Volume 175 — Wisconsin Reports

<p> Wills: What law governs: Law as of time of death: Subscribing witnesses:¡¡Competent witnesses:'Who may testify: Primary ■ and secondary evidence.: Statutes: Presumption against change from fundamental principles. </p> <p>1. A will is ambulatory during the life of its maker and is in effect reiterated as his testament at each moment of his life after its execution, and is governed by the law existing at the time when it takes effect, upon the testator’s death.</p> <p>2. Under sec. 2284, Stats. 1898, as amended by ch. 128, Laws 1905, providing that all gifts made in a will to a subscribing witness shall be wholly void unless there be two other competent witnesses to the same, two other competent subscribing witnesses are required, and not merely two other persons who can testify to facts showing the execution of the will in conformity with the statute, as the phrase “witness to a will” means one who has attested the will by subscribing his name thereto.</p> <p>3. The testimony of the subscribing witnesses to a will constitutes primary evidence of its execution, and other or secondary evidence cannot be resorted to for that purpose until after a showing that the subscribing witnesses are dead, beyond the jurisdiction of the court, or are non compos mentis.</p> <p>4. The common law of this country is that all of the subscribing witnesses must be produced when a will is offered for probate, unless the impossibility of producing them is made to appear; and the only modification of this rule in this state is in seo. 3788, Stats., providing that if there is no objection to the' probate of a purported will the court may, in its discretion, grant probate on the testimony of one subscribing witness only.</p> <p>5. A mere bystander is not a witness to a will, much less a competent witness; and his testimony could be introduced only upon a showing that the primary evidence could not be produced.</p> <p>6. The presumption in construing statutes is against any radical change of legislative policy, and it is presumed that there is no intention to depart from any established policy of the law or to innovate on fundamental principles.</p> <p>Rosenberry and Eschweiler, JJ., dissent.</p>

Gei-irz, Circuit Judge. Action for divorce. Plaintiff and defendant were married in the state of New York on November 2, 1884. At the time of trial plaintiff was sixty-two years of age and the defendant fifty-nine years of age. Two children, Hortense, aged twenty-nine, and Edgar, aged twenty-six, were the living issue of said marriage. The defendant is a man of considerable business energy and has had a varied business career.

T. Fairchild, Circuit Judge, The judgment rendered was in favor of the garnishee defendant and against the plaintiff.

Karel, Judge. • A few days before her death and on February 2, 1920, Johanna Schacht, then about eighty-one years of age, made and executed the last of a series of six or eight wills drawn since 1915, and in some of which contestant had been named beneficiary.

<p> Taxation: Review of assessment: Evidence: Sufficiency: Comparison of assessment with others in district. </p> <p>1. Under sec. 1052, Stats., requiring real property to be valued by the assessor at the full value which could ordinarily be obtained therefor at private sale, if in any reasonable view the evidence taken by the board of review furnishes a substantial basis for its conclusion as to the value of the land and there is nothing to show that it acted arbitrarily or dishonestly, its decision will not be interfered with by the courts.</p> <p>2. A taxpayer may not complain of a valuation which could ordinarily be obtained for his property at private sale unless there is such a general undervaluation as will result in an excessive tax to him; but such a situation is not shown by a comparison of the valuation placed on his property with less than two per cent, of the property in the district, unless it appears that improper considerations influenced the valuation of his property.</p> <p>3. Where the decision of a board of review is sustained by direct and positive evidence as to the value of certain lots, and the only impeaching testimony is that of a witness who compared the assessment of the lots with the assessments placed on less than two per cent, of the other tracts of land in the assessment district, the determination of the board will not be reversed. on certiorari.</p>

C. Higbee, Circuit Jud*ge. Contract. The plaintiff city was the owner of two engines and two steam pumps and other equipment formerly used by it in connection with its municipal lighting plant. The defendant is engaged in the manufacturing business in the city of Boscobel, and on December 23d the parties entered into the following contract: “Boscobel, Wis., 12/23, 1919. “Sold to Muscoda Mfg.

<p> Attorneys: License to practice: Fraud: Revocation of license. </p> <p>Where an attorney, applying to the supreme court for admission to practice, represented that he was a practicing attorney in good standing in another state, but the evidence later disclosed that he had been guilty of gross professional misconduct and that proceedings for his disbarment were pending in the state of his former residence, which he evaded by resigning his position as. attorney in such state, his license to practice in Wisconsin will be revoked.</p>

<p> Criminal law: Jurisdiction of circuit courts: How curtailed: Inferior courts: Grand fury: Writ of prohibition. </p> <p>1. Under sec. 8, art. VII, Const., and sec. 113.03, Stats., the circuit court is a court with general jurisdiction to hear all matters, civil and criminal, within this state, and no portion of its jurisdiction can be deemed to have been taken away from it excepting only by unmistakable legislative language to that effect.</p> <p>2. Ch. 18, Laws 1909, creating the municipal court of Kenosha county, though it gives that court jurisdiction to summon a grand jury and proceed with indictments, does not deprive the circuit court for Kenosha county of such jurisdiction.</p> <p>3. A writ of prohibition is the proper and the only remedy that would afford adequate relief where an indictment has been returned to a court which had no jurisdiction to summon a grand jury and proceed by indictment.</p>

Appeals from a judgment of the circuit court for Milwaukee county: E. T. Fairchild, Circuit Judge. This is. an action brought by the plaintiff, as trustee for bondholders, to foreclose a certain mortgage in the form of a trust deed, executed by the defendant Berlin Arcade Real Estate Company (hereafter referred to for convenience sake as “Real Estate Company”).

Spencer, Judge. Action to recover compensation fon work done under a contract of hiring. Plaintiff claimed he was hired for the concrete paving season of 1920 as foreman in charge of a certain highway paving job for the sum of $4,000; that he performed his part of the contract; that he was paid the sum of $647.50 and no more, and that $3,352.50 was still due .him.

R. Foley, Circuit Judge. The appeal is from a judgment of the circuit court affirming a judgment of the county court admitting to probate an instrument purporting to be the last will and testament of John Derusseau, deceased. The will in question was executed on April 29, 1912, the respondent being named sole beneficiary and the appellants, brothers and sisters of the deceased, being expressly excluded.

R. Foley, Circuit Judge. This action was brought by plaintiff for damages alleged to have been caused by the death of his son at the plant of the defendant company. The deceased was killed while riding in a cabin of a crane which he had been engaged in repairing and which was being moved to a position over a propeller wheel to test the lifting or hoisting mechanism which had been repaired.

W. R. Foley, Circuit Judge. This action was brought for personal injuries sustained by the plaintiff on October 5, 1919, when a street car belonging to the defendant company and the automobile in which the plaintiff was a passenger collided at the corner of Twelfth street and Tower avenue in the city of Superior, Wisconsin. Tower avenue is a main traveled street and runs north and south; it is sixty feet wide from curb to curb and the sidewalk is twenty feet wide.

Perrin, Judge. One Louis Stern, a city salesman of the Eimon Mercantile Company of Superior, Wisconsin, was injured by an automobile truck. Upon due proceedings had before the industrial commission the amount of compensation and medical expenses under the workmen’s compensation act was determined to be $3,144.92. Such sum was paid on behalf of the employer by this plaintiff, its insurer.

R. Foley, Circuit Judge. The appeal is from a judgment dismissing the plaintiff’s complaint. This is an action to recover damages sustained by the plaintiffs, resulting from the sinking of a tug in Superior harbor at the defendant’s dock and of which the defendant had been the owner. On February 23, 1920, it was afloat in Superior harbor, tied to the defendant’s dock, and had been advertised for sale.

R. Foley, Circuit Judge. The' appeal is from a judgment in favor, of the plaintiff and against the defendants, and cross-appeal by the plaintiff. Ogden avenue is a paved street in the city of Superior extending north and south, and at the point of the accident is forty feet wide from curb to curb, and is intersected by Belknap street at right angles, there being on said last named street a line of street cars.

Action of 'mandamus to compel the supervisors of the town of Brooklyn, Green county, to remove or to take action to remove a fence alleged to be an encroachment upon a highway used by relator.

This is an action to recover damages for personal injuries sustained by plaintiff on June 13, 1919, a boy then about three years of age. The evidence shows that on or before June 13, 1919, a repair crew in the employ of defendant had been habitually conveyed to the then terminus of the Jackson-street line in the city of Janesville in an old street car.

<p>Appeal from an order- of the circuit court for Rock county: George Grimm, Circuit Judge.</p> <p>The appeal is from an order overruling a demurrer to the complaint.</p>

Rock county: George Grimm, Circuit Judge. This action was brought in the circuit court for Jefferson county and removed to the circuit court for Rock county to recover damages for the alleged failure of the defendant to furnish certificates of registration and transfer of four heifers sold by the defendant to the plaintiff on May 23, 1919.

Luecic, Circuit Judge. Action to recover damages sustained by the plaintiff by reason of false representations made by the defendant, among others as to the quantity of land and quality of soil of a plat of ground and dwelling house in Watertown traded by him for plaintiff’s farm. The jury by a general verdict found for the plaintiff and assessed his damages at $2,400, and the defendant appealed.

Agnew, Judge. The complaint alleged, in substance, that plaintiff is a real-estate broker and a licensed member of the Wisconsin Real Estate Board; that the defendants listed with him as such broker certain real estate of which they were the owners for sale or exchange; that the defendants promised and agreed to pay plaintiff for his services in and about such sale or exchange the usual and customary brokerage or commission paid for such services in the city of Milwaukee,…

Luecic, Circuit Judge. Plaintiff, a dealer in new and second-hand machinery at Green Bay, Wisconsin, under a written contract sold and delivered to defendant at Beaver Dam, Wisconsin, an engine and boiler, each second-hand. Plaintiff brought this action to recover damages of defendant for his partial failure to carry out the contract. Defendant answered and also counterclaimed.

Action to recover damages caused by a fire. The case was tried before a jury, which returned a special verdict, wherein it was found (a) that the fire was started on defendant’s right of way by a spark from a locomotive engine on its railroad and then communicated to the plaintiff’s property; (b) damages in the Sum of $818.72;- (c) that after discovering the fire plaintiff failed to exercise ordinary care to extinguish it and to save his property from further destruction;…

C. FIigbee, Circuit Judge. The substance of the lengthy complaint is as follows: Plaintiff is the mother of a boy, Adena Hopkins, who was killed October 22, 1919, then of the age of thirteen; that the father of the boy was dead and the mother would have been entitled to the earnings of the infant until his majority and had reason to expect assistance from him if he had lived until that period.

A. Jaeckel, Judge. Charles Johnson died intestate in the year 1914. Appropriate proceedings were had in the county court for the probate of his estate, and, by the final decree, his homestead was assigned to his daughter, I. P. Davis, the respondent, subject to the dower and homestead rights of his widow, Ada G. Johnson. About one year after the death of Charles Johnson his widow remarried.

<p>Appeal from an order and a judgment of the circuit court for Outagamie county: Edgar V. Werner, Circuit Judge.</p>

Werner, Circuit Judge. In the fall of 1917 the Topp-Stezvart Tractor Company (hereinafter referred to as the Tractor Company), owning a power plant in the town of -Pella, Shawano county, Wisconsin, and desiring to transmit such power to the city of Clintonville, contemplated the construction of a power line for that purpose. The proposed route of the line crossed the farm of the plaintiffs located in Shawano county.

Perrin, Judge. Certiorari to the board of review of the city of Superior. The personal property of the Superior Ship Building Company at Superior, hereafter, for convenience, called the Company, was- assessed for the years 1918 and 1919. In 1920 the Company filed objections with the board of review to the assessed valuation of its plant and property for that year.

Harry L. Maxfield, Judge. This action was begun in justice’s court before Charles H. Lange, a justice of the peace, in the city of Janesville, Rock county. There was a judgment in favor of the plaintiff, from which the defendant appealed to the municipal court of Rock county. The action was brought on for trial on the 4th day of March. The defendant having demanded a jury, the court ordered the drawing of a jury list.

Lueck, Circuit Judge. The plaintiffs aré the owners of an irregularly shaped piece of land on the south shore of Lake Muskego in Wau-kesha county. On the-west it is bounded by a strip of land about twenty feet in width, owned by Mary Wiesner, running from a highway some three or four hundred feet distant from the lake shore to the lake.

Action for personal injury which resulted in the death of plaintiff’s husband, Victor Rowart, by reason of a collision between his taxi and defendant’s cars in the city of Green Bay on the 5th of April, 1917, at about 7 p. m. Quincy street runs north and south and defendant’s track runs east and west, intersecting Quincy street at about right angles. The grade of the track is about two and a half or three feet higher than the grade of the street.

J. Monahan, Judge. The plaintiff is a Minnesota corporation alleged to be engaged in the sale of flour, feed, and grain, the defendant a merchant in Anston, Wisconsin. On September- 8, 1920, plaintiff’s agent, Stone, obtained a written order from defendant for a carload lot of flour, feed, and 200 bushels of corn. Defendant’s testimony is uncon-tradicted that the corn was a substantial part of the contract.

Price county: G. N. Risjord, Circuit Judge. In November, 1917, plaintiffs were refiners and handlers of crude potash at Shawano, Wisconsin. The defendant was a manufacturer of crude potash at Phillips, Wisconsin.

N. Risjord, Circuit Judge. This is an action by the plaintiff as indorsee against the defendant as maker of a promissory note for $1,500 dated February 14, 1907, payable on demand to F. L. Hunt, and given as part of the purchase money for a stock of goods. The note matured on August 23, 1911, when the plaintiff demanded payment. The action was commenced July 28, 1919. Defendant denied liability by reason of the statute of limitations, sec. 4222, Stats.

H. Reid, Circuit Judge. The appeal is from a judgment in favor of the plaintiff for the sum of $3,764.85 and costs in an action for malpractice. The plaintiff, a laborer forty-six years of age, while employed on a road construction job ran his plow against a large boulder in such a manner as to cause an oblique fracture of the upper third of the femur of his left leg.

H. Reid, Circuit Judge. Action to recover damages claimed to have been sustained by the plaintiffs in prosecuting the work of digging ditches in the defendant drainage district because of the acts committed or directions given by the defendant during the progress of the work. The area to be drained slopped generally toward the northeast and the main outlet ditch emptied into Range Line Lake, situated in the northeast corner of the drainage district.

IT. Reid, Circuit Judge. Breach of contract. On November 17, 1919, the plaintiff and defendant entered into a contract by which the plaintiff agreed to purchase and the defendant agreed to sell 200,000 feet of basswood lumber. The contract contained the usual clauses as to grading, time of shipment, and other matters not material upon this appeal.

Oneida county: A. ELReid, Circuit Judge.' The defendant, engaged in the sawmill business at Rhine-lander, Wisconsin, on November 3, 1919, made written inquiry of the plaintiff at Kimball, Wisconsin, as to plaintiff’s sawmill, asking for a price including the machinery, boilers, etc., and indicating a desire to examine it.

H. Reid, Circuit Judge. This action, commenced in the second municipal court for Lincoln county, is one in replevin for a Winchester rifle of the stated value'of $20.

<p>Appeal from an order of the circuit court for Juneau county: James Wickham, Judge.</p> <p>Action' for libel. The facts are stated in the opinion.</p>

Fowler, Circuit Judge. Action for libel based upon three letters written by the defendant, a member of the church of which the plaintiff was the minister, and addressed respectively to Rev. A. F. Augus-tin, Eau Claire, Wisconsin; Rev. O. Gammelin, Beaver Dam, Wisconsin, and Rev. A. Pilger, Ripon, Wisconsin, which letters were received and read by the respective persons to whom they were addressed.

Fowler, Circuit Judge. Condemnation. The defendant company instituted condemnation proceedings for the purpose of acquiring the right to erect and maintain a telephone line in front of the farm premises owned by the plaintiff. The commissioners awarded six cents damages, from which the plaintiff appealed to the circuit court for Columbia county.

Fowler, Circuit Judge. The two plaintiffs, sisters, daughters and beneficiaries under the will of Laura A. Hustis, the wife of one John Hustis, also now deceased, have brought this action of ejectment to determine the question of the ownership of two pieces of land each twenty-five feet square in the village of Hustis-ford,;Dodge county.

Fowler, Circuit Judge. Defendant was the owner of a farm consisting of 214 acres of land, forty acres of which constituted his homestead, on which he resided. On June 14, 1919, defendant, by a written contract, employed plaintiff to “sell or find a buyer” for the farm, agreeing to pay.,him two per cent, commission therefor, and gave him the exclusive sale until October 1, 1919.

Fowler, Circuit Judge. Action to recover brokerage commission for the sale of real estate. Plaintiff was employed by the defendant to sell his farm, consisting of 320 acres, which included the homestead upon which he lived. The plaintiff secured a purchaser for the farm with whom he entered into a contract of sale. The purchaser was ready, able, and willing to comply with the terms of the said contract of sale on his part.

Columbia county: Chester A. Fowler, Circuit Judge. The appeal is from that part of the order which overruled plaintiffs’ demurrer to the answer of defendants Ann Jones and John H. Jones. This action was brought to have adjudicated and determined the respective rights of the plaintiffs and the defendants Ann Jones and John H. Jones in a mortgage of $15,000 executed by the defendants Frank Visser and Emma Visser.

Action by a contractor to recover in the first cause of action for extras ordered in the construction of a concrete bridge over the Eau Claire river in the city of Eau Claire, for damages sustained by reason of the alleged failure of the city to remove the street-car tracks and gas mains on the old bridge, and for damages caused by the alleged bad-faith action and ignorance of the engineer in charge, of the construction on behalf of the city.

Proceedings were begun under the provisions of sec. 925 — 17 and following sections, Stats. 1915, by which it was sought to detach certain territory from the town of Flam-beau and attach it to the city of Ladysmith, a city of the fourth class operating under the general charter law.

Bancroft, Judge. The plaintiff brought this action to compel conveyance to him of a certain farm of 160 acres .in Trempealeau county, Wisconsin, and also to compel an accounting for the profits from the same accruing during the lifetime of his father, the alleged grantor, and from the defendant Alfred Lamberson, who as executor of the father’s estate had subsequently retained possession.

Perrin, Judge. Action for. personal injury sustained by plaintiff, an infant of about five years of age, on August 23, 1919, at defendant’s salt works near Tower Bay Slip, Superior, by coming in contact with an auger salt conveyer claimed to have- been left uncovered. Plaintiff was dumb and his hearing was defective or entirely lacking.

Lueck, Circuit Judge. The plaintiff is a public utility furnishing gas and electric service in the city of Waukesha. The defendant is the proprietor of a manufacturing plant located in that city.

<p> Mechanics’ liens: Principal contractor as trustee for lien claimants: Validity of statute: Constitutionality: Due process of law: Equal protection of the laws: Imprisonment for debt: Embezzlement: Criminal intent: Who are beneficiaries of trust. </p> <p>1. The first article of the declaration of rights in the state constitution is a substantially equivalent limitation of legislative power to that imposed by the Fourteenth amendment to the federal constitution, and the legislature is bound to accord to all persons the equal protection of the laws and refrain from legislation depriving any one of life, liberty, or the pursuit of happiness.</p> <p>2. Within the constitutional provision requiring due process of law or its equivalent, the law of the land, a statute duly enacted by the legislature is not necessarily the law of the land if it is so arbitrary and capricious as to deprive the citizen of fundamental rights guaranteed by the constitution.</p> <p>3. Statutes do not in all cases deprive citizens of due process of law merely because they are limited to particular classes, since the legislature can make classifications to promote the general welfare if there exists such reasonable ground for the classifications as to show that they are not arbitrary and personal or do not unjustly discriminate between different classes of individuals.</p> <p>4. A statute which applies to all individuals similarly situated does not deny equal protection of the laws, though it is invalid if individuals or corporations are singled out for the imposition of burdens or as beneficiaries.</p> <p>5. Sub. 3, sec. 3315, Stats., which makes it embezzlement for a principal contractor receiving money from a landowner to appropriate it for his own use without paying those persons entitled to a lien on the land, is constitutional, as it benefits every property owner irrespective of the value of his holdings, and under certain circumstances might be a protection to all laborers, subcontractors, and materialmen. The legislature may therefore constitute the moneys so received by the principal creditor a trust fund anc¡ punish its misappropriation as an embezzlement.</p> <p>6. Said sub. 3, sec. 3315, though it does not expressly prescribe that the prohibited act must be with fraudulent intent, implies a wrongful intent by the use of the term “embezzlement,” and a conviction cannot be had thereunder without proof of an intent to defraud, the same as such proof must be made in a prosecution under sec. 4418. (Jones, J., is of the opinion that it is competent for the legislature to create the offense of embezzlement without mention in the act of criminal intent.)</p> <p>7. Said sub. 3, sec. 3315, does not violate sec. 16, art. I, Const., providing that no person shall be imprisoned for debt arising out of or founded on a contract, expressed or implied.</p> <p>8. Statutes are to be upheld by the courts'unless they are unconstitutional beyond any reasonable doubt.</p> <p>9. All legislative powers not withheld or limited by the constitution of the state or the exercise of which is not prohibited by the federal constitution are vested in the legislature, and courts cannot set aside statutes merely because they may be deemed unwise or may work inconvenience or hardship.</p> <p>10.Sub. 3, sec. 3315, is not limited to cases where a claim of lien has been filed, but it does not apply where the right to a lien has been lost.</p> <p>Eschweiler, J., dissents in part.</p>

<p>Appeal from a judgment of the circuit court for Oconto county: W. B. Quinlan, Circuit Judge.</p> <p>Action for breach of contract. The facts are set forth'in the opinion.</p>

B. Quinlan, Circuit Judge. The citizens of Oconto being desirous of securing the location of a factory, a committee undertook to raise a sum of money by circulating a subscription list as follows: “Oconto, Wis., June 9, 1913. “Whereas, H. F. Jones, D. H. Mooney, J. B. Chase, A. M. Martineau, Chas.

B. Quinlan, Circuit Judge. Specific performance. The plaintiff lives at Cavour, Forest county, and the defendant has its principal office at Oconto, Wisconsin, and owns timber lands in Forest county.

B. Quinlan, Circuit Judge. The plaintiff is the father-in-law of the defendant and is about seyenty-two years of age. Both reside at Marinette, Wisconsin. On July 18, 1920, the defendant started in a Chalmers automobile on a trip to Norway, Michigan, for the purpose of bringing home one of his children who had been visiting at that place.

. Appeal from a judgment of the circuit court for Oconto county: W. B. Quinlan, Circuit Judge; The appeal is from a judgment in favor of the plaintiff for $403.51 and costs, damages resulting from an alleged breach of a contract to deliver a carload of candy pails.

B. Quinlan, Circuit Judge. Action to foreclose land contract. The plaintiff, the owner of the real estate in question, a short time prior to January 3, 1919, negotiated with the defendant Frank Stacey for the sale of the same for the sum' of $12,000.

W. B. Quinlan, Circuit Judge. Action to recover, damages sustained by plaintiff in a collision with defendant’s train. Hall avenue, Marinette, runs in an easterly and westerly direction and is intersected by the track of the Chicago, Milwaukee & St. Paul Railway Company, which runs from northwest to southeast, forming an angle of 120 degrees on the northeast side of the highway and an angle of 60 degrees on the southeast.

county: George Thompson, Judge. . Contract for sale of goods.

Palmer, Acting Municipal Judge. The appeal is from an order denying a/motion to vacate and set aside a judgment rendered therein in favor of plaintiff and against the defendant.

B. Belden, Circuit Judge. The appeal is from a judgment dismissing plaintiff’s complaint and awarding judgment in favor of defendants notwithstanding the verdict.

<p> Partnership: Persons operating under corporate name: Liability if not incorporated: Winding up partnership: Participation by creditors: Actions against individual partners. </p> <p>1. Persons doing business under a corporate name pursuant to a recorded trust agreement relieving them from liability, but ,without being incorporated, and not holding themselves out as doing business under such agreement, were individually liable as partners for the debts of the concern contracted while they were partners therein.</p> <p>2. A receiver appointed to settle the affairs of a partnership upon the application of one of the partners does not represent creditors, and they may file their claims, receive a dividend, and later, in separate actions, have recourse to the assets of individual partners.</p>

B. Belden, Circuit Judge. The plaintiff .is a building contractor in the village of Lyons, Walworth county; the defendant a physician of the same place, the defendant Olga his wife. Shortly before January, 1920, the plaintiff and defendants made an oral contract by which the plaintiff was to do the necessary carpenter work in the erection of a dwelling house for the defendants in said village and was to charge for his own time and that of his workmen.

Agnew, Acting Judge. Action by a real-estate broker to recover a commission of $793.12 on a contract relating to a sale of land in the state of Illinois. The complaint set out the contract, the material part of which is as follows: “. . .

<p> Master and servant: Discharge: Justification: Employee declining to obey .proper orders: Corporations: Issue of stock: Validity: Consideration. </p> <p>1. Defendant, under contract for a fixed period as superintendent of plaintiff, a manufacturer of furnaces, stated to the general manager that he had conceived an idea as to a smokeless furnace and was requested from time to time to put the idea into concrete form. He finally declined on the ground that the requested service could not be brought to a successful termination within the remaining period of his employment, and when plaintiff refused to promise additional compensation” for work to be done after such period defendant left plaintiff's service. Held, that if the conversation be considered as a discharge it was justified, and if it be deemed a reason or excuse for defendant ceasing to render service it was insufficient.</p> <p>2. A corporation could not lawfully issue stock to an employee without consideration, no change being made in the contract of employment, and stock so issued is void.</p>

<p>Two appeals: one from a judgment of the circuit court for Milwaukee county,, Oscar M. Fritz, Circuit Judge; the other from a judgment of the county court of Milwaukee county, M. F. Sheridan, Judge.</p> <p>On January 26, 1903, the Mutual Life Insurance Company of New York issued to Carl O. Thienlmus a deferred dividend tontine life insurance policy, payable in fifteen annual premiums, by which the insurance company promised to deliver to Florence Thienhaus, his wife, five gold bonds, each for the sum of $1,000, payable in twenty years from date, bearing interest at five per cent, per annum.</p> <p>Thienhaus and his wife were divorced in July, 1908. It was stipulated and agreed between them that Thienhaus should continue to pay the premiums on the life insurance policy in question for the benefit of their .son, Harold.- F. 0.. Thienhaus, pursuant to which stipulation the divorce decree contained this provision:</p> <p>“The policy for $5,000 is to be continued until its maturity, and at that time to be applied for the benefit of the infant son of the parties hereto, Harold F. 0.-Thienhaus.’1</p> <p>The policy contained this provision with ’ reference to assignments thereof:</p> <p>“The company declines to notice any -assignment'of this contract until the original assignment, or á duplicate or certified copy thereof, shall be filed in the company’s head office. The company will notv^assume any ■ responsibility for the validity of an assignment.”</p> <p>In 1908 the following indorsement was made on the policy:</p> <p>“By mutual consent, and upon request, the bonds provided for by policy. No. 1316838 shall be delivered to the insured’s son, Harold F. O. Thienhaus, if living; if not, to the in-, sured’s executors, administrators or assigns.</p> <p>“W. J. Eaton, Secretary.”</p> <p>• On October 18, 1911, Thienhaus was appointed guardian of his son. On February 27, 1912, he filed an inventory of' his ward’s property in which he said:</p> <p>“The property of the above Harold F. O. Thienhaus consists of an endowment life insurance policy, due 1917, in the Mutual Life Insurance Company of New York, policy No. 1316838. The guardian, Dr. C. O. Thienhaus, makes the payments on this life insurance policy, the premiums now amounting to $458.05, as long as his income allows it. The value of said policy in 1917, in case Dr. C. O. Thienhaus should be living at'that time, amounts (including deferred dividends) to about $8,000-8,400.”</p> <p>In an annual account filed February 20, 1912, it is again stated that the property of the ward consists of said insurance policy; that the value thereof, including deferred dividends, in 1917 will be between $8,000 and $8,400.</p> <p>At the time of the maturity of the policy the guardian, by permission of the court, had borrowed for the benefit of the ward, the entire loan value of the policy. Upon maturity the accumulated deferred dividends amounted to $2,006.11. For this sum the insurance company sent a check, payable to Thienhaus, guardian, or Thienhaus as guardian, but the precise manner in which the check was drawn does not appear. Thienhms was told by some one connected with the trust company, which was surety on his bond as guardian, that this money belonged to him. He had the check cashed, receiving therefor two $1,000 bills. In 1918 he was interned as an alien enemy. , Shortly prior to his internment he delivered one of these bills to one E. B. Rebholz and took his receipt therefor. He delivered the other bill to Paul D. Carpenter, Esq. When Thienhaus was interned as an alien enemy Mr. Carpenter did not know what to do with the money. He did not know whether it belonged to the ward or to Thienhaus. If it belonged to Thienhaus it was his duty to turn it over to the alien property custodian. Thereupon he filed a petition in the guardianship proceedings in the county court requesting direction as to the disposition of. the money, upon which application a guardian ad litem was appointed for the ward. The county court ordered that it be turned over to the alien property custodian. The guardian ad litem appealed from such order to the circuit court for Milwaukee county. Thienhaus intervened in the-circuit court and was made a party to the proceedings in his personal capacity. The circuit court entered judgment reversing the order of the county court, and adjudging that the guardian, Carl 0. Thienhaus, account for the sum of $2,006.11 in his report as guardian of said minor, to the county court of Milwaukee county. From such judgment Carl 0. Thienhaus appeals.</p> <p>While the appeal just mentioned was pending in the circuit court and before the decision of the court thereon, proceedings were instituted by the guardian ad litem in the county court to compel the guardian to file his final account, the said guardian having filed his resignation of the trust, which, however, had never been accepted. That proceeding also involved the question whether the deferred dividends in dispute belonged to Thienhaus personally or whether they belonged to his ward. The county court in that proceeding found that the item of $2,006.11, deferred dividends, belonged to the ward and ordered Thienhaus to account therefor, tó which finding and order Thienhaus excepted.</p> <p>Thienhaus in his final account also claimed an item of $1,000,' the same being for disbursements to the amount of $100 each year for ten years which he claimed he paid out for the benefit of his ward. This item of his account was also disallowed by the court, to which the guardian excepted.</p>

<p> Public utilities: Right of railroad to remove spur track: Jtirisdiction of railroad commission: Equity: Injunction: Order of railroad commission to replace track. </p> <p>1. The act of a railroad company, believing in good faith .that it had a right to do so, in peaceably tearing up one of its spur tracks in a hasty manner early in the day, though for the purpose of avoiding litigation, annoyance, or delay and of accommodating another shipper, will not preclude it from seeking the aid of a court of equity by application for a temporary injunction against the enforcement of an order of the railroad commission to replace the track.</p> <p>2. One of the ancient maxims of equity is that he who “hath committed iniquity shall not have equitybut this rule has never applied to a situation where a person in good faith, in a peaceable manner, under claim of right, and with no litigation pending has taken some action in reference to property he deemed his own.</p> <p>3. Where the cost of replacing the spur track was about $2,300, which would be wasted if it should be finally determined that the railroad company was acting within its rights, and where damages will adequately compensate the shipper who used the track, a temporary injunction against an order of the railroad commission requiring the restoration of the spur track should be granted.</p> <p>[4. Whether railroads may remove spur tracks constructed at their expense without applying to the railroad commission, not decided.]</p>

<p> Fraud: Sale of packing plant to co-operative association: Representations as to value: Duty of purchaser to investigate: Degree of diligence required: Special verdict: Omitted issues: Disposition of case. </p> <p>1. In an action for damages sustained by reason of an alleged conspiracy on the part of the defendants in selling a packing plant to a co-operative association, the evidence (set out in the opinion) is considered not to establish a cause of action.</p> <p>2. Where the value of property is largely a matter of judgment, puffing of the value by the vendor does not make him legally liable where the purchaser has an opportunity to examine the subject of the sale.</p> <p>3. Where the attention of the trial court was properly called to an issue tendered by the pleadings and such issue was not submitted to the jury, it can make no finding thereon ¿ither by virtue of sec. 2858m, Stats., or otherwise, and the judgment rendered cannot be sustained by a presumption that findings supporting' it were made.</p> <p>4. Under such circumstances, where the facts are undisputed or it is clear that only one proper conclusion thereon can be reached by reasonable men, the appellate court "will determine the issue; but where the evidenc'e as to the issue is conflicting or susceptible of different conclusions, the case will be reversed, and remanded with directions to submit the issue to the jury.</p> <p>5. A statement of an agent of a packing plant that it would prove profitable in the hands of the purchaser was an expression of mere opinion as to future success and could not form a basis of misrepresentation.</p> <p>6. Where the question of value becomes a subject of discussion between buyer and seller, the buyer is under a duty to investigate where it can be 'conveniently done.</p> <p>7. Where plaintiff was engaged in the business of buying a packing plant, it must exercise the ordinary and reasonable diligence of a buyer and had no right to rely upon representations of value made by interested parties.</p>

<p>Appeal from an order of the circuit court for Rock county: George Grimm, Circuit Judge.</p> <p>The appeal is from an order perpetually restraining and enjoining the defendant from maintaining, carrying on, or prosecuting an action begun by the defendant against the plaintiff in the district court of Renville county, in the state of Minnesota, and from maintaining or prosecuting any action in any court or place outside or beyond the limits of the state of Wisconsin, for personal injuries sustained by the defendant in the city of Janesville, Rock county, Wisconsin.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from a judgment of the circuit court for Brown county-. Henry Graass, Circuit Judge.</p> <p>For some time prior to September 16, 1919, the defendant was a tenant in possession o'f a house belonging to the plaintiff. About that time some arrangement was made whereby defendant relinquished possession of the sec.ond floor to plaintiff, who thereafter occupied the same, defendant remaining in possession of the first floor. From that time on defendant paid at the rate of $12 per month and generally on the 6th day of each month for the period just past.</p> <p>In May, 1920, the plaintiff commenced an action of unlawful detainer against defendant, but before trial an agreement was reached between the parties and the case dismissed without testimony having been taken, and a written stipulation signed by both. The material parts are as follows:</p> <p>“For the purpose of settling the case brought by 'Ida Mueller and Victor Derwae in justice court before Thomas E. Hawley May 12, 1920, it is hereby agreed between the parties:</p> <p>“1. That Victor Denme shall remain in possession of the premises leased according to his agreement until August 25, 1920.</p> <p>“2. That at that time he shall replace the moulding in the parlor if Miss Ida Mueller desires.”</p> <p>There were four other conditions, not material here, as to work to be done by defendant upon the premises.</p> <p>About August 10, 1920, plaintiff caused to be delivered to defendant a written notice to the effect that his lease would expire August 25, 1920, and that plaintiff expected him to vacate said premises in accordance with the agreement and lease.</p> <p>The defendant did not vacate on August 25, 1920, and September 2d the plaintiff again commenced an action of unlawful detainer by a complaint verified August 30th. The complaint recited, in substance, the renting of the premises by plaintiff to defendant at $12 per month; the serving on April 13, 1920, of a month’s notice to quit; the starting of an unlawful detainer action then against the defendant, wherein the defendant interposed an answer claiming that he was occupying the said premises under a verbal lease for one year terminating August 25, 1920; that the parties in such action made the stipulation above recited; that on or about July 25, 1920 (this, however, in fact was the one of August 10th above recited), the plaintiff served on the defendant a written notice demanding possession of the premises August 25, 1920. Plaintiff also alleged the continued occupation of said premises by defendant and his refusal to deliver them up and that he was holding over without plaintiff’s permission, and prayed for the issuing of a summons and that proceedings be had whereby the defendant be removed.</p> <p>To such complaint the defendant pleaded not guilty and denied each and every allegation of the complaint. The justice of the peace heard the cause on September 8th and then rendered his judgment finding the defendant not guilty and assessing costs against the plaintiff, who thereafter paid the same and took no further steps in said action.</p> <p>On September 7th the plaintiff accepted from the defendant the sum of $12 which would be a payment for the period up to that date. This fact appeared in the trial on the 8th.</p> <p>On October 1, 1920, the plaintiff’commenced another action of unlawful detainer in the municipal court of Brown county as before a justice of the peace. This complaint alleges, as before, the renting of the premises; that the defendant prior to May 1, 1920, was in possession as plaintiff’s tenant; that a dispute arose with reference to their respective rights and terms resulting in an action at law; that such matter was settled by a written agreement of May 19th whereby said defendant agreed to vacate and surrender the premises on August 25th and that plaintiff agreed to allow him to remain in such possession until such time; the serving of the notice of August 10th, supra; that the plaintiff has repeatedly demanded of defendant that he vacate and surrender such premises; that she never consented that he hold the same beyond August 25th; that up to and including October 1, 1920, and in spite of. requests and demands, defendant refused and neglects to vacate or surrender possession and now holds the same without permission and without right, and prays that defendant be removed and that a summons be issued pursuant to ch. 145, Stats.</p> <p>Defendant answered admitting the possession of the premises prior to May 1, 1920, as plaintiff’s tenant; denied the other allegations of the complaint, and further alleged .the unlawful detainer proceedings commenced September 2d, the trial thereof, the entry of judgment of September 8th and in defendant’s favor, and that all the issues presented in the case at bar were judicially passed upon and determined in said other action and that no appeal had been taken from the judgment therein, and for that reason the complaint should be dismissed.</p> <p>Testimony was taken before the municipal court, the record in the unlawful detainer action commenced September 2d was received in evidence, and the justice of the peace before whom the same was tried testified that there was tried in that action the question whether or not the defendant held under a verbal lease and as to whether or not he was a tenant from year to'year or from month to month, and that he decided and determined whether or not notice had been given to vacate the tenancy; that a notice was necessary to terminate the tenancy; and upon the meaning of the stipulation of May 17th, supra. That the decision made in the case before him was one finding the defendant not guilty of unlawfully withholding the property, that such was entered in the docket, costs were taxed, and the complaint dismissed.</p> <p>The municipal court held that the defendant was guilty as alleged in the complaint, and from the judgment thereon the defendant appealed to the circuit court.</p> <p>The circuit court found that defendant’s rights to the premises expired August 25, 1920, that there was an unlawful withholding of possession by defendant at the time of the commencement of this action October 1, 1920, and that on such day the plaintiff was entitled to the possession thereof and was not barred or estopped in any manner from maintaining the action, ánd directed judgment of restitution with costs in favor of plaintiff. From such judgment the defendant has appealed.'</p>

H. Reid, Circuit Judge. This action was brought to recover damages alleged to have been sustained by plaintiff through misrepresentations made by defendant in negotiations leading up to an exchange by plaintiff of a house and lot in Rockford, Illinois, for three government lots of defendant in Oneida county, Wisconsin.

Fowler, Circuit Judge. The appeal is from a judgment in favor of the plaintiff for $4,794.77. . On February 23, 1920, shortly before noon, the plaintiff, ,while driving an auto truck east on Grove street in the outskirts of the city of Fond du Lac, was struck at a grade' crossing by a train which was “coasting” north, down grade, with the steam shut off.

Fowler, Circuit Judge. The appeal is from a judgment dismissing the complaint, with costs, judgment having been entered pursuant to a directed verdict. One A. J. Weir, alleged to be the owner of a valid claim for $60 ágainst the defendant, placed the same in the hands of the plaintiff, a collection agent, for collection.

Appeal'from an order of the circuit court for Eau Claire county. E. C. Higbee, Judge. The plaintiff was a second cousin of Annie O’Donnell, who for a number of years prior to her death had been insured by the defendant Women’s Catholic Order of Foresters, having made several changes of beneficiaries.

'Appeal from an order of the circuit court for. Milwaukee county: Gustave G. Gei-irz, Circuit Judge. The plaintiff was the mother and subsequently appointed administratrix of the estate of one Fred S. Schmidt, who was on June 21, 1919, just under twelve years of age and on that day killed by a collision between an automobile he was then driving and a passenger train on a highway in Milwaukee county.

T. Fairchild, Circuit Judge. This is an appeal by the plaintiffs, Dudley E. Waters and Frank W. Blair, as receivers of the Pere Marquette Railroad Company, from a judgment for $12,442.13, damages awarded to defendant on his counterclaims. The pleadings include four causes of action and seven counterclaims, of which the third cause of action, the first, third, and fourth counterclaims are involved in this appeal.