Volume 174 — Wisconsin Reports

Luecic, Circuit Judge. Action to recover damages for the .death of plaintiff’s minor son. Trial-before a jury resulted in judgment for plaintiff upon a special verdict. Defendant appeals. The deceased boy, Clarence F. Bonniwell, Jr., was about eleven years and four months of age at the time of the accident. He attended school and was in the third or fourth, grade.

<p> Corporations: Articles of organisation: Conflict with statute: Election of officers. </p> <p>Under sec. 1776, Stats., providing that the directors of stock corporations “shall choose one of their number president and such other oflicers as the corporate articles and by-laws ' require,” all officers designated by the articles or by-laws are to be‘elected by the directors, and a provision of the charter or articles of organization of the corporation for their election by the stockholders is in conflict with the statute which governs the election.</p>

Fritz, Judge. The appeal is from an order quashing an alternative writ of mandamus issued by the court. The plaintiffs in this action constitute the local board of industrial education of the city of Beaver Dam, Wisconsin. Upon verified petition an alternative writ of mandamus was issued commanding the defendants, the mayor and city council of Beaver Dam, to levy and collect a tax of 1.5 mills.

Lueck, Circuit Judge. The plaintiff’s predecessor in title of a farm about seven miles south of Beaver Dam, six miles from Columbus, in. a dairy community in Dodge county, on October 31, 1894, made a written agreement with Charles Christians and J. W. Puerner whereby there was leased to them for ninety-nine years at an annual rental of $5 about one half of an acre from the northwest corner of the farm. Two copies of such lease were signed by the respective parties.

This is an action to recover damages inflicted upon the person and automobile of plaintiff by reason of a collision with a coal sleigh in the city of Green Bay. The defendant, Larsen, is engaged in several industrial businesses in the city of Green Bay, in which, from A.pril to November, he has use for a number of teams and drivers.

The appeal is from those portions of a divorce judgment which give to the respondent the custody of the minor child of the parties for a limited time and which finally divide and distribute the property of the defendant. The plaintiff sued for and defendant counterclaimed for divorce, each charging cruel and inhuman treatment. The plaintiff was granted judgment for absolute divorce from the defendant.

Action for the conversion of certain shares of stock pledged as collateral security with the defendant for a loan to one Hooker. When Hooker repaid the loan the bank delivered the shares of stock to him and he repledged them at another bank for a larger loan and plaintiff lost them because Hooker, did not repay the loan. Plaintiff alleged in his complaint that he was the owner of the shares of stock and that he pledged them as security for Hooker’s loan.

The trial court sustained a demurrer to the complaint. The complaint alleged, in substance, that the defendants, municipal corporations, owned and maintained a public-school building for public-school purposes in which the minor plaintiff was a pupil. “That it was the legal duty of the defendants to keep and maintain said school building so as to render the same safe and free from danger to the life, health, and safety and welfare of employees and frequenters and the public,…

N. Risjord, Circuit Judge. Plaintiff is the owner of 26.59 per cent, of the real estate in the town of Bell, Bayfield County. He failed to pay his taxes on said real estate for the year 1917. The lands were returned as delinquent, sold at tax sale, and tax certificates issued thereon. This action was brought to cancel said tax certificates on the grounds of fundamental irregularities in the assessment and levying of the tax.

<p>Appeal from a judgment of the circuit court for Ash-land county: G. N. Risjord, Circuit Judge.</p> <p>Certiorari to the .county clerk of Ashland County to review the determination and assessment of the relative value of all taxable property in each town, city, and village in the county made by the county board of equalization pursuant to sec. 1073, Stats. 1919. On defendant’s motion to quash the writ for the reason that the petition on its face shows that petitioner is not entitled to the relief asked, petitioner had judgment, and an adjustment of the resulting excess of taxes levied on the city was ordered. The county appeals.</p> <p>The petition in substance alleges: That the petitioner, city of Ashland, is a municipal corporation of the state and an independent taxing district of Ashland County; that the county board of Ashland County met in 1919 pursuant to sec. 1073 of the Statutes and determined and assessed the relative value of all the taxable property in each town, city, and village which collects taxes independently in said county, including the petitioning city, in the amounts and proportions as set forth in a table; that the amounts so set forth are those recommended by the assessor of incomes for Ashland Counly for the year 1919; that the assessment of property in the city of Ashland as set forth in said table contained, and was increased by, an amount of $1,646,000 which petitioner alleges was unlawful; that said amount of increase was included by the said assessor of incomes for the following reasons stated by him: that he was directed by the Wisconsin tax commission to add the valuation of terminal properties in the city of Ashland to the aggregate true value of other property — otherwisé such properties would escape entirely their share of state and county taxes; that the commission in making the state assessment does not include these properties and all the tax collected goes to the city of Ash-land; that the city of Ashland thereby received $49,379.34, which amount, capitalized at the local tax rate of three per cent., gives a valuation of $1,646,000, which was added to the aggregate true value of the city, $8,887,248, making a total of $10,533,248.</p> <p>The petition, continuing, alleged that the inclusion of any of this sum of $1,646,000 was illegal, was adopted by the county board over the protest of certain members, and would not have been included except through the advice of the tax commission; that the city of Ashland appealed to the tax commission from the aforesaid determination, but that the appeal was dismissed and the equalization of the county board approved and confirmed; that by reason of such illegal valuation the city of Ashland has been compelled to pay an unjustly large portion of state and county taxes for the year 1919, to its injury; and that the so-called “terminal property,” being the property on which the tax commission makes a separate valuation of docks, elevators, and the like under sub. (4), sec. 1211 — 8, Stats. 1919, and on which the tax is returned to the municipality where such property is situated under, sec. 1211 — 29, Stats. 1919, is not property subject to local assessment and taxation.</p> <p>Petitioner prayed for the writ in order that the action of the county board might be reversed and set aside or corrected by deducting said $1,646,000 from the aggregate assessment of the city of Ashland, and for such other and further relief as may be just and proper.</p>

N. Rxsjord, Circuit Judge. This action was brought by the plaintiff to recover the sum of $425 from the city of Phillips for services claimed to be due him as city attorney of said'city from May 1, 1916, to September 30, 1917, at the rate of $25 per month.

N. Risjord, Circuit Judge. Consolidated actions to foreclose a mortgage and to enforce the personal liability of the guarantor of the payment of a note for $5,000. . The written guaranty read: “I hereby guárantee payment of the within note and mortgage before and after, maturity. FI. FI.

H. Reid, Circuit Judge. Personal injury. The action was for damages alleged to have been caused by the defendant negligently driving his horses and sleigh against and over plaintiff, a school teacher, who was proceeding along a country highway in the winter time, traveling in the same direction as the plaintiff. The answer denied the negligence of the defendant and alleged that the plaintiff was negligent.

C. Higbee, Judge. Action to recover, damages for assault and battery. The jury returned a verdict in favor of the plaintiff for $60. From a judgment entered thereon plaintiff brings this appeal.

H. Reid, Circuit Judge. The plaintiffs in error, Harry Kellar and Anna Kloes, hereinafter called the defendants, were respectively convicted of the'offense of adultery and fornication. Harry Kellar was a married man and Anna Kloes a widow. To review such conviction they obtained separate writs of error, but by consent they are tried as one since both depend upon the same evidence and rulings of the court.

This is an appeal from a judgment sustaining the action of town boards in consolidating two school districts into one school district, now known as Joint School District No. 5 of the towns of Northfield and Garden Valley, and also sustaining the action of the committee on common schools of said county and the organization proceedings in said consolidated school district.

Ray Stevens, Circuit Judge. This is an action of mandamus brought by plaintiff, a soldier in the world war, to compel the defendants, constituting the Service Recognition Board, to issue to plaintiff a certificate of disbursement drawn upon the treasurer of the state of Wisconsin in the sum of $121.33, under the provisions of the so-called Soldiers’ Bonus Law (ch. 667, Laws 1919).

Croix county. George Thompson, Circuit Judge. “August 3, 1920, one Vern Reynolds stole a Buick automobile at Menomonie, Dunn count)'-, Wisconsin. He drove the car to Glenwood city where he took with him one Higgins. The two drove the car toward New Richmond on the highway passing along the defendant’s home a short distance outside New Richmond.

Owen, Judge. It appears from the petition of Gus Krakau that Arnold Alley was a child at the time of the trial twelve years of age, residing at Phillips, Price county, Wisconsin; that on the 26th day-of Ma)*-, 1920, said Arnold Alley came into the possession of some dynamite caps and fuses; that he attached the fuse to one cap and threw it in such a manner that it was picked up by Rudolph Krakau, son of the complainant, and while in his hand exploded, severely injuring the…

Park, Circuit Judge. This action is brought by plaintiff to recover the alleged contract price for castings furnished by plaintiff to defendant between January 28 and March 23, 1918. These castings were delivered by plaintiff to defendant. Defendant refused to pay for them on the ground that the castings contained cracks and blow-holes and were otherwise defective and unfit for the purposes for which they were intended.

Hoppmann, -Judge. Action to recover the balance claimed to be due upon the purchase price of one fur coat sold by plaintiff to defendant. The defense was that the coat delivered was not such a coat as had been contracted for.. Trial before the court and jury resulted in judgment for the defendant dismissing the complaint. From this judgment plaintiff appeals.

F. Hensel, Judge. May 26, 1919, upon complaint in writing before a justice of the peace for said county, the plaintiff in error, hereinafter designated as the defendant, was charged with having on August 24, 1918, in said county had unlawful sexual intercourse with one H. Upon preliminary examination he was bound over for. trial. December 10, 1919, an information was filed charging the crime of adultery with said PI. on said August 24, 1918.

Park, Circuit Judge. This action was brought to enforce the liability of the defendant as guarantor of a note executed by one Nelson to the plaintiff bank under date of June 15, 1917, for $1,000, due July 15, 1917.

Appeals from orders of the circuit court for Wood county: Byron B. Park, Circuit Judge. Plaintiff, a corporation, brought an action against the defendant, a corporation, to recover the purchase price of print paper sold it.

<p>ORIGINAL ACTION in this court.</p>

Appeals from an order of the county court of Brown county: Carlton Merrill, Judge. Elizabeth Vervoren left surviving twelve children, all of full age. In addition to these she left surviving two grandchildren, daughters of a deceased daughter. She had legally adopted the grandchildren.

Petitions for writs of prohibition to restrain the further prosecution of two suits in the circuit court for Douglas county on the ground that the summons had not been properly served on the petitioner, which is a foreign corporation. The facts in the two cases are identical so far as the merits of the petitions are concerned, and they will therefore be treated as one.

<p>ArrEAL from a judgment of the county court of Columbia county. A. F. Kellogg, Judge.</p>

<p> Easements: Oral license to drain surface water: Permissive user: Termination: Trial: Findings of fact: Form and sufficiency. </p> <p>1. Sec. 2863, Stats., requiring the filing of findings of fact and conclusions of law by the trial court, is not satisfied by the filing of an opinion containing a statement of evidentiary facts followed by a discussion of the law, as the ultimate facts in issue should be found in every case. The failure to follow the statute, however, is not necessarily reversible error.</p> <p>2. An oral license to drain surface water across the land of another does not create an easement, even though a valuable consideration is paid for it; and so long as the drainage was by permission of the landowner it could not ripen into an adverse use.</p> <p>3. An oral license to drain surface water across the land of another is not assignable, is revocable at will, and terminates if either party dies or the licensor deeds his land to another.</p>

<p>Appeal from a judgment of the circuit court for Columbia county: Chester A. Fowler, Circuit Judge.</p> <p>Contract. The defendant E. R. Staudenmayer, a farmer living in Caledonia, prior to April, 1915, had been the agent of and had had considerable dealings with the plaintiff, covering a period altogether of ten or twelve years. On April 8th he sent the plaintiff the following order:</p> <p>“Page Woven Wire Fence Company, Adrian, Michigan:</p> <p>“Ship to Mr. George Staudenmayer, 4/9/15, R. R. Station: Portage. County. Columbia, State of Wisconsin. Via C, M. & St. P. When: At once. Fence terms and discounts: Net sixty days. 360 rods woven wire field fence, X 1155 — 32 Lion, .5909 per rod. Charge to E. R. Stauden-mayer, Portage, Columbia county, Wisconsin. April 8, 1915.”</p> <p>Accompanying this order was a letter addressed to the company and signed by E. R. Staudenmayer, as follows:</p> <p>“Sirs: Inclosed find order for Lion fencing which I consider a very nice order. Now the situation is such that there is nothing in the order for me unless I get it through you, and I think I should rightly expect a commission on an order of that size. See what you can do for me.”</p> <p>The plaintiff acknowledged the receipt of the order, by letter as follows:</p> <p>“Mr. E. R. Staudenmayer, April 12, 1915.</p> <p>“Portage, Wisconsin.</p> <p>“Dear Sir: We have yours of the 8th inst. inclosing an order for 360 rods of X 1155 — 32 Lion fencing. We are entering this order for immediate shipment.</p> <p>“We note what you say with reference to selling this order so there was no money in it for you and that you ought to have a commission. We cannot understand it that way. When we make you an offer which is our lowest wholesale price, you cannot expect a commission off of that. The price we are making is .5909 a rod. That is the very least that we can afford to manufacture this fence for. If you wish a profit, you should sell for something above the lowest wholesale price. We cannot afford to cut it.”</p> <p>It appears that upon the receipt of the order by the officers of the company it was entered for shipment and directions sent by the plaintiff to Monessen to have shipment made. It appears without dispute that the goods were charged upon the books of the company to George Stauden-mayer and that an invoice of the goods was sent to George Staudenmayer. The principal office of the company was located at Adrian, Michigan, and its mills at Monessen, Pennsylvania. The goods were delivered by the plaintiff to the railroad company May 8, 1915. It appears that on May 10th the defendant George Staudenmayer wrote the plaintiff canceling the order, and on May 12th the plaintiff wrote George Staudenmayer as follows:</p> <p>“No instructions were received from you to cancel, hence without such notification shipment was made by us in good faith. In view of this, you can readily see that the responsibility rests on you and we must therefore expect that on receipt of the goods at destination they will be taken care of by you and paid for in accordance with the terms of sale.”</p> <p>It further appears that it was the intention of George Staudenmayer to use the fence, when received, to inclose 100 acres of pasture land. The damage claimed was $25 by reason of increased cost of labor due to delay, and the sum of $200 due to the inability to use the pasture which the fence was designed to inclose. Payment having been refused, this action was originally brought against E. R. Staudenmayer to recover the purchase price of the 360 rods of fencing. George Staudenmayer was subsequently made a party. On the part of the defendants it was claimed that the contract was made with George Staudenmayer, and the defendant George Staudenmayer counterclaimed for damages.</p> <p>The case was submitted to the jury on a special verdict. The jury disagreed and was discharged. The plaintiff then moved for judgment upon the pleadings and undisputed evidence. The motion was granted and judgment was entered against E. R. Staudenmayer in the sum of $378.11, from which judgment the defendants appeal.</p>

<p> Physicians and surgeons: Malpractice: Examination of witnesses: Hypothetical questions: Including facts not in evidence: Prejudicial error. </p> <p>In an action by a physician for medical services rendered defendant and his wife wherein defendant counterclaimed for damages for plaintiff’s alleged negligence in treating the wife after childbirth, hypothetical questions to medical witnesses by defendant’s counsel, embracing as an element the existence of pus in the uterus, constituted prejudicial error, in the absence of evidence as to the existence and nature of the pus.</p>

<p> Sales: Executory contract to sell: Reservation of option to rescind: Bailment: Delivery of bailed goods to one claiming title: Estoppel: Conversion. </p> <p>1. An instrument whereby a person who was to receive an automobile as part payment on lands agreed, in, case the sale of the lands was consummated, to accept a sum of money from her broker as a release from all claims and to transfer the automobile to the broker, is not a bill of sale, but an executory contract of sale, in view of a clause in the agreement which provided that in case the automobile was not transferred to the broker the money must be refunded.</p> <p>2. The executory contract of sale, reserving an option to rescind, made before the seller acquired title to the car, is rescinded by the seller making a bill of sale to the plaintiff after acquiring title to the car.</p> <p>3. The fact that plaintiff was the agent of C. in making a conditional contract to sell an automobile to F. is not available to defendant, with whom plaintiff, after subsequently receiving a bill of sale of the car from C., stored it, as an estoppel against plaintiff claiming title to the car, in a suit for its conversion by delivery to F.</p> <p>4. The defendant, who knew that plaintiff claimed title to the car, was liable for conversion in delivering it to another claiming title, though acting in good faith.</p>

<p> Railroads: Negligence: Trainman in dangerous position: Discovery by train and engine crews: Unexpected act of trainman: Death: Proximate cause. </p> <p>1. Where a brakeman, after lying sick or asleep on top of a car while it was in motion, arose and walked off the car after it had stopped, the failure of defendant’s train crew, when informed of his position, to stop the car at once and go to his rescue was not the proximate cause of his death, decedent’s action being of a nature not to be anticipated in the exercise of reasonable care and foresight.</p> <p>2. Where the engineer of the train, immediately upon being informed of the brakeman’s dangerous position on top of the car, directed his fireman to look for him, and before the fireman reached him and after the train, had stopped decedent arose and walked off the car, there was no basis for the finding of the jury that the engineer was negligent in operating the train after being informed of the brakeman’s position.</p> <p>3. The evidence is held sufficient to sustain the trial court in changing the special verdict so as to find that the brakeman’s fall from the car was not caused by the motion thereof.</p>

<p> Wills: Cancellation of debt as bequest: Subsequent change in form of debt: Effect. </p> <p>Where testatrix entered into a contract with her daughter and son-in-law to sell them a lot on monthly instalments, and later executed her will bequeathing said lot to them absolutely on her death and directing that no further payment be required on said contract, and thereafter she deeded the lot to them and took a mortgage to secure the unpaid balance, the deed and mortgage did not operate as a revocation of the will, but the will operated upon the mortgage indebtedness, made a bequest of it, and vested absolute title to the lot in the daughter and her husband on the death of testatrix.</p>

<p> Pleading: Matter pleaded and admitted: Effect on case: Amendment of pleading: Admitted matter as evidence: Explanation or qualification: Railroads: Interstate commerce: Sufficiency of evidence. </p> <p>1. Where a material fact is alleged in the complaint and admitted in the answer it becomes a verity in the case, evidence in respect thereto being immaterial; and a party is concluded by such an allegation as long as the pleadings remain unamended. Even after amendment of the pleading, the admission, although not conclusive, is evidence of the fact admitted, but may be explained or qualified, and more especially where the admission is denied in the-pleading of the opposite party.</p> <p>2. In an action by an employee of a railroad who was injured while carrying a drawbar in the yards, it is held that the finding of the trial court that the plaintiff was engaged in interstate commerce is against the clear preponderance and great weight of the evidence, taken in connection with an allegation in the complaint that plaintiff was carrying the drawbar from one pile to another in the- yards, as against his testimony at the trial that he was carrying it to a car destined for an interstate journey.</p> <p>[3. Whether the gathering of scrap by a railroad company to transport by its own agencies, for its own purposes, to another point on its system, constitutes interstate commerce, not decided.]</p>

<p> Sales: Formation of contract: Telegram referring to oral offer: Custom: Appeal: Service of appeal papers: Waiver of defective service. </p> <p>1. Sec. 2836a, Stats., providing that, when an appeal is attempted to be taken in an action in which an appeal is authorized and return is duly made, respondent shall be deemed to have waived all objections to the regularity or sufficiency of the appeal or the jurisdiction of the appellate court unless he shall move to dismiss before taking or participating in any other proceedings, applies to attempted appeals to the supreme court.</p> <p>2. Under secs. 2820, 2821, Stats., relative to the service of papers, sec. 2836a, relating to the waiver of objections, and sec. 3049, relating to service of notice of appeal, the respondent, by admitting service of copies of the printed case and brief and stipulating for a continuance of the hearing of an appeal; waived any right to question the jurisdiction of the court because notice of the appeal was served by mail instead of personally.</p> <p>3. In an action for breach of a contract for the sale of hides, the jury’s conclusion, sustained by the civil court of Milwaukee county, that the contract contained a guaranty by the seller that not more than fifty per cent, of the hides would be of second quality, is held to be warranted by the evidence and the admissions in the pleadings.</p> <p>4. Plaintiff offered a lot of hides to a broker at twenty-five cents a pound, and by telephone said it would guarantee their running not over fifty per cent, of No. 2’s, and in answer to an offer of twenty-four and one-half cents a pound plaintiff wired that it would accept such price with all No. 2’s included. The broker’s prospective customer did not agree to such conditions, and the broker offered the hides to defendant, informing him of plaintiff’s guaranty. Defendant accepted the hides, and the broker wired plaintiff, “Accept hides as offered.” Held that, as the broker was not defendant’s agent nor acting as broker between plaintiff and defendant when plaintiff’s telegram was sent, defendant was not precluded by the telegrams from showing the offer presented to him by the broker and accepted by him.</p> <p>5. In the absence of any provision to the contrary in the contract, a custom in the particular line of business permitting the buyer to treat the contract as broken if the first shipment contained more second-quality hides than agreed, and leaving it wholly at his option whether to accept subsequent shipments making up the deficiency in first-quality hides, was controlling.</p>

R. Foley, Judge. On or about November 22, 1913, plaintiff was in the employ of the Gemco Company as an efficiency expert. One Meisner was employed as shop superintendent by said Gemco Company, and was endeavoring to place a contract for the American Cycle Car Company of Bridgeport, Connecticut, for the manufacture of 10,000 motorcycle engines.

<p>Appeal from a judgment of the circuit court for Milwaukee county: Oscar M. Fritz, Circuit Judge.</p>

kee county: Lawrence W. Halsey, Circuit Judge. This action was brought by plaintiff in the civil court of Milwaukee county to recover, on a health and accident insurance policy issued to him by the defendant company.

Ray Stevens, Circuit Judge. Action to set aside an award of the Industrial Commission granting compensation for injuries. From judgment sustaining the award plaintiffs appeal. The applicant, a boy fourteen years of age at the time of the injury, had been employed for a week in appellant’s printing and book-binding establishment. He had a permit to work at that age.

John C. Karel, Judge. By final decree entered April 13, 1920, the county court of Milwaukee county awarded the attorneys for the executor compensation in the sum of $3,500 and awarded the executor fees and compensation amounting to $2,408.19. From the decree Arthur W. Tuttle, one of the legatees, appeals. The cause was, originally argued on January 12, 1921. On February 3, 1921, a reargument was ordered upon the following questions: 1.

This action was brought to foreclose a mortgage executed and delivered to C. W. Behnke on August 11, 1903, for $2,000, payable in four years from that date at the rate of five per cent, per annum. The mortgage was subsequently assigned on March 7, 1905, to the First State Bank of Brillion, and by it, on September 19, 1906, to the plaintiff.

Edward T. Fairchild, Circuit Judge. The plaintiff is a resident of the city of Milwaukee and the owner of certain real property. The land increased in value so as to make it unprofitable for renting purposes with the buildings then on it. Fie did not care to malee the necessary investment for the purpose of erecting buildings, and indicated to one Schenck, a real-estate agent, that he would lease the property upon satisfactory terms.

Action to enjoin the city of Superior and its officers from proceeding under the provisions of secs. 1797?# — 1 to 1797m — 109, Stats., to acquire the waterworks and property of the plaintiff, and… Held: and a majority of the votes cast were in favor of acquiring said plant under the provisions of said public utility law.

Fritz, Circuit Judge. On the 6th day of April, 1918, a writ of restitution was issued out of the civil court of Milwaukee county upon a judgment therein rendered in favor of the Vogel Real Estate Company and against the Builders’ Mortar &■ Supply Company, commanding the sheriff of Milwaukee county, taking with him the force of the county if necessary, to cause the said Builders’ Mortar & Supply Company to be immediately removed from the premises therein described, and that…

IT. Reid, Circuit Judge. The action.was brought for an accounting of funds alleged to be in the hands of certain of the defendants and the La Crosse Land & Investment Company. Demurrers to the amended complaint were interposed by three of the defendants upon the ground that it appears upon the face of said complaint that the cause of action was barred by the statute of limitations, sec. 4222 of the Wisconsin Statutes. The demurrers were sustained.

Werner, Circuit Judge. This action was commenced May 12, 1919, to annul a marriage of June 26, 1917.

<p>Appeal from a judgment of the circuit court for Dodge county: Martin L. Lueck, Circuit Judge.</p> <p>Action for damages caused by the failure of the defendant, which had agreed to sell plaintiffs’ barley consisting of about 812 bushels, to follow instructions given it as to the sale thereof. The cause was submitted to the jury upon a special verdict containing ten questions, only three of which were material to the issues, namely: (1) Did the plaintiffs give directions on April 17, 1918, to ship their barley? (2) After receiving such instructions, how soon, in the exercise of reasonable diligence, could the defendant have shipped it? and (3) the question of damages. The jury found that instructions to ship were given by plaintiffs on April 17, 1918; that within twenty-one days, or on May 8, 1918, the defendant in the exercise of reasonable diligence could have shipped the barley, and damages in the sum of $260. This item of $260 was in addition to $1.23 per bushel, amounting to about $990, the price at which the barley sold for July 13, 1918. The court awarded judgment to plaintiffs, with interest on both sums from July 13, 1918, and the defendant appealed.</p>

<p> Dedication: Oral acceptance: Implied acceptance: Use of ptiblic moneys on highway: Dedication not joined in by all landowners. </p> <p>1. Prior to the amendment of sec. 1294, Stats., by ch. 525, Laws 1913, an oral acceptance by a town board of a dedication of a public highway was lawful and binding.</p> <p>2. The mere furnishing of funds by a town board for work upon a strip of land could not convert that which was a private easement into a public one, at least as to owners who had not joined in an attempted dedication to the public.</p> <p>3. A private right of way could not become a public highway by dedication by the owners of but part of the strip used as such right of way.</p>

Halsey, Circuit Judge. Action begun in the civil court of Milwaukee county to recover $100 claimed to be due from defendant to plaintiff under the following circumstances: Both plaintiff and defendant had purchased lands in Florida under separate contracts from the Thomas Nurseries, Inc., of Chicago and both were in arrears on their payments and the contracts were defaulted. Plaintiff had paid only $100 on his contract and desired to secure the return of his payment.

Halsey, Circuit Judge. Plaintiff brought this action in the civil court of Milwaukee county to recover damages for the loss of the services of his son, who was about nineteen years of age, as the result of personal injuries sustained in an automobile collision. The case was tried before a jury. A verdict was returned upon which plaintiff was entitled to judgment, and the damages were assessed at $1,000.

Fritz, Circuit Judge. Taxpayer’s action to enjoin performance of a contract of the Milwaukee sewerage commission for public work alleged to have been made contrary to law. From judgment dismissing the complaint plaintiff appeals. The sewerage commission of the city of Milwaukee is a board operating under ch. 608, Laws 1913, and acts amenda-tory thereof.

Fritz, Circuit Judge. Action begun in the civil court of Milwaukee county to recover commission for the sale of real estate under the following written contract: “Owner John Lamp. “Listed by-, “Address 1211 20th St. “H. R. Graham, Milwaukee, Wis., June 11, 1919. “30-34 Patton Bldg., cor.

Personal injuries. The complaint alleges that the defendant had erected and was maintaining on the southeast corner of Greenbush street and Chicago road a construction house containing a boiler and steam engine and other machinery; that said house had been so negligently and carelessly erected that the steam and clouds of vapor issuing therefrom were caused to pass and were shot across the public highway at that point; that the steam and clouds of vapor obstructed the view…

Fritz, Circuit Judge. The plaintiff was hired by Mrs. Rothstein to do the family washing at the home of the defendants, husband and wife. They had a Thor electric washing machine, as a part of which and above the portion used for the washing was a wringer attachment. This contained two hard rubber rollers through which the clothes were passed. On one side of the wringer attachment was the electric button by which the power was turned on or off.

T. Fairchild, Circuit Judge. On the 1st day of November, 1919, the plaintiff was in the employ of the Chicago & Northwestern Railway Company, as a section hand, at Kimberly, Wisconsin. A portion of his work consisted in removing old ties and substituting new ones in the roadbed. To move the ties it was customary to drive a pick into them and then pull on the handle of the pick.

Fritz, Circuit Judge. Action for damages for-personal injuries. Trial before a jury in the civil court of Milwaukee county resulted in judgment for plaintiff upon a special verdict. On-appeal to the circuit court judgment was reversed, and judgment entered dismissing the complaint, upon the ground that defendant’s motion for a directed verdict should have been granted. Plaintiff appeals.

Walter Sci-iinz, Circuit Judge. The action was brought by plaintiff for personal injuries claimed to have been sustained when plaintiff was struck by a truck belonging to the defendant and driven by his employee, Walter Reese. On the day of the accident Walter Reese invited the plaintiff to ride with him from the gravel pit of defendant towards town.

Appeal.from a judgment of the,circuit court for Milwaukee county: John J. Gregory, Circuit Judge.

N. RisjoRd, Judge. Action to set aside a mortgage release' executed in the name of plaintiff and recorded, but which plaintiff claims is a forgery, and for foreclosure of the mortgage. Judgment was entered for defendant dismissing the complaint. Plaintiff appeals. The appellant is a widow sixty-five years of age. One Best, a stock and bond broker and her son-in-law, helped her in attending to her affairs and in large part took charge for her of the transactions here involved.

Halsey, Circuit Judge. This is an action in ejectment, brought by the plaintiff, the original owner of the premises in question, against the defendant, who claims title under a tax deed.

W. BuRnell, Circuit Judge. Action to recover $4,700 on three insurance policies issued October 3 and 4, 1918, for the loss of $6,602.67 on a stock of goods destroyed by fire November 14, 1918. Due proof of loss was made. At the time the policies were issued the goods were owned by one Volk.

W. Burnell, Circuit Judge. The action was commenced as a replevin action, but was tried as an action for specific performance of a land contract alleged to have been executed and delivered by the defendants Ernst and Emma Mayer, whereby they agreed to sell and convey to plaintiff Hopfensperger certain lands and premises located in Calumet county.

Manito-woc county: Michael Kirwan, Circuit Judge. Joseph Ecker died intestate April 30, .1918, his wife having died some years before. He left surviving his sister, the appellant, and several children of a deceased brother. There were no children as a result of his marriage. It appears that in 1866 one Mary Halda made a complaint before a justice of the peace in which she charged that the deceased, Joseph Ecker, was the father of her unborn child. A warrant was issued.

Action for damages for personal injuries. Trial before, a jury resulted in judgment upon a special verdict dismissing the complaint. Plaintiff appeals. On February 18, 1918, the date of the accident, appellant was engaged in the household of respondent as a domestic servant, and had been so engaged for some two years.

Fowler, Judge. on the 8th day of May, 1918, were the owners in fee of the north half of lots 1 and 2 in block 18 of Swift’s addition in the city of Sheboygan, in Sheboygan county, Wisconsin, which real estate was ■ incumbered by a mortgage in the sum of $1,741.

Action of mandamus commenced in this court to compel the circuit judge of the Seventh circuit to change the place of trial of an action, wherein A. P. Bean is plaintiff and F. W. Meyer is defendant, from Wood county to Barron county. The respondent moved to quash the alternative writ. The petition shows the following facts: A. P. Bean sued F. W. Meyer, the petitioner here, on two promissory notes.

<p>Original action in this court to determine the validity of the so-called “Rent Law.”</p>

B. BeldeN, Circuit Judge. This action was brought to recover on a promissory note, the defense being that its execution was induced by fraud.

B. Belden, Circuit Judge.' Suit in equity to cancel a deed on the ground that one of the grantors had not signed it and on the further ground that there had been no valid delivery of the deed. The court found there had been no delivery of the deed and on that ground entered judgment canceling it. The defendant appealed.

B. Belden, Circuit Judge. Personal injury. The complainants allege that the defendant is a municipal corporation; that one Erickson was the owner and the driver of an automobile in which the deceased husbands of the plaintiffs were riding at the time of injuries resulting in their death; that the automobile, traveling in an easterly direction, was suddenly and without warning precipitated into an excavation and as a result of such precipitation the steering apparatus of the…

B. Belden, Circuit Judge. Plaintiff, the father of Michael Thomas, a boy about thirteen years of age at the time of his death, was appointed administrator and brought this action against the defendant to recover damages for the death of said son. The defendant corporation was engaged in the business of selling gasoline and oil in the city of Racine. It used a number of automobile trucks for delivery purposes.

R. Foley, Circuit Judge. Certiorari. It was proposed to incorporate a union free high school, the boundaries of which should include territory lying partly in the towns of Eureka, St. Croix Falls, and Balsam Lake, and including the village of Centuria. The petitioners proceeded under the provisions of sec. 40.47, Stats. An election was held and the result of the election certified to the state superintendent, who issued the certificate provided for in sub. (6) of sec. 40.47.

<p>Appeal from an order of the circuit court for Brown county: Henry Graass, Circuit Judge.</p>

Werner, Judge. Charles Beilfuss, Sr., died intestate in 1908 and left his •widow, Julia, and ten adult children, the latter parties to this action. For a long time prior to his death, he, his wife and family, occupied a farm of 100 acres in the town of Oak Creek, Milwaukee county. The dwelling was located upon eighty acres, title to which was in the wife, Julia. The adjoining twenty acres were in his name.

Milwaukee county: John J. Gregory, Circuit Judge. The appeal is from a judgment reversing the judgment of the civil court of Milwaukee county.

S. SheRIDAN, Judge. The appeal is from an order determining the inheritance tax due upon the estate of Charles Allis, deceased. Charles Allis died July 22, 1918. At the time of his death there was insurance upon his life in the sum of $306,000 of which Sarah E. B. Allis was sole beneficiary. The estate consisted of real and pei'sonal property.

Gei-irz, Circuit Judge. Writ of error brought to test the validity of an order of the circuit court for Milwaukee county in a civil contempt proceéding adjudging defendant guilty of contempt because of his refusal to answer certain questions in a proceeding under ch. 16, Laws 1920 (Special Session), known as the “Rent Law.”

<p>Appeal from an order and a judgment of the. circuit court for Milwaukee county; Walter Schinz, Circuit Judge.</p> <p>In 1869 the county court of Milwaukee county entered a decree of divorce in the above entitled action containing this provision:</p> <p>“And it is further adjudged and decreed, that of the real estate owned by the defendant the following piece or parcel of land, situate, lying and being in the county of Milwaukee and state of Wisconsin, and known and described as lot No. 3, in block No. 7, in Wm. P. Young’s Addition, in the Sixth ward of the city of Milwaukee, together with the dwelling house and appurtenances thereon, be and the same is hereby assigned to the plaintiff, Emilie Johanne Caroline Sophie Kuether, in trust for herself and the said minor children of the plaintiff and defendant. To have and to hold the same unto the said plaintiff in trust for herself and said minor children.”</p> <p>There were three children, Franz, Emilie, and Juliane. Emilie and Juliane died in 1873. In 1885 Franz quitclaimed to his mother any interest which he may have had in the real estate, and died in April, 1886. In the summer of 1886 the defendant Johann Hermann Gottlieb Kuether died, not having previously remarried, and leaving no kin.</p> <p>In January, 1919, the circuit court for Milwaukee county (having succeeded to the jurisdiction of the county court of that county in such matter by virtue of ch. 125, Laws 1887, and ch. 1, Laws 1903), upon the application of plaintiff, modified the provision above quoted by inserting in lieu thereof the following:</p> <p>“That of the real éstate owned by the defendant, the following piece or parcel of land, situate, lying, and being in the county of Milwaukee and state of Wisconsin, and known and described as lot numbered 3, in block numbered 7, William P. Young’s Addition, in the Sixth ward in the city of Milwaukee, together with the dwelling house and appurtenances thereon, be, and the same is hereby assigned to the plaintiff, Emilie Johanne Caroline Sophie Kuether, now Trettin, absolutely, and the title in fee thereof is hereby divested from the defendant and transferred to the plaintiff absolutely.”</p> <p>And.further, adjudged as follows:</p> <p>“It is further adjudged and decreed that the title in fee of the premises so described is hereby divested from the children of said plaintiff and of said defendant, now deceased, and from any and all persons claiming under them or any of them, and from the state of Wisconsin, and said title in fee is transferred and vested in said plaintiff absolutely.”</p> <p>From such order and judgment modifying the original decree the State of Wisconsin, claiming the estate of Johann Hermann Gottlieb Kuether as an escheat, brings this appeal.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: Walter Sci-iinz, Circuit Judge.</p> <p>Action-for. damages for personal injuries. Trial in the civil court of Milwaukee county resulted in judgment for plaintiff upon a special verdict. Upon appeal to the circuit court judgment was reversed and the complaint was ordered dismissed. Plaintiff appeals.</p> <p>Appellant was a laborer who had for many years worked in and about ships and docks. Respondent was the owner of the ship “Tioga,” upon which the injury occurred.</p> <p>The “Tioga” was a steel or iron ship, formerly a package freighter, but recently converted into a gross freighter for the carrying of such commodities as coal. She had been a two-decked vessel, the lower deck separating an upper, from a lower hold. There were large hatchways in the upper deck for the purpose of admitting the clam-shell scoops used for unloading. Those parts of the lower deck which came under these hatchways had been removed so that the clam-shells could be lowered to the bottom of the hold. Th,e lower deck was made of metal plates resting upon a metal framework, and when the opening was made under the hatchway in question a part of the deck was left projecting like a shelf inward from the wall of the vessel to a point under the edge of the hatchwpy. Along the edge of the projecting plate beneath this hatchway a piece of parti)'' rounded metal had been fastened and formed what was described as a coaming. It was riveted to the under side of the plate and flush with its edge. Respondent intended to remove the lower deck the coming winter and reconstruct it.</p> <p>On June 20th the boat was inspected at Buffalo by the government inspectors and passed as in full compliance with the laws and regulations of the inspection service. The coal company which conducted the unloading operations did so at a dock which had not been used for two years, there was some trouble with the unloading machinery, and the operating personnel was assembled hurriedly, three of the four operators of the hoisting clams being inexperienced. There was testimony that in unloading coal ships the clams, which in this case weighed three tons, occasionally struck the sides of the hatchways and would then rebound and strike the opposite sides. With this particular unloading there was an unusual amount of this striking, and the foreman had warned men in the hold to be careful as there were inexperienced hoisters on the job. Appellant denied having heard the warning.</p> <p>Appellant was working upon the unloading operations in the hold underneath the lower deck and near the hatchway which has been described. About ten or fifteen minutes before the accident a fellow workman had noticed that the iron coaming which caused the injury was loose at one end, and he changed his place of work to- avoid danger from it. Appellant was assisting the lowering of the clam, and when it struck the bottom of the hold the iron coaming fell upon him causing injuries.</p> <p>It is admitted that respondent is not liable for any active negligence in the unloading operations, but it is contended that the lower deck with the iron coaming constituted a structural defect negligently permitted to exist which made the hold an unsafe place to work.</p>

<p>Appeal from an order and a judgment of the circuit court for Winnebago county: Chester A. Fowler, Judge.</p> <p>The appeal is from an order directing appellant to pay twenty years’ arrears of alimony and interest thereon, amounting to the sum of $3,922.30, with costs, the original judgment having been entered on April 20, 1871.</p> <p>The judgment for divorce provided for a dissolution of the marital ties upon the ground set forth in plaintiff’s complaint, namely, wilful desertion, and it also adjudged that the custody of the minor child of the parties, Charles Morris Ashby, be awarded to the plaintiff, and that the defendant pay to the plaintiff the sum of $10 per month, payable monthly, as alimony; and that such alimony shall commence on the date thereof.</p> <p>It appears also that the allowance for alimony provided for by said judgment was paid until July, 1874; that in September, 1876, the defendant, being then in arrears in the payment of alimony, was ordered by said court to show cause why he should not be punished for. contempt for failure to pay alimony under said judgment; that said matter duly came on for a hearing before the court; that the court refused to punish the defendant for alleged contempt, and that the petition of the plaintiff was dismissed. That after the determination by the court of said application to punish the defendant for contempt, the defendant was assured by his attorney, one James Freeman, that he would not be obliged to pay any further attention to the' payment of alimony under said judgment, and that thereafter he paid no further attention to such judgment until the year 1920, when an application was made by petition in the above entitled action in said circuit court, wherein the plaintiff prayed for an order to show cause directing said defendant to appear before said circuit court and show cause, if any he have, why all unpaid instalments of alimony under the original judgment and further accruing instalments should not be paid, and why the defendant should not be punished for failure to pay the alimony so adjudged, and for such other and further relief as the court, under all the circumstances, might deem just and equitable.</p> <p>In and by this petition of the plaintiff it is stated that the minor child of the parties was born in October, 1870; that since July, 1874, the defendant failed and refused to pay the alimony provided for by the original judgment; that a formal demand for the payment of the alimony in arrears was made of defendant, in writing, on January 21, 1920, at Winneconne, Winnebago county, Wisconsin, which was the place of defendant’s residence and where he has continued to reside since said decree of divorce was entered; that there was due plaintiff from the defendant on January 21, 1920, for alimony the sum of $5,460; that the infant child of the parties was an invalid and lived with the plaintiff and was supported by her until he was twenty-eight years of age, when he died; that the plaintiff, ever since the divorce was granted, was the owner of no property and had no income excepting such as she was able to secure by menial labor, and that with her earnings and some outside aid she eked out a miserable existence during all those years; that by a former husband petitioner had a daughter, who married a man by the name of Hamilton, who resided in South Dakota, and that both the daughter and her husband were impecunious, but aided and assisted the plaintiff to the best of their ability. That the plaintiff is now seventy-five years of age, and physically unable to perform labor or to earn money in order to provide the necessities of life; that she is reduced to penury and want; that she was obliged to remove to South Dakota and live with her daughter and son-in-law in order to secure their aid and support.</p> <p>Upon such petition, after demand had been made for the payment of alimony, an order to show cause was procured and a hearing had thereon. The petition of the plaintiff is supported by affidavits of the daughter, Mrs. Hamilton, and her husband, H. J. Hamilton.</p> <p>The defendant filed an affidavit which, among other things, alleged that from 1876 until late in the year 1919 no demand was made upon him for payment of alimony under said judgment by the plaintiff or by any one else in her behalf. That he has no money, property, or means of any kind whatsoever, excepting a pension which he receives from the United States government in the sum of $30 per month; and that he is the owner of a Liberty bond of $50 and three small parcels of real estate in the village of Winneconne worth not to exceed $2,500. It further, states that he is of an advanced age (the exact age of defendant not appearing of record) and that he is unable to engage in any gainful occupation and has no means of support.</p> <p>Upon the hearing of said order to show cause the court ordered and adjudged that the defendant be not punished for contempt; that plaintiff do have and recover as judgment herein, of and from the defendant, the sum of $3,922.30 and the taxable disbursements of this proceeding, stipulated at $22.80; that said judgment be paid by said defendant forthwith, and should any portion of defendant’s real éstate be occupied as a homestead so that it is not subject to execution, and defendant refuse to sell or incumber it to satisfy the above amount so ordered, he may be cited for contempt for failure to abide by this order. And it was further ordered that the defendant continue to pay alimony to plaintiff herein pursuant to the original judgment, the first payment of said alimony to be made as of date of July 1, 1920, and to be made monthly thereafter until the further order, of the court; and that the defendant be subject to proceedings for punishment for contempt in case of his refusal so to do.</p> <p>The record does not satisfactorily disclose the property owned by the defendant or its value. Among other, things the plaintiff in her affidavit states that the defendant had, a short time prior to the making of her petition, sold and conveyed a certain piece of land in Winnebago county of the value of $7,600, and that the proceeds of such sale, and other property, constituted the assets of the defendant.</p>

<p>Appeal from a judgment of the circuit court for Crawford county: L. H. Bancroft, Circuit Judge.</p> <p>Action for damages for personal injuries sustained by a collision with defendant’s automobile occurring in the afternoon of May 15, 1919, on Main street in the village of Eastman. Plaintiff, about fourteen years of age, was crossing Main street from east to west with a pail of water. When she had proceeded beyond the line of a car standing on the east side of the street and a short distance to the south, she says she glanced south along the street for cars and saw none. She had an unobstructed view south for three or four blocks. When she had almost crossed the street she saw a car standing on the west side thereof with people around it, and she kept her eyes on that car expecting it to start, and' she also looked north, and when within eight or ten feet of the west side of the street she was struck by defendant’s car coming from the south and was injured. The jury returned a general verdict in favor of plaintiff and assessed her damages at $5,000. The defendant appealed.</p>

<p>Appeal from a judgment of the circuit court for Grant county: L. H. Bancroft, Circuit Judge.</p> <p>It appears from the complaint that prior to April 27, 1916, the plaintiff had deposited certain moneys with the defendant, such deposit being evidenced by a pass-book designated as “Savings Account No. 864.” That the said pass-book was the property of the plaintiff,, of the value of $700.55; that prior to April 27, 1916, some person in the city of Toledo, Ohio, wrongfully took from the plaintiff said passbook and thereafter caused the same to be delivered to the defendant, who refuses to deliver it to the-plaintiff, although delivery has been demanded, and the defendant further refuses to pay to the plaintiff the moneys evidenced by said pass-book and unjustly detains the said pass-book, to plaintiff’s damage in the sum of $700.</p> <p>The answer admits the making of the deposits, the issuance of the book, and sets up that by the making of the deposit and acceptance of the book the plaintiff assented to the by-laws of the defendant bank, which provided:</p> <p>“4. Withdrawals of deposits and the interest thereon, may be made by a depositor personally or by written order, if the signature of the depositor be entered pn the signature cards of the bank, or by power of attorney duly authenticated. No' withdrawal of deposits or interest shall be made unless the depositor’s pass-book be produced and the withdrawal entered thereon.</p> <p> “Payments to Holders of Pass-books. </p> <p>“The bank shall not be liable for payments made to any person who shall produce the deposit book of the depositor, unless notice shall have, previous to- such payments, been given to the bank by or in behalf of the depositor that said book has been lost, mislaid, stolen or otherwise passed from the possession of the true owner, thereof.”</p> <p>The answer further alleged that the defendant had received from the Ohio Savings & Trust Company of Toledo, Ohio, the pass-book of the plaintiff, accompanied by an order directing payment of the amount of the deposit to said Trust Company; that upon receipt of the pass-book the defendant coriipared the signature to. the written order with the signature of the plaintiff on the signature card given by the plaintiff to the defendant at the time of the deposit; that no> notice of the loss by the defendant of the book had been given to the defendant; that the full amount thereof had been paid by the defendant to the Trust Company, and that by the transactions stated the pass-book had become its property and was not the property of the defendant.</p> <p>Upon the trial the court submitted to the jury a single question: “Did the defendant bank fail to exercise ordinary care in making payment to the Ohio Savings Bank & Trust Company on April 27, 1916, of the money owing by it on the pass-book in question?” To which the jury answered “Yes.”</p> <p>There were the usual motions. Motion of the plaintiff for, judgment on the verdict was granted and judgment was entered accordingly, from which the defendant appeals.</p>

<p>Appeal from an order of the circuit court for Grant county: L. H. Bancroft, Circuit Judge.</p> <p>In 1916 L. N. Patnaude owned two hotel properties at Platteville, Wisconsin, known respectively as the Columbia Hotel and the Republican House. He operated the Columbia Hotel and used the Republican House as a lodging-place for overflow guests of the Columbia Hotel. On October 16, 1916, Patnaude entered into a contract with Murray B. Huntley and Scott Pluntley to convey the Columbia Hotel property to them for the sum of $35,000. The contract contained a provision that the Republican House, owned by Louis N. Patnaude, should not be operated as a hotel for fifteen years from the date of the execution of the deed. On January 4, 1917, Scott Huritley and wife conveyed their interest in the Columbia Hotel property to Murray B. Huntley. On December 13, 1916, Patnaude conveyed the Republican House property to Carl F. Bareis. The conveyance contained a provision that the property should not be used as a hotel for. fifteen years from November 14, 1916. On May 23, 1917, Carl F. Bareis and wife conveyed the Republican House property to the defendants, Nellie B. Stanchfield and Nina B. Schultz, which conveyance contained the provision that the property should not be used as a hotel for fifteen years from November 14, 1916. On August 24, 1917, Murray B. Huntley brought action in the circuit court for Grant county to enjoin the defendants from using the Republican House property as a hotel. The circuit court held that, because the proof showed no meals were served to guests, the property was not being used as a hotel and hence there'wás ño violation of the restrictive covenant. Upon appeal this judgment was reversed by the supreme court and judgment was entered enjoining the defendants from using the Republican House property as a hotel.</p> <p>On September 10, 1919, Patnmde repurchased the Columbia Hotel property from the plaintiff and Huntley assigned to him all his rights under the judgment, together with the damages sustained by him by reason of the violation of the injunction by the defendants (Huntley v. Stanch-field168 Wis. 119, 169 N. W. 276).</p> <p>This proceeding was brought in the circuit court for Grant county upon an order to show cause why the defendants should not be punished for contempt for violation of the injunctional order in the above-mentioned case. The order to show cause was based upon affidavits of L. N. Patnaude, Russell Williams, and Murray B. Huntley, alleging that the defendants advertise and compete for transient trade for the Republican House property, now known as the Stanchfield Apartments, that a part of the property is occupied, by transient guests, and that a grill room is maintained on the premises in which meals are served to guests. The affidavits also assert that the property is being used as and for a hotel. There were affidavits submitted by the defendants denying the fact that the Stanchfield is used for transient guests and as a hotel.</p> <p>The case was tried upon the affidavits, and the circuit court dismissed the order on the merits. This is an appeal from such order.</p>

<p>Appeal from a judgment of the circuit court for Iowa county: L. H. Bancroft, Circuit Judge.</p> <p>This action was brought to recover for personal injuries sustained in an automobile collision which occurred on the 10th day of September, 1917. The summons was served August 29, 1919, and the complaint on October 7, 1919. No notice of the injury and damage, as required by sub. (5), sec. 4222, Stats., was served. A motion to dismiss the action because of such failure was denied. The jury returned a verdict in favor of the plaintiff for $375 damages, and from the judgment entered thereon plaintiff brings'this appeal.</p>

<p>Appeal from a judgment of the circuit court for Iowa county: L. H. Bancroft, Circuit Judge.</p> <p>Action for damages for personal injuries caused by the insufficiency of a state trunk highway. Trial before a jury resulted in judgment for the plaintiff upon a special verdict after a finding of contributory negligence had been changed by the trial court. Defendant appeals.</p> <p>On August 25, 1919, plaintiff, her husband, and her sister were proceeding from Oshkosh, Wisconsin, to Sioux City, Iowa, where plaintiff and her husband intended to reside. They were traveling in the husband’s automobile. He was driving and plaintiff and her sister sat in the rear seat. The car was relatively heavy and had good brakes and good lights. They were traveling, at least in the main, on the state trunk highway between Madison-and Dodgeville. As they approached the latter city it was between twilight and dark and the lights on the car were lighted. The driver testified that he was keeping good watch of the road ahead and was going not over twenty miles per hour. Plaintiff was paying no attention to the driving, but, both she and her sister testified that they were going slowly. There was no other direct testimony on the question of speed. It was undisputed that the road at this point was commonly traveled and was in good shape for travel up to the place of the accident.</p> <p>While thus proceeding the driver suddenly noticed a sharp incline over a culvert which crossed the road. He stated that he noticed this condition only when very close, about two or three car lengths, probably forty or fifty feet, from the place. Plaintiff testified she first noticed it when it was right in front of the car. The driver attempted to stop the car but was unable to do so until he had passed over the culvert and some forty-five feet beyond, all distances, presumably, being measured from the front of the car. In passing over the incline plaintiff was thrown out of the car upon the ground and received the injuries complained of.</p> <p>The highway was being relocated in places and repairs and construction were being made on parts of the old road. The diagram used at the trial does not appear in the record and it is difficult for this court to exactly locate all the roads and points mentioned in the testimony and to determine which are new and which are old.</p> <p>There was much testimony to the effect that the road was closed to travel and that signs were posted to that effect. The testimony regarding these signs was confusing. It appeared they were sometimes in place and sometimes out of place, that at least one was in place the night of the accident, and that there were none near the culvert itself. Some things appeared clearly: there was no sign or barrier across or upon the traveled track, no lights were placed, none of the signs we're of very large size or great prominence, and it was well known to the authorities, and expected, that persons would continue to use the road despite the signs. None of the occupants of the car saw any signs. The road beyond the signs and up to the culvert was in good repair and without evidences of incomplete construction.</p> <p>There was a traveled turnout at the culvert by which cars could pass around instead of over it, and it seemed that this was customarily used by persons acquainted with the situation. The occupants of the car did not notice it, however. The culvert was covered with a layer of dirt, and it formed an elevation of eighteen or twenty inches in a slope of six feet, the slope being steeper on the side from which the car approached than it was on the side beyond.</p> <p>Several travelers on the highway came along shortly after the accident. One of these testified that there was just enough dirt over the culvert so that a person who didn’t know the situation would drive on it; that there was a track over it, presumably the track of plaintiff’s car, but no indicated travel over the top. Another of these testified that a stranger who didn’t know the road would drive over the culvert and not look to the side of the road, for there had been several cars passing over it.</p> <p>There was no testimony as to the space required to stop plaintiff’s car from a speed of twenty miles per hour or less.</p> <p>The jury found that the highway at this place was not in a reasonably safe condition for public travel by persons in the exercise of due care and .that this condition was the proximate cause of the accident. They found that there were no signs or barriers such as would attract the attention of an ordinarily prudent traveler to notify him that the highway was not open to travel; that there was want of care on the part of the driver which proximately contributed to the injury; and fixed damages at $1,200.</p> <p>The trial court changed the .finding of negligence on the part of the driver and ordered judgment for the plaintiff.</p>

C. Higbee, Circuit Judge. Action to recover profits claimed to be due plaintiffs while members of defendant association. Plaintiffs July 1, 1915, obtained a loan of $13,000 from the defendant, secured by a mortgage on real estate, and made monthly payments thereon. Under the usual experience of the association the loan would be fully paid in about nine years if monthly payments and premiums bid therefor were paid.

<p>Appeal from a judgment of the circuit court for Dunn county: George Thompson, Circuit Judge.</p> <p>The parties to this divorce action were married in Syria in 1891. At the time of the trial the plaintiff was fifty-three and the defendant fifty-seven years of age; they have one child, a daughter now married. They came to this country about 1893. Plaintiff was a peddler at first and subsequently ran a retail store.</p> <p>The defendant wife brought several divorce actions against the husband, plaintiff here, commencing in 1911. The first was dismissed, and in the second a judgment was entered in her favor in May, 1915, on the ground of the husband’s failure to support and wilful desertion, and providing that he should pay $1,000 in monthly payments. These payments were subsequently made. The complaint in that action had charged the husband with illicit relations with a woman employed by him in helping him to run the store. This, however, was found by the court to be unproven and untrue. A third action for divorce was brought by the wife for failure to support and desertion, reciting the previous divorce actions and alleging adultery on the part of her husband with the same woman. When this case was brought to trial it was dismissed.</p> <p>This action was brought by the husband; his complaint reciting the former divorce suits by the wife, that they were without merit, that orders to show cause had been obtained in those divorce actions and orders made requiring him to pay alimony and attorney fees, and that he had been repeatedly called upon by the attorneys for his wife for money in connection with such actions, and that all of these things had affected his business and credit and preyed upon his mind, discouraged him in business, etc., and thereby constituted cruel and inhuman treatment.</p> <p>His testimony, which is alone relied upon, is to the effect that .after the first divorce suit brought by his wife she told him she would soak blood out of him; that of the several attorneys for his wife in her divorce actions, one called upon him .twice, another once, and a third wrote one letter with reference to unpaid alimony. He testified that all these things affected his health and his business. He went through bankruptcy once, but no connection is shown between that and anything done by his wife. The daughter, on behalf of the mother, testified quite frilly as to the family life.</p> <p>The findings of the court were that the defendant was not guilty of cruel and inhuman treatment of the plaintiff and dismissed the complaint upon the merits. From such judgment the plaintiff has appealed.</p>

Action of mandamus commenced in this court by leave granted. The issues are presented to the court upon the petition, the alternative writ, and a motion to quash the alternative writ. The action was brought to compel the city of Portage to comply with an order of the railroad commission directing the making of improvements in its waterworks system.

<p> Taxation: Incomes: Stock dividends: Constitutional law: Construction of constitution or amendment. </p> <p>1. The rule known as the American rule, that, where there is an ownership of stock for a term and a remainder over, income accumulated during the term and distributed as dividends, regardless of how distributed, goes to the owner for the term, while followed in Wisconsin (Soehnlein v. Soehnlein, 146 Wis. 330), is not deemed controlling on the question as to whether, under the amendment of the constitution adopted in 1908, stock dividends are included within the word “incomes” and tñerefore taxable.</p> <p>* 2. Under sec. 1, art. VIII, Const., as amended in 1908, providing that the rule of taxation shall be uniform and that taxes may be imposed on incomes, the act of 1917 (sec. 1087m — 2, Stats.), declaring that the term “income” shall include all dividends derived from stocks, the term “dividends” including any distribution, whether in cash or in the stock of a corporation, is valid; and a stock dividend paid to the stockholder by a foreign corporation doing no business in Wisconsin is taxable as income although not disposed of by the stockholder.</p> <p>3. The word “income,” as used in the amendment, has been given in former cases a liberal rather than a technical meaning; and when a clause in a constitution or an amendment thereof confers new broad powers upon the legislature, it is not within the province of the courts to limit the grant by technical requirements.</p> <p>4. The question whether a law should be held void because of its repugnance to the constitution is one of much delicacy, which ought seldom, if ever, to be decided in the affirmative in a doubtful case.</p>

Gei-lrz, Judge. This is an appeal by the interpleaded defendant, Klekoski, from a judgment rendered in favor of the plaintiff and against said interpleaded defendant, Klekoski, for the sum of $579.32 damages and costs. On the 4th day of February, 1919, and for many years prior, thereto, Klekoski was the owner of a certain farm, consisting of 187 acres of land in the town of Orion, Rich-land county, Wisconsin, known as the Dooley farm.

Appeals from a judgment of the circuit court for Milwaukee county: Byron. B. Park, Judge. On January 11, 1921, the respondent moved to dismiss appellant’s first appeal.