Volume 170 — Wisconsin Reports

Werner, Judge. This action was brought by May E. Wagener, widow of Dr. Nicholas Z. Wagener, to recover the amount of an insurance policy which she claims was issued to her husband by the defendant and was in force at the time of his death. On April 9, 1914, Dr. Wagener signed a written application to the defendant for a policy insuring his life for the sum of $5,000, his wife being named as beneficiary. The annual premium was to be $85.50.

<p> Damages: Personal injuries: Sufficiency of evidence: Special issue: Negligence: Trial: Repeated use of the word “direct” in instructions: Ignoring elements of damages in instructions: Review: Harmless error. </p> <p>1. In an action for personal injuries sustained by plaintiff due to a derailment of defendant’s train on which he was a passenger, ah instruction on the measure of damages in which the court repeatedly used the word “direct” in stating that the injuries must have been a “direct result” of the accident, and that the damages must have “directly resulted” from the accident, is objectionable.</p> <p>2. The trial court should have submitted in the special verdict the ' question relating to damages in the form requested by the plaintiff, viz.: “In the event that the plaintiff should be entitled to recover, at what su,m should his damages be assessed?” instead of in the form submitted: “What sum would reasonably compensate the plaintiff for his loss and injury which was directly produced by the derailment of the train in question ?”</p> <p>3. An instruction on damages for personal injury which omitted several elements of loss proper to be considered by the jury, ■ is erroneous where the instruction contains, a clause that the jury should not include aiiy other element.</p> <p>4. Erroneous instructions on the measure of damages and the elements to be included were harmless as to plaintiff and not reversible error on his appeal,. under secs. 2829, 3072m, Stats., where from an examination of the record the court is not convinced that if these errors had not occurred a more favorable result for the appellant might probably have resulted.</p> <p>5. The conclusion arrived at by a consideration of the entire record, that the plaintiff had not suffered an injury to his head because of the accident, requires an affirmance of the .judgment.</p>

Appeals from a judgment and an order of the circuit court for Eau Claire county: Chester A. Fowler, Judge. The appeals were from a temporary injunctional order and from the final judgment in the same action and were heard together. The plaintiff corporation is engaged in operating a paper and pulp mill in the city of Eau Claire.

B. Quinlan, Judge. For some time prior to August, 1908, the plaintiff, Sarah Ludivig, and her then husband, William Ludwig, were keeping a rooming house in Milwaukee near the United States government building, where William Ludwig for a long time had been and until his death continued to be employed. They had no definite lease and were keeping it for a friend of theirs, paying $15 or $20 per month rent and receiving from roomers $80 per month or more.

<p> Corporations: Purchase of other corporation: Distribution of stock: Ratification by stockholder: Remedy of dissenting stockholders:-Equitable relief: Mistake of law. </p> <p>1. Where the defendant corporation purchased alfthe stock of the C. company so as to control its supply of raw material, but the proceedings by the stockholders of defendant which resulted in a distribution of the stock of the C. company to the stockholders were had under a mistaken supposition that the transaction when completed would leave defendant in control of the C. company, equity will grant relief to a stockholder who did not ratify the proceedings, there having been no dividend declared and the distribution being inimical to the interests of the defendant corporation.</p> <p>2. A mistake of law does not always bar equitable relief.</p> <p>3. The rights of creditors, the state, or third parties not being involved, it was within the power of the stockholders of the defendant corporation to make distribution to its stockholders of the shares of stock of the C. company which had been acquired by defendant, and no stockholder consenting thereto and participating therein and receiving his pro rata share can object on the ground that the act is ultra vires.</p> <p>4. Where plaintiff, a stockholder in the defendant corporation, after discovering that the distribution to defendant’s stockholders of the stock of the C. company was inimical to the best interests of defendant, tendered back the stock received by her, it is held that she had not ratified the distribution and was not estopped to maintain an action to compel a return of the distributed stock to the treasury of defendant.</p>

N. Risjord, Circuit Judge. On February 10, 1914, the county board of defendant by due resolution appointed a building committee and authorized the issue of bonds for the erection of a courthouse in the city of Ashland.

Gregory, Circuit Judge. February 20, 1918, the plaintiff at Minneapolis, Minnesota, delivered to the defendant, Chicago & Northwestern Railway Company, a carload of corn for transportation to Werley, Wisconsin, and for delivery to one Ketterer upon payment by him of a draft attached to the bill of lading covering and issued at the time of shipment by said defendant.

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

C. Higbee, Circuit Judge. This was an equitable action originally brought by an aged father against his son to cancel a deed of a farm (made in consideration of a contract to support the father and make certain payments to three persons named in the contract) on the ground of failure to fully perform the conditions of the contract. The action was commenced in November, 1917, and tried in May, 1918.

C. Higbee, Circuit Judge. This is an action brought by the plaintiff for an accounting by the defendant, an employee of plaintiff as manager of the Casino theater in the city of La Crosse.

C. Higbee, Circuit Judge. This action was brought to recover for fraud in the sale of a farm. The complaint set up that false representations were made by defendants, relied upon by plaintiffs, which resulted in damages.

Park, Circuit Judge. Garnishment. The defendants the Rucks exchanged their farm in Portage county, with certain personal property upon it, for property in Milwaukee belonging to Richter, garnishee… Held: and at the sale the purchasers bid $2,033.05. The expenses of the sale amounted to $165.33. The items in dispute relate to a team which was sold to one Dr. Wilson for $325, hay sold to Dr. Wilson at $88, and pats sold to Dr. Wilson for $55.

Baric, Circuit Judge. The appeal is from a judgment of nonsuit. The plaintiff lived in the city of Grand Rapids and about ten miles distant from his farm in the town of Grant in the same county, upon which was a small dwelling house and barn, in the latter of which was stored a considerable quantity of hay which he desired to have insured. He had on other occasions and at the time in question carried insurance with said company.

On the 31st day of December, 1903, H. C. Blanchard, an aged widower, was the owner of a farm, consisting of 160 acres, in Dunn County, Wisconsin. On that day he entered into a contract with his son, E. B. Blanchard, whereby the son agreed to at once take possession of said premises and personal property, till the farm, and provide the said H. C. Blanchard'with support and maintenance.

Croix county: George Thompson, Circuit Judge. This action was brought by the plaintiff to recover damages for loss by fire of his slaughter-house. He claims that the fire by which he lost his slaughter-house originated on property of the defendant adjoining the land on which his slaughter-house was located, and that the fire was caused by the negligence and carelessness of the defendant’s employees.

<p>Appeal from a judgment of the circuit court for St. Croix county: George Thompson, Circuit Judge.</p>

Ray Stevens, Circuit Judge. The appeal is from a judgment directing a peremptory writ of mandamus. A petition was filed with the common council of the city of Madison by relator and others, resident electors and freeholders of the third election district of the Sixth ward of said city, to make and constitute such district a ward of said city pursuant to sec. 926 — 8, Stats.

HoppmanN, Judge. Action for damages occasioned by an alleged defective highway. On the 16th day of June, 1917, plaintiffs’ deceased was driving a Ford automobile north on the highway in question. He and his daughter Gladys were the only occupants of the automobile. The accident happened on a grade or turnpike in a ravine or depression between two hills or declines. The traveled portion of the grade or turnpike was ten feet wide.

<p> Good will: Breach of contract not to engage in business. </p> <p>One who was the selling agent of a corporation and received as compensation fifty per cent, of the net profits, and to all intents and purposes was the active manager and backbone of the corporation, was “indirectly” engaged in such business, within the meaning of a contract of sale of a similar business wherein he agreed not to again engage in such business, “directly or indirectly,” and although he was not a stockholder of the corporation. '</p>

• Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge. This action was brought by plaintiff to set aside an award of the Industrial Commission of Wisconsin.

<p> Physicians and surgeons: Malpractice: Sufficiency of evidence to require submission of case to jury: Opinion evidence as opposed to positive evidence: Presumption of negligence. </p> <p>1. One side of plaintiff’s face became paralyzed after an operation performed by a physician, which condition might have resulted from a severance of the facial nerve or from other causes. There being no' evidence that the nerve was severed, but, on the contrary, the evidence being positive and undisputed that it was not, the court properly directed a verdict for the defendant.</p> <p>2. The opinion evidence of a physician could not raise a conflict with the positive evidence of defendant and another physician who reopened the wound that the facial nerve was not severed in performing the operation.</p> <p>3. Proof of bad result from a surgical operation raises no presumption of negligence in this case.</p>

Ray Steven's, Circuit Judge. Action to review an order of the Industrial Commission. It appears, that one William Voeck was engaged in assisting the marshal of the village of West Salem in an attempt to hold one Jones, then in the custody of Weingarten, a deputy sheriff of La Crosse County, under circumstances fully set out in West Salem v. Industrial Comm. 162 Wis. 57, 155 N. W. 929.

Hoppmann, Judge. The appeal is from an order quashing an alternative writ of mandamus. The relator entered'the service of the city of Madison as fireman in 1902, continuing therein and to contribute to the firemen’s pension fund as provided by law until September, 1918. The fire and,police commissioners of said city then notified him that he had been retired from the fire department as of August 30th, and advised him to make application to the pension board for a pension.

Ray Stevens, Circuit Judge. The appeal is from a judgment affirming an award of the Industrial Commission in favor of Bertha Billig, widow of Otto,Billig, and against the appellants, in the sum of $3,000. The facts appear in the opinion.

Ray Stevens, Circuit Judge. Action to set aside an award of the Industrial Commission. The plaintiff filed a claim before the Commission, as the widow of one Solomon Smith, against Scheidegger Bros., a logging firm, on account of the death of said Smith as the result of injuries received by him while at work for said firm in the woods as a-lumberjack.

This action was brought by the.plaintiff to recover damages for injuries alleged to have been sustained by him while in the employ of the defendant. Plaintiff claims to have been permanently disabled by these injuries, which he alleges resulted from the carelessness and negligence of the defend•ant. Plaintiff was employed by defendant as a farm hand from January 1, 1917, to December 3, 1917, when the accident resulting in plaintiff’s injuries occurred.

Ray Stevens, Circuit Judge. Mandamus. The relator had a contract with the state during the years 1915-1916 to do all the printing of class 1, legislative printing, and class 3, governor’s messages, officers’ reports, pamphlets, magazines, bulletins, and acts of officers and societies.

Ray Stevens, Circuit Judge. The appeal is from an order sustaining a demurrer to the complaint. Prior to the commencement of this action the plaintiffs had been operating motor vehicles for the carriage of passengers for hire in the city of Racine,' Wisconsin, under the provisions of ch. 546, Laws 1915, being secs. 1797 — 62 et seq., Stats.

Werner, Circuit Judge. Assault and battery. The parties are brother and sister. The plaintiff came to the defendant’s house May 1, 1918, and became involved in a violent dispute with the defendant concerning the care of their aged father, who was living with the defendant. Plaintiff claims that the defendant without cause grabbed her and dragged her out of the house, struck her, and pushed her off from the porch.

Werner, Circuit Judge. This action was brought by plaintiff upon notes owing to him by the defendant Chimka. ; Property in the hands of the intervening defendant, Joseph Kurowski, was attached. Kurowski claimed ownership, and plaintiff claimed that the sale to Kurowski was void as to creditors of Mike Chimka, who had sold the property to Joseph'Palka, of whom Kur-owski bought it; neither sale being in compliance with the bulk sales law.

Ross, Circuit Judge. Action to recover the sum of $956.36 damages because of the unauthorized release of plaintiff’s mortgage by one Sewell A. Peterson, cashier of the defendant.

Writ of habeas corpus. August 27, 1919, Helen Grbic as plaintiff began an action for divorce against the petitioner as defendant. On the 8th day of September the defendant was ordered to pay the plaintiff $8 a week temporary alimony and $25 attorney’s fees. On the 11th day of September, upon the verified complaint and affidavit of the plaintiff-, a writ of ne exeat was issued, and on the 12th day of September the sheriff took the defendant into custody under the writ.

Mandamus to compel the town clerk of Oakland, Douglas county, to use reassessment rolls as required by sec. 1087 — 57, Stats., in making his tax roll.

This action was originally brought in this court to test the constitutionality of ch. 667, Laws 1919, known as the Soldiers’ Bonus Act, and, if found unconstitutional, to restrain the enforcement of the act. The attorney general declined to commence the action, and upon application the court granted leave to the relator here to institute the action in the name and behalf of the state.

Original action brought in this court to test the constitutionality of ch. 5, Laws 1919, Special Session. The attorney general having declined to bring the action, the court granted leave to the relator to prosecute the same. The defendants are charged with the administration of the act, and judgment is prayed that this court determine the validity of the act and in case it is found invalid that its enforcement be restrained.

The defendant, a New York corporation, was the general contractor for the removing of buildings then standing and the construction of a two-story and basement building in the city of Milwaukee, known as the Plankinton Arcade, on a site with north front on Grand avenue, extending from West Water to Second street on the west. The defendant let a number of subcontracts for the doing of the work, and one of such with plaintiff for the pile-driving and work incidental thereto.

Croix county: George Thompson, Circuit Judge. Trespass. Plaintiffs are husband and wife and own a farm of 240 acres in St. Croix county bounded on the north by an east-and-west .highway. Their dwelling house and other buildings stood about four rods south of the highway.

Ray Stevens, Circuit Judge. An award was made by the Industrial Commission of Wisconsin to the defendant John D. Rowland as guardian of Marie J. Hansen, an incompetent person, of the sum of $2,907.24 as compensation by reason of the death of Louis Hansen, husband of said Marie J. Hansen, against the plaintiff Belle City Malleable Iron Company as employer and the Wisconsin Mutual Liability Company as insurer.

Appeals from a 'judgment of the superior court of Douglas county: Solon L. Perrin, Judge.

This action was brought upon an accident insurance policy issued by the defendant to recover damages arising out of an injury alleged to have been caused by the loss of an eye for which indemnity was claimed by plaintiff under the policy. The case was here before on demurrer to the complaint. The demurrer was overruled. 166 Wis. 498, 166 N.’ W. 4. The defendant answered and the case was. tried to the court and a jury.

Action begun in the municipal court of Rock county to recover damages for a breach of the following agreement: “Janesville, Wis., April 6, 1917. “This is to certify that I agree to raise 4 acres of broad-leaf tobacco during 1917, amounting to about 8,000 pounds, for C. J. Jones & Son and deliver it at eight (8) cents per pound. Trash two (2) cents per pound. . . . “J. C. Wixom. “H. W. Holden.” Holden was a tenant of Mrs. Wixom and delivered his share of the crop.

Woodard, Judge.' Action by real-estate agent to recover commission for the sale of a farm. Sometime prior to the 6th day of March, 1917, August Bergmann, being the owner of a farm in Dodge county, Wisconsin, conveyed it to his son for a valuable consideration, taking back a mortgage for $10,000. Subsequent thereto, and to enable the son to raise money on the farm, Bergmann released the $10,000 mortgage.

<p> Divorce: Division of estate: Property derived mediately or immediately from the husband. </p> <p>1. The plaintiff husband had $300 when he married, worked as a' day laborer for three years, and became the possessor of different canning factories which prospered under his management and in which he invested his earnings as well as money borrowed. The defendant wife invested a $2,500 inheritance in one of the factories, and later, the joint holdings of the parties were sold at a profit and the proceeds reinvested in properties which were held jointly by them. H.eld, that the property of the wife, except as to the $2,500, must be considered, for the purpose of division of the estate on divorce, as property mediately or immediately derived from the husband within the contemplation of sec. 2364, Stats.</p> <p>2. In view of the situation of the parties, the conduct of the wife, and the fact that the estate of the husband is less than $18,000, while that of the wife is in excess of $13,000, an award to the wife of $5,000 is reduced to $1,000.</p>

<p>Appeal from a judgment of the municipal court of Brown county: N. J. Monapian, Judge.</p> <p>Action on notes. The defendant was engaged in the general merchandise business at West De Pere, Wisconsin. The Brenard Manufacturing Company was a copartnership in Iowa City, Iowa, engaged in a general advertising and business promotion enterprise. On March 25, 1916, the defendant and the Brenard Manufacturing Company entered into a contract by the terms of which the manufacturing company was to deliver to the defendant certain advertising matter and render certain services in promoting the defendant’s business, in consideration of which the defendant executed and delivered to the manufacturing company six notes amounting in the aggregate .to $340. The merchandise contracted for was to be used as premiums or prizes, to be distributed by the defendant in the manner directed, and it was agreed that, if defendant’s sales were not increased in an amount specified, certain payments were to be made by the manufacturing company to the defendant. One note, amounting to $60, was paid. On April 12, 1916, and before any of the notes given by the defendant were due, the manufacturing company, being indebted to the plaintiff, gave the plaintiff its note, and contemporaneously therewith transferred as collateral security the notes in question by the following indorsement: “Pay to the order of Iowa City State Bank, Iowa City, Iowa, for credit account of Gulbranson-Dickinson Co. Brenard Manufacturing Co.” The defendant failed to pay the notes at maturity ; they were indorsed by the Iowa City State Bank to the First National Bank' of Chicago, by whom they were returned to the Iowa City State Bank. Thereafter the plaintiff brought this action. There was a jury trial. The jury by special verdict found: (1) That the plaintiff did not become the owner of the notes in question in due course of business for a valuable consideration; (2) that there was a failure of consideration to the defendant of the notes remaining unpaid and sued upon. Upon motion of the plaintiff the answer to the first question in the special verdict was changed from “No” to “Yes,” and upon the verdict so ■ amended judgment was rendered for the plaintiff for $327.50, principal and interest, and costs. From this judgment the defendant appeals.</p>

<p> Corporations: Payment of promotion expenses by commission from sale of stock: Liability for fraud of company and stock salesman: Question for jury: Knowledge of efficiency of product: Remedies by rescission or action for damages: Evidence: Affirmance of sale: Adjustment with agent not a bar to action: Sales: Necessity of knowledge of falsity of representations. </p> <p>1. Although under sec. 17531 Sjtats., a corporation cannot issue its stock for any sum less than the par value thereof, it can pay promotion expenses incident to and necessarily incurred in the sale of the stock, and may compensate one who sells its stock by means of a contract to pay commissions of twenty-five per cent, of the amount sold.</p> <p>2. If representations inducing a sale were material and false, and the maker knew or should have known that they were false, or made them recklessly without knowledge, and the injured party relied on them as true without present means of knowledge of their falsity, and suffered damage, he was defrauded in the legal sense.</p> <p>' 3. In an action to recover the purchase price of corporate stock upon rescission of the contract of purchase for fraud and deceit, the question whether those interested in tlie corporation should have known that the product to be manufactured was inefficient for the purposes claimed is, under the evidence, for the jury.</p> <p>4. If a stockholder was defrauded in the sale of stock to him by the president of the company acting as its selling agent for commission, the president and the company were both jointly and severally liable to him.</p> <p>5. One who was induced to purchase stock in a corporation through the false representations of its president, the company’s agent to sell stock, had the right either to restore the original status, rescind the contract of purchase and recover back his money, or could offer to restore the stock, and, by keeping the offer good, sue in equity for rescission of the contract and recovery of his money, or could sue the president or the company, or both, at law for damages resulting from the president’s fraud.</p> <p>6. The question whether a subsequent transaction, whereby the president agreed to take back the stock from the purchaser, was a sale of the stock to him inconsistent with rescission of the contract of purchase, or was a mere adjustment'of the purchaser’s claim for fraud, is for the jury. .</p> <p>7. Where a company’s agent to sell its stock committed a fraud, the purchaser can recover the price of the stock on rescission for the fraud, despite his prior efforts to secure redress from the agent, who actually committed the fraud, his claim against the company being extinguished only so far as the agent had reimbursed him, unless the transaction with the agent amounted to a resale of the stock to the agent and an assertion of ownership and affirmance by the purchaser.</p> <p>8. On rescission of the contract of purchase for fraud and deceit, the purchaser should have been permitted to show that the defendant company had gone «out of existence and was not doing business, the evidence having a bearing on the questions whether the company’s product was meritorious and whether the purchaser sustained any injury from the misrepresentations made to him.</p>

N. Risjord, Circuit Judge. Action upon an insurance policy. The facts were stipulated. One Francis Carlson, deceased, took out a policy of insurance on his life for $1,000 in the defendant company March 6, 1918, payable to the plaintiffs, and paid the first annual premium thereon.

<p>Appeal from a judgment of the circuit court for Marathon county: A. H. Reid, Circuit Judge.</p> <p>This is an action to recover damages for injuries alleged to have been suffered by plaintiff, caused by a defective highway in the towns of Pike Lake and Ringle. The case was considered by this court upon an appeal from the judgment of the trial court overruling the demurrers to the complaint of the defendants. This court sustained the ruling of the trial court on the demurrer (165 Wis. 637, 163 N. W. 165). The facts there stated need not be repeated here.</p> <p>The complaint is for damages for injuries alleged to have been received by the plaintiff by reason of a defective condition of the highway at the town line over which the highway extends north and south and in adjoining parts thereof in both of the defendant towns. The defect consists of a wire extending diagonally across the boundary line between the two towns.</p> <p>Upon trial of the case the jury rendered a special verdict in which they found, in answer to separate questions, that the position and condition of the telephone post and wire where the wire crossed the road at the town line between the towns of Ringle and Pike, Lake caused the road to be not reasonably safe for public travel in both towns at the time of the alleged accident; and that such unsafe condition of the road in the towns of Ringle and Pike Lake respectively was the proximate cause of the injuries received by the plaintiff.</p> <p>Judgment was entered awarding plaintiff damages and costs in the sum of $529.62. The town of Pike Lake appeals from this judgment.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>Action to set aside an award of the Industrial Commission under the workmen’s compensation act. The claimant, Gastona Pera, on November 21, 1917, was employed as a garbage collector in the city of Milwaukee. His immediate employer was one Boadi, who was employed by the city to collect garbage and convey it by wagon to the city incinerator. Boadi was not subject to the compensation act. Fera began work each day at about 2 o’clock a. m. and finished at about 8 a. m. On the day of the accident he had taken his last load to the incinerator and unloaded it and was takirig his equipment, consisting of a horse and wagon which belonged to his employer,' Boadi, and the garbage box which belonged to the city, back to a barn belonging to Boadi on East Water street in the city, where it was usually kept after work each day Until the work commenced again the next morning. On the way to the barn the horse became frightened and the wagon was tipped over, throwing Fera to the ground, seriously injuring him. The. award of the Commission in favor of Fera was sustained by the trial judge and the city appeals.</p>

<p>Appeal from a judgment of the circuit court-for Fond du Lac county: Chester A. Fowler, Circuit Judge.</p> <p>The defendants Shurman are copartners in a general, retail grocery business in the city of Fond du Lac. The defendant Sheridan is the owner and keeper of a public livery stable in said city. One Clarence Miller was in the employ of the defendants Shurman, and on the 18th day of June, 1917, was driving, on one of the streets of Fond du Lac, a horse and delivery wagon rented from the defendant Sheridan. The fastening which held the thill to the wagon became loosened on one side and the thill dropped down. The driver endeavored to stop the horse, when one of the lines broke. ITe then jumped from the wagon, the horse ran down the street, onto the sidewalk, and injured the plaintiff. The jury found: (1) That the device for fastening the right thill to the axle was in a reasonably safe condition at the time the defendant Sheridan let out the rig to the defendants Shurman' on the day of the injury. (2) That the line that broke was in a reasonably safe condition at that time. (3) That the device for fastening the right thill to the axle was mot in a reasonably safe condition at the time the thill fell down. (4) That the defendants Shurman used ordinary care in permitting the device to get in the unsafe condition. (5) That the driver did not use ordinary care in doing as he did when the thill fell down.</p> <p>(6) That the want of ordinary care on the part of the driver was the proximate cause of the plaintiff’s injury.</p> <p>(7) Assessed the plaintiff’s damages at the sum of $491.12. Judgment was rendered for the plaintiff upon the verdict, and the defendants Shurman appeal.</p>

Fowler, Circuit Judge. March 5, 1918, the plaintiff paid defendant $110 for ten bushels of seed corn to be subsequently delivered if upon test it was at least ninety per cent. good. The tests made showed less than ninety per cent. Defendant then offered to reduce the price to $8 per bushel for the eight bushels he still had left, having sold two bushels to another person.

Plaintiff in error (defendant) was tried and convicted of perjury and brings error to reverse this judgment. On December 30, 1892, defendant and his wife2 Wilhelmina Lappley, borrowed from George Hook, the complainant and plaintiff in the mortgage foreclosure proceeding out of which this action arose, the sum of $800, giving their note for that amount.

Park, Circuit Judge. Action for an injunction, begun in 1913, to restrain defendants from diverting water from Hemlock and Hay creeks and discharging the same into plaintiff’s drainage district. Plaintiff is a drainage district corporation'organized in 1906 under the provisions of secs. 1379 — 11 to 1379 — 39 inclusive of the Statutes of 1898 and the amendments thereof. Its ditches were not dug till about the year 1908.

W. Hogan, Judge. This action was brought to recover indemnity upon a health and accident policy issued by the defendant to the plaintiff. The policy was issued August 25, 1916.

Werner, Circuit. Judge. Prior to October, 1914, the defendant Ellen McCormick was the owner of forty-five acres of land in the town of Oneida, Outagamie county, upon which was a mortgage of $2,500. In October, 1914, her husband, M. L. McCormick, who appears to have managed to a considerable extent her business affairs, commenced the erection of a dwelling upon one corner of said tract of land.

Ray Stevens, Circuit Judge. An action was begun by one Albrecht against the relator in the Superior Court of Dane County to recover the sum of $1,875, claimed to be due on contract. The relator moved for a change of venue to Milwaukee county on the ground that its residence was there.

Appeal- from a judgment of the circuit court for Dodge county: Martin L. Lueck, Circuit Judge. Contract.

Lueck, Circuit Judge. The plaintiffs and respondents are residents of Mississippi, the defendants and appellants of Wisconsin.

<p> Income taxation: Dividends of corporation from surplus: Holding company: Right of stockholder to show dividend not from earnings or profits. </p> <p>1. Under sub. 2 (b), sec. 1087w — 2, Stats., as amended by ch. 247, Laws 1917, a stockholder in any corporation to whom there has been paid a sum of money under the designation of dividends has a right to show that such payment or dividend was made out of the capital or surplus and is therefore not taxable, instead of out of the earnings or profits accrued since January 1, 1911, which would be taxable.</p> <p>2. Where a stockholder of a corporation exchanged his stock 'for stock in a holding company, and the holding company received from the corporation a so-called dividend, paid out of the surplus and not out of the earnings or profits accrued after January 1, 1911, a dividend paid by the holding company, resulting from such dividend from the surplus of the corporation, was not “income,” within the meaning of sub. 2 (b), sec. 1087m — 2, as amended by ch. 247, Laws 1917.</p>

<p>Appeal from a judgment of the circuit court for Forest county: W. B. Quinlan, Circuit Judge.</p> <p>This, action was begun in justice’s court to recover the value of physician’s services. Upon appeal to the circuit court judgment was rendered in favor of the plaintiff, from which judgment this appeal was taken.</p> <p>Appellant is under the provisions of the workmen’s compensation act. The respondent is a physician and surgeon at Wabeno, Wisconsin, and owns and operates a hospital in connection with his practice. Prior to September 1, 1917, at which time sub. 3, sec. 2394 — 15, Stats, (ch. 624, Laws 1917), providing that no employer subject to the provisions of the workmen’s compensation act shall solicit, receive, or collect any money from his employees or make any deduction from their wages,- either directly or indirectly, for the purpose of discharging any liability under the provisions of said law, nor sell to an employee, or solicit or require him to purchase, medical or hospital tickets or contracts for medical, surgical, or* hospital treatment required to be furnished by such employer under such law, became effective, the plaintiff rendered medical services to the employeés of the appellant under a contract plan whereby each employee paid him a certain amount each month. Upon the enactment of said sub. 3 it was considered that the then existing arrangement could not be continued. It appears that plaintiff was employed by the appellant to continue to render medical services to employees of the company sustaining injuries .while in the employ of the company and for which the company was liable for compensation under the workmen’s compensation act. This action was brought to recover for services rendered in treating, and furnishing hospital accommodations to, an employee of the company injured under circumstances making appellant liable for compensation. In due time the appellant settled with the injured employee. Plaintiff presented his bill for medical services, and payment was refused on the ground that it was excessive, and a request was made that the matter be referred to the industrial commission for adjustment, which was refused by plaintiff, and this action was instituted to recover the amount of the bill.</p>

<p>Appeal from a judgment of the circuit court for Mari-nette county: W. B. Quinlan, Circuit Judge.</p> <p>Action to remove a cloud upon the title to real estate. The plaintiffs are the administrator and the heirs at law of one Thomas McFarlin, deceased. The land consists of a forty-acre tract of unoccupied land. The cloud consists of a tax deed issued to the defendant Frank L. Kersten.</p> <p>The deed is attacked on account of several irregularities', set-forth in the complaint, as well as upon the ground that the certificate of tax sale on which it was issued never was assigned to or owned by the defendant and hence that the tax deed to him was void. The action was tried by the court without a jury. The complaint alleged ownership in fee of the land in question by the heirs at law of Thomas McFarlin, and the answer denied such ownership. The facts material on this appeal are not seriously in dispute. The plaintiffs did not trace title from the government, but contented themselves with showing that one Amelia Gruber deeded the land to Mary Ann McFarlin August 18, 1902, that Mary Ann McFarlin’s will was duly probated February 13, 1912, by which she devised all her property to Thomas McFarlin, and that Thomas McFarlin thereafter died intestate, leaving the plaintiffs (except the administrator, Mad-ler) as his heirs at law. No possession of the property in question by any one at any time was shown. The proof further showed that the lands were sold for taxes May. 17, 1910, to Theodore Kersten, who thereafter died intestate still owning the certificate; that the will was duly probated in October, 1914, and that by its terms all the testator’s real estate was devised to Rev. Theodore IT. Kersten and Verona C. Kersten as trustees, with directions to sell the same and (after paying one bequest of $1,000) divide the proceeds into seven equal shares to be distributed among his seven children; that Theodore H. Kersten was named as executor in the will and duly qualified as such a few days later; that said executor in -form assigned the said tax certificate to the defendant Frank L. Kersten February 5, 1915, by indorsing the same as follows-. “Rev. Theo. H. Kersten, as executor of the estate of Theodore Kersten, deceased,” and by manual delivery of the certificate; that Frank L. Kersten presented the certificate to the county clerk with an affidavit of nonoccupancy, and received a tax deed of the premises February 5, 1915, which is the deed attacked in this action. It further appeared that in July, 1915, the plaintiffs, learning that a tax deed had been issued to the defendant, sent a letter to him, through their attorney, offering to reimburse him for the taxes paid, interest, and all expenses, and stating that if the offer was not accepted action would be commenced to set aside the deed on account of defects in the tax proceedings; that defendant replied by letter stating that he had sent plaintiffs’ letter to his attorney and would direct him to communicate with the plaintiffs at once; that a few days later Mr. Scud-der, the defendant’s attorney, replied to the plaintiffs’ letter, stating that the taxes paid and interest and expenses amounted to $18.21, on receipt of which the defendant and •wife would execute to the plaintiffs a quitclaim deed; that on the following day Mr. Scudder sent another letter stating that, as. a condition of making the quitclaim deed, the plaintiffs must point out the defect in the tax proceedings which vitiated the deed; that on the same day the plaintiffs’ attorney wrqte, saying that the first proposition was accepted and the quitclaim deed and money would be forwarded in a few days; that two days later plaintiffs’ attorney wrote, in answer to Mr. Scudder’s second letter, that the assignment of the tax certificate was not according to law and that there were other defects; that the money was forwarded by draft about a week later and was returned by the defendant because the defects in the tax deed had not been stated.</p> <p>On these .facts plaintiffs claimed that a valid contract to convey the lands had been made and that they were entitled to specific performance thereof even if the tax deed should be held valid.</p> <p>The trial court held that the plaintiffs had title to the land; that the tax certificate never was legally assigned to the defendant because the same was real estate and hence could, not be assigned by the executor as such but passed to the devisees under the will, hence that the defendant’s tax deed was void; that there was no sufficient proof of the posting of the notices of the tax sale in question; that there was no case made for specific performance; and that the plaintiffs were entitled to judgment declaring the tax deed void and barring the defendants from all claim of right or title.to the premises. From judgment in accordance with these conclusions the defendants appeal.</p>

<p>Appeal from a judgment of the circuit court for Ke-nosha county: Byron B. Park, Judge.</p> <p>This action was brought by the plaintiffs to recover damages for alleged depreciation of and damage to certain property of theirs by reason of defendant’s building a spur track on a strip of land which took from plaintiffs a small triangular piece containing about ten and three-quarters square feet.</p> <p>Condemnation proceedings were begun by defendant on September 9, 1916. The commissioners in the proceedings awarded the plaintiffs the sum of $1,050. Both parties appealed to the circuit court. On the trial it was stipulated that the jury, by special verdict, should determine what portion of the plaintiffs’ property should be considered in determining the amount of compensation to which the plaintiffs were entitled for depreciation by ireason of the triangular piece taken for railroad purposes. , The description of the several parcels into which plaintiffs’ property was divided and used was also stipulated to be as shown by a plat offered in evidence and its use was apportioned as indicated thereon. The jury, by a special verdict, found that on October 31, 1916, the fair market value of the triangular piece of land in Pearl street, and subject to this public -easement, condemned and taken by the Chicago & Northzvestern Rail-may Company for its use, was $50; that the fair market value of the south seventy-five feet of the southeast quarter of block 18 in the Sixth ward of Kenosha, owned by the plaintiffs, not taken for railroad use, was depreciated by the taking of the triangular strip to the amount of $2,850; that the part of the depreciation to be apportioned and assessed to the tenement property, embracing forty-seven feet frontage on Pearl street, is $950; that the part of the depreciation to be apportioned and assessed to the brick homestead property, embracing eighty-six feet frontage on Pearl street, is $1,900.</p> <p>Judgment was entered for $2,900, with interest and costs, from which judgment the defendant áppeals.</p>

B. Belden, Circuit Judge. Action upon'bonds to indemnify plaintiff from any loss sustained through the principal, who was its salesman.

B. Belden, Circuit Judge. This appeal is from two orders subsequent to and from a judgment of the trial court reversing a judgment of the county court of Racine county. The county court refused and the circuit court granted probate of the following writing alleged to be the last will and testament of one Theodore W. Johnson, deceased: “September 6th, 1895. “This is the will of Theodore W. Johnson.

T. Fairchild, Circuit Judge. Action to recover damages for personal injuries sustained by plaintiff while attempting to board a moving freight train. The accident occurred in the yards of the defendant company at the Wilcox-street crossing in the city of Milwaukee.

B. Quinlan, Judge. The appeal is from an order reversing a judgment of the civil court of Milwaukee county and directing a new trial in the circuit court. Two trials were had in the civil court, one on the traverse in the attachment proceeding and the other of the issues raised by the complaint, answer, counterclaim, and reply thereto. The action was brought by plaintiff for damages for alleged breach of contract.

This action is brought to recover damages alleged to have been sustained by the plaintiff as the owner in fee simple of a certain piece of property in the city of Milwaukee, with 531 feet frontage on First avenue, by reason of the construction by defendant of a viaduct on First avenue in front of these premises. The viaduct was constructed under the provisions of ch. 376, Laws 1901, which provided by sec. 2 thereof as follows: “Section 2.

Fritz, Circuit Judge. This is an action to recover the reasonable value of the plaintiff’s services as a broker in the sale of 36,000 gross of beer bottles, it being alleged in the complaint that the reasonable value is $1,500. The defendant denied that plaintiff had ever been employed or authorized to act as a broker or agent for it, and denied that the plaintiff was a procuring cause of the sales upon which the commissions were based.

Appeals from a judgment and an order of the circuit court for Milwaukee county: Oscar M. Fritz, Circuit Judge. This action was begun in the civil court of Milwaukee county against the defendant as indorser of four certain promissory notes, all dated March 14, 1914, each for the. sum of $427.50, executed by the Mobile Hoe Company to plaintiff.

J. Turner, Circuit Judge. The plaintiff, one of a party of three young women and three young men, while riding in an automobile south on Twelfth street and at about the center of its intersection with Wells street in the city of Milwaukee, was injured by reason of a collision between that automobile and one driven by defendant’s servant coming west on Wells street.

Gregory, Circuit Judge. The appeal is from an order denying a motion to suppress an adverse examination of defendant Flagge under sec. 4096, Stats. The plaintiff brought action against Flagge, the Northern Corrugating Company, and three other defendants by the service of a summons alone.

T. Fairchild, Circuit Judge. This is an action .for malicious prosecution. The complaint alleges that the plaintiff, a physician and surgeon, was maliciously arrested and prosecuted without probable cause, changed with having knowingly received tires stolen from the defendant company. Plaintiff claims damages in the sum of $10,000.

' Appeal from a judgment of the circuit court for Milwaukee county: W. J. Turner, Circuit Judge. The proponent originally filed a petition in the county court of Milwaukee county for the establishment of an alleged lost will of Anna Lauburg, deceased, mother of the proponent. The contestant was appointed by the county court as guardian ad litem of Herbert and Beatrice Ihmig, children of a deceased daughter of Anna Lauburg.

Appeals from orders of the circuit court for Dane county: E. Ray Stevens, Circuit Judge. Certiorari to review income tax assessments made by the Tax Commission.

Hoppmann, Judge. Plaintiff in error, hereinafter designated as the defendant, was found guilty of violating sec. 4607c; Stats. 1917, prohibiting the sale of oleomargarine which shall be in imitation of yellow butter, and prosecutes this proceeding to review the judgment of the superior court of Dane county.

Hoppmann, Judge. McCarthy was cohvicted of violation of the pure food law (sec. 460le, Stats.), and brings his writ of error to reverse the judgment.

<p> Negligence: Falling of piled timber: Res ipsa loquitur: Question for jury. </p> <p>1. Where an appliance under the management of defendant in- ■ flicts injury by reason of an abnormal and unexpected movement which could not have taken place had there been proper care exercised in its management or supervision, the abnormal action, in the absence of satisfactory explanation, affords evidence of lack of such care.</p> <p>2. Where three timbers, weighing 1,600 pounds each, were piled parallel with the line of an alley, and the top timber fell and , injured one frequenting the alley, the falling of the timber, in the absence of satisfactory explanation, afforded evidence of lack of care in piling; and the question whether the timbers fell because of insecure piling, or whether the fall resulted from the swerving of a truck against them, is for the jury.</p>

<p>Appeal from a judgment of the circuit court for Sauk county: James O’Neill, Judge.</p> <p>Action begun June 4, 1917, to quiet title to eighty acres of land originally owned by William Keith, the plaintiff’s father. The defendants claimed title to the land as heirs and cotenants of plaintiff and asked for partition and an accounjiing. Joseph Keith, the original plaintiff, has died since the appeal was taken and his administrator, W. H. Hahn, has been substituted in his place, but for convenience Joseph Keith will be called the plaintiff. William Keith, the father of plaintiff and the common ancestor of the parties, died about 1862 leaving him surviving (1) a daughter, Rachel Jessop, now deceased, who left two daughters, Fanny Almy and Nellie Jessop; (2) Joseph Keith, the plaintiff; (3) Margaret Coyne, now deceased, who left three daughters, Catherine Burns, Margaret Kehrer, and Maria Logan, the latter of whom died in 1906 leaving a son, George Logan, sixteen years of age at the time of the trial; (4) Elisabeth Jessop; (5) Nancy, deceased without issue; (6) Iona Winnerston; and (7) George Wesley Keith. Sarah Keith, his widow, never remarried and died in 1892. She continued to live on the farm till November, 1883, when she moved therefrom, never to return to it as her residence.</p> <p>Plaintiff claimed title to the land through a deed from his mother executed in 1883 and adverse possession since the death of his father. The substance of the testimony relating to adverse possession is as follows: After the death of the father the mother of plaintiff and the children, of whom plaintiff was the oldest son, continued to live on the farm as a family. As soon as the other children reached a suitable age they went out to work, returning to the farm occasionally for longer or shorter periods as convenient. After they left the farm they contributed very little to the support of their mother. ' Joseph was married in 1871 and had eight children. His wife died about 1893, and he never remarried.' In 1883 he received a warranty deed from his mother purporting to convey the whole eighty acres to him. The deed was recorded in 1901. He gave'his mother a mortgage when the deed was delivered, which was recorded January 4, 1884. In 1896 he executed and recorded a mortgage to one Lizzie Fish, and another one in 1901. Plaintiff lived continuously upon the farm after the death of his father up to the time of the trial, except for about two years prior to November 3, 1883, when he lived on an adjoining farm, and from November, 1883, he had exclusive possession of the farm till the time of the trial. From 1875 to 1882 the land was assessed to plaintiff and he paid the taxes, and the same is true since 1884. So far as use and occupancy are concerned, the plaintiff treated the farm as his own. He made valuable improvements thereon and never was asked to and never did account to any one for the proceeds of the farm. He supposed his mother and the other children had an interest in the farm when the father died, but seemed to have no clear conception of what each one’s interest was. The brothers and sisters still living testified to the effect that they were satisfied to let plaintiff have the use of the farm while he lived, and supposed that upon his death they would receive their share. This was the chief reason why they never asked for an accounting or asserted title till this action was brought. The grandchildren naturally did not know much about the matter.</p> <p>The court found that plaintiff had title by adverse possession, and entered judgment quieting title in him. The defendants appealed.</p>

<p> Workmen’s compensation: Evidence to support finding of industrial commission: Wife interested in husband’s business: Appeal: Relief to party not appealing from judgment: Right to appeal: Waiver: Parties entitled to notice to review error. </p> <p>1. A judgment of the circuit court is binding and conclusive upon all affected thereby until reversed on the appeal of those claiming it to be erroneous; and on the appeal of one judgment defendant the supreme court cannot, on reversal, disturb the judgment as to nonappealing defendants, though they file a brief alleging error.</p> <p>2. Though the findings of the industrial commission are conclusive upon the court if any reasonable view of the evidence supports them either directly or by fair inference, every finding of fact made .must have some substantial evidence in its support, though not necessarily a preponderance; and a finding cannot be based on mere conjecture.</p> <p>3. The evidence in this case is held insufficient to support a finding of the industrial commission that a wife was interested in her husbands contracting business so that his employee was her employee as. well.</p> <p>4. One of the appropriate functions of a brief filed in the supreme court is to direct the attention of the court to pertinent matters appearing in the record; and in the absence of any indication on the part of moving defendants that a notice under sec. 3049a, Stats., for the review of an error affecting them was on file in this court, a search of the record for the discovery of such document on the part of the court was not to be expected.</p> <p>5. Only the party whose interest is adverse to the appellant may secure a review of errors by giving the notice provided for by sec. 3049a.</p> <p>6. Sec. 3049a will not be construed so as to entitle a co-judgment defendant not appealing to a review of alleged errors against him without giving notice of application therefor to the party in whose favor the judgment was rendered; and if an appeal'is not taken within thirty days after the appellant has served his notice, the. right to a review is waived.</p>

Ross, Circuit Judge. Foreclosure of a certificate of tax sale covering a parcel of land of 5.90 acres owned by the defendant in the city of Superior. The certificate in question was issued to Douglas county May 19, 1908, on sale of the land by the county treasurer of that county on account of an unpaid special assessment of $1,689 for the paving of a street in front of part of the parcel sold.

Appeals from a judgment of the circuit court for Waukesha county: Martin L. Lueck, Circuit Judge. Gladys May Bare was born October 8, 1912, and in the same month placed with a Mrs. Snover at Mukwonago, Waukesha county, for care by the mother, Mattie Bare, now Mrs. Crone, respondent and appellant. She was to pay at the rate of $4 per week for such care, and subsequently, as she claims, at the rate of $2 per week, and did pay on account from time to time.

<p>Appeal from a judgment of the circuit court for Jackson county: James O’Neill, Circuit Judge.</p> <p>. Action to recover the value of services rendered by plaintiff to George Felz, Sr., deceased, and to his widow, Anna Felz, deceased. ■ Claim was filed in' the county court of Jackson county against the estate of Anna Felz, who died in March, 1916, and it was therein sought to recover for services rendered her husband, George Felz, Sr., who died in November, 1896, on the'theory that Anna Felz had received a deed of her husband’s lands with the oral understanding that she was to give them to’ plaintiff upon her death. The county court wholly disallowed the claim and the plaintiff appealed to the circuit court. ,That court refused to submit to the jury the claim of plaintiff in so far as it was founded upon services rendered to George Felz, Sr., whose estate was administered shortly after his death in 1896 and entirely closed long prior to the death of Anna Felz.</p> <p>. As to services rendered Anna Felz, plaintiff claimed under two separate agreements: one made just after the death of George Felz, Sr., in 1896, and another made in a letter from Anna Felz sent to plaintiff while he was in Minneapolis some time between 1899 and 1903, and reaffirmed after his return to the farm. Both these alleged agreements were to the effect' that if he would stay and work the farm and take care of Anna till she died she would leave him all her property. The jury returned the following special verdict :</p> <p>“(1).Did the plaintiff and his aunt, Anna Felz, after the death of George Felz, Sr., enter into a contract by the terms of which plaintiff agreed to stay with his aunt as long as she lived and render services to her and in consideration thereof she promised to give plaintiff all her property real and personal at her death? A. Yes.</p> <p>“(2) Did the plaintiff and his aunt, about the time he returned from Minneapolis, enter into a contract by the terms of which plaintiff agreed to stay with his aunt as long as she lived and render services to her and in consideration thereof she promised to give to plaintiff all her property at her death? A: Yes.</p> <p>“(3) Or, at and after the time plaintiff returned from Minneapolis, did he stay with his aunt without any contract or agreement with her that he should be compensated for his services by his aunt giving him her property at her death, but with an agreement to work her place on shares? A. No.</p> <p>“(4) If you shall have answered questions 1 or 2 ‘Yes’ and found there was such a contract for compensation as stated therein, then answer the fourth question.. But if you answer the third question ‘Yes’ you need not answer this question: How much was the value of the services of plaintiff for his aunt from and after the time he returned from Minneapolis to live with her and until her death over and above all payments or things of value received by plaintiff from his said aunt? A. $9,572.80.”</p> <p>Upon motions made after verdict the court changed the answers to questions 1 and 2 from “Yes” to “No,” and the answer to question 3 from “No” to “Yes,” and the answer to question 4 from “$9,572,80” to “$4,500,” and entered judgment dismissing the complaint upon the merits, with costs. Plaintiff appealed.</p>

<p> Deeds: Delivery to grantee on condition: Deed as testamentary document. </p> <p>1. A finding by the trial court that a deed executed by a grantor to a third person, who immediately deeded to the grantor’s wife, was made with the intention of conveying the property described in the deeds, is sustained where the evidence discloses that the grantor, being ill, .wanted the conveyance made because he might die, and both deeds were delivered by the third person to the wife, although it appears that the deeds were not to be recorded until after the grantor’s death.</p> <p>2. Neither the recovery of the grantor and his use of the property as his own until he died many years later, nor the belief of both husband and wife that the title was in the husband, changes the legal effect of the transaction.</p> <p>3. The delivery of a deed in escrow or upon condition • cannot be made to the grantee himself, and if so made it at once becomes absolute and divested of the supposed condition.</p>

<p>Appeal from a judgment of the circuit.court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>Action to revifew an award of the Industrial Commission in favor of the defendant Peter Heruben, who was a minor under seventeen years of age and was injured while in the employ of the plaintiff without having a permit as required by sec. 1728a, Stats. 1917. The Commission awarded Heruben $925.64 damages under the schedule of the compensation act, and the further sum of $1,851.28 increased compensation under the provisions of sub. 6, sec. 2394 — 9, which provides that</p> <p>“Compensation and death benefits, as provided in sections 2394 — 3 to 2394 — 31, inclusive, shall . .,. be treble the amount otherwise recoverable:</p> <p>“(a) If the injured employee be a minor of permit age and at the time of the accident is employed, required, suffered or permitted to work without a written permit issued pursuant to section 1728a.”</p> <p>This latter provision was added by ch. 624, Laws '1917, which was published July 13, 1917, and took effect September 1, 1917. Ch. 674, Laws 1917, published July 17, 1917, and taking effect September 1, 1917, raised the permit age from fourteen to sixteen years to fourteen to seventeen. Heruben was employed in August, 1917, and was then several months past sixteen years of age. So as the law then stood he needed no permit at the time he was employed, but did September 1st and thereafter. He was injured September 7th while grinding meat for Hamburger steak. Plaintiff conducted a restaurant in Superior, and Heruben was employed therein as a general helper. The Commission found that Heruben was performing work incidental to his employment at the time he was hurt and made the award as • above stated. The circuit court affirmed the award, and from a judgment entered accordingly the plaintiff appealed.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: John J. Gregory, Circuit Judge.</p> <p>Actions for malpractice. The defendant performed an operation upon Helena Jaeger, the wife of William Jaeger. It is claimed that by reason of a negligent diagnosis and the performance of an unnecessary operation Helena Jaeger was caused long-continued pain and suffering and rendered unable to perform her customary work. The husband sued for medical expenses, loss of service, etc., and the wife for pain and suffering. By stipulation the actions were consolidated and tried as one. At the close of the evidence the court directed a verdict in favor of the defendant, and' from a judgment entered accordingly the plaintiffs appealed.</p>

T. Fairchild, Circuit Judge. Personal injury. On the morning of the 11th of February, 1918, the deceased, husband of plaintiff, was on a street car traveling south on East Water street in the city of Milwaukee. The car stopped on East Water street, north of the intersection of Wisconsin street.

PIalsey, Circuit Judge. Plaintiff owned two pieces of property in the city of Marinette. She listed these properties in March, 1916, with defendant Ernst Leinss, a real-estate broker of the city of Milwaukee, for sale or exchange.

Halsey, Circuit Judge. The plaintiff, a mason contractor, sued the defendant, a general contractor, upon an alleged account stated. The defendant admitted that the parties met for the purpose of adjusting the accounts between them, but denied that any agreement was made.

Gregory, Circuit Judge. The plaintiff brought this action in the civil court of Milwaukee county to recover damages for a personal injury. The case was tried to the court and a jury. The civil court awarded judgment in plaintiff’s favor on the verdict of the jury. The circuit court, upon appeal, reversed the judgment of the civil court and awarded judgment dismissing plaintiff’s complaint with costs.

T. Fairchild, Circuit Judge. Action to recover commission on the sale of real estate based upon a written contract, the material portion of which reads: “You are hereby given exclusive authority to sell the property described ón this card for $75,000. In ,case of sale you are authorized to sign memorandum of sale as agent. ...

Fritz, Circuit Judge. Insurance. This action was commenced by the plaintiff /to recover on a policy of accident insurance issued by the defendant company on October 15, 1915, for the amount of $15,000 to plaintiff’s husband, now deceased. Upon the policy was indorsed a provision by the terms of which, if the insured met his death on a private conveyance, the amount was to be increased to $30,000.

Fritz, Circuit Judge. John Eli Pierce, father of the plaintiff, died April 20, 1902, leaving an estate of the value of $200,000 or more. In his will the defendant was appointed one of the executors and one of the trustees of the estate. He qualified as trustee and executor and performed his duties as executor until discharged, and performed the duties of a trustee until January, 1918.

<p>Appeal from an order of the circuit court for Milwaukee county. Walter Schinz, Circuit Judge.</p> <p>The appeal is from an order overruling the demurrer of the defendant to the plaintiff’s complaint. The complaint alleges that on or about the 5th day of December, 1906, the plaintiff borrowed of the defendant $25 ^ and paid him usurious interest, amounting to fifteen per cent, a month, for the same; that thereafter, and up to the 7th day of April, 1915, he continued to borrow, from time to time, various sums of money from the defendant, to the amount and value, as he is informed and believes, of upwards of $50,000’, a large portion of which sum defendant claims of plaintiff; that plaintiff has paid to defendant over and above what he has received from the defendant as loans, in usurious interest thereon, an amount greatly in excess of what defendant claims to be due him; that the reason why plaintiff is unable to make his allegations more certain is that the defendant has written the names of supposititious and other indorsers upon various checks; that he used various names which he insisted that plaintiff should draw checks to; that he has brought suit against this plaintiff, in the name of his wife, when this plaintiff had no dealings with the wife; that he had plaintiff make checks payable to various persons, and notes at the same time, which were fastened together, and ultimately the checks were to be returned to plaintiff, but many of which were never returned to him; that he made use of various corporate names, when no such corporation existed; and so conducted himself that it is almost impossible for this plaintiff to figure out exactly the amount that is due him from defendant. The prayer is for an accounting between plaintiff and defendant, and for such other .and further relief as to the c'ourt may seem just.</p> <p>The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, and from an order overruling the demurrer the defendant appealed.</p>

T. Fairchild, Circuit Judge. This is an action by plaintiff to recover $200 with interest from November 19, 1915, to April 6, 1916. It appears that the defendant company made a written contract with plaintiff to sell him a Studebaker motor car for $905. The writing signed by the parties is in the form of an order for a specified Studebaker car which defendant was selling in the city of Milwaukee.

Halsey, Circuit Judge. Commission contract. The defendant is a corporation. The plaintiff is a real-estate agent. On October 5, 1917, the defendant employed the plaintiff to procure a loan of $27,000 upon certain property located in the city of Milwaukee, and agreed to pay a commission of two per cent, therefor. The plaintiff, procured the loan and claims the amount of his commission, $540.

T. Fairchild, Circuit Judge. Plaintiff brought action in the civil court of Milwaukee county against the defendant copartners, who were engaged in the street-paving business in the city of Milwaukee, to recover a balance alleged to be due on two separate contracts: one pursuant to which the plaintiff claimed to have shipped between July 10 and 15, 1914, 5,614.52 square yards of long-leaf yellow-pine paving blocks at the agreed price of $1.45 per square yard, sold f, o. b.…

Halsey, Circuit Judge. The appeal is from an order overruling a demurrer to the plaintiff’s complaint. This action was brought by the plaintiff against William Broeckert, Hugo J. Stahl, and Bertha Stahl to'recover damages on account of fraud.

Appeals from orders of the circuit court for Milwaukee county: Oscar M. Fritz, Circuit Judge.

Gregory, Circuit Judge. Partnership. The plaintiff commenced this action against the defendants as copartners to recover $498.07, the value of certain merchandise furnished by the plaintiff to the firm in connection'with the operation of a business under the style of Marjory O’Farrell’s Beauty Shop. The plaintiff had judgment in the civil court for the amount claimed, with interest and costs.