken to town to be repaired. After cutting the feed Barta asked Svoboda if he was satisfied now, and he said “No;” the machine was guaranteed to plow and this is no trial. Barta reassured him that the machine was guaranteed to do all of his plowing on his whole field and told him to keep it until the tractor had plowed his whole farm. He said he guaranteed the machine to plow e.verything he had to plow. The tractor was not used again until spring, when he did some harrowing with it, but it did not work satisfactorily. The same shaft broke again. He used it for harrowing for three or four days in May, for three or four hours each day. It did not work well. It did not feed the gasoline right. It smoked too much and made a lot of noise and got hot. Barta was there a couple of days, looked it over, cleaned the carburetor and adjusted the governors. No attempt was made to use it thereafter, until the latter part of July, when another attempt was made to plow with it. He tried it about eight hours, a couple of days, the latter part of July and August. It did not seem to have power. It was not strong enough to pull the plow. It heated up badly. Svoboda went to Barta and said he must fix the machine or he would return it. Barta said, keep the machine; he will fix it; that it will work, and that it has got to work. Barta came to look it over, tried to start it, but failed. He said he would get a man to come from the com-pány to fix it. The matter ran along for two or three weeks, no man came, and Svoboda returned the tractor and brought this action to recover the purchase price. The following special verdict was returned by the jury:</p> <p>“(1) Did the tractor delivered to the plaintiff, John Svo-boda, on or about the 29th of September, 1916, comply, on or about said 29th day of September, 1916, with the written warranty given by the defendant, Joseph M. Barta, to the plaintiff, John Svoboda? A. No.</p> <p>“(2) If you answer the first question 'No,’ then answer this: Did the tractor at any time subsequent to on or about the 29th of September, 1916, comply with the written warranty given by the defendant, Joseph M. Barta, to the plaintiff, John Svoboda? A. No.</p> <p>“(3) Did the plaintiff, John- Svoboda, at any time between on or about September 28 or 29, 1916, and the first part of October, 1917, accept the tractor ? A. No.</p> <p>“(4) Did the plaintiff, John Svoboda, when operating said tractor, follow the instructions and properly oil, operate, and manage said tractor ? A. Yes.</p> <p>“(5) Did the defendant, Joseph Barta, induce the plaintiff, John Svoboda, to retain the tractor for further trial up to the time that the plaintiff, John Svoboda, offered to return the tractor? A. Yes.</p> <p>“(6) Did the plaintiff, John Svoboda, retain the said tractor in his possession an unreasonable length of time for the purpose of the trial after he found the same to be unsatisfactory? A. No.”</p> <p>Upon the special verdict judgment was entered in favor of-the plaintiff and against the defendant, from which judgment the defendant appealed.</p>

J. Monahan, Judge. Action to recover a balance of $702 alleged to be due the plaintiff on a contract to install a heating plant in defendant’s new business building in Green Bay. The defenses pleaded were (1) that the work had not been fully completed and (2) that no architect’s certificate had been given to the plaintiff as required by the contract before payment was due.

<p> Sales: Contract to deliver: Delivery zvithin reasonable time: When time is essence of contract: Failure to deliver: Waiver of ■damages: Duty of injured person to minimize damages: Broker or agent: Imputed knozvledge. </p> <p>1. Whether the person making a sale is called a broker or an agent is not material, the knowledge of either being the knowledge of the principal. .</p> <p>2. One who breaches a contract to deliver materials is chargeable with such damages as might fairly and reasonably be considered as either arising naturally — that is, according to the usual course of things' — from such breach, or such as may reasonably be supposed to have been in contemplation by both parties, at the time they made the contract, as the result of a breach thereof.</p> <p>3. Where the time of delivery is not fixed in a sale of goods, delivery must be made within a reasonable time.</p> <p>4. Where steel was ordered to be used in completing a marine boiler to be installed in a dredge then being constructed by the purchaser for the government, the purchaser being liable to certain penalties if the boiler was not completed on a certain date, an agreement by the seller to deliver the steel within three weeks was of the essence of the contract, the seller having knowledge of the penalties.</p> <p>5. Where the seller had failed to deliver the steel within the time agreed, an agreement to waive damages if it should be shipped December 1st was not binding on the purchaser where it was not shipped until December 9th.</p> <p>6. The mere acceptance by the purchaser of property after damages have accrued in consequence of nondelivery according to contract does not waive or relinquish a right of action for damages which had accrued at the time of acceptance.</p> <p>7. Where one claiming damages for breach of a contract can minimize the damages he is obliged to do so and not unnecessarily increase them.</p>

<p> Carriers: Carriage of goods: Liability for loss due to delay: Loss by fire: Negligence: Proximate cause. </p> <p>1. A carrier not shown to be insolvent is liable to a shipper for damages resulting from a drop in prices of forest products tendered and awaiting shipment because' of delay in transportation owing to the fact that its road was being repaired, where the repairs were unnecessarily delayed owing to a lack of money, which the carrier could have procured if it had used due diligence.</p> <p>2. Where the carrier knew that forest products banked on a spur track awaiting shipment were exposed to the danger of forest fires, the occurrence of which yas and should have been anticipated, and that such danger was in direct proportion to the length of the delay in their transportation, and such products were destroyed by a forest fire more than a month after their tender for shipment, the unreasonable delay in repairing the road was the proximate cause of the loss.</p>

<p>Appeal from a judgment of the circuit court for Ashland county: G. N. Risjord, Circuit Judge.</p> <p>Plaintiff brings this action to recover damages for flooding his premises. The plaintiff is' the owner of a part óf a block in the defendant city, bounded on the northerly side by Second street, on the easterly side by Vaughn avenue, on the southerly side by Third street, and on the westerly side by Sixth avenue. North and south across this block, in its original state, there extended a ravine several feet in depth. Through this ravine, from lands to the south about 160 acres in extent, surface water was discharged into Lake Superior. Across this block and upon the premises now owned by the plaintiff the city many years ago constructed a box sewer in the ravine, over a right of way procured by it. The sewer was approximately four by six feet, constructed of timbers, covered on the top, and extended to the north line of Third street. About 1904 or some time prior thereto Third street was filled in, and under Third street, in order to provide for the passage of water entering from the south, there were laid two pipes thirty-six inches in diameter connecting with the box sewer. It does not appear clearly from the testimony, but apparently south .of Third street the trench was open, being carried under Fourth street and .Vaughn avenue by box culverts which were replaced from time to time. Under Second street, after it was filled, there was constructed a brick arch and the box sewer discharged its contents into and through this arch into an open trench, by means of which the water flowed northerly into the bay. The box sewer was never a part of the sanitary drainage system of the city of Ashland, but was an arrangement for taking care of the surface water which in a state of nature was discharged through the ravine. However, there was connected to the sanitary sewer a so-called overflow pipe from a manhole at the intersection of Vaughn avenue and Third street. This overflow pipe was some three feet above the regular sewer pipe and was supposed to be useful only in case the sanitary sewer was clogged or overtaxed. There was cut into the top of the box sewer on the premises of Dr. Andrus a hole, through which water falling on the block described might be let into the sewer. From the house and barn of Dr. Andrus there was also a connection with the sewer which was used for sanitary purposes. It appears that prior to June 22, 1916, there had been two occasions on which the basement of plaintiff’s house was flooded, of which he' complained to the public authorities. In 1909 the premises owned by Mr. Berg were destroyed by fire. In the fall of that year he commenced to rebuild. In his rebuilding operations he discovered that the box sewer which ran through his premises was out of repair, and after consultation with the street commissioner an informal arrangement was made by which Berg laid a twenty-four inch sewer pipe through his premises, the work being done by Berg and the material and pipe being paid for by the city. This was connected with the box sewer at the south line of Berg’s premises, it being so constructed that the end of the box sewer was closed excepting for the opening made by the entry of the pipe therein. Plaintiff testifies that prior to 1909 he had never had any inconvenience or annoyance from the sewer. After 1909 on two occasions his cellar was flooded by water from the sewer. On the evening of June 22d there was a very heavy rainfall, as a result of which plaintiff’s premises were flooded with considerable resulting damage. At the close of the trial the court directed a verdict in favor of the defendant, upon which defendant had judgment. Plaintiff appeals. Other facts are stated in the opinion.</p>

<p>Appeal from a judgment of the circuit court for Juneau county. James Wickham, Judge.</p> <p>This action was brought by the plaintiff, mother of John McGinty and beneficiary under a policy of life insurance issued upon his life by the defendant. John McGinty' died February 25, 1913. His application for life insurance was made in September, 1911. In such application he stated that he himself had never been afflicted with syphilis or any disease of the genital or urinary organs, and that his father had never had any cancerous disease. The Brotherhood defended on the ground that these representations were false, and that John McGinty, the insured, had been afflicted with syphilis prior to his application for the insurance, and that his father, prior, to such application, died as a result of a cancer. The issues thus raised were the only questions litigated.</p> <p>The jury returned the following special verdict: (1) that Michael McGinty, the father of the insured, was not afflicted with cancer; (2) that the applicant, John J. McGinty, at the time the application was made, September 26, 1911, had never been áfflicted with syphilis; (3) that the applicant, John J. McGinty, at the time the application was made, had never been afflicted with gonorrhea; (4) that the certificate in question was not procured by the fraud and deceit of John J. McGinty; and (5) damages, $1,880.50. ,</p> <p>The defendant thereupon moved to change the answers of the jury to the first four questions of the special verdict from' No to Yes, and, in the event of a denial of such motion, for judgment notwithstanding the verdict, on the ground that it was not supported by the evidence. The court changed the answer of the jury to the first question from No to' Yes, denied the motions as to the other questions, and, upon the verdict as so changed, ordered judgment for the defendant, from which plaintiff appealed.</p>

<p>Appeal from a judgment of the circuit court for Racine county: E. B. Belden, Circuit Judge.</p> <p>This action was brought by plaintiff to recover $845.31, which she claims is due her from the estate of her mother, Anne Nelson, for services and disbursements.</p> <p>Anne Nelson, a resident of Racine, died November 9, 1914. Her will bequeathed real estate appraised at $1,700 and personal property valued at $260 to her three children, of whom plaintiff is one. The property, by the terms of the will, was to be divided share and share alike between the three children, and in addition to her share of the real estate Marie Nelson was to receive the sum of $200.</p> <p>Marie Nelson, a milliner, made her home with her mother excepting when she was employed out of town. During the time covered by her claim she lived with her mother as a member of the family, doing housework, supplying a portion of the provisions, and making various disbursements connected with the household. She paid her mother $2.50 a week for board and received nothing for her labor. After her mother’s death she contested the latter’s will on the grounds that she had lived with her mother and performed services and made various disbursements under an agreement that at the death of her mother she was to receive the entire property as recompense for these services and disbursements. She presents a detailed claim against the estate covering a period of years from 1893 to 1914, inclusive. For the years from 1899 to 1907, however, no claim for services or disbursements is made. The sum of her claim amounts to $845.31. The administrator, besides denying the claim, sets up the statute of limitations as a bar.</p> <p>The county court disallowed the claim, whereupon plaintiff appealed to the circuit court. There a jury rendered a verdict in favor of plaintiff for $783.41, upon which judgment was entered. The administrator appeals from this judgment.</p>

B. Belden, Circuit Judge. Action begun February 9, 1918, to recover damages for unlawful detainer. The summons and complaint were personally served upon the defendant, but she did not appear in the action, and on May 6, 1918, judgment for $1,800 (treble damages) and costs was entered against her. Thereafter she moved to set aside the judgment on the ground that there had been no service of process sufficient to give the court jurisdiction of defendant.

Plaintiff brings this action to recover damages for the death of her son by drowning at or near a municipal bathing beach iq the city of Kenosha. Omitting formal matters and matters not material to this appeal, the facts are briefly as follows: Steve Nemet, a man twenty-three years of age, went with a companion to a private bathing beach on the shore of Lake Michigan, where they procured bathing suits.

This is an action brought to recover damages for the death of plaintiff’s son, alleged to have been caused by the negligence of the defendants. At the close of the testimony the court directed a verdict in favor of the defendants, and from the judgment entered thereon plaintiff appealed.

Werner, Judge. This action was brought by Mathias Kellner to recover damages for personal injuries which he claims were inflicted on him by the negligence of the defendant. On August 15, 1916, Mathias Kellner was struck by an automobile owned and driven by the defendant. The accident took place between 7:50 and 8:10 p. m. on a public highway near Somers, Racine county. Kellner was walking on the road when the automobile overtook him from the rear.

T. Fairchild, Circuit Judge. This action was brought by the appellant, Joseph Malkozv-ski, to recover damages for loss of his wife’s consortium, occasioned by the alleged negligence of the respondent, a physician. The action was brought in the civil court of -Milwaukee county, and the jury returned a verdict in favor of the plaintiff and assessed his damages at $300. Judgment was rendered on the verdict in favor of the plaintiff for $300 damages, and costs.

December 8, 1915, a written agreement was made between the parties as follows: “This certifies to the sale of 4 acres crop of 1915 leaf tobacco to C. W. Mooney for account of McIntosh Bros. Wrappers and binders at 10 per lb.; fillers tied in hand at 2 per lb.; trash at-per lb.; damaged'tobacco at-per lb. All the above grades to be stripped and bundled separately. This crop of tobacco is to be examined in shed by the purchaser before receiving.

Fritz, Circuit Judge. Action to recover damages for personal injuries.

<p> Landlord and tenant: Unlawful detainer: Tender of rent and costs: Dismissal: Appeal: Order or judgment? Review: Order of dismissal. </p> <p>1. A direction of the civil court of Milwaukee county, in an action for unlawful detainer, that “this action be and the same is dismissed,” though in form an order, is in fact and in effect a judgment, and is appealable, being an order of dismissal as distinguished from an order directing judgment of dismissal.</p> <p>2. Under secs. 3364, 3366, Stats. 1917, a tender by defendant, in an unlawful detainer action, of the rent due and costs of the action, did not entitle him to a dismissal of the action, but by so doing he admitted the allegations of the complaint.</p>

Appeals from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge. This action was brought in the circuit court for Dane county in September, 1912, to set aside an order of the defendant Commission made August 23, 1912, requiring the plaintiff to sell street railway tickets in packages of thirteen for fifty cents, instead of six for twenty-five cents as theretofore.

<p>Appeal from a judgment of the circuit court for Brown county: Henry Graass, Circuit Judge.</p> <p>. The county court of Brown County, in determining the amount upon which inheritance taxes imposed upon the estate of John H. Ebeling, deceased, should be computed, deducted the amount of the federal estate tax imposed upon the estate, and determined that certain gifts made by decedent within six years prior to his death were not subject to an inheritance tax. The state and county appealed from the judgment to the circuit court for Brown County, where the judgment of the county court was affirmed. From such judgment the state and county appealed.</p> <p>The estate was valued at $332,819.33; $12,779.37, the amount of the federal estate tax, was deducted from this amount in determining the amount upon which the inheritance tax should be computed. 'The deceased died January 15, 1918- tie had three children. Within six years prior to his death he made gifts to them as follows: December-22, 1912, $1,000 to each; November 22; 1912, $1,000 to each; October 31, 1913, $500 to each; December, 1913, $200 to each; May, 1916, $500 to each; June 30, 1917,$10,000 to each; August 18, 1917, $5,318.33 to each; and October 1, 1917, $10,000 to each.</p> <p>The court found that neither of said gifts nor all of them combined constitute a material part of the estate of said testator ; that neither of said gifts nor all of them together was or were made in the nature of a final disposition or distribution of said testator’s estate; that no one of said gifts was' made by said testator in contemplation of death; and further, that if the law raised any presumption, as to any of such gifts that they were made in contemplation of death, said’’presumption is fully overcome by the evidence in the case.</p>

<p>Appeal from an order of the circuit court for Milwaukee county: E. T. Fairchild, Circuit Judge.</p> <p>■ This action was brought by A. E. Kuolt, former commissioner of banking of the state, to recover of the defendants, as directors and personal representatives of directors of the now defunct Citizens Savings & Trust'Company bank of Milwaukee (hereafter called the Trust Company), for alleged delinquencies in office as directors, resulting in loss and dissipation of the assets and capital of the banking corporation. Mr. Kuolt was succeeded by the present plaintiff, who continued the action against the defendants.</p> <p>After service of the complaint and an amended complaint, but before answering, the defendants Schroeder and Wellauer’s Executors examined plaintiff before James H. Stover, circuit court commissioner, at Milwaukee on March 28, 1919. Counsel for defendants, during this adverse examination, demanded that plaintiff produce certain official reports made by bank examiners concerning the condition of the Trust Company bank for a number of years prior to the closing of its doors. These reports were on file in the office of plaintiff in the state capitol.</p> <p>Plaintiff refused, upon advice of counsel, to produce these official reports and documents, basing his refusal on sec. 2020, Stats., enjoining secrecy on the commissioner of banking concerning official reports.</p> <p>The court commissioner thereupon ordered the production of these reports and documents, and, upon the continued refusal of plaintiff to produce them, adjudged him in contempt, and a warrant of commitment was thereupon signed by the court commissioner. The plaintiff secured from the circuit court an order to show cause why the order and warrant of the court commissioner should not be vacated. Upon the hearing the circuit court confirmed the order and commitment issued by the court commissioner. This is an appeal from such order.</p>

Byron B. Park, Circuit Judge. This is a proceeding to compel Edzuard W. Brown to produce, for the purpose of probate, a will of Byron S. Gailey, deceased. Byron S. Gailey, a practicing physician of Jacksonville, 'Illinois, died November 8, 1916. At the time of his death he owned 320 acres of land in Portage county, and an interest in 200 acres of land in Waupaca county, in this state.

B. Belden, Judge. Proceedings begun by petition in the county court of Buffalo county January 30, 1917, for an accounting by defendant of his guardianship of the person and estate of plaintiff and for.a removal of defendant as guardian and the appointment of another. The defendant filed an account, and upon a hearing the county court approved it and denied plaintiff’s application for removing the guardian.

Ross, Circuit Judge. This is an action brought by the plaintiff as assignee of one Elmer Emerson for personal injuries suffered by said Emerson as the result of the alleged negligence of the defendant company July 30, 1916. The facts are not materially in dispute.

Appeals from a judgment of the superior court of Ash-land county (Charles Smith, Judge) and from an order of that court (Solon L. Perrin, Judge). This is an action brought to recover on a benefit certificate. Byron C. Sweet became a member of the Modern Woodmen of America at Superior, Wisconsin, November 12, 1898. A benefit certificate for $2,000, payable to his wife upon his death, was issued to him. Sweet left home about the 1 st of April, 1909.

Ross, Circuit Judge. The appeal is from a judgment of the circuit court affirming a judgment of the county court reducing the amount of plaintiff’s claim. In 1895 the Douglas County Bank, a Wisconsin banking corporation at Superior, made an assignment for the benefit of its creditors. It was then indebted over $135,000 and with assets not to exceed $20,000. One H. P. Booth was a creditor and filed his claim, amounting to $713.86, therein, but received no dividend.

B. Quinlan, Circuit Judge. The plaintiff and three others were arrested upon the charge of having stolen a certain piece of tarpaulin belonging to the defendant Kimberly-Clark Company at its plant in the village of Niagara, Marinette county. Upon the hearing before the justice two of the defendants so charged pleaded guilty, and the case was then dismissed as to plaintiff and the other defendant at the suggestion of the justice of the peace.

B. Belden, Circuit Judge. This is an action by the plaintiff to recover damages for injuries alleged to have been received by her through alleged negligence of the employees of the defendant company. On the evening of October 13, 1917, plaintiff and a party of friends were driving in the city of Racine in an automobile owned by plaintiff and driven by her employee.

Action to compel the delivery to plaintiff of a promissory note of $5,000 given by him to Elizabeth J. Stringham and by her bequeathed to the defendant. The action is based on the ground that plaintiff had paid the note in full to Mrs. Stringham in her lifetime. The circuit court found that the note had not been paid and entered judgment dimissing the complaint, and the plaintiff appealed.

Lueck, Circuit Judge. The action was commenced in justice’s court and judgment entered in favor of the garnishee and against the plaintiff, and an appeal taken to the circuit court, where a new trial was had. The facts were stipulated, and judgment was rendered in favor of the plaintiff and against the garnishee for the sum of $115.64 and costs.

B. Quinlan, Judge. John J. Hoberg and Maud Hoberg, his wife, for some time prior to January 13, 1915, were indebted to the John .Hoberg Company, a corporation, for about $22,700, and certain shares of stock owned by them in such corporation were held by it as collateral security. The John Hoberg Company was organized with a capital stock of $45,000 and had, at the time of the transactions in question, assets worth many times the face of its capital stock.

Appeals from an order of the circuit court for Milwaukee county: Walter Scitinz, Circuit Judge. John Ehlers, the husband of the plaintiff, was run over by an automobile owned and operated by the defendant Gold and suffered injuries from which he afterwards died.

T. Fairchild, Circuit Judge. This action was brought by the plaintiff for personal injuries which she claims to have received through carelessness on.the part of the defendant. The monument yard of the defendant company is north of and adjoining the yard of the house where the plaintiff and her husband live.

E. T. Fairchild, Circuit Judge. ' This adt'ion was commenced in the civil court of Milwaukee copnty to recover damages f Dr assault and battery.' The complaint alleges, among other things, that the defendant by its agents and servants committed an assault and battery upon the plaintiff, and that she sustained damages thereby. The answer denies the allegations of the complaint.

Gregory, Circuit Judge. Action begun in the civil court of Milwaukee county to recover $200 as commission for securing an exchange of property for defendant under a written contract therefor, and $30 the cost of an abstract which defendant was to furnish and which plaintiff caused to be prepared. The defense was that the written contract was procured by fraud. There was evidence to the effect that the actual cost of the abstract was only $21.

Halsey, Circuit Judge.- Action to recover commissions on sale of real estate. The plaintiff in June, 1914, was assessor of the city of West Allis.

W. J. Turner, Circuit Judge. By a written lease in May, 1914, the defendant became a tenant of the first floor of plaintiff’s building in Milwaukee for a term of eight years. At about the same time, by a parol agreement, the defendant also occupied a portion of the basement of the same building at a monthly rental of $35.

' Appeal from part of a judgment of the circuit court for Milwaukee county: W. J. Turner, Circuit Judge. Action in equity brought by the owners of certain lots in a recorded plat in the county of Milwaukee to compel the removal of a high fence around a large portion of the plat which closed up certain streets marked on the plat and thus cut off plaintiffs’ access to their property.

W. Burnell, Circuit Judge. This action was brought by plaintiff to cancel and annul a deed made by him to defendants, by which he conveyed to defendants his interest in certain property. Timothy Harlow, father of the plaintiff, died intestate in September, 1910. At the time of his death he was possessed of eighty acres of land in the town of Rantoul, Calumet county, on which he resided, also eighty acres of land in Oconto county.

Michael Kirwan, Circuit Judge. ■ This action was brought by the plaintiff against the de.fendant village and its board of trustees to restrain them from entering upon or taking possession of certain premises owned, used, and occupied by the plaintiff as his homestead.

Luecic, Circuit Judge. Action to construe a will. In February, 1879, J. Fried-rich Meinert executed his will which contained this devise: “I hereby give, devise, and bequeath unto my son Syabe Friedrich Meinert the following real estate [describing a seventy-two acre tract], together with all the farm utensils and stock of horses, cattle, etc., on the place, to have and to hold the same to himself and his heirs forever, with the proviso that my son Syabe Friedrich shall not…

Gregory, Circuit Judge. Action for contribution. One Ertel recovered judgment for $4,000 and costs against the Milwaukee-Western Fuel Company and the defendant in a personal injury action. In that action it was determined that the Milwaukee-Western Fuel Company and the defendant were guilty of coincident independent acts of negligence resulting in injury to said Ertel, and Ertel had judgment against both companies.

Fowler, Circuit Judge. The appeal is from a judgment affirming an allowance made by the county court of Fond du Lac county. This action was brought by Margaret Flanagan, Sr., to secure payment of claims against her husband’s estate. Recovery is sought on a note of $3,000, with interest, and the sum of $1,000, with interest, which she claims to have loaned to her husband, John Flanagan, deceased.

Halsey, Circuit Judge. Action upon two promissory notes of $5,000 each given by the defendant to the plaintiff bank. The defendant by answer and counterclaim alleges that he deposited with the bank as collateral security for the notes $10,000 worth of bonds executed by the Wisconsin Mausoleum Company, and that the bank had converted the same. The plaintiff’s reply denied the allegations of the counterclaim.

Ray Stevens, Circuit Judge. This appeal was from a judgment entered on the 31st day of March, 1919, setting aside an order of the Railroad Commission of Wisconsin entered on the 12th day of September, 1918, fixing rates for street-car fares on the lines of defendant Wisconsin Railway, Light & Power Company in the city of La Crosse, Wisconsin.

Plaintiff’s husband was killed by one of defendant’s trains in the city of Cudahy, Wisconsin, September 2, 1917. The accident occurred on Van Norman avenue, which runs east and west and is crossed by defendant’s double-track main line at an angle. East of and parallel with defendant’s tracks are those of the Milwaukee Electric Railway & Light Company’s interurban line, and the centers of the two rights of way are eighty-two feet apart.

Ray Stevens, Circuit Judge. This action was brought by the city of Milwaukee to secure a temporary injunction restraining the Railroad Commission from proceeding to determine the application of the Milwaukee Electric Railway & Light Company (hereinafter called the Electric Company), under secs. 1753 — 1 to 1753 — 22, inclusive, of the Statutes, for leave to issue $1,600,000 of common capital stock and deliver the same to the Milwaukee Light, Heat & Traction Company…

ITalsey, Circuit Judge. Action to restrain the defendant, as dairy and food commissioner of Wisconsin, from prosecuting Wisconsin merchants under the trading stamp act (sec. 1747m, Stats. 1917) for permitting plaintiff to act as their redemption agent in the use of trading stamps bought from plaintiff and issued by them in their business.

Ray Stevens, Circuit Judge. The applicant, Paul Toil, a salesman in the employ of the Schroeder & Daly Company, was required by his duties to go from place to place in the city of Milwaukee selling produce to grocerymen. On January 31, 1918, while so engaged and while traveling from one place to-another and while on the public street, he slipped and injured his right leg. Upon application to the Industrial Commission he was awarded compensation.

B. Belden, Judge. The defendant in error was convicted in the district court of Milwaukee county of the crime of fornication with a single female, upon two counts.

A. C. Backus, Judge. The plaintiff in error, hereinafter called the defendant, having waived a jury trial was convicted in the municipal court of Milwaukee county of forgery of a bank check for $6, and brings his writ of error to reverse the judgment. The actual facts were not greatly in dispute, but rather the inferences of fact to be deduced therefrom.