Volume 173 — Wisconsin Reports

B. Quinlan, Circuit Judge. This is an appeal from part of an order which overrules plaintiff’s demurrer to the third defense in the answer setting up privilege.

Lillie; also with assault under sec. 4374a-, Stats., and with án assault with intent to do great bodily harm under sec. 4377. He was convicted of the latter and sentenced to three yeárs’ imprisonment in the state prison at Waupun. ' To review the correctness of such conviction he has sued out a writ of error to this court.

‘Appeal from a judgment óf the circuit court for Marathon-county: A.'H.Reid,-Circuit Judge.'- In February, 1916, the plaintiffs, copartners doing business at Silver Lake, Kénoshá-cotinty,' made a contract with the defendant corporation,' doing' business in Milwaukee; for the sále óf a certain lot of lumbér then át a mill near' Rib Lake in'Taylor county in the northern part óf the'state.' The milling of the'lumber was tó bé done by a third-person then under contract with…

B. Quinlan, Circuit Judge. In the opinion of the trial judge the following summary is-given of the allegations of the amended complaint setting forth the misrepresentations claimed which for the most part will suffice to present the questions raised by the demurrer: “1. That Robert Sharp was an heir to the property in question and was interested in the sale because of such heir-ship, and that the property had to be sold. “2. That the farm had always been run properly. “3.

B. Quinlan, Circuit Judge. On June 30, 1919, the plaintiff, defendants, and some others were in the saloon of one Kralovetz at a place called Klondike, Oconto count}c The injury occurred somewhere about midnight, and during the night many people patronized the saloon, coming, going, and drinking intoxicating liquor.

B. Quinlan, Circuit Judge. Action to enforce specific performance of a land contract.

B. Belden, Circuit Judge. Actions by husband and wife, consolidated, to recover for personal injuries and for damage to Mrs. Smith’s automobile sustained in a collision with defendants’ automobile. The jury found that the driver of defendants’ automobile at the time of the collision was acting within the scope of his employment and that Mr. Smith sustained damages in the sum of $3,000. Other findings are not challenged.

B. Belden, Circuit Judge. Unlawful detainer. Plaintiffs were the owners of premises located at No. 456 Grover street in the city of Kenosha. On the 25th day of August, 1919, the premises were rented to the defendant and the following receipt for the first month’s rent given: “1919. “Received from H. M. Spencer twenty-five dollars, for rent of second fiat at 456 Grover street from 8/25 to 9/25, 1919.” The defendant paid the rent each month thereafter.

Lyon, Judge. Action to construe a will. After making certain specific legacies and providing that the rest of his estate should be converted into cash, the testator’s will, under clause 8, provided : “I also give and bequeath one sixth of said sum remaining after the payment of my just debts and funeral expenses and the specific bequests which I have made herein, to my grandson, John Joseph O’Brien, said sum to be paid to my grandson by my said executor hereinafter named…

B. Belden, Circuit Judge. Libel. The plaintiff in this action is a young man twenty-two years of age. He was born and raised in Rankin county, Mississippi, has a high-school education, and is the son of respectable well-to-do parents. He came to Racine sometime during the forepart of 1918 and secured employment in'the factories.

This, action was brought by the guardian ad litem of plaintiff to recover damages for personal injuries sustained by plaintiff, which injuries, it is claimed, were due to negligence of the defendant. The plaintiff, 'a boy nine years of age, was. thrown from a freight car upon which he had climbed while the car was not in motion, the accident occurring when the' car was1 put in motion.

Fritz, Circuit Judge. Personal injury. Demurrer to cross-complaint. The plaintiff claimed to have been injured on the 23d day of September, 1917, by being thrown from one of the cars of the Milwaukee Electric Railway & Light Company, hereafter. called the Light Company, through the negligent act of the Light Company.

<p>Appeal from a judgment of the circuit court for Milwaukee county. John J. Gregory, Circuit Judge.</p> <p>This action was brought to recover damages for personal injuries received March 29, 1918, at the intersection of Chambers and Third streets in the city of Milwaukee, when the automobile in which plaintiff was then riding was struck by defendant’s street car. At the time in question plaintiff was riding in a Ford touring car driven by one Pierson. Plaintiff was sitting on the back seat with two other ladies. The driver and another lady occupied the. front seat. There was a small black curtain at the rear, on the left-hand side, but no curtain over the front side. The automobile was proceeding east on Chambers street, and the accident happened at the intersection of that street with Third street, which runs north and.-south.</p> <p>The driver of the automobile testified that upon reaching Third street he looked to the north and saw no street car coming. He had a full view of the track for. 330 feet and there was no street car approaching within that distance. He proceeded across the street, and before clearing the street-car tracks a south-bound street car coming on the west track struck the left rear wheel of the automobile, threw the occupants of the rear seat therefrom, seriously injuring the plaintiff.</p> <p>A.special verdict was returned by the jury, in which it was found (1) that the street car was being run at a dangerous rate of speed as it approached the point of collision; (2) that the motorman in .charge of said street car was guilty of negligence in driving the same; (3) .that such negligence was the proximate cause. of the collision; (4) that the gong of the street car-was sounded as the car approached Chambers street; ( 5) that there was no want of ordinary care on the part of the driver of the automobile in which plaintiff was riding which proximately contributed to produce the collision; (6) that there was no want of ordinary care on the part of the plaintiff which proximately contributed to produce the collision; and (7) damages $5,000.</p> <p>The defendant made alternative motions to change the answer, to question No. 7 of the special verdict (acquitting the driver of negligence) from No to Yes, to change the answer to question No. 8 (acquitting the plaintiff of contributory negligence) from No to Yes, and for judgment in favor of the defendant under said special verdict as so changed and amended; for judgment on the uncontradicted evidence notwithstanding the verdict, and in the event that the foregoing motions be denied for a new trial, for fourteen reasons specified. The court granted defendant’s motions to change the answers to the above questions from No to Yes, and upo.n the special verdict as so amended ordered judgment in favor of the defendant. From the judgment so entered plaintiff brings this appeal.</p>

■ Appeal from a judgment of the circuit court for Milwaukee county; Oscar M. Fritz, Circuit Judge. Suit to foreclose four successive mortgages upon the same piece of property located in the city of Milwaukee. The trial court'adjudged that the first mortgage, now held by the state treasurer under the'provisions of sec. 2024 — 77j, Stats., was the'first lien to the extent of its principal sum.

T. Fairchild, Circuit Judge. This action was brought for damages for personal injuries sustained by the plaintiff, which injuries plaintiff alleges were due to negligence of the defendant. At the close of the testimony the court gránted a nonsuit and awarded judgment dismissing the complaint.' This is aii appeal from such judgment.

Oscar M. Fritz, Circuit Judge. The plaintiff is a packing company at Mason City, Iowa. Defendant maintains a cold-storage warehouse in Milwaukee. ■ Pursuant to written contracts of November,, 1916, and February 1, 1917, the plaintiff shipped, under consignment-to one Cochrane, .doing business under the name of L. A. Cochrane & Company at Milwaukee, a number of carloads of meats to be sold on a commission basis.

Fritz, Circuit Judge. Personal injury. This case was once before in this court and is reported in 164 Wis. 526, 159 N. W. 803, where a full statement of the facts is given, illustrated by a diagram. We shall not repeat the statement here. There was a new trial in the circuit court. The matter was submitted to the jury, which found a special verdict as follows: First.

Fritz, Circuit Judge. This action was brought in the civil court of Milwaukee county to recover the value of six iron steam radiators which it was alleged plaintiff loaned to the defendant and which the defendant failed to return. The case was tried before a jury, resulting in a verdict for the defendant. ' The plaintiff appealed to the. circuit court, where the judgment of the civil court was affirmed.

’.’Appeal from, a juclgment of ..the circuit court for IVIil-.waukee.county: G'1ST. Risjord, Judge. Action on an insurance policy to recover a loss sustained under the workmen’s compensation act, secs. 2394 — 1 to 2394 — 31, Stats. Plaintiff had judgment in the trial court and the defendant insurance company appeals.

E. Ray Stevens, Circuit Judge. This action was brought by the plaintiffs to set aside an award of the Industrial Commission upon the grounds that the Commission acted without and in excess of its •powers; that the findings of the Commission are not supported by the evidence; and that the Commission specifically acted without and in excess of its authority in awarding the applicant, Hansen, treble the amount otherwise recoverable for the injury he sustained, upon the ground…

Ray Stevens, Circuit Judge. Action to recover the sum of $21,643.07, being the amount of license fees paid under protest by plaintiff on $721,435.77 due in 1919 from its policy-holders but not paid to it in cash otherwise than by annually adding the amount due for interest to the principal of the policy loan.

Ray Stevens, Circuit Judge. Action to recover the sum of $23,623.67, being the amount of license fees paid under protest by plaintiff on $787,455.74 due in 1918 from its policy-holders but not paid to it in cash otherwise than by annually adding the amount due for interest to the principal of the policy loan. The trial court overruled a demurrer to the complaint, and the defendant appealed.

Ray Stevens, Circuit Judge. Applicant John Cooley was engaged to perform services for appellant company, On the second day of such services, March 19, 1918, he was working, pursuant to instructions, upon a railroad track in the woods. There was snow and ice on.the ground.

Ray Stevens, Circuit Judge. Action to review an order of the Industrial Commission awarding, under the workmen’s compensation act, treble damages to a minor in the employ of plaintiff, said minor being of permit age but employed without a permit. It appears that the minor falsely represented himself to be above the permit age and that the employer relied upon such representation in employing him.

Ray Stevens, Circuit Judge! Action to review an order of the Industrial Commission awarding treble damages to a minor of permit'age allowed to work without a permit.

Appeals from an order of the circuit court for Dodge county: Martin L: Lueck,- Circuit Judge. This is a consolidated action growing out of two actions; one commenced by the present plaintiff; Charles Westenberg, against the present defendant, Ella Bhend, and the other by the present defendant, Ella Bhend, against the present plaintiff, Charles Westenberg. The actions were consolidated and continued in the name of Charles Westenberg, plaintiff, against Ella Bhend, defendant.

Lueck, Circuit Judge. Ejectment.' Defendant counterclaimed alleging that she is the owner of the íand; prayed that the deed under' which plaintiff claimed title .be declared a mortgage, and for an accounting. The court found the title to be in the plaintiff, refused to declare the deed to her a mortgage', and refused an: accounting. From a judgment entered accordingly the defendant appealed. •

H. Reid, Circuit Judge. This action was- brought;, to-reform-a-deed--of- -real- estate purchased by defendant from plaintiff Florsheim and to permanently enjoin the defendant from using said real estate for other than private residential purposes.

B. Quinlan, Circuit Judge. The defendant owns and operates a sawmill and wholesale lumber yard at Oconto, Wisconsin, and is the owner of á large quantity] of standing timber, in Oconto and Forest counties. Its mill at Oconto is supplied largely from this timber, some of which is cut and logged by the defendant itself, while other parts of it are logged under contract with third parties, which áre known as jobbing contracts.

T. Fairchild, Acting Judge. The defendant was held by the district court of Milwaukee county to have violated an ordinance of the city of Milwaukee. A trial de novo was had in the municipal court upon appeal and he was ágain so adjudged. He was a motorman on the North avenue line of the Milwaukee Electric Railway & Light Company.

R. Foley,’ Judge. Action’ on an accident insurance policy to recover death benefits. The defendant is an insurance corporation organized under the laws of Ohio, licensed to do business in Wisconsin and to issue policies of accident insurance.

<p> Executors: Claim against estate: Evidence: Degree of proof required: Instructions. </p> <p>1. The rule of evidence in civil cases generally is that the jury are required to be convinced or satisfied of the existence of facts by the preponderance of the evidence, though in certain classes of cases a higher degree of proof is required.</p> <p>2. To support a claim against a decedent’s estate by one alleging she had loaned decedent $2,500, it was not necessary that the jury be satisfied by evidence that was clear, convincing, and' satisfactory that claimant had made the loan. A mere preponderance of the evidence in favor of claimant is sufficient.</p> <p>3. Instructions which erroneously placed on claimant a greater burdén of proof than the law required were'prejudicial.</p>

N. Risjord, Judge. This action was brought to recover damages which plaintiff sustained by falling on the floor in the residence of defendant in the city of Racine. Some time prior, to December 31, T916, the defendant invited the plaintiff and her husband to spend New Year’s eve and New Year’s day at the home of defendant, which had been recently finished, the floors highly polished and oriental rugs thereon.

Fritz, Circuit Judge. This action, originally tried in the civil court of Milwaukee county, Otto H. Breidenbach, judge presiding, was brought for personal injuries sustained by plaintiff from glass projected into the car by the breaking of a window while he was traveling as a passenger on defendant’s car.

Halsey, Circuit Judge. In 1896 one Ferdinand Hoya, Sr., of Milwaukee, died testate, his wife, Agnes Hoya, being the sole beneficiary. Proceedings were started to probáte his estate, but no final decree was entered therein, all parties concerned treating the real and personal property as belonging to the widow. October 31st of the same year the widow made her will appointing her two sons, Ferdinand A. Hoya, appellant here, and William.C. Hoya, executors.

<p>Appeal from a judgment of the county court of Milwaukee county: John C. Karel, Judge.</p> <p>The appeal is from a judgment construing the residuary, clause of the will of Thomas P. Dever, deceased. Thomas • P. Dever. died January 12, 1920, aged about sixty years,; without issue, widow, parents, brothers, or sisters surviving. The petitioner is his aunt, a woman about sixty-six years of age, his only surviving relative in the third degree of ; kindred, and therefore sole heir at law next.to,kin. On . February 26, 1919, the testator, while on, a visit in the, ci.ty , of New Orleans, accompanied by Dr. Bradley of .Milwaukee-, • went to the office of a friend named Bertaut, and there, from-, his own written memoranda, dictated and afterwards executed the will in question. After the usual- clauses the will made devises and bequests as follows: to petitioner, Kath-. erine Orr, certain real estate of the value of about $4,000 , and $3,000 in government bonds, amounting in the whole' to about $7,000; to two cousins, the sum of; $2,000 and ■ $3,000 each, respectively; to various charities, six in.number, the sum of $3,200; to his housekeeper, Annie Dorn, certain real estate, household goods, and $3,000; and to Henry. ■ Thompson, one of the executors, personally, $10,000; for the- perpetual care of family cemetery lot, $500. Then follows the residuary clause in this language:</p> <p>“The residue of my estate I leave in trust (including any stock of Dever Bros. Paper Company, Dever Realty Company, owned by me) to 7. F. Dahlman, Henry M. Thompson, and Edward W. Spencer, and I do hereby direct that they be not required to give or furnish any bond, as my executors, and use their best judgment.”</p> <p>The judgment of the county court construed said residuary clause as á valid devise and bequest of the residue of the estate of said deceased to /. F. Dahlman, Henry M. Thompson, and Edzvard W. Spencer, personally, and-that it was not the intention of the testator to create a trust by such residuary clause. From the judgment so entered the petitioner appealed.</p>

Halsey, Circuit Judge. Proceeding instituted by a landowner under sec. 1852, Stats. 1917, for the condemnation of certain of its land by a railway company which, petitioner claims, appropriated the land for railroad right-of-way purposes. The strip of land in question averages about three feet in width. The trial' court determined that the land had been so appropriated and ordered the appointment of' appraisers for condemnation. From this order the railway company appeals.

Appeál from a judgment of the circuit court for Milwaukee county: Oscar M. Fritz, Circuit Judge. This action was brought to recover the sum of $5,763, with interest, which sum represents the cost of certain .annealing pots alleged to have been sold and delivered by the plaintiff to defendant on or about December 21 and December 31, 1918.

Fritz, Circuit Judge. Action begun in the civil court .of Milwaukee . county' against the Chicago, North Shore & Milwaukee Railroad and this defendant to recover damages for an injury, sustained by plaintiff while attempting to board one. of defend-, ant’s street cars.

T. Fairchild, Circuit Judge. The petitioner is a city of the fourth class within the county of Milwaukee. Within its present corporate limits Burnham street runs east and west between Forty-ninth and Fifty-third avenues with Fifty-first avenue between these', all three crossing Burnham street. The defendant and respondent is an interurban street railway running .its cars upon the portion of Burnham street above mentioned.

T. Fairchild, Circuit Judge. Action for damages for personal injuries. Defendant counterclaimed for damages to person and property. Trial in the civil court of Milwaukee county without a jury resulted in a judgment for the plaintiff. On appeal to the circuit court the judgment was affirmed. From the judgment of affirmance the defendant brings this appeal.

Fritz, Circuit Judge. This is an action to recover freight charges on a carload of lumber, consigned by the E.- C. Bradley Company of Cincinnati, Ohio, to the appellant, /. I. Case Plow Works, of Racine, Wisconsin.

Fritz, Circuit Judge. Action begun in the civil court to recover possession of certain premises originally leased to defendant under a written lease expiring April 30, 1919. By an oral arrangement defendant was permitted to hold from month to month after the expiration of the written lease; The rent was payable on the first day of each month.

Gregory, Circuit Judge. The plaintiff was a tenant from month to month of apartment No. 16, No. 206 Ninth street, in the city of Milwaukee. The- plaintiff’s apartment was situated on -the fourth floor, and at the rear opened on a porch which was used as a common passageway by the plaintiff and other tenants. The building in which the plaintiff’s apartment was situated contained in all thirty-five apartments. The porch in question was at the rear and extended north and south.

Gepiez, Circuit Judge. One Mary Krivitz was insured by the plaintiff, and her daughter, the defendant Mary Krivitz, now Mrs. Svensson, designated beneficiary. April 14, 1919, the insured died leaving by specific bequest the proceeds of the same policy to her former husband, the defendant Anton Krivitz, from whom she had been divorced. On April 21st claim was made to plaintiff on behalf of the daughter with the usual death certificate.

Ray Stevens, Circuit Judge. Action to review an award of the Industrial Commission, given under the workmen’s compensation act, secs. 2394 — 3 to 2394 — 31, Stats., by which the plaintiff town was ordered to compensate the defendant, its employee, for injuries. The trial court set aside the award and the employee brings this appeal. Appellant Schelk was in the service of the respondent towh on July 18, 1918, working upon a road which was considerably used for travel.

Ray Stevens, Circuit Judge. The appeal is from a judgment of the circuit court confirming an award of the Industrial Commission made September 22, 1919, and confirming an order of the Industrial Commission made November 24, 1919, refusing to vacate said award of September 22d. The award was for $3,000 in favor of Mary Boncher and against the Miller Scrap Iron Company and Georgia Casualty Company, as compensation under the workmen’s compensation act for the death of Joseph…

<p>Adultery: Evidence: Sufficiency: Letter received by, woman from person other than defendant: Collateral' matters: Vse óf assumed name by defendant: Criminal law: Instructions: Appeal. - • . ■ ...</p> <p>1. In a prosecution for adultery, the evidence'is held' sufficient to support a conviction, although there was no direct- corrobT orative evidence of intercourse, where there was corroboration of the opportunity therefor- and of the parties being' together at the times claimed. • ■</p> <p>2. Where there was evidence which, if believed, would support -a conviction, and the trial court sustained the finding of the jury, this court cannot say that the .jury erred in believing the evidence, and a-’convictidn will'not be set aside.'</p> <p>3. The exclusion of an obscene letter received by prosecutrix from . a young man stating his desire to have intercourse with her, which at most merely raised a suspicion that, her testimony that she first had intercourse with defendant was false, was within the discretion of the trial court.</p> <p>4. Where prosecutrix testified that defendant told her she could write to him under another name, the reception of the postmaster’s testimony that defendant received mail under' such name was not prejudicial, though it related to a collateral .issue, the parties being allowed to go into the matter as fully, as they desired.</p> <p>5. Though the .evidence as to the offense was principally direct, the giving of an instruction which was corred: as' to the law where thé evidence was wholly circumstantial was,not prejudicial to the defendant, the charge as a whole being,as favorable to him as the facts' warranted; and the instruction also correctly stating the rule applicable where there is direct evidence of the offense.</p>

Appeals from judgments of the circuit court for Dane county: E. Ray Stevens, Circuit Judge. ■ These actions, which are presented together, arose from the application of the defendant, A. A. Porter, for an award of compensation. In one case A. A. Porter is plaintiff, in the other the Wisconsin State Register Company is plaintiff.

B. Quinlan, Judge. Action to recover moneys agreed to be repaid upon the sale or transfer of certain corporate stock. In December, 1915, the defendant and Henry F. Cochems were equal owners of the capital stock of the Senator Lead & Zinc Company, a Wisconsin corporation.

-Appeal from a judgment of the circuit court for Milwaukee county: E. T. Fairchild, Circuit Judge. Action to recover a balance due for- rent on a certain portion of plaintiff’s building in Milwaukee occupied by defendant for a moving-picture theater. The written lease provided for a. term commencing January 1,. 1917,. terminating December 31, .1919, and at an annual rental of $4,000 for two years and then $5,000. Rent was duly paid .until August. 1, 1917. .

. Appeal from a judgment of the circuit court for Milwaukee county: Byron B. Park, Judge. This action was brought by the plaintiff against the defendant to recover damages for personal injuries sustained by him while engaged as a track repairer by the Chicago & Milwaukee Electric Railway Company in the city of Milwaukee. From a judgment in favor of the defendant the plaintiff appealed. .

.. ^Appeal from an order of the circuit court for. Milwaukee county: Oscar M. Fritz, Circuit Judge.. . Action for; personal injuries. A demurrer to the complaint was sustained by the trial court. ■ From the order so doing plaintiff appeals..

The plaintiffs, copartners and architects, sued defendants to recover $1,750 alleged to be the reasonable value of their services between December 1, 1917, and February 1, 1918.

Gehrz, Circuit Judge. The plaintiff commenced an action in the civil court of Milwaukee county against the defendant J. H. Reisler, and also in the same court and at about the same time proceedings against the National Surety Company and another as garnishee defendants. The garnishee proceedings were dismissed as to both garnishees on the plaintiff failing to appear. Thereafter an ex parte order was made by the civil court setting aside such order and judgment of dismissal.

J Appeal from a judgment of the circuit court for Milwaukee county: Walter Schinz, Circuit Judge. Sophie K. Sangor, in her lifetime, undertook the erection of an apartment building on premises owned by her in the city of Milwaukee. Her husband, B. W. Sangor, was her general agent in all matters relating to the enterprise. She contracted with Lex Brothers, general builders, for the construction of the building.

Gregory, Circuit Judge. Action to recover the sum of $1,000 with interest, which sum plaintiff handed to defendant accompanying an offer for the purchase of real estate and to apply thereon. Plaintiff claimed that the offer was withdrawn and not, therefore, lawfully accepted.

Karel, Judge. The action arose on objection of the Wisconsin Trust Company, now the First Wisconsin Trust Company, of Milwaukee, to the final account of John IJ. Held: among other things, that the legacies mentioned in the will were paid by the executor without any unnecessary delay on his part; that the bequests in question were general and not specific legacies; that the assets of the estate consisted principally of railroad bonds drawing four per cent, interest.

<p> Assignments: Test of assignability: Actions for deceit: Contracts made by promoters of corporation: Leases: Adoption by corporation: Estoppel to deny existence of corporation: Judgment: Correction of clerical error. </p> <p>1. The test of the assignability of an action in tort is whether the action would survive; and an action for deceit does not come within the class designated by the statute.</p> <p>2. A valid agreement with promoters for the benefit of a corporation to be organized need not necessarily be assigned to the corporation, since the latter may adopt the contract if within its powers and enjoy its benefits and assume its liabilities.</p> <p>3. Defendant, sued for false representations made to the promoters of the plaintiff corporation in negotiations with defendant for a lease, is not estopped to deny the existence of plaintiff as a de facto corporation, it not being such a corporation at the time the representations were made.</p> <p>4. A lessee corporation cannot be held to have adopted an agreement made with its promoters for the lease of rooms served with alternating electric current when its officers, with full knowledge1 that such current • was no longer furnished, executed a lease making no provision for such current or its continuance, but must be held to have waived the claim so that it could not sue the lessor on the theory that it had adopted such agreement and was entitled to its benefits.</p> <p>5. Where costs were ordered for respondent in the civil court of Milwaukee county and taxed in the usual manner, but through the inadvertence of the clerk of the court the amount was not inserted in the judgment as directed by sec. 2927, Stats., and the circuit court ordered and entered costs taxed in the civil court, no motion being made to review the taxation in either court, held, that the circuit court had jurisdiction to remedy the error.</p>

Fritz, Circuit Judge. Action for rent. The facts can be best presented by a condensation of the findings made by the trial court.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Gustave G. Gehrz, Circuit Judge.</p>

Fowler, Judge. Two causes of action to recover for electric service furnished to the city of Milwaukee, or certain of its boards and departments, at rates of charge alleged to have been established therefor by the railroad commission of Wisconsin. Plaintiff company had judgment on both causes of action in the trial court, and defendant city brings this appeal from the whole of the judgment.

Michael Kibwan, Circuit Judge. Action to recover damages for refusal to permit plaintiff to enter certain lands and cut the standing timber thereon. December 18, 1916, the defendant Wolf owned the land and entered into a written unrecorded contract with the plaintiff permitting him to enter and cut all the standing timber thereon, all the timber to be removed before May 1, 1917.

Demurrer. Allocation of income tax to taxing districts. It appears from the amended complaint that the Mineral Point Zinc Company operates a plant situated within the limits of the city of Mineral Point and partly within the town of Mineral Point. In 1918 the company paid to the city $48,065.71 as a tax upon its income for 1916 and that a part of the income was derived from business carried on and property located within the town of Mineral Point.

It provided in’substánce for a bequest of $25 each to his two sisters and his half-brother, and the rest and residue was given and devised to a Mrs. Ráchel Grotieíl of Néibér, Wyoming, who was the adopted daughter of the téstátor's sister, Mrs. Frances E. Taylor. The testator died Januáry 26, 1920. Besides the two-sisters and half-brother above mentioned he left him surviving a nephew and a niece.

C. Higbee, Circuit Judge. Action to recover damages for the death of plaintiff’s intestate, who was a member of the police force of the city of La Crosse. At the time of his death he was a motorcycle officer. North Third street extends in a northerly and southerly direction, is brick-paved, forty-six feet wide from curb to curb, and a single street-car track occupies the center of the street.

Richards, Judge. This action was brought by the plaintiff to recover damages based upon a claim of assault and battery upon his wife, Mary Ogodziski. Plaintiff and his wife came to the village of Independence, Wisconsin, from Philadelphia on July 1, 1919. From July 1, 1919, until August 31, 1919, plaintiff acted as organist in the Polish Catholic church oí which defendant Gara is pastor, and plaintiff’s wife sang in the choir.

Anderson, Judge. Action to recover damages for an alleged assault growing out of the same acts complained of in the case of the husband, Adam Ogodziski, against the same defendants, decided herewith {ante, p. 371, 181 N. W. 227). In this case the jury returned a verdict assessing plaintiff’s compensatory damages at $4,000 and her punitory damages at $4,000. From a judgment for the above sums and costs entered in favor of the plaintiff the defendants appealed.

C. Higbee, Circuit Judge. Breach of contract. On August 17, 1917, one John L. Moore, a broker, of Jackson, Mississippi, sent the defendant quotations on twenty-six cars 'of kiln-dried rotary-cút gúm veneer of different sizes and dimensions, price to be $40 per M. f. o. b. cars La Crosse. On August '30th the defendant sent to Moore the following order: “You may enter our order as follows: 3-16 — 16 wide — 48-60 long — 3 cars. 1-4 —16 wide — 40—60 long — 2 cars.

E. Ray Stevens, Circuit Judge. One John Wiecki received an injury resulting in his death while in the emplo)^ of the Milwaukee Basket Company. Plis parents, Francisca and August Wiecki, made application for compensation under the workmen’s compensation act. Deceased was nineteen years of age and unmarried at the time of the accident, January 15, 1919.

Ray Stevens, Circuit Judge. One Henry Johnson was killed April 23, 1919, while in the employment of the respondent. Claim for compensation was made by John Johnson, his father. The industrial commission held that there was a case of partial dependency and allowed a death benefit in favor of the father of four times the amount found to have been contributed by the son.

T. Fairchild, Circuit Judge. Action by the city of Milzvaukee in its governmental capacity and also in its proprietary capacity as owner of a large number of lots abutting upon streets over which the defendant operates its street railway system to enjoin the defendant, which has no interurban franchise in the city of Milwaukee, from carrying upon its street railway system in the city of Milwaukee passengers brought from or carried to points outside of the corporate limits of…

<p>On a motion to quash an alternative writ of mandamus restraining the enforcement of the judgment of the court in the case of Milwaxikee v. Milwaukee E. R. & L. Co., ante, p. 400, the decision in that case controls, and the motion to quash is denied.</p>

Appeals from orders of the circuit court for Dodge county: Chester A. Fowler, Judge. The first action was brought by ■plaintiff to test the right and title of defendant to the office of director of the Wisconsin Farmers Mutual Hail and Cyclone Insurance Company, a Wisconsin corporation with principal offices at Juneau, Wisconsin. The last annual meeting of this company was held at its offices November 3, 1919.

Ejectment.' On January 7, 1891, John I. Brougham was the owner of the land described in the complaint and on that day died intestate, leaving the following heirs: Della Brougham, daughter, now Della Perkins, aged twenty-eight years; Fred Brougham, son, aged twenty years; Kate Brougham, daughter, now Kate Perkins, aged eighteen years; John Brougham, son,'aged fifteen years; Mary Brougham, now Mary Jones, aged thirteen years; Clarence Brougham, son, aged nine years, who died…

Appeals from an order of the circuit court for Milwaukee county: G. N. Risjord, Judge. .

B. Quinlan, Judge. Action for damages for a personal injury. The trial court directed a verdict for defendant. From a judgment entered accordingly plaintiff appeals. Appellant had been employed for some weeks prior to his injury in a factory adjoining the right of way of the respondent company in the city of Racine. He had been in the custom, as had many other employees of factories in the neighborhood, of walking along the right of way in going to and from work.

Gregory, Circuit Judge. This action was brought to recover a commission claimed to be due the respondents. The action was tried to the court and a jury* After the evidence was in, both parties moved for a directed verdict; thereupon the jury was dismissed, and the court made findings of fact and conclusions of law, pursuant to which judgment was entered for respondents in the sum of $10,517.89, from which judgment the defendant, appellant here, appeals.

■■ Appeal' frofti an order of the circuit court for Milwaukee county: Lawrence W. Halsey, Circuit Judge. Action' by á tenant to restrain the defendant, its landlord, from ceasing to furnish it • electricity and heat. .'The • court entered an order ref rising to grant a temporary injunction,-and from such order the plaintiff appealed.- ■'

Gei-irz, Circuit Judge. In 1917 the council of defendant city made an assessment of damages against the two plaintiffs as abutting property owners on National avenue in said city for a portion of the expenses incurred in then placing a new wearing surface upon an existing concrete base which had been constructed in 1912. ■ Upon appeal to the circuit court the assessments were upheld, and from á judgment confirming the same the several plaintiffs have appealed to this court.

Halsey, Circuit Judge. Construction -of will. William F. Dalrymple, bachelor, died July 21, 1901, at the age of seventy-six years. The testator, had seven brothers and one sister, David, Mark, Reuben, Clark, Oliver, Noah, Sheldon N., and Mary Ann D. Acocks. David and Sheldon N. and Mary Ann died prior to June 18, 1898, the day on which the testator executed his will. Noah and Mary Ann died without leaving any children.

Walter SchiNz, Circuit Judge. Action under the federal employers’ liability act to recover for personal injuries sustained by plaintiff while repairing a car engaged in interstate commerce.

T. Fairchild, Circuit Judge. Personal injury. This action is brought by the executor of the estate of Alvina Schilke, widow, to recover damages for personal injuries sustained by her and for her death resulting therefrom.

Gehrz, Circuit Judge. The defendant W. B. Murphy was a dentist in the practice of his profession at Milwaukee and had been such for a number of years prior to December 1, 1918. The defendant Stromberg had been in his employ for about a year and a half prior to that date, at which time he was in charge of his office, the defendant Murphy being on his vacation.

<p>ppeal from a judgment of the circuit court for Milwaukee county: John J. Gregory, Circuit Judge.</p> <p>Action to recover damages for injuries sustained by plaintiff in being run over.by an automobile driven by Plarvey Grober. William Grober, his brother, and Gust Grober, his father, the respondents, were also occupants of the automobile. It appears that Gust Grober and William were guests in the automobile, having been invited by Harvey to accompany him on the trip. Much evidence was taken as to who owned the automobile, the sons I-Iarvey and Edwin or the father. The trial court found that the sons named owned the machine and entered judgment dismissing the complaint upon the merits as to William Grober and Gust Grober, whereupon plaintiff voluntarily entered a non-suit against the defendant Harvey Grober, and appealed from the judgment dismissing the case as to Gust and William Grober.</p>

Park, Circuit Judge. Action to recover on a promissory note. On the 31st day of August 1916, the defendant entered into a contract with the Alfalfa Valley Land Company of North Dakota to purchase certain lands in that- state. The contract provided for a cash payment of $800, which defendant paid by ¿xecuting his note, for that amount due'in-'thirty days.

<p> Postoffice: Transportation of mail to and from trains: Duty of railroad company to deliver mail in accessible place: Qtiasi-contract: Requiring extra labor of mail contractor: Compensation. </p> <p>1. A railroad company did not comply with postal regulations requiring it to place mail cars at points accessible to messengers or contractors for wagon service if the mail car was so situated that the use of a truck was necessary to transport the mail from the train to the postal wagons, a.railroad platform making it impossible for wagons to back to the train.</p> <p>2. A letter from the second assistant postmaster general to the railroad company a.s to delivery of mail from mail cars to wagons is held not to supersede postal regulations.</p> <p>3. Where a mail contractor transporting mail between the post-office and trains carried the mail from the train to his wagons by truck under protest that such service should be performed by the railroad, but did not claim compensation for nearly a year and until he was told by an employee of the, postoffice department that such service should be performed by. the railroad company, he was entitled to recover from the railroad company, such services not having been performed without expectation of pay on his part.</p> <p>4. A quasi or constructive contract rests upon the equitable principle that a person shall not be allowed to enrich himself unjustly at the expense of another, and is not in fact a contract, but an obligation which the law creates in the absence of any agreement, when and because the acts of the parties or others have placed in the possession of one person money, or its equivalent, under such circumstances that in equity and good conscience he ought not to retain it.</p> <p>5. Where the contractor transported the mail by truck from train to wagon on the refusal of the railroad company so to do, though the railroad company was obligated by postal regulations to perform such service, the contractor may recover from the railroad company on' the theory that the latter was liable therefor under a quasi-contract.</p>

<p>Appeal from a judgment of the circuit court for Portage county; Edgar V. Werner, Judge.</p> <p>Trespass. This case has been before this court on two former appeals and is reported in 157 Wis. 377, 147 N. W. 703, and 163 Wis. 322, 158 N. W. 62. Reference is had to the report of the case on former appeals as to the nature of the plaintiffs’ title and the boundaries of the property conveyed to the defendant and for a full statement of the facts in relation thereto. Upon the remittitur being filed in the circuit court there was a third trial at the May, 1917, term, upon which trial the jury disagreed. At the May, 1919, term there was a fourth trial, which resulted in a judgment in favor of the defendant, from which the plaintiffs appeal.</p>

<p>Animals: Trespass by cattle: Failure to maintain lazvful fence: Wilful trespass. •</p> <p>1. Under sec. 1391, Stats., barring landowners who do not maintain partition fences front recovering for trespasses by animals of adjoining landowners, the obligation rested on the plaintiff landowner, if he desired to recover damages for the straying of defendant’s cattle from the latter’s adjoining farm upon plaintiff's farm, to see to it that a proper partition fence was built; and it was therefore immaterial whether the proceedings of fence viewers to establish a partition fence were taken according to the statute or whether the blame for failure to have the fence completed should be placed upon plaintiff or defendant or both.</p> <p>2. The common-law absolute liability of the owner of domestic cattle for damage done by his default in- failing to so care ■ for them that they do not stray from his lands to those of another is still the law of this state except as modified by statute.</p> <p>3. The provisions of sec. 1391 apply only to such trespasses as are occasioned by the natural propensity of the animals themselves, and not to a positive intentional act of the owner or keeper of such animals whereby the trespass is occasioned; and- as to such wilful trespasses the absolute common-law liability of owners for trespasses by their cattle is still in force.</p> <p>4. To constitute wilful trespass as distinguished from the trespass contemplated by sec. 1391, Stats., there must be more than a mere turning of cattle loose from the owner’s barnyard onto his own fields, even if he has reason to believe that if left to themselves they will probably wander into the unfenced field of his neighbor; and in an action for such a trespass on a clover field, where there was a gap in the partition fence, an instruction that there would be a wilful trespass if defendant “knew that his cattle had discovered the clover field' and were certain to return if they were given the chance, to turn them out of his barnyard towards the gap and knowingly allow them to walk direct to the clover field,” was too broad.</p>

<p> Deeds: Construction: Reservation of flowage rights: Adverse possession: Use not inconsistent with easement. </p> <p>1. If there is ambiguity as to the descriptive part of a deed, the court may consider the surrounding circumstances to ascertain the meaning of the instrument; but where the intent of the grantor is clearly expressed, the deed cannot be changed by evidence of extrinsic circumstances.</p> <p>2. In 'construing deeds, every word and clause is to be taken into consideration.</p> <p>3. A deed reserving .to the grantor the “use of all of the water power, water flowage and clam privilege forever,” is held to preclude the grantee from recovering from the grantor’s assignee damages for overflow caused by a dam situated below the land conveyed.</p> <p>4. A reservation clause in a deed being in effect a grant by the grantee should be construed most favorably to the original grantor.</p> <p>5. The use of land for pasturage for eight or nine years and thereafter for no other use than to cut wood and trees is not an adverse user for twenty years such as to deprive the owner of an easement entitling him to use the land for water flowage, such use of the land not being inconsistent with the easement.</p>

<p>Appeal from a judgment of the circuit court for Shawano county: Edgar V. WerNER, Circuit Judge.</p> <p>The plaintiffs were the aclujt children by a former marriage of one Steve Pietraszwicz, who for over twenty years had been the third husband of the defendant Paulina. Since the marriage of the deceased and the defendant the}'’ had lived in the home situated upon a farm owned at the time of the marriage by the defendant and they conducted the farm together. At first she owned forty-two acres and subsequently added twenty acres to it. Sometime after the marriage another twenty acres was purchased and title was taken in the-name of the deceased husband., who. died. the. owner thereof. On March 23, 1919, and at their home thedeceased executed an. instrument alleged to be his will whereby he igave-all his property, real and personal, to defendant. He died a few hours thereafter. ' On March 27th petition was 'made for the proof of such instrument' as the last will and testament of the deceased, and oh March 29th an order was made in the count}'- court of Shawano county-upon Such petition fixing a time for the hearing thereof and a further order "made giving notice to creditors. ' At about the samé time the .defendant gave public notice, by posting bills, of.an. intention to sell on the premises on April 5th the sixty-two acres 'of land of which she was the owner and also a large amount of personal property consisting of - a team of, horses,- cattle, poultry,1 grain, hayi farm .machinery, and'honsehold- furniture. On April 4th a temporary injunction was obtained in this action restraining such sale until further order of the court. Thereafter and by stipulation said sale was permitted to be had and the proceeds derived therefrom deposited with the clerk of the court below.</p> <p>The complaint alleged, among other things, that the plaintiffs, together with the defendant, were the heirs at law of the deceased, Steve Pietraszwicz. It' also recited that he died leaving certain real and personal property, specifying the property referred to in the proposed auction sale. That for some time prior to the death of Steve Pietraszwicz he was mentally incompetent to make a will; that by the undue influence of defendant and through a conspiracy entered into between her and one Martin Kelpinski said Steve was induced to sign his name or make his mark to the instrument alleged to be his last will; that the defendant caused said alleged or pretended will to be filed with the county judge, of Shawano county; that the said will had not yet been offered for probate nor had any administrator been appointed ; that the defendant by virtue of the said pretended will claims ownership and the right of possession to all the property of which the said Steve died possessed; and set forth the proposed auction sale of April 5th. That each of the plaintiffs as an heir of the said Steve Pietraszwicz was the owner of an undivided one-sixth interest in all of the personal property, being the same that the defendant threatened to sell, and that if said sale was permitted the property would be so disposed of as to get beyond the reach and control of the plaintiffs, rendering to each of them an injury and damage for which they have no adequate remedy at law.</p> <p>The plaintiffs demanded judgment enjoining the sale of the personal property and asking the court to-take jurisdiction of the estate of the said Steve Pietraszwicz. and administration of the same and that the pretended will be declared null and void and of no effect, and that Steve Pietraszwicz be declared to have died.intestate, and that the plaintiffs be allowed to recover damages as they may show they have sustained, together with their costs and disbursements.</p> <p>Upon the trial the court permitted an amendment to the complaint alleging in effect that the will had not been properly executed, on the alleged ground that the testator had not seen the witnesses affix their signatures to the attestation clause.</p> <p>. The defendant asserted the proper and due execution of the will and her rights thereunder; that before the commencement of the action the will was duly filed in the county court of Shawano county and petition duly made for the probate of said will, and an order made for a hearing thereon in the following May; that the county court of Shawano county had assumed full and complete jurisdiction of the entire matter, and that the plaintiffs have an adequate remedy in such county court without invoking the authority of the circuit court.</p> <p>During the trial the defendant renewed her objection to the jurisdiction of the court.</p> <p>The court made his findings of fact reciting, among other things, the filing of a petition in the county court for the probate of the said will; that the defendant and Martin Kelpinski, through ignorance of the law and in good faith, assumed that the defendant owned all the personal property and that the deceased left no personal property and proceeded with the auction sale of the personal property that was on the farm; the further proceedings in the county court as to fixing the time for the. hearing of the petition for the probate of the will and the giving of notice to creditors; the claims which had been filed in said county court [indicating as to one such that it was a question as to whether it had been filed in due time, and as to the bill for funeral expenses that it was a proper claim against the estate, but that its allowance is within the iurisdiction of the county court). A copy of the alleged will .was set out and that no further proceedings were had upon it in the county court; that the defendant as widow was entitled to all her rights as against the property of the deceased pursuant to sec. 3935, Stats.; that after the temporary injunction restraining the proposed auction sale the parties had stipulated to permit the sale to proceed, and the deposit of the net proceeds with the clerk of the circuit court subject to and abiding the result of this trial; and that such proceeds, amounting to $1,212.63, were now in the custody of the said clerk; that such proceeds include the sale of the household furniture and some other articles belonging to defendant.</p> <p>The twentieth finding was as follows:</p> <p>“The court does not determine and is unable to determine from the evidence what portion of the personal property belongs to the deceased and what to the defendant, but the evidence establishes the fact that the deceased did own some of the personal property at the time of his death, which the defendant attempted to sell without title and without authority of law.”</p> <p>The court also found that the deceased was of sound mind and memory and capable of making a will at the time of the execution of the instrument purporting to be his last will, and that no undue influence was exercised by the defendant ' or any one else in connection with its execution, and that he intended to convey all his property to the defendant.</p> <p>The following were also made a part of the findings:</p> <p>. “(23) That the instrument purporting to be the last will and testament of said Steve Pietraszwicz, deceased, was not executed with the formality required by law, in this, that the evidence is conclusive as shown by the physical facts and circumstances established by the evidence that it was impossible under the circumstances for the deceased to have seen the witnesses sign the said instrument purporting to be the last will and intended to be his last will, and that said witnesses thereto did not sign said instrument' in the presence of said Steve Pietraszwicz or in the presence of each other, but that the said witnesses signed same entirely out of the said Steve Pietraszwicz’s range and vision and not in his presence.”</p> <p>“(24) That the creditors of said Steve Pietraszwicz, deceased, are interested in said issues involved herein and are entitled to certain rights if they establish their claims filed in the county court and are not parties to the action.”</p> <p>“(25) That it was necessary to enjoin the sale of said property to protect the rights of all parties interested and that the county court did not have as ample power and authority under the law to restrain said sale, but that the county court has full power and authority to assume jurisdiction on all matters not herein determined.”</p> <p>As conclusions of law the court held (1) that the preliminary injunction be confirmed and made final to carry out the full spirit and intent of the law as determined by the court; (2) that the instrument purporting to be the last will of said deceased was not executed as required by law and is null and void; (3) that the clerk of the circuit court is ordered to pay to the public administrator for Shawano county, who had been appointed by the county court of said county, the said proceeds from the sale; (4) that all the issues not determined in the cause shall be and are certified back to the county court in and for said county for further proceedings according to law; (5) that the plaintiffs recover from the defendant disbursements consisting of clerk’s and sheriff’s fees and $25 attorney fees and no other costs, and directed judgment in accordance therewith. From which judgment the defendant has appealed.</p>

<p> Insurance: Automobile damage: Construction of policy: Rule of ejusdem generis: Exception: Tipping over as collision. </p> <p>1. In a policy insuring- an automobile owner against damage resulting to his automobile by accidental collision during the policy period with “any other automobile, vehicle, or object,” the use of the word “object” came within the exception to the rule of ejusdem generis, and, the specific words embracing all objects of their class, the general words must bear a different meaning from the specific words or be meaningless. Language in Wettengel v. United States "Lloyds,” 157 Wis. 433, intimating a contrary holding, withdrawn.</p> <p>2. Insurance contracts should be construed most strongly against the insurer, but they are subject to the same rules of construction applied to the language of any other contract. It is not permissible to. impute an unusual meaning to language used in a contract of insurance any more than to the language of any other contract.</p> <p>3. A policy insuring plaintiff against damage resulting to his automobile “by being in accidental collision during the period • insured with any other. automobile, vehicle, or object” was not'air obligation to indemnify plaintiff for damage to his car when, wriile on the highway, one side of the car gradually ■ ■ settled into,-the ground and-thecar tipped over, striking the : ground to its damage, such casualty not being a “collision” as the wro'rd is commonly understood.</p>

<p> Bills and notes: Holder in due course: Proof as to date of negotiation: Presumption: Fraud: Parol evidence as to representations: Expressions of opinion: Reliance on representations: Sales: Acceptance of goods: Chattel mortgages: Penalty upon unlawful sale. </p> <p>1. In an action on notes given for the price of a dredge, brought by the assignees of the seller, in which the buyer proved that the purchase had been induced by fraudulent representations, the assignees, having procured the notes from the seller, whose title was defective under sec. 1676 — 25, Stats. 1915, had the burden of proving, under sec. 1676 — 29, that they acquired the notes in due course for value under sec. 1675— 51; and in sustaining such burden they were required to prove that they acquired the notes before they became due under sec. 1676 — 15.</p> <p>2. Sec. 1676 — 15, Stats. 1915, providing that unless an indorsement is dated after maturity every negotiation of an instrument is deemed prima facie to have been effected before maturity, does not relieve the holder of a note taken from a person whose title is defective from the burden of affirmatively establishing that the note was indorsed and delivered before it was due.</p> <p>3. Testimony that the sale of the dredge was fraudulently induced by misrepresentations as to its capacity and equipment is admissible to prove fraud, notwithstanding a provision of the contract that it embodied the entire understanding between the parties and that the seller’s liability should not be affected by any statement or representation not contained therein.</p> <p>4. Representations that the dredge was of a kind and construction such as to properly do the work desired and that it was equipped with an engine of a particular kind and capacity, are actionable as against the contention that they were mere expressions of opinion.</p> <p>5. Though mere promises are not a basis for fraud, and though ordinarily fraud cannot be predicated on mere expressions of opinion, expressions of opinion may, under some circumstances, be treated as statements of facts.</p> <p>6. Acceptance of the dredge, induced by the assurance of the agent . of the seller that the dredge would be made to work satisfactorily, did not constitute a waiver of defects.</p> <p>7. Where the mortgagor consented to the sale of mortgaged property under a chattel mortgage, he could not recover a penalty under sec. 2316c, Stats. 1915, on the ground that the statute relating to chattel-mortgage sales had-not been complied with, the taking not being hostile to him. ■</p> <p>Rosenberry and Eschweiler, J J., dissent.</p>

<p>Appeal from a judgment of the circuit court for Dane county: E. Ray SteveNS, Circuit Judge.</p> <p>The action was brought to set aside a deed by which George Wood, deceased, conveyed certain property in the town of Windsor to his daughter, Anna M. Coleman, and her husband, Thomas' G. Coleman. The plaintiffs are heirs at law of George Wood, deceased.</p> <p>George Wood died intestate on the night of May 12, 1919, at the city of Madison, Wisconsin. At the time of his death he was nearby ninety-five jrears of age. Between 12 o’clock noon and 1 o’clock p. m. of the day of his death he made the deed in question. Two causes of action are set forth in plaintiffs’ complaint, alleging entire incapacity of George Wood at the time of affixing his mark; entire lack of acknowledgment of the instrument by George Wood; entire lack of delivery of the deed; and fraud and undue influence in obtaining the deed.</p> <p>Defendants plead a general denial, alleging that George Wood was of sound mind and memory at the time of the conveyance; that the convej^ance was the free act and deed of George Wood; that on the day in question George Wood knew all of his children and grandchildren and nephews and nieces and knew all about his property and the location thereof and gave directions as to what should be done with the same; that George Wood was fully cognizant of the contents of the conveyance, the same having been read over to him several times by defendant Thomas G. Coleman before the execution and delivery’thereof by George Wood to Thomas G. Coleman and Anna M. Coleman; that the instrument was duly acknowledged and recorded according to law; that the conveyance was made pursuant to a former and previous agreement; and that the execution was in conformity with the previous agreement made during the forepart of April, 1919, prior to the coming .of George Wood into the home and residence of the defendants.</p> <p>The court found that at the time the deed conveying the property in question to defendants was .signed and recorded George Wood did not possess sufficient mental capacity to make a valid transfer of his property and that the execution of the deed was procured through undue influence on the part of the defendants. Judgment was entered setting aside the deed. This is an appeal from such judgment.</p>

Ray Stevens, Circuit Judge. Action to recover damages for the breach of a contract for the purchase of a carload of fish. The complaint contains appropriate allegations showing that the contract was entered into in this manner: On December 16, 1919, defendant sent a telegram to plaintiff saying, “Mr. Mack, our representative, is expected to call to see you Wednesday.” January 20, 1920, Mack sent this telegram to defendant: “Can buy Wiedner’s fish for twelve cents.

Ray Stevens, Circuit Judge. Workmen’s compensation. The respondent Cleveland was injured October 2, 1919, while in the employ of the plaintiff.

Ray Stevens, Circuit Judge. Prior to. August, 1919, two trust company banks were existing and transacting business as such in the city of Milwaukee. Each had duty complied with the provisions of sec. 2024 — 77j, Stats., providing for the deposit of an indemnity fund with the state treasurer for the faithful execution of any trust which might be lawfully imposed upon and accepted by them. The First Trust Company then had a capital stock of $300,000 arid a surplus of $200,000.

HoppmaNN, Acting Judge. Upon the petition of W. H. Ode, resident of Sauk county, addressed to the juvenile jurisdiction of the county court of that county, and proceedings subsequently had thereon, •judgment was rendered taking the custody and control of Mabel Johnson, Rose Johnson, Elsie Raatz, and Annie Raatz, alleged neglected children, from their parents, James R. Johnson and Tina Johnson, and making temporary disposition of their custody and control.

G. ZimmiírmaN, Judge. The action was brought to construe certain pacts of the will of Anna M. Boyce, deceased. Objections were raised to the final accounting of the administrator of the estate.

Werner, Circuit Judge. Replevin. On February 19, 1919, the plaintiff was the owner of a large Holstein bull and the defendant was the owner of a small Holstein bull. In that month the plaintiff and defendant entered into an agreement for an exchange of the two bulls. It is the plaintiff’s contention that the exchange was for the season only. It is the defendant’s contention that it was á trade and that he became, the owner of the large bull.

Werner, Circuit Judge. Action by the beneficiary of an insurance certificate, issued by the defendant, a fraternal insurance company, on the life of Harry Huntington. From a judgment in favor of the defendant plaintiff appealed.

R. Foley, Circuit Judge. This action was brought by plaintiff to recover on a fire insurance policy dated December 14, 1917, for loss by fire which occurred on July 4, 1918. Defendant claims that the policy is null and void pursuant to a by-law which provided that, if additional insurance is made in another company on the same property without the acknowledgment and consent in writing of the secretary, the policy is null and void.

Perrin, Judge. Action for divorce. Plaintiff and defendant were married November 25, 1911, at Duluth, Minnesota, and were divorced by the judgment herein December 21, 1920. At the time of the trial plaintiff was thirty-six years of age and defendant twenty-six. Three children were born to them: William S., aged eight years; Allen, aged five; and Eugene, aged three years.

Halsey, Circuit Judge. Mandamus. On September 17,' 1917, one Fred G. Simmons was commissioner of public works of the city of Milwaukee and Percy Braman, the respondent, was deputy commissioner of public works. On that day Fred G. Simmons resigned his office, and thereafter the respondent, as deputy commissioner, performed the duties of the office of commissioner of public works.

Action to recover damages for personal injuries sustained by plaintiff on July 16, 1918, as a result of being struck by one of defendants’ trains on the platform of the passenger depot at Allis. The platform is raised above the street level and is reached by a stai rway that has a concrete hood or covering, the west wall of which is seven feet and four inches from the east rail of the south-bound track.

Appeals from judgments of the circuit court for Milwaukee county: John J. Gregory and Walter Schinz, Circuit Judges. These two appeals arise out of the same cause of action. The first case is an appeal from a judgment of the circuit court for Milwaukee county, John J. Gregory, judge presiding, affirming the judgment of the civil court of Milwaukee county.

Former jeopardy. Defendant was tried in the circuit court for Dünn county upon an information containing three counts; one charging the defendant with having, on the 3d day of September, 1916, committed the crime of rape upon one Edna Mann; the second count charged him with having committed the crime of adultery with one Edna Mann. There was a third count for rape, which was abandoned upon the trial and will not be again referred to.

Petition for appointment of a guardian. The matter was first heard in the county court and resulted in the appointment of a guardian. On appeal to the circuit court a new trial was had. The trial judge found that the appointment by the county court was justified at the time on the ground of the ward being an idler and spendthrift, but that owing to having mended his ways the necessity for guardianship had ceased.

Action for the partition of three lots in the city of Beloit. Plaintiff is the granddaughter of Paul Broder, Sr., and claims through her mother, Margaret Giblin, nee Margaret Broder. Paul Broder, Sr., emigrated from Ireland to this country in 1850.

Martin L. Lueck, Circuit Judge. The plaintiff, as a contracto.r, made an arrangement with the defendant by which the plaintiff was to plaster the defendant’s house and also to stucco the defendant’s house, lie was also to do some additional work as to which there is no dispute. It is the contention of plaintiff that defendant agreed to pa)r for plastering the house $500, for stuccoing the house $375.

Lukck, Circuit Judge. The defendants married in 1905. Prior thereto the appellant had owned and conducted a furniture store, ■ and shortly afterwards the appellant sold the same to the defendant J. G. Frederiksen, and he agreed to pay her therefor the inventory price of about $2,800. Pie carried on the same, greatly enlarged it, and also built a homestead for the family.

Luecic, Circuit Judge. Relator -is a stockholder of • the appellant corporation. He was also the bookkeeper and treasurer thereof from sometime in 1913 until the 13th day of May, 1920, the date on which he resigned. On the 14th day of May he demanded, through Henry Lockney, his attorney in fact, an inspection of the books and records of said corporation, which was refused.