Volume 172 — Wisconsin Reports

Fritz, Circuit Judge. Action to recover damages for a personal injury caused by a collision with an automobile driven by one Kimball, an employee of the defendant. On February 20, 1919, at about 11:45 a. m., plaintiff alighted at the intersection of Twenty-fourth street and Lisbon avenue in Milwaukee from the right front door of a street car on which he had been a passenger. The stop was made on the further side of the street intersection.

Gregory, Circuit Judge. Personal injury. The plaintiff is the father of one Roland Zolesky, a boy eight years of age. The defendant is a corporation engaged in the manufacture of rifle grenades.

T. Fairchild, Circuit Judge. This is an appeal from a judgment of the circuit court affirming a judgment of unlawful detainer of the civil court of Milwaukee county. In August, 1918, the defendant orally leased the upper flat of a double-flat building, then owned by one Broecker, for $27 per month for a term of one year with the privilege on defendant’s part of extending his possession for two years more at the same rate.

• Appeal from- an order of the circuit court for Milwaukee county: Lawrence W. ITalsey, Circuit Judge. The appeal is from an order of the circuit court dismissing defendant’s appeal from the civil court of Milwaukee county. _ . : |!i iltpiji

Halsey, Circuit Judge. This is an .action brought by three subcontractors to foreclose a mechanic’s lien against a building owned by defendants Richter.

T. Fairchild, Circuit Judge. Action to recover damages for personal injuries sustained in an auto collision. January 1, 1917, at about 6 o’clock in the evening, plaintiff was riding in an automobile in a northwesterly direction on Prospect avenue and on the right-hand side thereof.

Werner, Circuit Judge. This action was begun by the plaintiff to recover damages alleged to have been received as a result of the negligent conduct of the defendant in driving and operating his automobile upon the public highways in violation of the provisions of the laws of the state.

Ray Stevens, Circuit Judge. Merwin was an employee of Harloff. Harloff lived on a farm a short distance from the city of Milwaukee, and was subject to the provisions of the compensation act. While going from the farm of his employer to Milwaukee, Merwin rode his motorcycle, which was fastened to the rear of his employer’s wagon. He intended to take the motorcycle to a shop for repair. Merzvin was run into by one E. M. Brah and sustained severe injuries.

Gregory, Circuit Judge. The governor of Illinois made a requisition upon the governor of this state for the extradition of the accused on the ground that he was a fugitive from justice from the state of Illinois, where, it is alleged, he had committed a crime for which extradition lies.

Halsey, Circuit Judge. Prior to November, 1916, the plaintiff had for many years been an employee of the Plankinton Packing Company of Milwaukee. About that time he engaged in the merchandising of meats and packing-house products upon his own account, doing business under the name of L. A. Coch-rane Company. The defendant operated a packing house at Mason City, Iowa. The plaintiff and defendant commenced doing business about November 15, 1916.

The plaintiff was a passenger in the front seat of an automobile driven by defendant William B. Johnson on a highway in Waukesha county August 18, 1918. They were proceeding westerly at about the center of the highway at from fifteen to eighteen miles per hour.

T. Fairchild, Circuit Judge. Action to recover damages for the death of plaintiffs husband caused by defendant’s negligence. Grand avenue is one of the principal streets in the city of Milwaukee and runs east and west. Between Eighth and Eleventh streets on said Grand avenue is the so-called Court of Honor, consisting of a wide strip of raised ground through the center of the street, which is maintained as a lawn and covered with floral decorations.

The appeal is from an order vacating and setting aside the judgment of divorce entered in the action on December 20, 1918. Plaintiff'brought this action for absolute divorce on the grounds of cruel and inhuman treatment by personal service of the summons and complaint on the defendant June 18, 1918.

Action begun in the civil court of Milwaukee county to recover damages sustained in a collision with defendant’s automobile. Defendant counterclaimed for damages to his automobile. The collision took place November 25, 1917, at the intersection of Washington street and Ninth avenue.

Halsey, Circuit Judge. The relators herein, Harriet L. Cramer and John F. Cramer, are and were prior to June 1, 1918, the owners in fee simple of lot 7, block 18, of the Third ward of the city of Milwaukee, upon which was situated a four-story brick building. Prior to June 1, 1918, the Cramers were stockholders, officers, and directors in the Evening Wisconsin Company, which carried on the business of publishing a newspaper and running a job-printing office.

Appeals from judgments of the circuit court for Milwaukee county: Oscar M. Fritz, Circuit Judge. The appeals are from judgments in certiorari actions entered on December 16, 1919, in the.circuit court, reversing and setting aside a decision of the Wisconsin tax commission approving and affirming assessments made against the above-named petitioners on account of income received during the year 1917.

Gei-irz, Circuit Judge. Plaintiff, a newsboy fourteen j^ears of age, was struck by an automobile driven by the defendant, and brings this action to recover damages. At about 5 o’clock in the evening of the 18th day.of November, 1918, defendant was driving west along Galena street in the city of Milwaukee. It was a dark,.damp, misty evening.

Geitrz, Circuit Judge. The appeal is from an order reversing a judgment of the civil court of Milwaukee county and ordering a new trial in the circuit court. Plaintiff brought this action for a balance of commissions alleged to be due him as a piano salesman for thl defendant company. He claimed there was due him a balance of $1,521 for commissions for the sale of pianos upon a basis of eight per cent, of the gross price of all pianos sold by him.

W. Burnell, Circuit Judge. Action upon a benefit certificate for $2,000 issued by the defendant order in 1901 to the deceased husband of plaintiff. The defense was that in May, 1916, the deceased was lawfully suspended from the order because of the nonpayment of his March, 1916, dues and that he had never been reinstated.

W. Burnell, Circuit Judge. Certiorari to review the proceedings of a board of review. The assessor for the town of Black' Wolf, Winnebago county, assessed the property of the Oshkosh Country Club for the year 1919 at the sum of $30,000, the real estate being valued at $25,000 and the' improvements thereon at the sum of $5,000.

W. Burnell, Circuit Judge. Plaintiff sues to recover the sum of $1,000 alleged to be due July 1, 1917, from the defendant as successor to the Eastern Wisconsin Railway & Light Company, pursuant to the terms of a certain ordinance granted to and the acceptance thereof by such predecessor in 1903. Defendant answered, and plaintiff’s demurrer to such answer was sustained by the trial court.

Action to recover money, paid upon the purchase of corporate stock, upon rescission because of fraudulent representations. The defendant is a corporatipn engaged in the buying and selling of stocks and bonds and at all times •hereinafter mentioned had an office in the city of Milwaukee. Plaintiff lived at Cato, Wisconsin.

<p>Appeal from an order of the county court of La Fayette county: J. B. Simpson, Judge.</p> <p>Construction of will. John W. Harker died testate February 8, 1916, and was at the time of his death a resident of Council Hill, Jo Daviess county, Illinois. His will was duly admitted to probate in the county court of Jo Daviess county on March 17, 1916. The will created a •certain trust for the benefit of an incompetent son, and George Kirkpatrick and Curtis Harker, the trustees named in the will, duly qualified and accepted the trust. The inventory showed a small amount of personal property, lands in North Dakota, and 160 acres of land in La Fayette county, Wisconsin. The clause of the will construed is as follows:</p> <p>“I give, devise, and bequeath to George Kirkpatrick of Minot, South Dakota, and Curtis Harker of Dubuque, Iowa, in trust for my son, John C. Harker, all the rest, residue and remainder of my property of every kind and nature, both real and personal, and wherever situated, said trustees to pay to my said son the income derived from said property semi-annually during the term of the natural life of my said son. I further authorize and empower my said son to demand and receive from said trustees not to exceed the sum of $200 annually of the principal sum so held in trust by them. Said trustees are further authorized to sell any real estate which may be included in said trust and convert 'the same into cash at any time they find it necessary or deem it expedient in carrying out this trust.”</p> <p>April 24, 1917, Belle Quinlan wás appointed guardian of the incompetent son, John C. Harker, and July 3, 1918, she filed in the county court of La Fayette county a petition for the appointment of an administrator with the will annexed of the estate of John W. Harker. o September 4, 1918, a guardian ad litem for John C. Harker was appointed, notice to creditors was given, and on April 2, 1919, W. B. Vail was appointed administrator with the will annexed in the ancillary administration of the estate of John W. Harker, and duly qualified by giving bond. Vail, as administrator with the will annexed, filed his petition July 2, 1919, for the construction of the will. Appraisers were appointed, but no inventory was returned or filed in the county court of La Fayette county. It is conceded by all parties that in the domiciliary administration proceedings in the county court of Jo Daviess county, Illinois, the La Fayette county lands and the North Dakota lands had been sold by the trustees prior to the time application was made for the construction of the will. Subsequently an inventory was made which showed no other estate than the 160 acres of land before referred to. Upon the petition for a construction of the will the court held that one third of the estate is granted to the widow absolutely; that the remainder of the estate is devised to the trustees for the benefit of the incompetent son, subject to the residuary clause; that the trustees ought to pay the income derived from said estate in semi-annual payments to John C. Harker, the son; that the said son has the right to receive from the said trustees-the sum of $200 per year in addition to said income; that the trustees have the control of that part of the estate only which is bequeathed to said son; and that so far as that income and the $200 annual payment is concerned, their duty ends when such payments are made to the party entitled to.receive the same; that said John C. Harker has been adjudged incompetent, and that Belle Quinlan is his duly appointed and qualified and acting guardian; that such guardian has the right to receive the income of the estate devised to her ward and to demand the payment of the $200 annually, as bequeathed in the will; that the said guardian and not the trustees under the will is the trustee of the estate of such incompetent son. From such order the trustees appeal.</p>

<p> Sales: Conditional sale or lease of personal property: Transfer of title. </p> <p>1. A contract between a shoe-repairing machine company and a customer which expressly reserves title to certain machinery in the company, is construed to create a bailment only and to be a lease or license of the machinery and not a conditional sale.</p> <p>2. The lessee or licensee of the machinery, having no title himself, could pass none by direct sale, and none could pass by virtue of a sale under an execution against him.</p>

C. Higbee, Circuit Judge. Action in equity to reform a deed to forty-five acres of land given June 27, 1917, by plaintiff to his son Edward and his wife in consideration of an annual payment of $55 and the support for life of plaintiff and his wife.

C. Higbee, Circuit Judge. M. H. Bekkedal & Son are a partnership located at Westby, Wisconsin, engaged in the business of buying, sorting, handling, and shipping of tobacco. E. Rosenwald & Brother are a partnership having its principal office and place of business in the city of New York, and engaged in the selling, handling, and merchandising of tobacco.

C. Higbee, Circuit Judge. Action to recover damages for breach of contract to sell real estate. ' On the 13th day of September, 1919, the defendant, purporting to act for his wife, Grace H. Ives, the owner of the property, made the following written offer to plaintiff: “I hereby offer you as follows: I will transfer to you, on or before October 3, 1919, the three lots on the northeast corner of Fifth and King streets, now in the name of Grace H. Ives, for $20,000 in cash and…

<p>Appeal from an order of the circuit court for Dane county. E. Ray Stevens, Circuit Judge.</p> <p>The petitioners are members of the Wisconsin State Board of Medical Examiners. They fixed their compensation as such at the sum of $30 each for three days’ attendance at a regular meeting of said board in June, 1919, under the claimed authority of sub. 7, sec. 1436, Stats., and presented and filed with the defendant secretary of state claims dr vouchers for such three days’ service at the rate of $10 per day and demanded his audit of the same, upon which audit payment might be made to them respectively. The secretary of state refused to audit the-claims except upon a basis of $5 per day. Petitioners then obtained an alternative writ of mandamus issued from the circuit court for Dane county requiring said defendant to so audit such claim at the rate of $10 per day. Defendant moved to quash such alternative writ.</p> <p>From an order refusing to so quash and directing a peremptory writ of mandamus as prayed for by the relators defendant has appealed.</p>

<p> Street railways: ■Constmction of franchise: Franchise to-lay tracks-authorizes cutting sidewalk lines: Extension of city limits: Effect on extension of line: Street not wholly within city: Sidetracks and switches. </p> <p>1. A street railway franchise ordinance authorizing and requiring the extension of lines when the city limits are extended, and providing that the franchise should thereafter apply to the “operation” of those lines, permits the construction of turnouts, sidetracks, and switches along the extended lines.</p> <p>2. Where such a franchise also authorized- the construction of either single or double tracks along the specified streets, it ■authorized the construction of a single track along the part of the street controlled by the city when the corporate limits on one side only of the street were extended.</p> <p>3. While in some cases ordinances granting franchises to utilities are to he strictly construed, they are not to be construed so strictly as to defeat the purpose for which the grant is made.</p> <p>4. A street railway franchise to lay tracks in the street authorizes the cutting of the sidewalk lines, though they are not strictly in the streets, if that is reasonably necessary to proper construction of the tracks.</p> <p>S. Where a franchise ordinance authorized the construction of turnouts, sidetracks, and switches, the consent of the common council to the plans for such construction is not necessary in the absence of a requirement for such consent.</p>

Croix county: Geo. Thompson, Circuit Judge. Certiorari to review the decision and order of the committee on common schools for St. Croix county consolidating school districts numbers 1, 2, and 4 in the town of Hudson into one district to be known as Consolidated rural school district No. 1 of the town of Hudson, St. Croix county, Wisconsin.

<p>Error to review a judgment of the municipal court for the Eastern district of Waukesha county: J. E. Thomas, Judge.</p> <p>The county board of Waukesha County enacted an ordinance fixing a maximum speed limit of not exceeding thirty miles per hour for the operating or driving of an automobile or other similar vehicle on any highway in said county which is maintained at the expense of the county and state or either of them.</p> <p>It further provided that any person violating such ordinance shall forfeit and pay to the county a penalty of not less than $10 nor more than $100 for each such violation, together with the costs of any such prosecution for the collection of such forfeiture.</p> <p>Sec. 3 thereof further provided that the forfeitures collected for the. violation of such ordinance shall be paid to the county treasurer of said county and placed in the highway maintenance fund.</p> <p>A complaint for a criminal warrant was sworn to by the traffic officer of said county, alleging a violation by the plaintiff in error on August 21, 1919, at the town of Brook-field in said county, of the provisions of said ordinance, in that while driving and operating a certain automobile along and upon a highway maintained by the said county he did unlawfully drive the same at a rate of speed greater than thirty miles per hour, and praying that said plaintiff in error be arrested and held to answer to the county of Wauke-sha therefor under the provisions of said ordinance.</p> <p>The plaintiff in error was arrested upon a warrant so directed in such complaint issued out of the municipal court for the Eastern district of Waukesha county.</p> <p>No objections appear to have been interposed by the defendant before or at the trial as to the course of procedure theretofore taken, and no demand for a jury trial appears to have been made. The' case was tried by the judge of said municipal court and witnesses testified for both sides.</p> <p>At the close of the testimony counsel for the defendant moved to dismiss the action and discharge the defendant. The motion was overruled and the court said:</p> <p>“I find that the defendant is guilty of speeding, and the sentence of the court is'that you, Paul Kuder, pay a fine of $25 and costs, or twenty days in the county jail.”</p> <p>Thereupon a formal sentence was signed by said municipal judge entitled “The State of Wisconsin against Paul Kuder,” and reading as follows:</p> <p>“The sentence of the court now is that you, Paid Kuder, pay a fine of $25 and costs taxed at the sum of $16.42, and in default of payment thereof that you be imprisoned in the county jail of said county, at hard labor, for the term of twenty days, or until said fine and costs are paid; or you shall be thence discharged by due course of law.”</p> <p>Tñereupon a writ of error was issued out of this court to review said record, proceedings, and judgment.</p>

87 against the relators as trustees under the will of Nathan Hamburger, deceased, for income taxation for the year 1917. For the contents of the Hamburger will and a statement of the trust, trustees, and beneficiaries created thereby reference is made to State ex rel. Wis. T. Co. v. Widule, 164 Wis. 56, 159 N. W. 630, where the same was set out adequately for the purposes of this case.

<p> Wills: Testamentary trust: Termination: Vesting of estate in re-mainderman subject to annuities: Payment of annuity is trustee duty: Costs in action to construe will. </p> <p>1. Under a will making specific bequests and giving the residue of the estate to trustees to manage and pay an annuity to testator’s son for life, and if he marries an annuity to his wife, and if she survives him the two annuities to her till she dies or remarries, and in case the son dies leaving issue * giving the residue to them, and directing that the trusts shall cease on such payments being made, but if the son die without issue giving the residue to a society, and directing that on the vesting in the society of the residue the trust shall cease, — the trust, in the latter contingency, ceases as to all the residue, and the estate vests, with right of possession, in 'the society, subject to payment of the widow’s annuities, the direction for payment by the trustees being directory merely, the chief object being to place the corpus of the estate in the society on the happening of the contingency stated.</p> <p>2. A society which is authorized by its charter to hold and manage property and to receive it by devise or gift can receive property by devise or gift subject to a reasonable lawful condition, such as paying an annuity, even if the society is not authorized to act as trustee, payment not being the performance of a trustee duty.</p> <p>3. The society taking the estate subject to a charge of an annuity fulfils the mandate of the will that it use the income .for purposes for which the society was organized when it uses all the income over and above the charge for such purposes.</p> <p>4. The good faith and propriety of litigation for the construction of a will as to when a testamentary trust ceases not being questionable as to either party, each is entitled to payment of his taxable costs in the supreme court, to be paid out of the trust estate.</p>

Malpractice. G. R. Hickey is a dentist engaged in the practice of his profession at Green Bay. As a result of a prior examination and consultation, on January 18, 1918, the plaintiff went to St. Vincent Hospital,, wheie she was anesthetized, her family physician, Dr. R. M. Burdon, administering the anesthetic, and Dr. Hickey removed eleven teeth.

<p>Appeal from a judgment of the circuit court for Bay-field county: G. N. Risjord, Circuit Judge.</p> <p>The defendant Ogren made a written contract with the plaintiff in April, 1917, to make a dirt fill for the construction of a certain public highway,1 at an agréed compensation of seventy cents per cubic yard. Defendant • Ogren agreed to commence work by April 20th and complete the work by July 15th. The defendant National Surety Company gave its bond for the faithful performance of the com tract by the defendant Ogren. It is' not necessary to set out the contract in full. The defendant Ogren agreed to do all the work of the improvement according to the specifications, and to furnish all labor, tools, machinery, and material necessary therefor, except as otherwise provided. The work was to be done under the direction and supervision of the highway commissioner of Bayfield County, referred to in the contract as the commissioner.' The contract, among other .things, provided: .</p> <p>“If. at any time the work under contract ..should be abandoned, or if at any time the commissioner shpuld judge that said work, or any part thereof, is unnecessarily delayed, or that the contractor is wilfully violating any of the condi-. tions or covenants of this contract, or is executing the same in bad faith, then, in that cas’e, the commissioner shall notify said contractor to discontinue all work under this contract.' Said commissioner may employ other'parties tp complete the work in such manner as he may decide, and úse such material as may have been delivered upon the aforesaid work, and, if necessary, procure other material for its completion, and charge the expense of said labor and material to the contractor, which expense shall be deducted from any money due him under this contract. In case these expenses shall exceed the sum which would have been payable under this contract if the same had been completed by the contractor, he or his sureties shall pay the amount of the excess to Bay-field County, on notice from the commissioner.”</p> <p>On July 15, 1917, the defendant Ogren had moved about 2,000 cubic yards of earth, the total amount to be moved under the contract being 14,000 cubic yards. After proper notice the work was .taken over and the contract was relet to one H. F.' Balch & Company at niiiety-two cents a cubic yard. Under this contract Balch & Company moved 12,531 cubic yards, and this action was brought to recover the difference between the price paid Balch & Company and the contract price, or twenty-two cents a cubic yard, amounting to $2,756.82. The defendant Ogren, by way of counterclaim, alleged that he-"was entitled to $1,484, the contract price at seventy cents per yard, for moving 2,120 cubic yards of dirt. The defendant Ogren also alleged that he was prevented from completing the contract by the unwarranted acts of the plaintiff, and demanded damages in the sum of $4,560. There was a special verdict, .one question being submitted to the jury, which was, “What was the reasonable cost per yard, on or about June 28, 1917, of removing the 12,531 cubic yards of earth necessary to complete the Ogren contract?” And the answer was “Seventy cents.” There were proper motions upon this verdict reserving the questions raised here, and the court directed judgment in favor of the defendant Ogren against the plaintiff for $1,484, with interest from the 15th day of July, 1917, From this judgment the plaintiff appeals.</p> <p>For the appellant there was a brief by Walsh & Morris.oi Washburn, and oral argument by Charles F. Morris.</p>

<p>Appeal from a judgment of the circuit eourt for Columbia county: Chester A. Fowler, Circuit Judge.</p> <p>Heirship. Warren Gilbert, a resident of Columbia county, Wisconsin, died intestate August 28, 1914. He left surviving him as his only heirs at law the following: Three sons: A. C. Gilbert, Chas. L. Gilbert, and E. At Gilbert; Florence L. Gilbert and Leila Dalton, daughters of a deceased son, James W. Gilbert; R. H. Gilbert, U. S. G. Gilbert, Chester Arthur Gilbert, Albert Gilbert, grandsons, children of a deceased son, George H. Gilbert. George H.' Gilbert also had a daughter, Cora, whp was married to one Spooner. Said daughter Cora predeceased Warren Gilbert • and left surviving one daughter, Sara Spooner, a great- " granddaughter. George H. Gilbert also had a daughter, Mary, who married one Spooner. She also predeceased .Warren.Gilbert, leaving three children: Leah, Frank Elliott, and Edwin. Frank Elliott Spooner was, therefore one .of the heirs of the estate of said Warren Gilbert. He died ■‘October 16, 1917, and was at the time of his. death entitled to receive a one-ninetieth part of the estate of Warren Gilbert. Said Frank Elliott Spooner at the time of his death •was a resident of the city of Columbus, in the state of North Dakota, was a minor, unmarried, and childless. Said Frank Elliott Spooner left surviving him his father, George C. Spooner, also a resident of the city of Columbus, North Dakota. His mother, as has been stated, was dead, and he left a sister, Leah, and a brother, Edwin, both of whom are minors.</p> <p>The trial court held that the brother and sister' of Elliott Spooner took that part of the estate of Warren Gilbert which otherwise would have belonged to Frank Elliott Spooner. Judgment went .accordingly, from which the administrator of the estate of Frank Elliott Spooner appeals.</p>

<p>Appeal from a judgment of the circuit court for Racine county: R. B. Belden, Circuit Judge.</p> <p>'Mandamus to compel the defendant town board to lay out a highway. An application for laying out a highway was filed with the town clerk on the 8th day of September, 1916. The town board met on the 18th day of December, 1916, pursuant to a notice of such meeting given on the 5th day of December, 1916, to decide upon said application. Successive adjournments were taken until the 27th day of January, 1917, when the application was refused. , Upon an appeal from such order to the county judge, commissioners were appointed under sec. 1276, Stgts., and they reversed the action of the town board. This action is.brought to compel the town board to lay out the highway pursuant to the order of the commissioners. JJie circuit court refused the peremptory writ, and relators; appealed.</p>

<p>Appeal from a judgment of the circuit court for Vernon county: E. C. Higbee, Circuit Judge.</p> <p>This is a stockholders’ action for the cancellation of stock alleged to have been fraudulently issued by certain of the officers of the Hillsboro & Northeastern Railway Company, and to declare void the election of directors of said corporation on the 10th day of December, 1918.</p> <p>The Hillsboro & Northeastern Railway Company was organized as a Wisconsin railway corporation in 1901, with a capital stock of $50,000, consisting of 500 shares of the par value of $100 each. In November, 1910, the articles of incorporation we're amended so as to authorize the issuance of $$0,000 of additional stock. Thirty-one thousand seven hundred dollars of this increase was issued subsequent to the passage of ch. 593, Laws 1911, without securing the consent o'f or authority from the railroad commission.</p> <p>November 13, 1915, the stockholders of the said railroad company adopted a resolution' further increasing the capital stock of the, said company in the sum of $150,000.. A certified copy of t,his resolution, with the certificate of the president and secretary of the company that it was adopted at a special meeting of the directors of said company, was on the 28th day of December, 1915, duly filed in the office of the secretary of state. Under date of January 21, 1916, the railroad commission authorized the company to issue 2,000 shares of stock of the par value of $100 each, making a total issue of $200,000, $31,700 of which was to be exchanged share for share for an equal amount of void stock then outstanding and the remaining $168,300 to be sold'for money at not less than the par value thereof, the proceeds to be applied in defraying in part the cost of the construction of an extension of the company’s line. Prior to December 11, 1917,’ no part of this stock had been issued except the $31,700 thereof in exchange for the stock which had been issued on the prior $50,000 increase without authority from the railroad commission, and on that date the stock then issued and outstanding was owned as follows: W. H. H. Cash, 356 shares; the estate of Edward Hammer, 222 shares; F. I. Pinch, 167 shares; Gus Weinstein, 51 shares; C. J. Hausman, 16 shares; John A. Cash, 5 shares. On said 11th day of December, 1917, W\ H. H. Cash, E. J. Hammer as executor of the estate of Edward Hammer, deceased, F. I. Pinch, Gus Weinstein, and /. A. Cash were elected directors. W. H. H. Cash was elected president and ff* A. Cash secretary and treasurer. Controversies had arisen among the stockholders and they had divided into what may be denominated the Cash and Hammer factions. Holdings of stock and the officers of said company continued as on that date until December 10, 1918, the day of the annual .meeting of the stockholders according to the by-laws of said corporation. As the stock was then held, it appeared that Hammer controlled the stockholders’ meeting and would dictate the election of directors. In order to secure control of a majority of the stock, W. H. Hr Cash as president and /. A. Cash as secretary and treasurer of said company, on the 10th day of December, 1918, issued to the defendant W. H. H. Cash 100 shares of the -unissued stock of said company, taking in payment therefor a promissory note at par for $10,000, payable on demand, and they also issued to C. F. Cash one share of the unissued stock of said company. ■ -</p> <p>■ The issue of said stock to-said W. H. H: Cash and his son C. F. Cash was made without any knowledge or -consultation with any of the directors or officers of said corporation and without any authorization by the stockholders or directors of said -company and without any intimation that any of said unissued stock-should be sold or offered for sale. ' - ■ ' • ' ■ ■ •!</p> <p>At the annual stockholders’ meeting held on said 10th day Of December, 1918, said W. H. H. Cash and his son C.- F. Cash voted the said T01- shares of-stock against-;the protest of the other faction of the stockholders thereof,-and elected said W. H. H. Cash and his sons /. A. and C. F. Cash as directors of said company, thereby obtaining for said W. H. H. Cash control of the electorate of said company.</p> <p>Oil the 11th day of December, 1918, the said W. H. H. Cash and his soil /. A. Cash, without the knowledge or consent of any of the other officers or stockholders of said company, and without any authorization therefor by the stockholders or directors of said- company, further issued of the treasury stock of said company to said W. H. FI. Cash $1,400, /. A. Cash $100, A. B. Cash $100/ W. N. Cash $100, and W. L. Cash $100.</p> <p>The trial court entered judgment declaring void the issuance of the stock to W. H. H. Cash and his sons on the 10th and 11th days of December, 1918, canceling and setting the same aside, and 'declaring void the election of directors on the 10th day of December, 1918, and restoring the management of the affairs of the company to the directors elected at the annual stockholders’ meeting held in. December, 1917. From the judgment so entered the defendants bring this appeal.</p>

■ Appeal from a judgment of the circuit court for La Crosse county: E. C. Higbee, Circuit Judge. This action was brought to procure the payment in a lump sum of $25,000 by the defendant company to plaintiff as bepeficiary of a life insurance policy issued by the defendant-coippany to Wallace R. Montague, father of the plaintiff.

<p>This action is brought under the original jurisdiction of this court to test the constitutionality of ch. 566, Laws 1919, being sec. 5.265, Stats. 1919.</p> <p>Thé statute provides for the nonpartisan nomination and election of county officers in counties having a population of more than 250,000.- Under the law, county officers in such counties are to be'nominated and elected in the same manner that’ such officers in other counties are nominated and elected except that th'fe use of party designations is prohibited and the names, of the two candidates receiving the highest number of votes for each office are to be printed upon the official ballot at the general election. It is also provided that a separate ballot for such offices shall be provided for both the primary and general election.</p>

<p>Error to review an order of the circuit court for Dodge county: Martin L. Lueck, Circuit Judge.</p> <p>The defendant in error, hereinafter referred to as the defendant, was informed against for, and convicted of, obtaining money under false pretenses. The defendant advertised, managed, and conducted a celebration in the village of Neosho oh the 4th day of July, 1917, jointly with one August Nell and Mary Franke. The advertising announcements of the celebration, in the form of bills, posters, and newspaper notices, stated that the proceeds of the celebration would be turned over to the American Red Cross Association. After a verdict of guilty had been returned, the defendant moved the court, upon the minutes of the judge, that the verdict be set aside and a new trial granted, for various reasons, the material ones of which will be referred to in the opinion. The court set aside the verdict and granted a new trial, for the reason, as plainly appears from his written opinion, that error was committed in receiving the testimony of admissions made by the co-conspirators of the defendant, August Nell and Mary Franke, subsequent to the time when the court held that the conspiracy had been consummated. The state appealed from the order granting a new trial, under the provisions of sec. 4724a, Stats.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Gustave G. Gehrz, Circuit Judge.</p> <p>Action to recover taxes and rent accruing under a lease made by plaintiff to Weber & Stuber and under a written agreement on the part of the Pabst Brewing Company to perform all the terms, covenants, conditions, and agreements of the lease. Plaintiff dealt in real estate and rentals and had a ninety-nine-year lease on the premises occupied by Weber & Stuber, who for many years past had conducted a saloon therein under a contract with the Pabst Brewing ■Company that its beer should be sold there to the exclusion of all other domestic draft beers. As to such premises the Pabst Brewing Company has had a similar contract since 1874. In 1915 Weber &;Stuber’s lease expired and they entered into a new lease , for ten years and agreed to pay rent and taxes and to make certain improvements. They found the cost of the improvements beyond their means and applied to the Pabst Brewing Company for advances, which were made on condition that Weber & Stuber should pay an increased price per barrel for beer, the increase to be in payment of the advances made. A written agreement was entered into between Weber & Stuber and the Pabst Brewing Company to the effect that if Weber & Stuber breached ' their contract with the Pabst Brewing -Company it should be entitled to immediate possession of the leased premises. In the meantime Weber & Stuber 'were to remain in possession. The lease between plaintiff and Weber & Stuber provided that the premises should not be sublet without the consent of the lessor. The Pabst Brezving Company, to secure itself on its agreément with Weber & Stuber, obtained from them an assignment of their lease, but in order to secure the benefit' of such assignment it was necessary to get plaintiff’s consent thereto. In order to secure such consent they executed this agreement: “The said Pabst Brewing Company hereby agrees to perform all the terms, covenants, conditions, and agreements of said lease to be performed by the said lessees therein.” This agreement was written into the assignment of the lease under the signatures of Weber & Stuber and above the written consent of plaintiff. Weber & Stuber at no time defaulted in their contract with the Pabst Brewing Company and the latter at no time entered into possession of the premises. Weber & Stuber remained in possession until about July 1, 1919, and paid rent to plaintiff until about January 1, 1917. The amount due under the lease for rentals, taxes, and interest was $16,891.67, and for such amount judgment was entered against Weber. & Stuber and the Pabst Brewing Company. The latter appealed from the judgment.</p>

Park, Circuit Judge. The plaintiff, Fred Kuhn, resident of the city of Shaw-ano, was the owner of five shares of the capital stock of the Four Wheel Drive Auto Company of Clintonville, Wisconsin, prior to September, 1917. Defendant B. K. -Wagner was interested in selling automobile trucks and negotiated for that purpose for some time with plaintiff.

• _ Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge. The appeal is from a judgment setting aside an order of the Railroad Commission entered on June 30, 1918. On May 25, 1918, the Wisconsin-Minnesota Light & Pozver Company filed a petition with the Railroad Commission for an emergency increase of rates for gas sold by petitioner in the city of La Crosse.

Appeals from a judgment of the circuit court for Eau Claire county: A. H. Reid, Judge.

Fowler, Circuit Judge. Action to recover damages for the death of plaintiff’s intestate caused about 4 o’clock p. m. May 18, 1918, by being strüclc by defendant’s train as it arrived at the depot at Fond du Lac. There is a principal station and a substation separated by a picket fence in which there is a gate. This fence and gate separate tracks 1 and 2 and prevent passengers from passing over tracks 2 to 4 when trains arrive.

R. Foley, Circuit Judge. The information charges that the defendant did on June 20, 1917, unlawfully practice medicine and attempt; undertake, and hold himself out as being authorized to practice medicine, and did then and there prescribe directions for medical treatment for the cure and relief of bodily diseases, without first having obtained a license, etc. The jury found the defendant guilty, and from judgment upon the verdict the defendant appeals.

<p> Real-estate brokers: Agreement to divide commissions as creating partnership: Statute of frauds: Performance of contract of sale: Failure to pay note before maturity not default. </p> <p>1. An agreement between real-estate agents to share commissions accruing from the sale of a specific parcel of real estate does not make them partners.</p> <p>2. An agreement between such agents to divide profits arising from an exchange of property and the sale of that taken by one of the parties to the exchange does not create any estate or interest in or any trust or power over or concerning lands, ■ nor is it a contract for the sale of any land or interest in land, so as to be affected by secs. 2302, 2304, Stats.</p> <p>3. The invalidity of an oral contract by one who took land in exchange for other property to convey the land to parties designated by the real-estate agents on payment of the agents’ note, does not invalidate an agreement between the agents for the division of the profits arising from the transaction after the owner had performed his contract to convey.</p> <p>4. Where such rqal-éstate agents gave their note for the pur- ■ chase price of the land and agreed to share the profits arising from its resale, the failure of some of the agents' to meet their share of the note before it was due, as requested by the-others, does not deprive them of their share of the profits where the land was resold before the note became due, there being no actual default.</p>

<p> Patents: Contract to assign future patents: Validity: Modification of contract: Consideration: Subject matter: Patented device forming integral part of new invention: Paper-feeding mechanism on printing press: Specific performance of contract: Estoppel. </p> <p>1. Where plaintiff had a contract with defendant whereby the latter was to assign to plaintiff patents which might be issued to him for inventions relating to paper-feeding mechanism for printing presses, the refusal of plaintiff to assist defendant in developing a subsequent invention of a printing press did not estop it from claiming the right to the patent for the feeding mechanism on the new press because of the fact that the defendant exhibited a model of the new device to plaintiff, where such model showed no invention relating to the feeding and handling of paper and plaintiff had no knowledge that defendant would embody such mechanism in his new press.</p> <p>2. The defendants, who had knowledge of the contract between the inventor and the plaintiff, proceeded at their peril, so far as the rights of the plaintiff were concerned, in developing an invention which related to paper-feeding and handling devices.</p> <p>3. A contract whereby the inventor of such paper-feeding mechanism for a particular type of press assigned his patent to another and agreed to assign all future patents he acquired for any paper-feeding mechanism, is not void as contrary to public policy on the ground that the contract is not qualified by place or circumstance, where it is limited to the period of the original patent, extends to particular kinds of inventions only, and does not deprive the public of the benefit of inventive genius in any excepting a specified field.</p> <p>4. A subsequent contract between the same parties, which was executed for the purpose of carrying out the original intention of the parties to the preceding contract, is based on the consideration for the original contract, so that specific performance thereof will not be refused because later developments disclose that one of the parties should have made a better bargain, where there was no fraud and there was sufficient consideration for the original contract but only nominal consideration for the modification.</p> <p>5. The assignment of all patents existing or in the future issued for inventions relating to paper-feeding devices to be attached to an existing press of specified type, is held not to include a paper-feeding mechanism invented and designed as an integral part of a newly invented press of a different type. Eschweiler and Vinje, JJ., dissent.</p> <p>6. Where defendants, in an action for specific performance of a contract to assign patents, counterclaimed asking confirmation of their rights under the patents, but the issues did not present the question of infringement by those patents of patents previously assigned to plaintiff, the court will deny specific performance and not confirm defendants’ rights so as to preclude an action for infringement, but will dismiss the counterclaim without prejudice to an action on proper issues to protect defendants’ rights.</p>

<p>Appeal from a judgment of the circuit court for Mil--waukee county: Oscar M. Fritz, Circuit Judge.</p> <p>This action was brought by the plaintiff for an accounting and to recover commissions claimed to be due him upon contract.</p> <p>The complaint alleges, in substance, that defendant was a corporation engaged in manufacturing steel castings, and that the Four Wheel Drive Auto Company, hereinafter called the Auto Company, was a corporation engaged in the manufacture of auto trucks and was using and likely to use in the future a large amount of steel castings; that about June 8/1915, defendant agreed with plaintiff in writing as follows:</p> <p>“We agree to pay you a commission of eighty-five cents per hundred pounds on .all castings made off of the Four Wheel Drive Auto Company’s patterns.</p> <p>“Very truly yours,</p> <p>“Crucible Steel Casting Co.</p> <p>“F. A. Lange, President.”</p> <p>The plaintiff further claims that he secured for the defendant the service of making the steel castings for the Auto Company at the instance and request of the Auto Company, with its assent that he was to receive such commission on its orders for castings as defendant agreed to pay him, Sind that at the date of the commencement of the suit defendant had made for the Auto Company off of its patterns 3,250 tons of castings, upon which there is due plaintiff commissions amounting to $55,250, of which plaintiff hás received from defendant $8,011.02. Plaintiff demands judgment for the balance.</p> <p>The answer of the defendant alleges that until August, 1915, plaintiff was employed by the Auto Company, and-while so employed represented to defendant that he would secure for defendant a contract with the Auto Company for the manufacture of steel castings upon the condition that the defendant pay the plaintiff a commission of eighty cents per hundred pounds for such castings so manufactured by defendant from the patterns of the Auto Company during the period of such contract so to be procured by the plaintiff; that the letter produced in plaintiff’s complaint was written by defendant to plaintiff; that prior to August 9, 1915, defendant manufactured some sample steel castings for the Auto Company; that on'August 9, 1915, defendant and the Auto Company entered into a contract in writing for the manufacture of steel castings in the following terms:</p> <p>f . “That in consideration of the covenants and agreements hereinafter mentioned, the first party agrees to make for the second party from patterns to be furnished by the second party, with core boxes for same in good working order, all steel castings required, and the second party agrees to order fi^om said first party all of said above castings required by said second party between the 9th day of August, 1915, and the 1st day, of April, 1916, to be delivered by the first party F.' O. B. Clintonville, Wisconsin, at seven and one-half cents per-pound for all steel castings.”</p> <p>' The answer further alleges that after the contract of August 9, 1915, was made, plaintiff ceased to be employed by the Auto Company, and in September, 1915, organized a corporation to manufacture steel castings' in competition with the defendant. It is also alleged that prior to March 31/1916, plaintiff surrendered to the defendant the writing ’of June 8, 1915, and all rights thereunder, and made no further claim for commissions after the expiration of the contract of August'9, 1915, except as to castings which were ordered oh or prior to April 1, 1915. Defendant claims to have paid plaintiff eighty cents per hundred pounds upon- all the castings which were manufactured by the defendant for and delivered to the Auto Company under the contract of August 9, 1915, and covered by the letter of June 8, 1915.</p> <p>The case was tried before the circuit court. The court determined the suit to be one in equity and triable before the court, but took an advisory verdict of a jury, and a trial was had before the court and a jury. A special verdict was found by the jury. The trial court adopted the verdict of the jury and made its findings and ordered judgment for the plaintiff for the recovery of the commissions claimed to be due at the time of the commencement of the suit. This is an appeal from such judgment.</p>

Ray Stevens, Circuit Judge. Relator brought this action in the circuit court for Dane county praying that a peremptory writ of mandamus issue against the Wisconsin State Board of Medical Examiners commanding the said board to examine relator in the various branches of surgery which are usually taught Jn reputable colleges of osteopathy and surgery and which are usually the subject of the regular examinations in surgery of said board, and commanding said board, in the event…

<p> Railroads: Accidents at crossings: Contributory negligence: Instructions as to instinct of self-preservation: Special verdict: Duplicity: Presumption. </p> <p>1. The question whether the driver of a team, who was killed in a collision between his wagon and. a trolley car at a railroad crossing, his view being obstructed, was negligent in not . stopping and looking, is for the jury.</p> <p>2. An instruction, in such case, permitting the jury to consider the instinct of self-preservation and the disposition of men in their s'ober senses to avoid danger, is held not to have misled the jury in considering the evidence as to contributory negligence, and was not prejudicial, though the' circumstances did not tend to raise the inquiry whether decedent acted recklessly.</p> <p>3. It must be presumed on appeal' that the jury heeded the court’s instructions in deliberating on the issues of negligence charged, and unanimously agreed as to one or more, and that the negligence found was the proximate cause of the collision.</p> <p>Eschweiler, J., dissents.</p>

Action to recover on promissory notes given for the purchase price of a tractor. Defense, breach of warranty. Defendant and his brother formed a partnership, to conduct the business of threshing grain, about August 1, 1918. The brother had an old separator, and it was agreed that he •should buy a new 26 — 46 Case separator and defendant would buy the tractor to run it Plaintiffs were engaged in .the farm machinery business at Platteville.

<p> Wills: Revocation by destruction: Will in possession of testatrix not found after death: Presumption: Declarations .of testatrix: Witnesses: Competency: Transactions with deceased person: Husband as witness for wife; Appeal: Weight accorded findings of trial court. ■ </p> <p>1. On appeal in a will case involving the question whether or not a will had been revoked by its destruction by decedent, due deference must be given to the opinion of the trial court as to the weight and credibility of evidence given by witnesses in his presence.</p> <p>2. Under sec. 4069, Stats., relating to transactions with deceased persons, an interested witness could not testify that' the deceased burned the will in her presence in’ a basin procured by such witness for the deceased.</p> <p>3. Where it is established that testatrix properly executed a valid will and that the same was last known to be in her possession but cannot be found on her death, a primg, facie presumption arises that she destroyed it with the intention of revoking 'it. Valentine’s Will, 93 Wis. 45, followed.</p> <p>4. The husband of an interested party in a will contest is competent, under sec. 4072, Stats., to testify in favor- of hi-s wife concerning the destruction of the will by decedent.</p> <p>5. Declarations of the testatrix that she had destroyed her will and had sold and given away everything she had, and directions to a witness as to whom she wanted him to give certain things, were competent as tending to prove that deceased died in the belief that she left no will, and thus support a presumption of revocation arising from the fact that the will was last seen in her possession and could not be found after her death.</p>

C. Higbee, Circuit Judge. This action is to recover on a policy of accident insurance. The plaintiff is the widow and beneficiary under said policy of C. D. Maine, the insured, who it is claimed was injured on November 14, 1918, resulting in his death thirteen days later. The decedent on the day in question moved a heavy icebox on a neighbor’s premises. On the following day he gave an indication of pain in his side by frequently placing his hand there when standing up.

W. Burnell, Circuit Judge. This action was brought to prevent the construction and maintenance and to- secure the removal of an earth embankment built within the water of Lake Poygan, a meandered body of water in Winnebago county, Wisconsin.

<p> Railroads: Brakeman boarding moving train: Assumption of risk. </p> <p>The head brakeman of a freight train who. was late for his train and attempted to board it at a place other than the starting point and when it was running at a speed of ten to twelve miles an hour, assumed the risk of injury by being thrown under the car, although the conductor told him to hurry and get on the train.</p>

The relator returned his income for 1918 and the assessor added thereto the sum of $242,249, claimed to be profits made by the relator resulting from a sale to the General Motors Corporation about July 1, 1918, of the corporate assets of the Janesville Machine Company, of which relator was a stockholder. The assessor and the board of review found the value of the corporate assets of the Janesville Machine Company on January 1, 1911, to be equal to the par value of its stock.

This plaintiff filed a claim in the county court of Dunn county against the estate of J. D. Simons, deceased, for the sum of $500, less interest payment of $25, which plaintiff claims he loaned to deceased on September 2, 1915. This claim as filed states that it was evidenced as follows: Colfax, Wis., Sept. 2, 1915. In the State of Wisconsin, in the County of Dunn. I herewith agree to pay Mr. Robert Klukas five hundred dollars with interest at five per cent, until it is paid.

Action to recover compensation for an attorney’s services. The case was tried to the court, and it made findings setting out in brief the services rendered and finding that they were worth the sum demanded by plaintiff, to wit, the sum of $126.20; that only $40 had been paid, leaving a balance of $86.20 due for services and $7.77 admitted due for disbursements. From a judgment entered accordingly the defendant appealed.

Croix county: George Thompson, Circuit Judge. This action was brought by the administrator of 'Erwin Heist, deceased, to recover damages, for the benefit of his father and mother, resulting from his death, which was occasioned by his coming in contact with one of the electric wires of defendant’s power line. Upon the verdict of the jury judgment was rendered in favor of plaintiff, from which the defendant brings this appeal.

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

Ray Stevens, Circuit Judge. This action was brought for injuries to the eye of the plaintiff, alleged to have been received through negligence of the defendant. The injuries were received through a collision between a street car of defendant company and an automobile in which plaintiff was riding. The collision took place at the intersection of University avenue and Mills street in the city of Madison.

Ray Stevens, Circuit Judge. Action to enforce payment of the cost of a spur track built under the provisions of sec. 1797 — 11m, Stats. A general demurrer was interposed and sustained on the ground that the complaint failed to show that the railroad commission had determined the cost thereof, which it is claimed must be done under said section before a cause of action accrues to the railroad company. The plaintiff appealed.

Ray Stevens, Circuit Judge. Commission contract. ‘ Demurrer. The plaintiffs are partners engaged in the real-estate business. They made a contract with the defendant to sell his farm and claim to have sold his lands, and bring this action for compensation. The defendant demurred to the complaint, and from an order sustaining the demurrer the plaintiffs appeal.

Ray Stevens, Circuit Judge. Action brought in the circuit court for Dane county to review an award of the Industrial Commission. From a judgment of that court affirming the award the state brings this appeal.

court for Dane county: E. Ray Stevens, Circuit Judge. Malpractice. The defendant is a.dentist, residing in the city of Madison.

This was an action brought for breach of promise of marriage. In aggravation of damages it was alleged that by reason of the promise defendant had seduced the plaintiff. The answer denied the contract. On a directed verdict on the ground that the only question for the jury was that of damages, the jury found for the plaintiff in the súm of $5,000 compensatory damages and $1,500 punitory damages.

Ray Stevens, Circuit Judge. This order, with a slight modification, confirms the final report of the commissioners of the Door Creek Drainage District fixing the drainage assessment against Dane County for benefits to state trunk highway No. 12. A petition for the formation of a drainage district to be known as the Door Creek Drainage District was filed in the circuit court for Dane county on March 10, 1913.

Ray Stevens, Circuit Judge. Plaintiff brought an action to set aside an order of the railroad commission fixing street-car fares in Milwaukee, alleging that the rate of fare fixed was unlawful. The Mihvaukee Electric Railway & Light Company, a defendant, moved the court that plaintiff be required to make its complaint more definite and certain. An order was entered granting the motion, and from such order the plaintiff appealed.

Ray Stevens, Circuit Judge. Personal injury. First street, in the city of Madison, extends north and south and crosses the defendant railway company’s tracks at a right angle. On each side of the railway the street is paved with concrete to a width of twenty-six feet. There is a slight decline in the highway as it approaches the railway track from the south.

<p> Guaranty: Construction: Past or future transactions. </p> <p>1. A guaranty by the president of a Lumber company, running to a manufacturer of building materials and woodwork, of the lumber company’s account, both book and notes, made in June, 1915, is held, under the course of dealing between the manufacturer and the lumber company, to have covered only transactions occurring up to November 20, 1915, when the account was closed and settled, and not to render the guarantor president liable for indebtedness of the lumber company to the plaintiff incurred in 1916 and 1917.</p> <p>2. A guaranty will be construed to be prospective rather than retrospective unless it clearly appears that the parties intended it to cover past transactions.</p>

Fritz, Judge. The action was brought by plaintiff against Grignon and Milles to recover a balance claimed to be due for. supplies furnished them 'for use in logging operations conducted by them for defendants Zachow and Rogers.

F. Wright, Judge. This is a proceeding to establish a purported last will of Ella Marvin, deceased. Mrs. Marvin was sixty-six years of age at the time of her death, May 8, 1919, at her home in Barron county. She was survived by four-grandchildren, her only heirs at law. Her will, as originally drawn, left all of her property to Earl Johnson, one of these grandchildren.

Perrin, Judge. Action for divorce. Plaintiff was granted a decree, and a final division of the property of the parties was made and a trustee appointed to manage plaintiff’s share. She appealed- from that part of the judgment dividing the property and appointing a trustee.

Perrin, Judge. This is an action brought by the plaintiffs to recover from the defendants the amount of a secret profit alleged to have been made by the defendants in the, purchase, by a group or association of persons composed of plaintiffs and defendants~Tnd otEers7~oT”arro&~ property in the state of ■Kansas.

Perrin, Judge. The appeal is from a judgment given upon the verdict of a jury for damages found in two causes of action. Both causes of action arose from collisions between a truck or trucks of the plaintiff company and a street car of the defendant company, in which both trucks and street cars were damaged. Both causes of action were for damages to the trucks and for the loss of their use.

Fritz, Circuit Judge. In this as well as in the following cases the appeals present questions arising out of transactions involved in the liquidation proceedings of the Citizens Savings & Trust Company, commenced October 2, 1913.

Fritz, Circuit Judge. This appeal is from a judgment in an action brought by plaintiff within six months after notice of the rejection of a claim theretofore filed by her with the commissioner of banking in the liquidation proceedings of the Citizens Savings & Trust Company. The transaction involves the investment of $1,000 on October 15, 1909, and of $500 on December 30, 1911, of plaintiff’s money by the Trust Company in the Clark Realty Company loan.

Oscar M. Fritz, Circuit Judge. Included in the judgment in the court below was $1,400 damages, together with interest, arising out of an improvident investment made by the Trust Company of $4,000 on November 1, 1907, in one of the Clark Realty Company loans. A claim was filed in the liquidation proceedings but no mention made therein of this particular item, and the claim was disallowed and notice thereof given.

Fritz, Circuit Judge. This appeal- is as to certain of the items included in a judgment in plaintiff’s favor; the first of such items involved being the investment of $4,000 of the plaintiff’s money… Held: however, that there was a cause of action for failure to properly apply to plaint-ill’s bonds her proportionate share of the payment made by the city of Kaukauna on July 11, 1912, and for such the trial court awarded her damages.

Waste, The plaintiffs and defendant were tenants in common of certain premises situated in Pierce county, Wisconsin.' On the 7th day of July, 1917, the plaintiff Anna C. Reinkey began against the defendant and the remaining plaintiffs-an action for partition of these premises.

Ray Stevens, Circuit Judge. This action was brought by plaintiffs to recover for the death of their two children. The children were drowned in a water-hole on the premises of Mary Connor, adjoining a state trunk highway in the town of Windsor-in Dane County.

Appeals from a judgment of the county court of Sauk county: James H. Hill, Judge. Charles Leu died testate August 18, 1919, leaving an estate valued at $2,369.71, which, by the terms of his will executed eight days before his death, he bequeathed to his only daughter, Minnie Pagel. Charles Leu was twice married, and Minnie Pagel is a daughter by his first wife.

R. Foley, Circuit Judge. This action was brought by plaintiff to recover damages for injuries alleged to have been inflicted through negligence of the defendant in driving an automobile .in which plaintiff was riding. Plaintiff was injured on December 5, 1917, at about 8 p. m., in a collision between an automobile owned and driven by defendant', in which plaintiff was riding as an invited guest, and' a train of cars extending across Belknap street in the city of Superior.

Error, to review a judgment of the circuit court for Sauk county: E. Ray Stevens, Circuit Judge. Assault with intent to commit rape. The defendant .was charged with having, on the 13th day of April, 1919, committed a felonious assault upon one Susie Patterson with intent to commit the crime of rape. Upon the trial the jury found the defendant guilty as charged.

Ray Stevens, Circuit Judge. Action to review an award of the Industrial Commission. From the judgment of the circuit court affirming the award the plaintiffs appealed. Held: however., that the employer had actual notice of the accident and injury by reason of the presence of the foreman at the time of the accident, found all other facts necessary to entitle the claimant to compensation, and made an award in his favor.

Ray Stevens, Circuit Judge. Action to set aside an award of the industrial commission under the workmen’s compensation act (secs. 2394 — 1 to 2394 — 31, Stats.). One Thomas Massino was engaged in carrying sewer pipe at the time of-the injury in question on June 3, 1917. The pipe was coated with tar, and as he threw a section of it off from his shoulder it stuck to his jacket, nearly threw him, and thus caused a recurrence of an umbilical hernia.

Ray Stevens, Circuit Judge. This action was brought to set aside an order and award of the Industrial Commission, wherein it was determined that on July 14, 1918 (while we were at war with Austro-Hungary), Stojan Ziroz suffered a fatal accident while in the employ of the plaintiff; that he left surviving him a minor son residing in Austria; that the minor son was living with deceased and solely and wholly dependent upon him for support; that the minor son was entitled to the…

Ray Stevens, Circuit Judge. Workmen’s compensation. One William Muellner, brother-in-law of the plaintiff, while in the employ of the defendant W. T. Jenkins, on the 16th day of March, 1916, met with an accidental injury, resulting in his death the same day.

Action to recover $7,000, the purchase price of plaintiff’s interest in the Janesville News Publishing Company, alleged to have been sold to defendants under an oral contract claimed to have been sufficiently performed to take it out of the statute of frauds. The defendants put in separate answers denying making the contract.

Contract. The plaintiffs claimed that the „ defendant made an express agreement with them on the 2d day of July, 1913, by the terms of which the defendant agreed to pay the plaintiffs at the rate of $7 a week for the support and maintenance of William Larmer, the father of the defendant and of the plaintiff Sarah Berryman, when he was up, and $10 a week when William Larmer was confined to his bed.

B. Simpson, Acting Judge. This is an appeal by claimant against the estate of Burr Sprague, deceased, from an order allowing the claim but denying a preference. On November. 15, 1912, Burr Sprague executed to Newton N. Palmer his-promissory note for $2,500, secured by real-estate mortgage covering various descriptions of property, including his homestead, the title to which stood in the name-of his wife.

W. Burnell, Circuit Judge. The subject matter of this action is a controversy between the Oshkosh Trunk Company, an employer, and certain of its employees. Upon the verified complaint and supporting affidavits, certain of the defendants and others confederating with them were required to show cause why an injunction should not issue restraining them from doing certain things. The injunction was issued August 10, 1920, and was modified August 23, 1920.

<p> Vendor and purchaser: Fraud: Statements recklessly made: Transfer taken in name of wife: Effect: Wife as bona fide purchaser. </p> <p>1. A transaction whereby a husband, without consideration and by means of fraudulent representations, procured the title to the property of another to be transferred to his wife, so that if she be a good-faith purchaser the title will be lost to the true owner, is properly viewed with suspicion by the courts and should be vfery closely scrutinized on account of the inducements and facilities offered for fraud.</p> <p>2. Where the wife, a woman of more than average intelligence and well able to take care of herself in business transactions and who knew her husband was having.financial difficulties, received a deed from a grantor with whom she had never had any dealings, which recited a consideration of $25,000, and in return therefor gave merely $5,000 of worthless bonds and assumed a mortgage of $12,000, without making inquiries from 'any person other than her husband, the deed, which had been procured by the husband from the grantor by fraud, will be canceled, the wife not being a bona fide purchaser, since under the circumstances she should have made inquiries, which would have revealed the fraudulent transaction.</p> <p>3. One who induced another to enter into a contract for the exchange of real property by statements that the title to the . land to be exchanged was merchantable and subject to only one incumbrance, and who procured a deed to plaintiff's land by the statement that a deed to the land to be exchanged therefor was ready for delivery, when in fact there was no such deed and the. land was incumbered' for more than $100,000 in addition to the stated incumbrance, was guilty of fraud, even though the statements were not knowingly untrue, since they were so recklessly in disregard of the truth as to be fraudulent.</p>

Appeal .from a judgment of-the circuit court for Door county:. A. IT. Reid, Judge. This action was brought under sec. 1773, Stats., by a creditor, of a bankrupt corporation, to enforce the personal liability of subscribers to stock, on the ground that fifty per cent, of the stock had not been subscribed as required by the statute.

This action of replevin was brought by plaintiff against defendant, as sheriff, who had levied on property under two executions in favor of one B. E. Nicoll and against the Gaseo Realization Company, a corporation, and Jacob Abrams, Bernard Skowron, and William Glenberg.

N. Risjord, Circuit Judge. • Suit in equity by a taxpayer to enjoin the defendants from performing a contract for the paving of certain streets in the city of Ashland on the'ground that the city had no power to borrow the necessary money to pay for the paving.

N. Risjord, Circuit Judge. Replevin. This action is brought to recover the possession of certain forest products cut and, removed by the defendant from the plaintiff’s land. There was a special verdict.

N. Risjord, Circuit Judge. Common-law certiorari to reverse the decision of the board of review for the town of Iron River, Bayfield county, Wisconsin, for the assessment of certain property of the relator in the year 1919. From the decision of the circuit court sustaining the decision of the board of review relator brings this appeal.

A. H. Reid, Circuit Judge. This was an action of an equitable nature brought by a brother and three sisters of appellant John Lepak to recover from him $200 each, with interest from the date that each, respectively, became twenty-one years of age. On June 23, 1906, and for many years previous thereto appellant John Lepak lived with his parents upon their farm.

A. Ander'son, Judge. Proceedings'to probate the purported will of John Shanks, deceased, proposed for probate by John Syth, the executor named therein. At the close of the evidence the court found as facts that said John Shanks for. some time prior to the making of his will was suffering from insane delusions; that at the time he made his will he was mentally unsound and incapable by reason thereof to execute the will; and held that his will should be disallowed.

Aureal from an order of the circuit court for Juneau county: Jam.es O’Neill, Circuit Judge. Replevin. This suit was begun to recover possession of a Fordson tractor. The defendants claimed to be holding the same as security for the amount of $102.17 repairs. The controversy between the parties was as to whether, or not the plaintiff had properly oiled the tractor during the period of its operation.

Fowler, Circuit Judge. Action to recover on promissory notes. The plaintiffs are copartners engaged in the business of selling a copyrighted advertising campaign, with offices at Iowa City, Iowa. The Hanson Company is a corporation engaged in the general mercantile business at Rio, Wisconsin. L. A. Hanson was a director of the company and a clerk in its store..

Fowler, Circuit Judge. Proceeding to construe a will. Robert Griffiths executed his will on the 29th day of May, 1885.

Action to recover $525, the purchase price of one number 40 Shar.ples steam turbine whey separator, one 4,000-pound supply tank, one American jet and the necessary pipe and fittings therefor installed in defendant’s cheese factory. The contract on behalf of plaintiff’s assignor, the Sharpies Separator Company, was negotiated by one of its traveling salesmen, D. E. Owen, who obtained from defendant the following order: Sales. . 7/6/18.

B. QuiNLAN, Circuit Judge. Action to quiet title and cancel deed. Peter Graf, the father of the plaintiff and the husband of Frances Graf, in his lifetime secured a conveyance of the premises in question from one Louisa J. Bartels, October 15, 1894. On the 15th day of June, 1901, Louisa J. Bartels made a conveyance to Frances Graf, the wife, of a tract of land which ■ included .that described in the conveyance to Peter Graf and other, land.