Volume 171 — Wisconsin Reports

B. Quinlan, Judge. Mortgage foreclosure. Plaintiff was a savings, loan and building association. In October, 1912, the defendant William Strauss subscribed for membership in said association and a certificate for eighty shares of stock was issued to him. Two weeks later Strauss secured a loan of $8,000 from the plaintiff and, as collateral security therefor, executed one of the mortgages sought to be foreclosed in this action.

T. Fairchild, Circuit Judge. The appeal is from an order denying the application of the defendant Schoen, in his capacity of vice-president, treasurer, and general manager of the defendant Schoen & Walter Company, a corporation, and the application of the corporation to dismiss the action as to this corporation and Schoen as such officer and to dismiss and suppress the proceeding in the action for an examination of the corporation and of Schoen as such officer under sec.…

the circuit court for Milwaukee county: Walter Sci-iinz, Circuit Judge. Action begun in the civil court to recover damages for injury to plaintiff’s automobile sustained in a collision with defendant’s street car at the intersection of West Water street and Wells street in the city of Milwaukee on the evening of October 9, 1917. Wells street runs east and west. West Water street runs in a northwesterly and southeasterly direction.

<p> Street railways: Failure of pedestrian to look for car: Evidence: Contributory negligence: Instructions: Negligence: Presumption of ordinary care by injured person. </p> <p>1. In an action to recover for injuries to a woman eighty-six years old who was struck by a street car while attempting to cross the street ahead of the car, the jury having found that the car was being run at a dangerous and unreasonable rate of speed, the testimony of an eye-witness of the accident is held to support a finding of the jury that plaintiff did, not look before entering the danger zone, as against a contention that the finding was contrary to the established physical facts.</p> <p>2. Where there was evidence of want of care on the part of plaintiff, an instruction that she was presumed to have looked and listened before entering the danger zone, that she conducted herself as the greater mass of women of her age and infirmities would have conducted themselves under the same circumstances, and that she was presumed to exercise the care that women .of her age and infirmities would have exercised under the same circumstances, was properly refused, as not being a correct statement of the law applicable to the case.</p> <p>3. In the absence of all evidence, a person injured is presumed to have been in the exercise of ordinary care; but such presumption does not obtain where there is credible evidence to the contrary.</p>

T. Fairchild, Circuit Judge. . Certiorari. The plaintiffs F. W. Houghton and Neele B. Neelen were associated in a law practice in the city of Milwaukee prior to 1909, and in that year the relator Albert B. Houghton became also associated with them and the three continued such practice thereafter. Each individual has his own library and office furniture and they own jointly some text-books of less than $200 in value, two typewriters, and some office furniture.

Gregory, Circuit Judge. The appeal is from a judgment of the circuit court dismissing an appeal from a judgment of the county court of Milwaukee county denying probate of the will of Jennie Bilty, deceased.

Fowler, Judge. Action for personal injury. The driver of defendant’s express wagon lived next door to plaintiff’s parents. He was in the habit of driving his horse to the curb in front of his house at noon and feeding it oats in a box. On the day of the accident, August 14, 1917, he drove his horse to the curb and fed it oats.

' Park, Judge.' Conversion. On January 15, 1916, the American Wrecking & Salvage Company gave to the plaintiff a bill of sale, in ■ effect a chattel mortgage, upon 600,000 clean brick, ■ then piled in the yards of the salvage company in what is known as the Eighth-street yard. On January 19, 1916, the salvage company executed to the defendant a bill of sale of 800,000 clean brick located in the yard between Fifth and Sixth streets, and also in the Eighth-street yard.

B. Quinlan, Judge. On March 4, 1919, in the January term of the circuit court, a judgment was entered in the usual form, on plaintiff’s motion, that the bonds of matrimony between the parties be wholly dissolved, and providing that the judgment, so far as it determines the status of the parties, shall not be effective, except for the purpose of appeal and review of the same, until the expiration of one year from the date of the entry thereof.

<p> Criminal law: Discharge of defendant for want of evidence: Writ of error by state to review order discharging defendant. </p> <p>1. A writ of error does no't lie by the state in a criminal case except pursuant to constitutional statutory provisions.</p> <p>2. The effect of discharging an accused person for want of sufficient evidence is in legal effect the same as a verdict of acquittal by a jury or a verdict of acquittal directed by the court.</p> <p>3. The discharge of an accused person by the court, either before or after verdict, for want of 'sufficient evidence — in legal effect the same as an acquittal — is not reviewable by writ of error on the application of the state, under sec. 8, art. I, Const., relating to putting twice in jeopardy.</p> <p>4. The court may discharge a defendant for want of evidence, and súch an order is final and not reviewable under sec. 4724a, Stats.</p>

Halsey, Circuit Judge.' Condemnation proceedings by the owner of certain lots abutting on Oklahoma avenue in the city of Milwaukee for the recovery of damages occasioned by the cutting down of the street in front of said .lots to bring it to the level of a subway under the tracks of the Chicago & Northwestern Railway Company. From an order appointing commissioners the railway company appealed.

<p>Appeal from' an order of the circuit court for Milwaukee county: Lawrence W. Halsey, Circuit Judge.</p> <p>Condemnation proceedings by the owner of certain lots abutting on Oklahoma avenue in the town of Lake, in the county of Milwaukee, for the recovery of damages occasioned by the cutting down of the street in front of said lots to provide an approach to the bottom of a subway under the tracks of the Chicago & Northwestern Railway Company. From an order appointing commissioners the railway company appealed.</p>

Ray Stevens, Circuit Judge. The defendant, as a fraternal beneficiary association, issued a benefit certificate November 24, 1905, on the life of one Rose Josephine Ball Dobelin, then the wife of the plaintiff, for the sum of $500, payable within three months after satisfactory proof of her death to her therein named beneficiaries, Bernhard Paul Hanson and Wilhelm Otto Hanson, her brothers, to be equally divided between them.

Appeals from a judgment of the municipal court of , Brown county: N. J. Monahan, Judge. Action to recover damages resulting from a conspiracy. The following facts are undisputed: The plaintiffs are husband and wife, of Polish nationality, unsophisticated in business transactions, speak the English language poorly and write it not at all. They owned a little forty-acre farm, situated about a mile from the village of Pulaski, which had been their home for a number of'years.

Appeals from a judgment of the circuit court' for Oneida county. A. H. Reid, Circuit Judge. ' Both defendants in 1914, and for some time before, were engaged in the business of dealing in real estate in Oneida county, 'defendant Hume having his office in the city of Milwaukee and defendant Crosby at Rhinelander in Oneida county. The plaintiffs, husband and wife, were residents of the state of Missouri.

Lyon, Judge. Suit in equity for an accounting between plaintiff and defendant, who was a promoter and secretary and treasurer of the plaintiff corporation, and for the recovery of the value of stock claimed to have been fraudulently issued to defendant without consideration.' The trial judge filed an opinion but no specific findings of.fact as required by statute.

<p>Appeal from a judgment of the county court of Walworth county: Jay F. Lyon, Judge.</p>

° Lyon, Judge. On the 25th day of August, 1914, .the defendants entered into a contract with the plaintiff and one John H. Over-baugh by which the defendants purchased from the plaintiff and Overbaugh a certain farm situated in Walworth county. The purchase price was $11,000. The defendants executed two promissory notes for $1,000 each, gave a mortgage for $5,000 upon the premises purchased, and gave in exchange certain property at Hartland, of the value of $4,000.

Ray Stevens, Circuit Judge. This is a motion to dismiss an appeal. The respondent Redfield obtained an award before the Industrial Commission against his employer, Sherwood, for the loss of an eye occurring during his employment, and Sherwood brought this action to reverse the award in the circuit court for Dane county. The Industrial Commission appeared by the attorney general, the claimant not appearing, and the case was tried and the award affirmed.

J. Turner, Circuit Judge. This is.an appeabby Mortimer M. Hayden, contestant of the proposed will of Antoinette A. Keenan, from a judgment affirming a judgment of the county court of Milwaukee county admitting to probate the alleged will, with two codicils, of the above-named testatrix. On July 25, 1915, a petition for the probate of this will and codicils was presented to the county court by R. Franklin Nusum, who is named as executor by the first codicil.

<p> Arbitration: Parol evidence to make agreement definite and certain: Abatement of action: Assignments: Acceptance of sum stated subject to specific deductions: Effect: Estoppel: Reliance: Forbearance to sue. </p> <p>1. In an action ón a note, where the defendant pleaded in abatement that there had been an agreement to arbitrate the differences between the parties which had not been carried out, and the correspondence relating to the agreement did not specify the subject matter of the proposed arbitration, it was proper for the court to receive oral testimony of the surrounding circumstances.</p> <p>2. A property owner which accepted in writing an assignment of an amount due from it to a paving contractor subject to deductions arising from the filing of mechanics’ liens, and stated the amount which would be due the contractor in the absence of such deductions, impliedly excluded its right to make any other deductions from the amount stated.</p> <p>3. Where the assignee of a paving contractor, relying on an acceptance of the assignment by the property owner subject only to deductions for mechanics’ liens, extended the time for payment of the contractor’s debt to the assignee, its forbearance was sufficient, in such a situation, to estop the property owner from claiming other deductions.</p> <p>OweN, J., dissents.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee dounty: Gustave G. Gei-irz, Circuit Judge.</p> <p>' This action was brought, by plaintiff against defendants to recover the sum of $10,000 for alleged negligence. The complaint alleges that the defendants were engaged in the business of steamfitting in the city of Milwaukee, doing business under the name of the Industrial Heating & Engineering Company; that on June 21, 1917, they were engaged in work for the American Malting Company of the same city, moving steam coils for the purpose of putting in a new foundation; that the servants of defendants while engaged in this task called for a helper from the American Malting Company, and one Valentine Jank was sent by his employer to assist the servants of defendants in their work; that this Valentine Jank received his instructions from a vice-principal of defendants, George A. Gerlach, who failed to instruct Jank properly of the dangers incident to the work at hand; that Gerlach negligently caused the coils to slip and fall onto Jank through his negligent manner of applying the pinchbar to move the coil on the I-beam on which it rested and on which it was being moved; that Jank was struck and killed by one of the coils which defendants’ servants and Jank were moving.</p> <p>The complaint further alleges that Alma Jank, widow of the deceased, presented a claim for compensation under secs. 2394 — 3 to 2394 — 31, Stats. The claim was assigned •to the American Malting Company and from it to the Zurich General Accident & Liability Insurance Company. Defendants’ answer denied that George A. Gerlach, at the time of the injury to Jank, was the employee or vice-principal of the defendants, and alleges that Gerlach, with an assistant or helper, was, at the time of the injuries to Jank, hired by the American Malting Company from the defendants by the hour to do such work and perform it in such manner as the American Malting Company might direct. The defendants deny any negligence of Gerlach or their employees or agents which caused the' death of Jank. The answer also sets forth the assumption of risk as a defense.</p> <p>At the close of the trial defendants moved the court to instruct the jury to return a verdict for- the defendants. This motion was granted and judgment entered accordingly. Appeal is taken -from such judgment.</p>

<p> Vendor and purchaser: Receipt for part payment as contract of sale: Statute of frauds: Failure-to describe property sold: Negotiations on Sunday: Misrepresentations inducing contract completed on secular day: Liability. </p> <p>1. A receipt for a payment of $20 as security to apply on the purchase price of a house, stating the price and signed by the seller, who appended his own street number, which was not the number of the house sold, was not a contract, and; even if it constituted a contract, was void under the statute of frauds (sec. 2304, Stats.) as failing to describe the property sold.</p> <p>2. Where negotiations for a contract are made on Sunday, and on a subsequent secular day an act is done by the parties which completes the void Sunday contract, the Sunday negotiations are deemed reaffirmed on such subsequent secular day, and thus form the basis of either validating the void Sunday contract or of showing liability for a tort which induced the execution of the new or completed contract on the secular day.</p>

<p> Municipal corporations: Contract to"construct sezver: Lien of ma-terialmen: Sewer as “machinery:” Principal contractor turning materials over to subcontractor for installation. </p> <p>1. A materialman furnishing steel necessary to carry out a contract with the city of Milwaukee for the construction of a sewer has no lien therefor under ch. 332, Laws 1878, providing that any person that shall furnish supplies or materials in the execution of any contract awarded by the board of public works-or the commissioner of public works of the city shall have a lien therefor, where the contract under which the materials were furnished was not one awarded by the board of public works or by the commissioners but by the sewerage commission under sub. (i), sec. 5, ch. 608, Laws 1913, and sec. 8 of the same chapter.</p> <p>2. Where the contract was awarded by the sewerage commission, a right to a lien exists under sec. 3328, Stats., providing that any subcontractor, who has done work or labor or furnished materials to any principal contractor for the construction of any building or machinery may maintain an action therefor, such section not being inconsistent with ch. 332, Laws 1878, creating a materialman’s lien under contracts by the board or commissioner of public works, in which case the latter statute is controlling.</p> <p>3. A sewer is “machinery” within sec. 3328, Stats., giving a ma-terialman a lien for material used in the construction, repair, or removal of any building or machinery.</p> <p>4. In an action by a materialman against a city to recover for materials furnished, the fact that part of the materials was turned over by the principal contractor to another subcontractor to be installed did not deprive the materialman of his right to a' lien where such material was actually used in the construction of the sewer.</p>

Appeals from an order of the circuit court for Milwaukee county: Walter Schinz, Circuit Judge. In May, 1918, the plaintiff, Paul Rubekeil, an employee of the Chicago & Northwestern Railway Company, was severely injured at Butler, Wisconsin, by having botl\ legs crushed off by a freight train of said railroad.

W. Burnell, Circuit Judge. Personal service was made in this action upon the defendant Horicon State Bank, which alone appeared and demurred to the complaint. The individual defendants named were served by publication only and no appearance has been made in their behalf.

W. Burnell, Circuit Judge. Life insurance. In 1903 the defendant issued a certificate of insurance upon the life of M. C. Phillips, then residing in Oshkosh, but who removed to Chicago in 1913. The insured paid all the assessments due except assessment 145, due July 1, 1916.

W. Burnell, Circuit Judge. The parties are brothers. In 1914 they discussed plaintiff’s moving upon the farm owned by defendant ip said county, with the possible end in view of his subsequently purchasing the same. As a result thereof he did take possession in May, 1915, and remained there until the 5th of the following January, when the defendant sold the farm to one Oscar Nimmer.

Appeal, from a judgment of the circuit court for Mani-towoc county: Micpiael Kirwan, Circuit Judge. Action to recover damages for death by wrongful act. On the 3d day of September, 1916, at about 4 o’clock in the afternoon, plaintiff’s intestate, Frank Bauman, his wife, and daughter Theresa were riding in an automobile, from Mani-towoc to Two Rivers, owned and operated by Frank Kucera, Mrs. Kucera also constituting one of the party.

Michael Kirwan, Circuit Judge. The plaintiff is a niece of Christen Ballestad and his wife, who resided on a farm in Manitowoc county. In 1903, when Mrs. Ballestad was sixty-six years of age and Mr. Ballestad was seventy-three years of age, the plaintiff commenced working for them upon their farm. They continued to work the farm for three years, and after that it was rented, but they kept two cows, a horse, and some chickens.

In justice’s court the plaintiff commenced this action upon two causes of action: one for damages claimed to have been done to his automobile while it was in defendant’s care and custody in a barn near defendant’s garage in Dodgeville, and the other for the failure thereafter to return such car to plaintiff upon his demand. Defendant denied liability, and evidence was received on both sides.

The action was brought by the plaintiffs to reform a real-estate mortgage and notes secured thereby. On August 6, 1917, the plaintiffs and C. J. Duren came to the defendant bank and at their request the cashier, Mr. Fiske, drew up a land contract by which Duren contracted for the sale of his farm to Pickard for $12,500. Pickard was to pay $1,000 down on that day, the balance the following February.

B. Simpson, Judge. Action to set aside a deed on the ground of fraud and undue influence, the issue being tendered by answer and counterclaim in an action for partition. The following are the facts: James S. Bishop died intestate, in Iowa county, Wisconsin, in the year 1895, seized of 280 acres of land in that county.

Park, Circuit Judge. Alice McGinty died September 23, 1918, at Wautoma, leaving surviving Thomas Bagley and John Bagley, her only heirs at law. ■ Thomas Bagley disappeared many years ago and has not been heard from for more than fifteen years, but has never been adjudged legally dead. On October 26, 1918, Katherine Tyler applied to the county court of Waushara county for allowance of the will of Alice Mc-Ginty.

Ray Stevens, Circuit Judge. . The appeal is from an award of the Industrial Commission. At the times hereinafter mentioned Robert Freygang was in the employ of plaintiff E. Weiner Company. Both were under the provisions of the workmen’s compensation act. On April 27 or 29, 1918, Freygang sustained a bruise to his shin. By May 1st the bruise had become infected, and Dr. Harder was called to treat him.

Ray Stevens, Circuit Judge. Action to set aside dn award of the Industrial Commission for $575 in favor of the plaintiff and against the Mineral Point Zinc Company growing out of the death of plaintiff’s father while an employee of such company. The Commission found that plaintiff was only partially dependent upon his father for support and made the award accordingly.

- Perrin, Judge. The city of Superior is a city of the second class, under a special charter (ch. 124, Laws 1891). In January, 1912, the city adopted the commission form of government, and in April, 1918, the defendant F. A. Baxter was elected mayor of the city. The city has a board of police and fire commissioners, created pursuant to the provisions of the police and fire commission law (sec. 959 — 40, Stats. 1917).

Fritz, Circuit Judge.- In July, 1897, what was subsequently known as the Citizens Savings & Trust Company was incorporated under the provisions of secs. 1791cf to 1791*, Stats., as they then stood, with a capital stock of $100,000. In January, 1903, its capital was increased to $300,000, and it had placed with the treasurer of the state of Wisconsin, pursuant to said statutes, securities aggregating $10.1,000..

B. Belden, Circuit Judge. The plaintiff in error was charged in the information with murder in the first degree of Edward Warner, at Racine, Wisconsin, on December 15, 1917. There were no actual eye-witnesses to the murder, which took place about 7:15 p. m. in a Standard Oil filling station at the intersection of Seventh and Main streets in the city of Racine.

Gregory, Circuit Judge. Action begun in the civil court against the United States Fidelity & Guaranty Company on a fidelity bond to recover loss sustained by plaintiff by the .defalcation of one of its trustees, Mahler. The defendant company caused one of Mahler’s co-trustees, Safir, to be interpleaded, claiming that if judgment went against it Safir. would be liable over to it on account of his negligence.

• Appeal from, a judgment of the circuit court for St. Croix county. George Thompson, Circuit Judge. Action to set aside a deed from Michael Padden to John J. Padden of forty acres of land claimed previously to have been conveyed by Michael Padden to the plaintiff, and for the quieting of plaintiff’s title as against any claim of John J. Padden. Michael Padden is the father of John J. Padden, James Padden, and of the plaintiff.

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

' Construction of will. Robert Baird died testate on the 11th day of October, 1890. His will was probated.

<p>Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>Action for divorce. Both parties alleged cruel and inhuman treatment and prayed for affirmative relief. The court found “that defendant has been guilty of a course of cruel and inhuman treatment toward plaintiff, consisting of association with other women, some of whom were of lewd and immoral character; that he frequently told the plaintiff of his association with such women and informed her that he had had sexual intercourse with them.” Also, “that plaintiff has been guilty of a course of cruel and inhuman treatment toward the defendant, consisting of nagging the defendant and refusing to take meals with him or accompany him to places in public, and of keeping a man roomer in their home contrary to the wishes and against the protests of the defendant, to which roomer the plaintiff wrote a sentimental letter, and in whose room she has passed considerable time playing cards and with whom she has taken automobile rides.” Judgment was entered dismissing the plaintiff’s complaint and defendant’s counterclaim, from which judgment plaintiff appealed.</p>

Ray Stevens, Circuit Judge. Plaintiff brought action for specific performance of a contract to convey land. He was the owner of several'lots in the village of Middleton, Dane county, Wisconsin, and on October 13, 1916, held an auction of the lots at the village of Middleton. The lots in question were struck off to Gottlieb Maisch, the defendant, upon his bid of $225. Immediately after being so sold, a written memorandum of the sale and purchase of the lots was executed.

Hoppmann, Judge. Action to recover damages to plaintiff’s automobile sustained in a collision with defendant’s truck at the intersection of Regent and South Park streets in the city of Madison, January 26, 1919. Plaintiff charges ordinary negligence in one count and gross negligence in another count of the complaint. The defendant answered and counterclaimed for damages to his truck, alleging separately both ordinary and gross negligence on the part of the plaintiff.

Hoppmann, Judge. Personal injury. On July 5, 1916, the plaintiff purchased an automobile. Pie had never operated an automobile but had had considerable experience in the operation of traction engines. The seller undertook to 'teach the plaintiff how to drive the car. After driving around on the streets of Madison, the plaintiff, accompanied by the seller, started toward the home of the plaintiff at Dane, driving along the Westport-Madison road.

E. Ray Stevens, Circuit Judge. One Amelia- B. Trener had lived for a great many years in the village of Mazomanie and was a member of and took great interest in the welfare of the Episcopal church in that village. For about thirty years she and the defendant Mrs. Martha E. Gleason were near neighbors and intimate friends. On January 4, 1919, Miss Trener, then being about eighty-three years of age and ill, was removed from her homestead to the home of Mrs. Gleason.

<p> Bridges: Running into bridge by automobile: Action by city for damage: Negligence: Defective condition of highway contributing to cause accident: Effect: Knowledge of city officers as to defect in highway: Ineffective repair by city: Evidence: Photographs: Purpose: Discretion of court: Trial: Special verdict: Statement of issues: Instructions: Appeal: Harmless error: Extending time to settle bill of exceptions: Courts: . Policy to expedite final disposition of cases. </p> <p>1. In order that a city may recover for damages to one of its bridges by being run into by defendant’s automobile truck, it must appear not only that the driver of the truck was negligent, but that no defect in the highway contributed to produce the collision; and where the jury found against the city on both issues, any error as to the trial of one of them will not affect a judgment for the defendant, if the other was tried without error.</p> <p>2. Photographs may he offered in evidence for the purpose of identifying persons, places, and things and to exhibit particular locations or objects, where it is important that the jury should have a clear idea of the same and where the' photographs will better show the situation than will the testi- „ móny of witnesses., . .</p> <p>3. The reception in evidence of a .photograph rests largely in the discretion of the trial court; and where it was made clear to the jury that a photograph'was offered by the defendant for the purpose of showing the manner in which the city had repaired the approaches to the bridge and not to show the physical appearance of the highway at the time of the accident, the court did not abuse its discretion in receiving the photograph in evidence.</p> <p>4. A special verdict calling for findings as to whether the driver of the truck was negligent, and, if so found, whether it proximately contributed to the collision, the insufficiency of want of repair of the highway and whether it proximately contributed to the injury, is sufficient, when submitted with proper instructions, it being unnecessary and bad practice to divide and subdivide the issues by questions in the nature of . a cross-examination of the jury.</p> <p>5. Where the approaches to the bridge had been repaired by the city -under the supervision of its engineer and street commissioner, and the defect in the approach grew out of the manner in which such repairs were made, it was unnecessary to show any other facts to charge the city officers with actual or constructive knowledge of the defect.</p> <p>.6. Any want of ordinary care, no matter how slight, on the part of the plaintiff; which proximately contributes to the injury, amounts to contributory negligence.</p> <p>7. While to constitute error for a refusal to charge the jury as requested, the request should be submitted to the court in writing before the argument is begun (Circuit Court Rule XXIII), counsel may properly, at the conclusion of the charge, call the attention of the court to inadvertencies, omissions, or errors in the instructions.</p> <p>8. The action of the court in requiring that an appeal be taken within a certain time as a condition of an extension of the time for the settlement of the bill of exceptions will not be considered where the bill of exceptions was taken within the required time or without prejudice to appellant, the appeal presenting nothing but a moot question.</p> <p>9. Any policy adopted by trial courts which tends to expedite the disposition of cases will not be frowned upon by the supreme court where it appears that no substantial rights of litigants have been prejudiced.</p>

<p>Appeal from a judgment of the circuit court for Outa-gamie county: Edgar V. Werner, Circuit Judge.</p> <p>Plaintiff was payee in a promissory note for $430 dated June 20, 1916, which had been signed by defendants Mielke and Douglas as makers and against whom judgment was entered by default. The defendant William Tesch had indorsed his name upon the back of this note, and below such indorsement there was stamped an ordinary form of guaranty and waiver. Just below this guaranty the defendant and appellant, William C. Tesch, who was the son of the defendant William Tesch, signed his father’s name as follows: “Wm. Tesch by Wm. C. Tesch.”</p> <p>The note in suit was one of a series of notes on which William Tesch, the father, had been a prior guarantor and in one instance only an indorser; the last of such notes falling due at the date given on the face of the note in suit.</p> <p>A jury trial was waived, and on the hearing the plaintiff’s cashier testified in substance that he had telephoned to William Tesch, the father, about the prior note, and sent up a new note' to be signed with the stamped guaranty and waiver. Some time after June 20th Tesch, Jr., brought the note to the bank and the cashier then noticed to his surprise that the signature ,of the father was above the stamped guaranty and said to the son: “Why did your father sign above the waiver for?” and the son said, “Well, that is all right, I will sign below.” The son then and there did sign right below the stamped guaranty and turned it over to the bank. He, the cashier, did not ask questions about this signature. This was about the first time that Tesch, Jr., had been in the bank, and he, the son, did not have anything, to do with this note transaction up to that time. The son probably paid the interest due on the old note at that time. The cashier did not tell the son to sign anything; he signed himself, he knew all about it. He didn’t tell the son he was a guarantor, didn’t talk with him about it whatever, and did not ask him if he was his father’s agent. The cashier assumed he Ajas; the son did not say he was. The son had done no business for the father in the bank before. The cashier refused to accept the new note without the indorsement signed below the waiver. He relied as cashier upon the guaranty because he assumed the son to be his father’s agent. No protest of the note was made.</p> <p>At the close of plaintiff’s testimony the court granted the motion of the defendant William Tesch, the father, to dismiss the action as against him on the ground that there was no liability established against him either as indorser or guarantor.</p> <p>The son, William C. Tesch, also made a motion to disr miss the action as to him, which was denied.</p> <p>Further testimony was taken in behalf of the defendant, but is not deemed material on this appeal.</p> <p>The court found, among other things, as follows:</p> <p>“That at the time of delivering the note which is the subject of this action to the plaintiff bank, the defendant William C. Tesch, in consideration of the bank delivering up the old note, guaranteed the present note, and waived protest by William Tesch, signed by himself William C. Tesch; that at the time of signing this guaranty William C. Tesch had no authority from his father, .the defendant William Tesch.”</p> <p>As conclusions of law:</p> <p>(1) That the defendant William Tesch (the father) is not liable on said note, and the action against him was properly dismissed.</p> <p>(2) That the defendants Mielke and Douglas are liable as makers and the defendant William C. Tesch is liable as guarantor on said note; and directed judgment for the amount thereof against such three defendants.</p> <p>From the judgment so entered against him the defendant William C. Tesch has appealed to this court.-</p>

<p> Libel and slander: Storekeeper accusing customer of theft: Privilege: Damages: Repetition of slander: Circulation of incident by plaintiff: Evidence: Positive and negative testimony: Credibility of witnesses: Instructions: General exception to instruction good in part: Effect. </p> <p>1. The positive testimony of a credible witness .as to a particular matter is entitled to greater weight than the negative testimony of an equally credible witness as to the same matter; and an instruction as to positive testimony outweighing negative testimony which did not include the element of equal credibility of the witnesses, was error which requires reversal of the case.</p> <p>2. An instruction as to positive testimony outweighing negative testimony which did not define what constitutes negative testimony was objectionable.</p> <p>3. In an action for slander, the testimony of witnesses who testified positively that defendant did not speak the words charged did not constitute negative testimony. Negative testimony relates only to the testimony of a witness who had an opportunity to see an occurrence testified by some other witness to have taken place, that he did not see it, or of one who had an opportunity to hear or know of an occurrence testified positively by some other witness to have happened, that he did not hear it or recollect it.</p> <p>4. A single exception to a portion of a charge containing independent propositions, some of which are proper, is too general and will be disregarded on appeal.</p> <p>5. An instruction which would permit the jury, in determining plaintiff’s damages, to consider the fact that the plaintiff herself told a number of her friends of the incident, is erroneous, as the defendant is not responsible for the circulation of the slander by the plaintiff.</p> <p>6. A storekeeper who, in the presence of others,, accused plaintiff of being a thief, is liable for injury to plaintiff’s feelings and to her reputation caused by circulation of the charges among her friends and neighbors, not including the damages sustained by reason of plaintiff herself circulating the story.</p> <p>7. Such accusation was not privileged on the ground that the defamatory words were spoken in defense of defendant’s property, even though he was under the impression that plaintiff was in fact stealing his goods, as it was not necessary nor justifiable for him to publicly accuse plaintiff of stealing.</p>

Edgar V. Werner, Circuit Judge. This action was begun by relator on March 9, 1919, when he filed a petition for a peremptory writ of mandamus commanding the defendants to provide transportation for the school children of district No. 5, including relator’s children, and to enter into contract with some suitable person for such transportation as provided in sec. 40.16 of the Statutes of 1917'.

Werner, Circuit Judge. Action of replevin to recover possession of a Ford touring car sold by one McLeod, a subagent of the Marathon Motor Car Company, to the defendant. McLeod did not sell the car as agent of the Marathon Motor Car Company, but as the owner thereof. He had previously bought it of the Marathon Motor Car Company under a conditional sale contract on file in the city clerk’s office at Wausau, the proper place for its filing.

Solon L. Perrin,.Judge. April 7, 1919, the plaintiff, who was in the railway service, sustained an injury. At the time of the injury the federal government was in control of the property of the defendant company. The suit was begun by a service of the summons and complaint upon one J. P. Dooley on October 27, 1919.

Perrin, Judge. The plaintiff, claiming as owner and entitled to the immediate possession of a certain Ford automobile seized by defendant as deputy conservation warden on September 8, 1917, commenced this action of replevin in the municipal court of Douglas county on September 12, 1917, and had judgment in her favor. Defendant appealed and a trial was had, a jury being waived, before the superior court of Douglas county on October 9, 1918.

<p>Appeal from a judgment of the circuit court for Douglas county: W. R. Foley, Circuit Judge.</p> <p>This action was brought against the defendant, Walker D. Hines, as director general of railroads, who as such was operating the Great Northern Railway Company at the time of the accident, to recover damages for personal injuries sustained by plaintiff, who was at the time an employee of the Pittsburgh Coal Company at Superior, Wisconsin, said injuries being caused by the employees of the defendant operating one of the Great Northern Railway Company’s switch engines, in backing a string of cars against the one in which plaintiff was working.</p> <p>' The jury returned a special verdict, upon which plaintiff was entitled to recover, and assessed his damages at the sum of $3,000. Thereafter, and at the same term, the defendant moved the court for judgment in his favor dismissing the action, for judgment notwithstanding the verdict and to set aside the same, for the reason, among others, that under sec. 10 of the act of Congress of the United States of March 21, 1918 (40 U. S. Stats, at Large, 451, ch. 25), taking over the management, control, and operation of the "railroads, this action cannot be brought, instituted, or*maintained against this defendant, and can only bé 'brought, instituted, or maintained, if at all, against the Great Northern Railway Company, the owner of the property then operated by the defendant herein. This motion was overruled. Judgment was entered in favor of the plaintiff and against the defendant in the sum of $3,000, from which judgment defendant appealed.</p>

<p>Appeal from a judgment of the circuit court for Douglas county: W. R. Foley, Circuit Judge.</p> <p>This action was brought by the city of Superior against the Duluth & Sttperior Bridge Company for a writ of mandamus to compel the defendant to pave a certain piece or strip of land described as the driveway between the bridge approach and Main street, Connors Point, in the city of Superior, and to pay the cost thereof. A map of the land concerned is attached for reference.</p> <p> </p> <p>The petition for the writ alleges, in substance, that the Duluth & Superior Bridge Company was organized under the laws of this state to construct a bridge and approaches thereto over the St. Louis river between Wisconsin and Minnesota, and to operate the same as a means of traffic and communication by persons and traffic on foot, and by carriage, team, auto, street cars and steam cars; that in 1904 the company secured an act to be passed by Congress which authorized said company and its successors in interest to construct and maintain and operate a bridge and approaches thereto over the St. Louis river between the states of Wisconsin and Minnesota, extending from the northerly end of Connors Point, in Wisconsin, to Rice’s Point, opposite, in the state of Minnesota; that the land on Connors Point in the state of Wisconsin and on Rice’s Point in the state of, Minnesota, in and for a long time prior to said time, was platted, and there was a public street and highway built, laid out, and extending lengthwise of said point; that the act of Congress authorized the Bridge Company to construct and maintain the bridge from such points between Connors and Rice’s Point as the Bridge Company might select and determine; that, acting under and by authority of this act of Congress, the Bridge Company built and constructed a bridge and approaches thereto from a point selected by it on Rice’s Point to a point selected by it on Connors Point, and through and -by virtue of condemnation proceedings acquired land to approach the bridge and connecting it with Main street on Connors Point, at a point some distance from the end of Connors Point, and from the end of said platted street, and improved such bridge and approach thereto connecting the same with said Main street on Connors Point; that thereafter said bridge and approaches thereto, including the strip of land so condemned over and through private property from the end of the bridge structure to and connecting with Main street at the point selected by the Bridge Company, have been largely used for traffic for and by different means of traffic by the people as a highway between the city of Superior and the city of Duluth; that the bridge and approaches thereto, including the connecting link with Main street on Connors Point, have been so used by the Bridge Company as a toll bridge, and said company has charged and collected toll and consideration for all persons and traffic across and over the same, and still so charges and will continue to charge such toll, and that said means of traffic and transportation are of large benefit and pecuniary advántage to the city of Superior and the inhabitants thereof.</p> <p>The petition further alleges that said driveway connecting Main street with the bridge, which was so condemned for public travel, is owned by the Bridge Company, is narrow and has located thereon street-car tracks, and is used for public travel by the public on foot, by automobile, ■ teams, and street car, and other methods and means of transportation, and is the only course of travel between the cities of Superior and Duluth; that the approach between Main street and said bridge structure was paved or improved with gravel pavement, which has become so worn and out of repair that it is almost impossible and dangerous for.use of the public; that it is the duty of the Bridge Company to pave and make safe the approach and connection with Main street; that-the Bridge Company has failed and refused.,to perform this duty; that the city of Superior has no authority to expend public funds for the improvement or maintenance of the bridge or approaches thereto, including said driveway between Main street and the bridge proper, which is private property and is owned by the Bridge Company. The petitioner prays for a peremptory writ of mandamus commanding the Duluth & Superior Bridge Company to pave, improve, and otherwise maintain this roadway.</p> <p>The return of the defendant sets up, among other things, a contract made in 1904 between the city and the Bridge Company whereby the Bridge Company agreed to furnish the gravel for paving this strip or driveway and also Main street up to the end of this driveway, and the city agreed to spread the gravel and to exempt the Bridge Company from street improvement assessments.</p> <p>The Bridge Company claims that such contract requires the city forever to maintain, including repaving when necessary, this driveway to the bridge without cost to the Bridge Company, defendant, however, reserving the right to terminate such use at any time by giving ninety days’ notice. The return further alleges that since November, 1904, the city of Superior has, pursuant to the rights thus granted to it by defendant over its land, maintained said street and tract of land for public travel, and has improved the same at various times; that in 1918 the city commenced proceedings to pave and did pave Main street on Connors Point, the entire distance from'Lambona avenue west, not only to the junction between the licensed strip, but also for a distance of 256 feet over and upon the land 'of the Bridge Company, without assessing the cost thereof to the Bridge Company; that the city instituted and has now pending a regular statutory proceeding for the paving of the entire balance of the licensed strip and charging the cost thereof to the benefited property owners. The -return also claims that under the act. of Congress authorizing the construction of the bridge it is provided that the War Department especially reserved the right at any time to require or order any change in the bridge, structure, or approaches at the expense of the owner thereof, and that any litigation concerning any question arising out of the charter or the operation of the bridge should be tried before the circuit court of the United States in whose jurisdiction any part of the bridge is located; that this court has no jurisdiction to try and determine any question affecting the construction, repair, maintenance, or improvement of the approach or approaches, and because of this the action should be dismissed.</p> <p>The case was tried before the court. The court found that it is the duty of the defendant Bridge Company to maintain the traveled roadway on this strip of land from Main street to its bridge in a proper state of repair for public travel; that the contract entered into between the city and the defendant Bridge Company in 1904 is null and void in so far as it attempted to obligate the city to maintain the roadway over the strip of land, as such duty rested on the Bridge Company and was beyond the power of the city authorities to assume by contract; that the city had no authority to improve this strip at the expense of the owners of the abutting property or to expend public moneys therefor, and that the proceedings instituted for such purpose are void. Judgment was entered awarding a peremptory writ requiring the Bridge Company to pave and maintain such driveway. From this judgment the defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Green county: George Grimm, Circuit Judge.</p> <p>Action to abate a nuisance and to recover damages caused by the nuisance. The defendant operates a gas plant in the city of Monroe, and plaintiff, whose premises, consisting of about twenty acres, are situated a short distance therefrom and below the gas plant, alleges that he has sustained damage by reason of the percolation through his soil of large quantities of industrial waste, consisting of a tarry, oily liquid, which defendant has deposited in a section of an abandoned sewer upon its premises and upon the ground, causing plaintiff’s well to become unfit for domestic or other use, and polluting the soil to such an extent that disagreeable odors arise therefrom and the fertility thereof is greatly impaired; also that plaintiff has suffered great annoyance and some damage from smoke from defendant’s smokestack because not high enough and not equipped with efficient smoke-consuming devices.</p> <p>The court found for plaintiff as to all these sources of damages and assessed damages for general soil infiltration at $1,200; for pollution of the well at $100, and for excessive smoke at $10, and perpetually enjoined defendant from further deposits of industrial waste upon its premises in such a manner as to cause further pollution of plaintiff’s soil, and a discontinuance of the smoke nuisance after such reasonable time as it might require defendant to make the necessary alterations in its smokestack and for installing modern improved methods for minimizing and abating the smoke nuisance. From a judgment entered accordingly the defendant appealed.</p>

Lueck, Circuit Judge. Action for assault and battery with a jury verdict in favor of the defendant. One Carl Gubine was sworn for the defendant and gave material testimony about the transaction in question. On cross-examination he was asked as to whether he had made certain statements to any persons, which would have tended to contradict and impeach his direct testimony, and he denied having done so.

<p>Appeal from an order of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>Action to set aside an order of the Railroad Commission requiring the plaintiff to continue the operation of one of its suburban lines because it is unreasonable in that it requires plaintiff to operate it at a .loss based upon the rates fixed by the Commission and received from the operation of such line. The Commission entered a general demurrer to the complaint, and from an order sustaining it the plaintiff appealed.</p>

<p> Municipal corporations: City operating under the general charter law: Description of boundaries as part of charter: Annexation of territory by legislature as amendment of charter: Quasi-municipal corporations: Statutes: Constitutional law: Special legislation. </p> <p>1. A city of the fourth class under the general charter law (secs. 92S — 1 to 925 — 169, Stats.) exists and functions under a “charter,” in the ordinary meaning of that term, and within the meaning of sec. 31, art. IV, Const., prohibiting the enactment of any special or private law incorporating any city, town, or village, or amending the charter thereof.</p> <p>2. The description of the territory included within the corporate limits of a city of the fourth class existing under the general charter law is a part of its charter.</p> <p>3. Ch. 516, Laws 1919, providing for annexation of a portion of the town of Richmond to the city of Shawano, a city of the fourth class existing under the general charter law, is viola-tive of sub. 9, sec. 31, art. IV, Const., prohibiting special legislation amending the charter of a city, such city functioning under a “charter” within such constitutional provision, and a change in the territory thereof being an amendment of its charter.</p> <p>4. There is a substantial difference between quasi-municipal corporations, such as towns and counties (each of which is declared to be a body corporate by seds. 773 and 650, Stats., respectively), and municipal corporations proper, such as cities and villages; and decisions of this court in relation to changing the boundaries of towns and counties are not applicable to a city.</p> <p>5. Sec. 32, art. IV, Const, (providing for general laws for the transaction of business prohibited by sub. 9, sec. 31, art. IV), and art. XI, Const, (relating to municipal corporations), do not sustain the enactment of ch. 516, Laws 1919, in view of ch. 183, Laws 1917, and the plain prohibitory provisions of sec. 31, art. IV, Const.</p>

<p> Criminal law: Incest: Evidence of reputation: Witnesses: Delay in striking out incompetent testimony: Harmless error. </p> <p>1. At the trial of the defendant on a charge of incest, testimony of three witnesses to his bad reputation for chastity and morality should have been stricken out and the jury admonished to disregard it, where it appeared on cross-examination that each witness had heard no one discuss such reputation except the others.</p> <p>2. Where it appeared that such witnesses had no knowledge as to defendant’s bad reputation except such as they" had acquired from each other, but the circumstances were strongly corroborative of the defendant’s guilt and it does not seem probable that another jury would reach a different conclusion, the failure to strike out the evidence and instruct the jury to disregard it until the close of the testimony, sixteen hours after its admission, was harmless.</p>

<p> Fires: Incendiary origin: Trial: Evidence: Sufficiency. </p> <p>The evidence in this case is held sufficient to sustain the conviction of the defendant on a charge of setting fire to and burning a quantity of lumber covered by insurance.</p>

<p> Municipal corporations: Lighting plant for city of Milwaukee: Abandonment of project: Contracts with municipalities: Compliance with requirements of charter: Contracts involving use of patented article: Competitive bidding: Power of commissioner of public works to reject bids: Appeal: Reversal as to decision on one cause of action. </p> <p>1. In an action to enjoin the .city of Milwaukee from expending corporate funds for the purchase of concrete posts for a municipal lighting plant, the evidence is held not to sustain the contention of plaintiff that the city had abandoned-the erection of the lighting plant, or had forfeited its right to proceed with the project because its original plans may have been modified. Neacy v. Milwaukee, 151 Wis. 504, followed.</p> <p>2. Where the commissioner of public works' recommended rejection of the lowest bid and acceptance of the higher because of the incompetence of the lowest bidder, and, after the refusal of the common council to follow • his recommendations, rejected all bids and drew up different specifications and let the contract to the sole bidder thereunder, the contract was void, the commissioner having no discretion, under ■ sec. 10, ch. V, of the Milwaukee charter, to réject bids except where unreasonably high.</p> <p>3. Contracts binding a municipality can be made only in the .manner prescribed by the charter,-and municipal officers must follow the prescribed procedure step by step.</p> <p>4. The city’s contract for concrete posts, which could only be ' manufactured by a patented process with the use of patented machines, is void, since the only manner by which the city could obtain the advantages of such patent rights was by contract for use of the patented process and machines under the city charter (sec. 23, ch. V), relating to the city’s use of “patented article, process, combination or work,” such charter provision having reference to every situation where, by reason of the existence of patent rights, there could be no competition in letting contracts.</p> <p>5. Where the concrete posts, while not patented, could not be made except by machinery which was patented, sec. 23, ch. V, of the charter of the city of Milwaukee, providing for the acquirement of the right to the use of a patented article, must be complied with; this section of the charter being intended to exclude any other method of acquiring for the city the advantages of patented rights, articles, or processes.</p> <p>6. Where the city charter required a contract for concrete posts to be let to the lowest bidder, a contract let to a manufacturer of concrete posts by patented process with the use of patented machines was void, since in s.uch case material which did not constitute the subject of competitive bidding could not be used.</p> <p>7. The supreme court, in reversing a judgment because of error committed upon one cause of action, will remand the case only as to such cause of action and not as to a cause of action upon which the judgment of the lower court was proper.</p>

<p>Appeal from a judgment of the circuit court for Sheboy-gan county. Michael Kirwan, Circuit Judge.</p> <p>The action was referred to Francis Williams on an order to hear, try, and determine the issues raised by the pleadings and report his findings to the circuit court.</p> <p>The complaint alleges, in substance, that the defendant Sheboygan-Elkhart Lake Railway & Electric Company, on April 1, 1904, executed 800 bonds for the sum of $1,000 each, bearing interest at the rate of five per cent, per annum, payable semi-annually; that, in order to secure payment of the principal and interest of the bonds, the Sheboygan-Elk-hart Lake Railway & Electric Company made, executed, and delivered to the First Trust and Savings Bank of the city of Chicago its deed of trust covering and conveying all the property, real, personal, and mixed, then owned by the said company, as well as all of such properties it might thereafter acquire, including its franchise and all of its rights, then owned or thereafter acquired; that the Sheboy-gan-Elkhart Lake Railway & Electric Company caused 500 of said bonds, numbered from 1 to 500 inclusive, to be authenticated by the certificate of the First Trust and Savings Bank; that plaintiff is the owner of ten of the bonds, numbered from 60 to 70; that the First Trust and Savings Bank refused to pay the interest on these bonds when presented by him for payment; that by reason of the Sheboy-gan-Elkhart Lake Railway & Electric Company’s refusal and neglect to pay the interest on the bonds, plaintiff now declares the principal due and payable; that the. ten bonds owned by plaintiff are now the only outstanding bonds, the other 490 certified bonds being now in the possession of the Sheboygan-Elkhart Lake Raihmy & Electric Company.</p> <p>Plaintiff further alleges that he applied to the trustee in said trust deed to institute proceedings for his relief, and that the trustee deemed it preferable for the plaintiff to proceed in his own name and therefore refused to institute proceedings; that subsequent to April 1, 1904, and after the delivery and sale of bonds to plaintiff the Sheboygan-Elk-hart Lake Railway & Electric Company sold and transferred all of its real, personal, and mixed property, together with the income thereof, to the defendant the Milwaukee & Fox River Valley Railzvay Company, subject, however, to any rights, equities, and priorities existing by virtue of the trust deed; that the Wisconsin Trust Company claims to have a lien and interest in said property as trustee, but that.its lien is subsequent and subordinate to the lien of the trust deed above described, which was given to secure the bonds in question which the plaintiff seeks to collect in this action. The complaint alleges, in addition, that there is due and owing to the plaintiff unpaid the principal sum of $10,000, with interest thereon from April 1, 1904, according to the tenor and effect of the bond. Plaintiff asks that the amount and value of the property of the Sheboygan-Elk-hart Lake Railway & Electric Company transferred to the Milzvaukee & Fox River Valley Railzvay Company be ascertained, and that the Milzvaukee & Fox River Valley Railzvay Company be required to pay to the Sheboygan-Elk-hart Lake Railzvay & Electric Company all income from said property, which sum, .when so ascertained, be applied to the payment of the interest accruing and maturing upon the bonds of plaintiff; that all of the property of the Mil-zvaukee & Fox River Valley Railway Company which is in any way being used in connection with any of the property of the Sheboygan-Elkhart Lake Railzvay & Electric Company be declared to be subject to the liens of the trust deed herein set forth; that the Milzvaukee & Fox River Valley Railzvay Company be required to execute other deeds of conveyance of all of its franchises and property as additional security under the terms of the trust deed securing the bonds of the plaintiff; that the trust deed of the plaintiff be declared to be the first, prior, and binding lien upon all of the franchises and property of the Milzvaukee & Fox River Valley Railzvay Company; that an account be taken between the Sheboygan-Elkhart Lake Railzvay & Electric Company and the Milzvaukee & Fox River Valley Railway Company; that the Milwaukee & Fox River Valley Railway Company be ordered to pay to the Sheboygan-Elkhart Lake Railway & Electric Company whatever shall be found due said company upon such an accounting, this sum to be applied upon payment of the debt due plaintiff; that an accounting be had between plaintiff and the Sheboygan-Elkhart Lake Railway & Electric Company and said company decreed to pay what is owing to the plaintiff; that a receiver be appointed of the Milwaukee & Fox River Valley Railway Company and the Sheboygan-Elkhart Lake Railway & Electric Company pending the hearing of this case and until further order of the court.</p> <p>The answers of the defendants are, in brief, as follows:</p> <p>The Sheboygan-Elkhart Lake Railway & Electric Company alleges that the bonds of which plaintiff claims ownership were delivered to his assignor, P. P. Brickbauer, in May, 1904, as collateral security for a claim which the assignor might then have against the Sheboygan Company; that more than six years have elapsed since the bonds were delivered to P. P. Brickbauer, and that Brickbauer has made no claim against the Sheboygan-Elkhart Lake Railway & Electric Company, and is therefore barred by sec. 4222, Stats.; that plaintiff knew no interest has been paid on the bonds since the alleged purchase of the bonds by plaintiff from Brickbauer; that at the time of the purchase of the bonds by plaintiff from Brickbauer plaintiff knew that the Sheboygan-Elkhart Lake Railway & Electric Company had not sold, transferred, or conveyed its property to the Milwaukee & Fox River Valley Railway Company, and that ninety of the authorized issue of 500 bonds had been issued and were then outstanding as a debt against the Sheboygan-Elkhart Lake Railway & Electric Company; that prior to the commencement of this action the plaintiff neglected to request of the trustee that the action be brought by said trustee, ■ and neglected to tender the trustee an indemnity bond for the bringing of the action. The Sheboygan-Elk-hart Lake Railway & Electric Company also denies that plaintiff is the bona fide owner of the bonds, and alleges that P. P. Brickbauer is a necessary party to this action.</p> <p>John Dassow filed an answer alleging that for the past three years he has held and now holds in his possession sixty-nine bonds of the Sheboygan-Elkhart Lake Railway & Electric Company, which are now held by him as collateral security for the payment of moneys advanced to that company which is now due and unpaid, and that no proceedings have been had or taken to redeem the bonds held by him. He also prays that his rights in this action be ascertained and protected by the court.</p> <p>George Brickbauer answers that he is in possession of forty-nine bonds issued by the Sheboygan-Elkhart Lake Railway & Electric Company and delivered to him as collateral security for money furnished and services rendered by him to the company, and that no part of them has been paid. He denies that the plaintiff is now or ever was the owner of the bonds mentioned in the complaint. '</p> <p>The issues thus formed by the pleadings were referred to Francis Williams, court commissioner, to hear, try, and determine. The court commissioner found, in substance:</p> <p>That the Sheboygan-Elkhart Lake Railway & Electric Company and the Milwaukee & Fox River Valley Railway Company are corporations duly organized under the laws of this state;-that the Sheboygan-Elkhart'Lake Railzvay & Electric Company on April 1, 1904, executed 800 bonds, with interest-bearing coupons attached to each of the bonds, being for the sum of $1,000 with interest at the rate of five per cent., payable semi-annually, the bonds maturing on April 1, 1934, with option on the part of the holders to declare the whole amount due upon failure to pay any in-stalment of interest due thereon; that the bonds were secured by a deed of trust to the First Trust and Savings Bank of Chicago of all the property, real, personal, and mixed, then owned by the Sheboygan-Elkhart Lake Railway & Electric Company, as well as all of the same which it acquired immediately thereafter, together with the rents, issues, and profits thereof, including franchises and rights then owned or thereafter acquired; that this deed of trust was duly recorded and 500 of the bonds, from 1 to 500 in number, authenticated by the certificate of the First Trust and Savings Bank of Chicago and delivered to the Sheboy-gan-Elkhart Lake Railway & Electric Company; that the latter company sold and delivered eleven of said bonds to Peter Brickbauer; that Peter Brickbauer sold and delivered the said eleven bonds to Albert H. Wegner with coupons attached thereto, numbered from 61 to 69, inclusive, and numbers 129 and 130, upon which no part of the principal or interest has ever been paid; that the Sheboygan-Elkhart Lake Railway & Electric Company failed and refused to pay interest upon the bonds, and that plaintiff declared the principal sum of the bonds due and payable in accordance with the terms of the bonds and the trust deed securing the same; that the following bonds were outstanding against the Sheboygan-Elkhart Lake Railway & Electric Company at the time the property of the company was transferred to the Milwaukee & Fox River Valley Railway Company, no part of the interest or principal of which had ever been paid: forty-nine bonds to George Brickbauer, sixty-eight to the Dairyman’s National Bank of Sheboygan Falls, - which sixty-eight bonds were afterwards assigned to John Dassort), present owner of the same; that shortly after April 19, 1904, George Brickbauer was elected president of the Sheboygan-Elkhart Lake Railway & Electric Company; that in November, 1908, George Brickbauer and others caused to be incorporated the Milwaukee & Fox River Valley Railway , Company with an authorized capital of $25,000 divided into 250 shares of the par value of $100 a share; that George Brickbauer subscribed for 120 shares of the capital stock of the company and that other persons subscribed for seventeen shares; that George Brickbauer was thereafter elected president of the Milwaukee & Fox River Valley Railway Company. The referee found, in addition, that the Milzvaukee & Fox River Valley Company thereafter acquired the property of the Sheboygan-Elkhart Lake Railway & Electric Company; that the Milwaukee & Fox River Valley Rail-zvay Company shortly after its organization increased its capital stock from 250 shares to 750 shares; that George Brickbauer thereupon subscribed for 255 shares of such increase and thereafter controlled all of the issued stock of said company excepting five shares which were held by the other directors of the company; that on December 5, 1907, the Milwaukee & Fox River Valley Railway Company authorized a bond issue of $200,000 to be secured by a trust deed of all the property of the company, which trust deed was signed and delivered to the Wisconsin Trust Company of Milwaukee, the bonds being duly authenticated by said trustee; that when the plaintiff requested the trustee mentioned in the trust deed authenticating the bonds of the Sheboygan-Elkhart Lake Railway & Electric Company to start action against said company because of its default of payment of the interest of the bonds, it refused, and plaintiff is therefore entitled to maintain this action and to foreclose the trust deed described in the complaint; that there is due the plaintiff, Albert H. Wegner, the sum of $11,000 and interest at six per cent, from October 1, 1904, and there is due the defendant George Brickbauer' %49,000 with interest at six per cent, from October 1, 1904; that there is due the Dairyman’s National Bank, its successors and assigns, $68,000 with interest at six per cent, from October 1, 1904; that the fair and reasonable value of the property of the Sheboygan-Elkhart Lake Railzvay & Electric Company turned over to the Milwaukee & Fox River Valley Railzvay Company is $1,125.</p> <p>As a conclusion of law the referee found that the indebtedness upon the bonds aqd trust deed found to be due the plaintiff, the defendant George Brickbauer, and the Dairyman’s National Bank should be declared to be a lien upon the real property of. the Milwaukee & Fox River Valley Railway Company to the amount of $1,125, which lien shall be prior to any lien originating against the property subsequent to the recording of the trust deed, and that to satisfy this lien a sale of the property should be ordered and directed unless the Milwaukee & Fox River Valley Railzvay Company pays such amount into court before the sale.</p> <p>The trial court modified the findings of the referee by finding that, if the property upon which the judgment becomes a lien shall be sold thereunder, the sheriff shall thereupon pay from the proceeds of the sale the legal expenses of the sale and the costs of the action which are taxed and included in the judgment, with interest, and shall then pay the balance of the proceeds into court; that out of said proceeds then remaining in his hands the clerk shall pay to the plaintiff 11-128 thereof; that the residue of the proceeds shall be retained by the clerk for further order of the court for payment thereof to the persons entitled thereto; that if before the sale any of the defendants shall pay into court the sum of $1,125, together with interest from and after the date of the judgment, and thereb}^ prevent such sale, the clerk shall pay 11-128 of the sum remaining after costs as taxed in the judgment, with interest, have been deducted. The- court denied costs to the plaintiff.</p> <p>Judgment was rendered in favor of the appellant and the respondents George Brickbauer and the estate of John Dassozv for the amount of the principal and interest due on the bonds respectively held by each of them, and adjudged the entire bonded indebtedness to be a prior lien upon all the property of the respondent the Milzvaukee & Fox River Valley Railzvay Company to the amount and value of $1,125, and that such lien is prior and paramount to any right, claim, or interest of the defendant the Milzvaukee & Fox River Valley Railway Company.</p> <p>This is an appeal from such judgment.</p>

<p>Appeal from a judgment of the circuit court for Wau-shara county: Byron -B.-Park, Circuit Judge.</p> <p>The plaintiffs and defendants other than Edith Nelson áte brothers and sisters and children óf one Thomas Ndson; Edith Nelson is the wife of Andrew Nelson. ■</p> <p>The estate of Thomas Nelson, who died in May, 1896, was duly probated in the county court of Waushara county, and the real estate of which he died seised, comprising 160 acres of land, was assigned in equal shares to said children subject to the dower and homestead rights of the widow, who still survives.</p> <p>For a long time after the death of the father the defendant Sever Nelson, who was the second oldest child, with the aid of his mother conducted and managed the entire farm, and thereby all the members'of the family remaining at home received support and care. In 1903, 1904, and 1910 the daughters Clara, Mary, and Olga were respectively married.</p> <p>In 1907, pursuant to an understanding between all interested, the two plaintiffs Olga and Clara jointly executed two deeds, one of the forty-acre tract upon which was the homestead, to the defendant Sever Nelson, and a second of the remaining three forties to the defendants Sever and' Andrew. The first of these was recorded on the day the two were executed, December 11th. A few days later the other sister, the plaintiff Mary, executed two similar deeds, neither of which was recorded.</p> <p>At the time of the conveyances in 1907 it was understood as a part of the then agreement that the widowed mother should continue to live on the farm and be supported by the defendants Sever and Andreiv.</p> <p>Early in 1908 the defendants Sever and Andrew Nelson, with the mother, executed a mortgage for the sum of $1,800 which was recorded. Out of this money $200 was paid to each of the sisters Clara and Mary, being the amounts that it is claimed were to be paid by the two boys to such sisters under the agreement of December, 1-907.</p> <p>In 1910 the farm was rented for four years to Olga and her husband, who retained the possession thereof during that time and took care of the widow under an agreement for compensation for so doing to be paid by the defendant Sever.</p> <p>Early in 1912 the defendants Sever and Andrew, being desirous of executing a new mortgage upon the farm, discovered that but one of the four deeds executed in December, 1907, had been recorded. Thereupon new deeds were obtained from the three sisters, similar in form to those of 1907, and which were recorded January 13 and 18, 1912, and immediately afterwards a new mortgage for $2,500 was executed.</p> <p>In July, 1913, the plaintiffs claimed to have discovered in some way that there was a mistake in the computation as to their respective interests as heirs at law at the time of the transaction in 1907, but nothing definite was .known or stated in that regard.</p> <p>In December, 1913, the plaintiff Olga was paid $1,000 by the defendants Sever and Andrew, and a receipt given signed by the plaintiff Olga Darling and her husband in the following language: “Received of Sever Nelson and Andrezv Nelson $1,000 in full payment of all claims against them and the estate of Thomas Nelson.” This $1,000 covered two items, one of the $300 which it was agreed should be paid to her in December, 1907, and $700 for the support of the mother during the four years the Darlings were in possession of the farm; it having been .understood in 1907 that the plaintiff Olga Darling was entitled to a larger interest than the two sisters on account of her having lived longer on the premises and assisted in taking care of the same.</p> <p>This action was commenced in 1918. It was an equitable proceeding wherein the three sisters as plaintiffs demanded judgment against the defendants canceling and setting aside the deeds heretofore described of 1907 and 1912 and the record thereof in the office of the register of deeds, and requiring the defendants to account for the rents and profits of the farm and adjusting the rights of the parties in the premises. The substance of the allegations upon which such prayer for relief was based' were recitals as to the relationship of the parties, the trust and confidence the plaintiffs had in the defendant brothers, the assistance the plaintiffs gave in carrying on the work on the farm during the times they were still living there and on their occasional returning to the farm and then helping, and their 'unfamiliarity with business transactions and ignorance of land values. That in 1907 it became necessary to build a new barn on the farm and that the plaintiffs then agreed that they would convey eighty of the 160 acres to the defendants, and that as consideration therefor the defendants should pay to the plaintiffs Mary and Clara each the sum of $200 and to the plaintiff Olga $300. That then the defendants were to pay off the existing mortgage on the premises, build a barn on the homestead, and support the mother during the balance of her life, and that upon the death of the mother each of the plaintiffs would share equally with the defendants in the remaining eighty acres of the farm, and until such time such last mentioned eighty acres, including the homestead, should continue to be owned in equal shares by the parties. That pursuant to the agreement the defendant Sever Nelson had the deeds prepared for execution, but made them contrary to the agreement heretofore described; that plaintiffs relied upon the promise of the defendant Sever to have the papers so prepared as to carry out -what they allege was the agreement and his representation to them at the time the deeds were presented for signature that they were all for but eighty acres and did not include the homestead forty.</p> <p>That as to the second set of deeds in January, 1912, the defendant 'Sever represented to plaintiffs that he needed their signatures to such papers as were then presented in order to enable him to borrow money to pay up the old mortgage and that such papers so presented, signed, and executed by the plaintiffs were exactly the same as the prior ones of 1907, and that they were not read nor explained to plaintiffs at the time of their signing.</p> <p>Defendants answered and alleged in effect that the deeds of 1907 and 1912 were respectively in accordance with the agreement made in 1907, and that those of 1912 were solely for the purpose of taking the place of the two which had been executed in 1907, and, being lost or mislaid, had never been recorded. Defendants further answered and counterclaimed to the effect that they had been in possession of said premises holding adversely to the plaintiffs by title founded upon the deeds of 1907, and further, that while so holding possession under said deeds and adversely to the plaintiffs they have made valuable improvements upon the said premises and paid taxes thereon. The defendants demanded judgment that the complaint be dismissed, or, in case of the plaintiffs being awarded possession of the premises or any part thereof, that the defendants be allowed for improvements and taxes paid and for such other and further relief as may be just and equitable.</p> <p>By amended answer the defendants asserted, as an additional defense that the plaintiffs are estopped by laches from claiming title to said lands or any interest therein.</p> <p>By reply the plaintiffs denied every material allegation in the counterclaims.</p> <p>The court found: That there had been an increase of $1,500 in the value of the homestead between 1896 and 1907, which increase was due almost entirely to the improvements made thereon; that the farm in 1907 was worth about $7,000, and in 1912 about $8,500, and in the year 1918 to 1919 about $9,000. That upon Andrew Nelson, the youngest child, becoming of age in 1907, all the parties interested came to an understanding that the estate should be divided and as a basis of division that the three girls should be paid off and the land deeded, subject to the rights of the widow, to the two defendants Sever and Andrezo, but to be so deeded that Sever should have the larger interest in recognition of work and labor since the death of the father. That none of the plaintiffs gave any attention or heed to the matters of the estate, but relied completely and entirely upon Sever and knew nothing of business matters nor what their interest in the farm was. That the defendant Sever went about the business of carrying out the understanding as to the deeding of the property with the purpose of dealing fairly and rightly with his sisters, and never at any time, and certainly not until after the year 1913, had any purpose to do them any wrong and had no knowledge that any wrong had been done them. That after the execution of the deeds defendant Sever paid to the sisters Clara and Mary each $200, believing that such was a liberal payment in full of the interest of each, and they each received and accepted said sum as the sum which was due them for their interest, relying, entirely on their brother as to the sum which was proper and right they should be paid for their interests. That it was a part of the understanding that Olga should remain with her brothers and receive a larger sum to be paid at a later date. That in July, 1913, plaintiffs caused some investigations to be made and became convinced that they had not been paid money enough and so claimed to both defendant Sever and Andrew, and the latter both promised that they would make it right, but neither the plaintiffs nor the said defendants know what their error was nor how much was due the plaintiffs and no more definite demand or promise was made than as stated, and' that plaintiffs relied upon such promises. That the payment of the $1,000, including the $300 for her interest in the estate, was made in December, 1913, to the plaintiff Olga. That Sever Nelson during the entire transactions acted as a fiduciary toward his sisters and mother and they at all times relied upon him and took his word for everything. That neither in 1907 nor in 1912 did either Sever or Amdrevu do any intentional wrong, but that the mistake as to a basis for figuring the present value of the plaintiffs’ interests operated as a wrong and fraud upon them, which was not discovered until 1913 and was not known by the defendants before that time. That a wrong was done the plaintiffs in 1907 when the present values of their interests were figured on the 1896 values instead of upon the 1907 values. That defendant Sever reported the understanding arrived at to the attorney who had probated the father’s estate, who made computation of the then present value of the widow’s interest and the respective interests of the heirs upon the values as of 1896, instead of 1907, as the basis of settlement. That it was a part of the understanding in 1907 that the defendants Sever and Andrew were to take care of the mother, and that they have performed that duty; that the plaintiffs did not delay bringing suit against the defendants to the injury of the defendants; that for a portion of the time the deláy is attributable to the promise of Sever to make matters right and some delay attributable to the uncertainty they were in as to their rights, and some delay came from war activities.</p> <p>As conclusions the court found:</p> <p>That no statute of limitations barred the action and there was no laches on plaintiffs’ part; that the receipt of Olga Darling of December 7, 1913, was not a bar; that there was no intentional fraud or wrong done by Sever, at least prior to the year 1913, but that his mistake in the present value of the plaintiffs’ interests, in view of the fiduciary relation he bore to the plaintiffs, operates as a wrong and a fraud upon them entitling them now to relief in the form of a money judgment to be made a lien upon the premises, subject to the existing mortgages, homestead, and dower rights of the widow.</p> <p>That the amount due the plaintiffs Clara and Mary is to be determined by taking the value of the land in 1907, deducting the indebtedness then existing and the widow’s interest in the property, then allowing a one-fifth interest to each heir, adding to it one fifth of the value of the personal property (which' by the findings was determined to have passed to the defendants in 1907), and then substracting the $200 paid and computing interest on the same from July, 1913.</p> <p>A similar provision as to the amount due the plaintiff Olga, except that the deduction be $300 instead of $200, and computing interest from December, 1913. No costs were allowed either party, except the defendants to pay the balance of the clerk’s fees.</p> <p>The judgment entered in accordance with the said findings provided:</p> <p>(1) That the plaintiff Olga Darling do have and recover from the defendants Sever Nelson and Andrew Nelson the sum of $752.68.</p> <p>(2) That the plaintiff Clara do have and recover from the defendants Sever Nelson and Andrew Nelson the sum of $903.16.</p> <p>(3) The plaintiff Mary Dobbie the same as the plaintiff Clara Smith.</p> <p>(4) That the title to the homestead forty acres is adjudged to be in the defendant Sever Nelson, subject to the homestead rights of the widow.</p> <p>(5) That the title to the remaining 120 acres is adjudged to be in the defendants Sever and Andrew Nelson in equal undivided shares, subject to the dower rights of the widow.</p> <p>(6) That the aforesaid judgments in favor of the plaintiffs are a lien upon the lands, subject to the mortgages, homestead and dower rights.</p> <p>From the judgment so entered the defendants have appealed.</p>

<p>Appeals from orders of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p> <p>The appeals were from' orders overruling demurrers of the defendant Industrial Commission.</p> <p>In both cases the Industrial Commission made awards under the workmen’s compensation act to widows of men accidentally killed in the course of their employments and ordered that such awards be paid to the alien property custodian. In each case the employing companies brought action to set aside the awards of the Commission on the grounds that it had acted in excess of its powers in entering awards against the plaintiffs for the reason that the widows to whom the awards were made were at all times in question nonresident alien enemies and therefore unable to institute or maintain the actions. The Industrial Commission demurred to the complaints on the ground that it appears on the face thereof that there is a defective party defendant by reason of the omission of Francis P. Garvin, alien property custodian.</p> <p>The trial court found that the alien property custodian has no beneficial interest in the amount of the awards and that his only duty is to serve as a depositary for the amounts awarded until such time as they may be paid to the applicants, and that the alien property custodian is not an adverse party within the meaning' of the statute requiring the adverse party to be made a party defendant in an action to set aside an award of the Industrial Commission.</p> <p>Orders were entered overruling the demurrer in each case. An appeal was taken from each of such orders.</p>

<p>Appeals from an interlocutory decree of the circuit court for Milwaukee county: Martin L. Lueck, Judge.</p> <p>This action was commenced in June, 1915, by the plaintiff H. W. Goodwin, as administrator of the estate of J. Arthur Davis, deceased, and F. B. Thomas, minority stockholders of the Milwaukee Lithographing Company, against the Milwaukee Lithographing Company and Alfred von Cotzhausen, its president, general manager, and treasurer, and other officers, for the appointment of a temporary and permanent receiver for said corporation to take charge of all its property and assets and to administer the same pending the determination of this suit, and for the restitution of funds alleged to have been unlawfully abstracted therefrom by the said von Cotzhausen and other officers and directors of the corporation. The suit was brought by plaintiffs on their own behalf and on behalf of all other stockholders similarly situated. Thereafter petitions were made by Edgar A. Goetz and Lillie A. Brosius, also minority stockholders, and they- were made parties plaintiff, and they served separate supplemental complaints and a joint second supplemental complaint, demanding a winding up-of all the business, property, and affairs of .the Milzvaukee Lithographing Company, a conversion thereof info cash, to be applied to the payment of debts and then distributed among the stockholders.</p> <p>Upon motion made October 9, 1915, a receiver was appointed March 9, 1916, who took charge of the property, business, and affairs of the said Milwaukee Lithographing Company and continued to administer the same until the entry of the judgment herein.</p> <p>On June 29, 1916, the case was referred to the Hon. Max W. Nohl, court commissioner, to hear, try, and determine. In due course he made and filed his findings of fact and conclusions of law, in which he found that the Milwaukee Lithographing Company was organized June 7, 1902, with an authorized capital stock of $100,000, divided into 1,000 shares of $100 each; that by amendment of its articles of incorporation on the 28th day of April, 1910, its capital stock was increased to $250,000, divided into 2,500 shares Qof $100 each, and that at the time' of the commencement of this action there were issued 1,867 shares of said stock, of which 677 shares were owned by von Cotzhausen and 600 shares by the American Fine Art Company, a corporation controlled and dominated by the said von Cotz-hausen; that from its organization to the 29th day of August, 1913, J. Arthur Davis was its president and general manager; that from August 29, 1913, to.March 9, 1916, von Cotzhausen was the president and general manager thereof; and that from September 30, 1910, to March 9, 1916, the said von Cotzhausen was treasurer thereof.</p> <p>That the Mihvaukee Lithographing Company, from the time of its organization up to the time that Alfred von Cotz-hausen became active in the control of'it, in the year 1913, was a prosperous concern; that the gross sales made, net profits made, losses sustained, dividends paid, and the surplus at the end of each fiscal year of said'corporation, from the time of its organization down to March 9, 1916 (the time at which the receivers were appointed in this case), according to the-company’s books, were, as follows:</p> <p>Year. .1903 1904 1905 1906 1907 1908 1909 1910 1911 Sales. $138,583-50 143,036 27 169,317 88 ' 215,864 33 192,101 79 255,993 53 250,823 00 297,692 08 310,697 23 289,192 93 164,[ XXX XX XXXX ] 1913’ 1914 1915 To July 12 25,783 27 To Nov-. 12- 15,086 94 To March 9 Profits. $12,361 24 . 8,054 90 - 9,531 23 22,913 49 30,785 12 13,649 92 32,766 17 27,532 63 ' 39,794 62 45,465 50 11,617 64 Losses. Loss Cash Stock $21,260 85 21,212 36 8,379 72 22,772 92 Dividends. $3,354 28 5,011 12 6,467 99 3,595 62 16,232 50 30,200 00 21,690 00 1,010 00 25,215 67 50,6.66 00 22,404 00</p> <p>That by various schemes and devices the said Alfred von Cotzhausen, from the year 1911 down to the appointment of the receiver herein; fraudulently, corruptly, and unlawfully diverted various sums of money from the said Milwaukee Lithographing Company and appropriated the same to his own use, which, with interest thereon up to the time of the entry of judgment herein, approximated $60,000; that from on or about the 1st day of January, 1911, the said Alfred von Cotzhausen did not faithfully or- properly perform his duties as an officer, director, and employee of the said Milwaukee Lithographing Company or as manager thereof ■; that he, on the contrary, carelessly, negligently, and recklessly failed to properly manage the business and affairs of the said Milzvaukee Lithographing Company and failed to perform his duties as an officer, director, and manager from such date down to the appointment of the receivers herein on March 9, 1916; that he was inattentive to his duties and mismanaged the said corporation’s business, property, and affairs; that by reason and in consequence of such carelessness, negligence, recklessness, failure, mismanagement, and inattention to the proper performance of his duties as an officer, director, manager, and employee of the sáid Milzvaukee Lithographing Company, the said company was caused financial losses in the sum of- $60,000, which losses the referee finds' that' the Milzvaukee Lithographing Company sustained by reason of such careless, negligent, and reckless conduct and management, in addition to the specific abstractions before referred to; that the business of said company at the time the said von Cotzhausem became actively connected with it was a well-regulated, steady, and constant business, not subject to other than ordinary fluctuations, which ordinary fluctuations could, with ordinarily careful management, be overcome to such an extent as to prevent the diminution of the average yearly profits; that from the time said Alfred von Cotzhausen became so actively connected with said company he could and should have conducted the business thereof in substantially the same manner in which it had been conducted theretofore and with like good results.</p> <p>That at the time of the commencement of this suit and ever since, the said Milwaukee Lithographing Company was and now is in grave and imminent danger of ruin and insolvency; that the defendant Alfred von Cotzhausen for many years last past had and still has the reputation among the trade and business in which the Milzvaukee Lithographing Company is engaged, as being unreasonable, unreliable, dishonest, and litigious, and as being a dangerous man to deal with; that he is an unfit, an improper, and incompetent person to have the management or control or to be an officer, director, agent, or employee of the said Milzvaukee Lithographing Company or any of its business or to be actively interested in or identified with it; that by reason of. his said bad reputation, his personal character, his general unfitness, and his known.ownership of the majority of the stock of the Milzvaukee Lithographing Company, the said company cannot safely or profitably continue in its said business; and that by reason of the things found by the referee and of differences existing between the stockholders of the said 'Milzvaukee Lithographing Company continuance in business by the said company is impracticable and would be ruinous; that continuance in business would result in the stockholders thereof quickly losing the assets of the said corporation; that the wasting .of the assets of the said corporation would soon result in insolvency; that there is no prospect of said corporation succeeding as a going concern; that Alfred von Cotzhausen’s future active connection with said corporation would result in its being completely ruined; that the best interests of all stockholders, creditors, and persons interested in the said corporation require that all the assets, property, and effects thereof as they now exist or as they may hereafter exist, including its good will,, be sold and that the affairs of the corporation should be wound up at the earliest possible moment; that there is no other adequate remedy'to protect the' stockholders; that the accomplishment of the object for which the company was organized is no longer possible, and that it .would be to the, best interest of all parties concerned that there should be sold to the highest bidder all of the assets, property, effects, and good will of the Milwaukee Lithographing Company. The referee also found that none of the other officers or directors of the Milwaukee Lithographing Company were guilty of any malfeasance, misfeasance, or nonfeasance and were not liable in the action.</p> <p>As conclusions of law the referee found that the Milwaukee Lithographing Company should have judgment against the said Alfred von Cotzhausen for the various sums unlawfully abstracted from the company and appropriated to his own use, aggregating upwards of .$60,000, and for the additional sum of $60,000 for the loss of profits and damage to the business as .a result of mismanagement of the affairs of the corporation, and that a sale of all the assets, property, effects, and good will of the Milwaukee Lithographing Company be decreed, such sale to be conducted in the manner set forth in the findings.</p> <p>The circuit court modified the report of the referee by substituting $30,000 for $60,000, the amount of damages found by the referee to have been sustained by the company because.of loss of profits and business resulting from the mismanagement thereof by the said defendant Alfred von Cotzhausen, and entered judgment in the nature of an interlocutory decree confirming the report in all other material particulars, by which judgment was rendered against Alfred von Cotzhausen and in favor of the Milwaukee Lithographing Company for the.various sums found to have been unlawfully abstracted and appropriated to his own use, aggregating approximately $60,000, and for the further sum of $30,000 as damages resulting from loss of profits and business due to the mismanagement thereof by the said Alfred von Cotzhausen.</p> <p>From the judgment so entered the defendant Thomas appealed from certain portions thereof, but the appeal was dismissed upon the argument of the case and requires no further consideration.</p> <p>The defendants Alfred von Cotzhausen and Friedericke Bode appealed from the whole and every part of the judgment.</p> <p>The plaintiff H. W. Goodwinj as administrator with the will annexed of the estate of J. Arthur Davis, deceased, appealed from the part of the interlocutory decree directing the recovery from the defendant Alfred von Cotzhausen of the sum of $30,000 instead of $60,000, and from so much of the said interlocutory decree as adjudges and "determines, that the. plaintiffs Brosius and Goetz should have their just and reasonable compensation for their attorneys’ services and other expenses incurred in this action and for the subsequent costs and disbursements as adjudged in paragraph 18 of the interlocutory decree.</p>

<p>Appeal from a judgment of the municipal court of Brown county: N. J. Monahan, Judge.</p> <p>On or about September 15, 1915, the plaintiff while employed by defendant, his brother, as a farm hand on the latter’s farm, injured his shoulder in a fall which occurred when he was climbing up through a chute to the upper floor of. defendant’s barn. The injury interfered with his performing his usual services until the time he left defendant’s employ ten days later. He was then examined by a physician, who thereupon notified defendant by letter of the injury. The defendant called at the doctor’s office and saw the plaintiff and doctor and was then and there informed of the details of the accident as claimed by plaintiff. On October 4th the defendant reported the accident to the industrial commission, saying as follows:</p> <p>“No one saw the accident, but the man says he was going up into the hay loft when he fell down to the floor. Party kept on working until Saturday, September 25th, and I knew nothing of the accident until I got the letter from the doctor telling me about it.”</p> <p>On October 25th the plaintiff was reported by the physician as being cured, and on the 15th day of November, 1915, he was paid by an insurance company on behalf of defendant $65.64, including $37.50 for doctor’s bill.</p> <p>On August 21, 1916, plaintiff was examined -by another physician and it was then disclosed that there was an atrophy of the shoulder muscles which results in a permanent substantial impairment in the use of the arm.</p> <p>On January 18, 1917, the plaintiff made application to the industrial commission for compensation on one of the usual blanks, giving the date of the accident as April, 1916, instead of the correct date, September 15, 1915.</p> <p>A notice was issued by the industrial commission 'setting a hearing of said matter for March 2, 1917, which notice was sent by mail, together with a copy of plaintiff’s application, añd both were received by defendant prior to said March 2d. Defendant .appeared on such hearing and dénied any injury to the plaintiff in due course of his employment in April, 1915, or at any other time. An examination of its record by the industrial commission disclosed the fact that at the time of the injury in September, 1915, defendant was not then or until November 1, 1915, under the workmen’s compensation act. The claim of the plaintiff was thereupon dismissed by the industrial commission.</p> <p>On March 1, 1918, the summons, and complaint herein were'served upon the defendant.</p> <p>Upon the issues framed the jury found that- the defendant did not use prdinary care in furnishing a safe place for plaintiff to perform his services; that such want of ordinary care was the proximate cause of the injury; that there was no want of ordinary care and no assumption of risk on plaintiff’s part; and assessed his damages at $2,000.</p> <p>After verdict and upon the several motions made upon the .testimony and the pleadings the court granted defendant’s motion for judgment on the ground that there had been no compliance by the- plaintiff with the provisions of sub. (5), sec. 4222, Stats., which had been asserted as a defense, and dismissed the complaint. From judgment of dismissal the plaintiff has appealed.</p>

<p> Appeal and' error: Order bringing in new parties defendant: Special proceeding: Provisional remedy. </p> <p>An order made under sec. 2610, Stats., grantingethe application of defendant to make third persons parties defendant, is not a special proceeding as defined in sec. 2594, nor an order granting, refusing, continuing, or modifying a provisional remedy within sub. (3), sec. 3069.</p>

G. N. Risjord, Circuit Judge. Action to recover on an alleged contract for insurance for loss sustained by' a fire. In .May, 1918, a default judgment was entered against defendant for $1,239.40. In ■ July of the same year, upon defendant’s application, the court entered an order vacating the judgment upon terms which were paid by defendant to plaintiff.

H. Retd, Circuit Judge. The trial court overruled the defendant’s general demurrer which alleged that plaintiff’s complaint failed to state a cause of action. The complaint alleged substantially as follows: The due appointment of a guardian ad litem for plaintiff. That at Bessemer, Michigan, on June 14, 1919, there was a form of marriage between the parties, both at that time being, intending to continue to be, and since are residents of the state of Wisconsin. .

H. Reid, Circuit Judge. Defendant Means puts up and deals in ice at Rhinelander. Plaintiffs are brokers iri ice doing business at Waukesha. April 2, 1919, Means entered into two contracts for the sale of ice with one P. j. Buckley, who thereafter assigned the same to plaintiffs. By one of these contract Means agreed to sell to Buckley or his assigns 1,000 tons of ice at. $1.75 per ton f. o. b. Rhinelander.

H. Reid, Circuit Judge. This action was brought to foreclose a real-estate mortgage, all of the defendants being in default except the defendants Sumption and Knappen, who appeared and were made defendants as the unknown assignees of defendant McGrath. About April 30, 1918, defendants Eby and McGrath, real-estate dealers and brokers, proposed to purchase for defendant Clark certain land belonging to the Chafee Land Company.

James O’Neill, Circuit Judge. Action to annul a marriage on the ground of fraud. There is no dispute about the facts. About the 23d or 24th of October, 1918, plaintiff, twenty-seven years of age, had sexual intercourse with the defendant, eighteen years of age. At that time they were engaged and intended to be married the following July.

Fowler, Circuit Judge. Plaintiff is a manufacturer and jobber of boots and shoes at St. Louis, Missouri. Defendant is a retail merchant at Princeton, Wisconsin. October 31, 1917, defendant gave plaintiff’s traveling salesman an oral order for merchandise amounting to $103.88. No written memorandum was signed by the defendant.

Fowler, Circuit Judge. Action to recover compensation for services rendered defendant in securing a trade of his farm for a stock of goods and fixtures owned by one McKinnon, a resident of Chicago.

Lueck, Judge. Garnishment. July 22, 1915, plaintiff began suit against C. E. Smith, the Kingston Dairy & Farming Company, and John Gundeck. At the same time a writ of attachment was issued by virtue of which certain property belonging to defendants or some of them was seized by the sheriff of Green Lake county, and on the same day the Maryland Casualty Company executed on behalf of all the defendants a statutory undertaking for a release of the property attached.

Fowler, Circuit Judge. The plaintiff, a railroad sectionman in defendant’s employ, was on May 20, 1918, at about half-past 3 o’clock in the afternoon, in defendant’s yard at North Fond du Lac, run over by a switch engine, losing both legs. He was about thirty-seven years of age, by birth an Armenian, and had been in this country five years. He was able to talk but slightly, if any, in any language than that of his birth, and could not read or write.

Park, Judge. Gottlieb Salzwedel and Henrietta Salzwedel were the parents of Julius Salzwedel, August Salzwedel, and Melvina Krueger.

B. Quinlan, Circuit Judge. ' This action was brought by Isaac and Tobia Goldberg to recover for the loss of support occasioned by the death of their son, Abraham Goldberg, an unmarried man twenty-six or twenty-eight years of age, living with them in the city of Marinette. He was run over and killed by one of defendant’s switching trains in the vicinity of the Division-street crossing- in the city of Marinette. No one saw the deceased when he was struck by the train.

Appeals from an order of the county court of Marinette county: Alvin E. Davis, Judge. May 15, 1916, Isaac Stephenson gave his daughter Mrs. Morgan $23,000. For six year previous to March 15, 1918, he had made additional gifts to his wife, children, grandchildren, and others aggregating nearly $200,000, ranging in amount from $7,300 to a few hundred dollars, over $26,000 of which he gave to Mrs. Morgan in addition to the $23,000 gift.

T. Fairci-iild, Judge. Personal0 injury. December 23, 1917, the wife of the plaintiff, aged thirty-nine years, was riding in' a Ford automobile driven by her son, Leland Merrill, at that time seventeen years of age. They were going from plaintiff’s farm to Kenosha, and in so doing passed over the double tracks of the' defendant company, which run north and south, the crossing being made on Avery street, which runs east and west.

B. Belden, Circuit Judge. Partnership. The complaint alleges that the plaintiff is a steam-shovel operator; that the defendant is a sewer contractor; and that on or about the 6th day of August, 1919, the plaintiff and defendant “entered into an agreement to share equally in the profits for the digging and com structing of certain sewers in the city of Kenosha;” that pursuant to said agreement the plaintiff went with defendant • over the ground where the sewers were to be…

Fritz, Circuit Judge. Mandamus to compel the defendant, as sheriff of Milwaukee County, to reinstate the petitioner, John B. Kozik, in his office as deputy sheriff and to properly place and certify his ñame on the payroll.

Michael Kirwan, Circuit Judge. Action for violation of sec. 4601 — 7, Stats. 1919, providing that “Any firm or corporation who shall, by themselves, their servant or agent, and any person who shall, by himself, his servant or agent; or as the servant or agent of another person, or as the servant or agent of any firm or corporation, manufacture for sale or exchange, sell, exchange, offer for sale or exchange, or have in possession with intent to sell or exchange any cheese…

C. Higbee, Judge. The defendant was charged with the crime of arson in having burned in the nighttime of August 25, 1919, the barn and other buildings belonging to one Joseph Hickman. He was found guilty by a jury and sentenced to imprisonment for ten years in the state prison. To review such judgment he prosecutes this writ of error.

S. Sheridan, Acting Judge. The complaint charged the defendant, a boy fifteen years of age, with having stolen tools belonging to Dr.'William F. Hilger of Milwaukee.

The information charged Wesley A. Flamme with the’ crime of adultery committed with Mabel Banker, an unmarried woman, on May 22, 1919. In a separate count it charged Mabel Banker with the crime of fornication. The defendants, Wesley A. Flamme and Mabel Banker, were arrested -upon separate complaints in separate actions and separately held for trial.

Fritz, Circuit Judge. Anton Karbowski, while at work in the yard of the Kanawha Fuel Company on the 31st day of July, 1916, was instantly killed by an electric shock. The widow claimed compensation under the workmen’s compensation act. The making of the claim operated, under the provisions of’that act,- to assign to the Kanawha Fuel Company her claim against the defendant company, she claiming that the death of her husband was due to the negligence of the defendant.

T. Fairchild, Circuit Judge. The appeal is from an order dissolving a temporary injunction. This action was brought by the plaintiffs to declare null and void an ordinance of the city of Milwaukee. Plaintiffs are milk dealers, some of whom have been in that business for many years before the passage of the ordinance in question.

<p>Appeal from a judgment of the circuit court for Sheboy-gan county. Michael Kir wan, Circuit Judge.</p> <p>Action to construe a will. In 1904 the testator, then a widower, made an ante-nuptial agreement with plaintiff whereby, in consideration of their intended marriage and her release of dower and all claims a'gainst his estate, he agreed to pay her $3,000 after his death. They married and lived as husband and wife till his death in December, 1915. In June, 1915, he made his will wherein he gave his. wife all his household furniture and $3,000. She was also made a residuary legatee of one fifth of the residue of his estate. -Bequests were made to his three sons and his daughter-in-law. Plaintiff claimed payment out of the estate of the $3,000 provided for in the ante-nuptial agree-rnent and also of the bequest of $3,Q00 contained in the will. The executor claimed she was entitled to only one of such sums, because the bequest was in lieu or payment of the ante-nuptial debt and not an additional bequest. The circuit court sustained the claim of the executor, and from a judgment entered accordingly the plaintiff appealed.</p>

R. Foley, Circuit Judge. In November or December, 1917, the defendant was appointed by the governor to fill an unexpired term which was to end the first Monday of January, 1919, as sheriff of Barron county, and accepted and qualified as such and has continued to act as sheriff since that time.

Luecic, Circuit Judge. Indemnity. On February 15, 1917, the city of Wauke-sha, hereafter called the city, entered into a contract with C. H. Phillips, hereafter referred to as the contractor, for the construction of a certain septic tank and appurtenances thereto. The defendant executed a bond in the penal sum of $8,546, conditioned that the contractor would faithfully perform the terms of the contract and specifications on his part to be performed.

<p>Appeal from an order of the circuit court for Milwaukee county: Oscar M. Fritz, Circuit Judge.</p> <p>The plaintiff is engaged in the business of building, painting, and trimming automobile bodies. The defendant, the Automobile, Aircraft & Vehicle Workers of America, Local No. 25, is a voluntary unincorporated organization of men working as employees in connection with the building, painting, and trimming of automobile bodies and similar products. The other defendants are officers, agents, or representatives of Local No. 25, and are not now and have not been at any of the times hereafter referred to employees of the plaintiff.</p> <p>On or about September 5, 1919, Local No. 25 called a strike of the plaintiff’s employees because the plaintiff refused the demand made by Local No. 25 to establish a closed shop and a union shop committee. December 22, 1919, this action was begun, and upon a verified complaint supported by affidavits there was issued a temporary restraining order prohibiting Local No. 25, the other defendants, and their employees, servants, and agents, from doing certain things complained of. Subsequently, upon an amended complaint, the plaintiff moved the court to amend the order of December 22, 1919, in certain particulars hereafter referred to. At the same time certain of the defendants moved to vacate the order of December 22d. The two motions were heard together, and upon the hearing the following facts appeared substantially without dispute: That the business of A. J. Monday Company and pf A. J. Monday, its predecessor, had been established about fifteen years; that at the time of the calling of the strike the plaintiff was employing twenty-five employees, but not since the first three weeks of the strike were any of the men who had been doing picketing and patroling former employees of the plaintiff; that none of the defendants were in the employ of the plaintiff at the time of the calling of the strike, and only one of them had ever at any time been in the plaintiff’s employ; that the strike was called to enforce the demand for a closed shop and a union shop committee. It further appeared that there was no controversy as to wages, hours, or the conditions under which the work was done in the factory; that through the efforts of the defendants the plaintiff had lost a considerable volume of business; that of the twenty-five men employed by the plaintiff at the time of the commencement of the strike thirteen remained with the plaintiff continuously; that all of the pickets, were employed and paid by Local No. 25; that the strike was called by Local No. 25; that it had not been conducted by the employees of the plaintiff for more than six weeks prior to the hearing-; that such of the former employees of the plaintiff as had left at the time the strike was called are employed and working at other places; that not all of the men who struck were members of the union, and that those who'were not had not become members of the union since the strike. That at or about the same time a strike was called at five plants in the city of Milwaukee, but that the efforts of the union were concentrated largely on the plaintiff’s plant because the plaintiff was most stubborn in regard to unionizing its plant; that the plant of the plaintiff was consistently picketed by four pickets, some or most of whom wore badges, “Strike on;” that all persons approaching the plant were accosted by these pickets and informed of the strike, both persons seeking employment and customers.</p> <p>Upon the hearing the court denied the motion of the defendants to vacate the temporary injunction; held ch. 211, Laws 1919, applicable; denied the plaintiff’s motion to extend or amend the injunction; and modified it so as not to restrain picketing and patroling and guarding the streets. The court also changed the original injunctional order so as to peVmit the recommending, advising, and persuading of employees by peaceful and lawful means to abstain from working for the plaintiff, and by permitting the defendants, by recommending, advising, and persuading persons wishing to patronize or employ the plaintiff, by peaceful and lawful means, to cease to so patronize and employ the plaintiff.</p> <p>From the order so modified the plaintiff appeals.</p>

<p>Appeal from a judgment of the municipal court of Brown county: N. J. Monahan, Judge.</p> <p>Action to recover damages for breach of promise of marriage. The complaint alleges that on or about the 1st day of August, 1917, plaintiff and defendant entered into a marriage agreement; that by reason of said promise of marriage the defendant -debauched the plaintiff, because of which, and defendant’s refusal to marry plaintiff, she is damaged, etc. The answer was a general denial.</p> <p>By a special verdict the jury found that defendant promised to marry the plaintiff; that the plaintiff held herself in readiness to marry the defendant at all times between August 1, 1917, and July 1, 1918; that the defendant breached the contract of marriage; that under and by virtue of such promise of marriage defendant seduced the plaintiff; and assessed as damages, compensatory $13,000, puni-tory $2,000. Upon the verdict so rendered judgment was entered against the defendant in the sum of $15,000, from which he brings this appeal.</p>

Appeal .from an order of the county court of Fond du Lac county. A. E. Rici-iter,. Judge. S. B. Stanchfield, father of the petitioner, George H. Stanchfield, made a will giving all of his property to the petitioner, in which will no executor was appointed. George H. Stanchfield petitioned the court to probate the will and to appoint the Commercial National Bank of Fond du Lac administrator of the estate.

<p>Appeal from a judgment of the circuit court for Racine county: E. B. Belden, Circuit Judge.</p> <p>The state brought this action to recover $1,260.50 expended by it in the abatement and removal of a nuisance, which nuisance was removed by the Wisconsin state board of health from the premises of these defendants after an order had been issued by the board to the defendants demanding the removal of the nuisance and upon their failure to do so. Robert Liebenow was the vendor and William Laabs the vendee of the premises in question under a land contract. The fee was in Robert Liebenow, possession in the vendee, William Laabs.</p> <p>The case was tried before the court, which held that the vendee, William Laabs, was liable and that his interest in the land was subject to a lien in favor of the plaintiff for the expense of removal of the nuisance, and that said lien was subsequent to the* interest of the defendant Robert Liebenow, vendor under the land' contract. The court dismissed the action against the defendants Robert Liebenow, Marie Liebenow, and Clara Laabs upon the merits. Plaintiff appeals from this, judgment.</p>

<p>Appeal from a judgment of the county court of Wal-worth county: Jay F. Lyon, Judge.</p>

<p>Error to review a judgment of the circuit court for Clark county: James O’Neill, Circuit Judge.</p> <p>Caroline, Frank, and Leslie Krueger, hereinafter referred to as the defendants, were informed against and tried for the crime of murder of Harry Jensen in the circuit court for Clark county. Caroline was acquitted, Frank and Leslie Krueger were found guilty of murder in the first degree and sentenced to life imprisonment. To review the judgment of donviction the defendants Frank and Leslie Krueger bring this appeal.</p>

Gregory, Circuit Judge. Action begun in the civil court of Milwaukee county to recover damages to a crop of growing vegetables caused by water flooding plaintiff’s land by reason of defendants’ negligence in not cleaning out the Kinnickinnic drainage ditch through or adjacent to their lands,' they being lower riparian proprietors. The Kinnickinnic drainage ditch was a part of the drainage system of plaintiff’s land.

J. Turner, Circuit Judge. Plaintiff is a corporation organized under the laws of and existing and doing business in the state of Kentucky. Defendant corporation is of Wisconsin. Plaintiff instituted in the circuit court for Milwaukee county a replevin action based upon allegations to the effect that it was the owner of and lawfully entitled to a certain automobile.

Fritz, Circuit Judge. The defendant in this case is a building contractor. The plaintiff, among other things, deals in hot and cold water pipe covering. The defendant had a contract for the construction of two school buildings and the Plankinton Hotel building in the city of Milwaukee. In the months of May and June, 1916, it was contracted between plaintiff and defendant- that the former should furnish and apply certain hot and cold water pipe covering for said buildings.

' Appeal from a judgment of the circuit court for Milwaukee county: A. H. Reid, Judge.

Halsey, Circuit Judge. Action to compel specific performance of an alleged oral agreement to execute and deliver a mortgage on certain real estate to plaintiff as security for a payment of the unpaid purchase price qf $875 due him from defendant on a sale of his saloon to defendant’s husband, since deceased.

Sheridan, Judge. Construction of will. Lydia W. Payne died on December 24, 1915, and by will disposed of an estate consisting of stocks and bonds appraised at $392,758.89. By her will she directed the payment of certain legacies, either directly to the legatees or in trust for their benefit. Clause 19 is as follows: Nineteenth.

<p> Negligence: Sightseer in mill: Frequenters, licensees, and'trespassers: Duty to furnish safe place to work. </p> <p>An employee of a mason contractor doing work on, an outside wall of the boiler room of a mill, who during the noon hour, for' pleasure, wandered through the mill and was injured in using a so-called manlift or Humphrey elevator having no safety device, was a trespasser, and not a licensee, within sub. (5), sec. 2394 — 41, for whom as well as for employees sec. 2394 — 48 requires an employer to make the place of employment reasonably safe.</p>

Gregory, Circuit Judge. On December 25, 1916, the plaintiff, a boy fourteen years of age, was driving an electric automobile belonging to his mother on a public street in the city of Milwaukee, unaccompanied by an adult person. At a street intersection defendant’s automobile collided with the one driven by plaintiff. This action was brought to recover the damages resulting from such collision.

<p>Appeal from a judgment of the circuit court for Milwaukee county: E. T. Fairchild, Circuit Judge.</p> <p>The appeal is from a judgment modifying and affirming a judgment of the civil court of Milwaukee county.</p> <p>This action was brought by the plaintiff to recover the selling price of two carloads of potatoes, one sold on October 29, 1917, the other on November 14, 1917.</p> <p>Peter Schuck, the plaintiff, was a produce dealer at Schleisingerville, Wisconsin, and had for many years been selling potatoes in car lots from that place. Horace Blod-gett, one of the defendants, was in the business of buying and selling potatoes in car lots and transacted his business from North Milwaukee. The Schroeder & Daly Company, the other defendant, is a corporation which carried on a wholesale produce business in the city of Milwaukee. In the fall óf 1917 Horace Blodgett and the Schroeder & Daly Company entered into an agreement by which they rented a warehouse in North Milwaukee for the purpose of storing and dealing in cabbage, onions, potatoes, etc. The lease extended for the seven months from October 1, 1917, to May 1, 1918. The defendants alleged that while the business lasted the Schroeder & Daly Company furnished the money and Blodgett conducted the business; that in the meantime each of the defendants continued to carry on his and its separate business as formerly.</p> <p>The plaintiff alleges that on October 29, 1917, at the special instance and request of the defendants, he sold and delivered 523 bushels of potatoes to defendants at the agreed price of $1.17 per bushel; and that on November 14, 1918, at the special instance and request of defendants, he sold and delivered 766 bushels of potatoes to defendants at the agreed price of $1.05 per bushel; that of the sums owing to plaintiff for such potatoes he has received $500, and that there is still due him the sum of $916.21.</p> <p>The Schroeder & Daly Company admit that Blodgett and the Schroeder & Daly Company purchased 523 bushels of potatoes from plaintiff and that only $500 has been paid on this account, but deny that Blodgett and the Schroeder & Daly Company participated in the purchase of the 766 bushels of potatoes on November 14th. They admit that the firm still owes plaintiff $111.91 on the purchase of October 29th.</p> <p>Horace Blodgett, in a separate answer to plaintiff’s complaint, admits the purchase of October 29th, but claims that only 511 bushels of potatoes were delivered instead of the 523 claimed by the plaintiff; admits the purchase of potatoes from plaintiff on November 14th, but claims the amount purchased was 716 bushels instead of 766; alleges that at the time of these purchases he was acting pursuant to the written agreement between himself and the Schroeder & Daly Company. As a counterclaim Blodgett alleges that plaintiff owes him $3.50 on some cabbage he sold him on November 17, 1917.</p> <p>The first car of the potatoes in question was shipped from Schleisingerville to North Milwaukee and its contents were placed in the warehouse used for the joint business of Blod-gett and the Schroeder & Daly Company and sold therefrom. The second car was never shipped to North Milwaukee, but was shipped to Chicago, where it was sold to Doretti Brothers, former customers of Blodgett. The Schroeder & Daly Company alleges that the second car was bought by Blodgett for his personal business which he conducted aside from their joint business and that they were in no way interested in this transaction. The civil court decided that the second car, the shipment of November 14th, was sold and delivered to the joint enterprise. The Schroeder & Daly Company appealed to the circuit court. The circuit court, upon the record and the evidence taken in the civil court, found that the evidence failed to show any connection between the plaintiff and the Schroeder & Daly Company on account of the purchase of the November car of potatoes. Judgment was thereupon entered in the circuit court against the defendant Horace Blodgett for the aggregate unpaid price of both cars, with costs, and against the defendant Schroeder & Daly Company for the unpaid balance of the first car, less costs accruing to said defendant subsequent to its offer of judgment. This is an appeal from such judgment.</p>

T. Fairchild, Circuit Judge. ■ Action for malpractice begun in the civil court of Milwaukee county. Plaintiff was affected with a hernia and was treated by defendant. He claimed that by reason of defendant’s negligent and improper treatment he sustained damages. Defendant denied that he was negligent or that the treatment was improper.

Gregory, Circuit Judge. The plaintiff operated a garage and automobile repair shop on the west side of First avenue between South Pierce and Park streets in the city of Milwaukee. On the evening of January 30, 1917, he had just finished repairs upon a Ford automobile belonging to one Aidich. At the request of Aidich plaintiff started to take the repaired automobile out of the garage and run it to the east side of the street so that the owner might proceed with it from there.

Gregory, Circuit Judge. Action for damages resulting from an automobile collision. The evidence shows that Christ Salentine lives with his family on a farm near the city of Waukesha. On December 5, 1918, his daughter, who was a nurse in a Milwaukee hospital, was at home on a visit. Christ Salentine knew that she was home only' for the day and that she must return that evening. He owned an auto which had been purchased for family use.

T. Fairchild, Circuit Judge. Action begun in the civil court of Milwaukee county to recover compensation for services rendered the defendant under a contract of employment beginning July 1, 1915, and terminating July 1,. 1917. Plaintiff was a traveling salesman selling products of the defendant’s factory, consisting of fence, gates, and structures.

Fritz, Circuit Judge. Guaranty. January 7, 1919, the plaintiff entered into a written agreement with one Frank E. Cook, whereby the plaintiff agreed to sell to Cook a stock of merchandise, implements, furniture, and fixtures for $3,200, to be paid $100 in two weeks, the remaining $3,100 to be p^id in even and equal instalments of $200 on the 22d day of each month until the full purchase price with interest should be paid.

T. Fairchild, Circuit Judge. This action was brought in the civil court of Milwaukee county by plaintiff, a physician and surgeon, to recover for services as such.

Halsey, Circuit Judge. This action was brought by plaintiff to recover damages for alleged breach of contract. Plaintiff claims that there was a written contract between it and defendant by which defendant agreed to furnish plaintiff with live and exhaust steam for the operation of its laundry.