Volume 176 — Wisconsin Reports

Gregory, Circuit Judge. Action for personal injuries. The appeal is from a judgment in favor of the plaintiff and against the defendant for the sum of $10,376.79, damages and costs. The following appears from the evidence: Downer avenue is a public street in the village of Shorewood, Milwaukee county, running north and south, and is intersected at right angles by Edgewood street towards the south and Morse avenue towards the north.

Gei-irz, Circuit. Judge. Action begun in the civil court- of Milwaukee county against the defendant bank, whose principal place of business is Portage county, Wisconsin. The defendant moved in the civil court for a change of venue to Portage county, but the motion was denied, whereupon it answered and permitted a judgment for $1,834 with interest and costs against •it by default.

Halsey, Circuit Judge. The defendant accepted delivery of goods transported from New York to Milwaukee, after passage of the Interstate Commerce Act, without paying in full the published tariff for such transportation.

A. H. Reid, Judge. This, action was brought to recover damages for personal injuries sustained by the plaintiff while he was attempting to board one of defendant’s street cars in the city of Milwaukee. It was commenced in the civil court of Milwaukee county against the defendant railway company. Upon motion of the defendant railway company the Robert A. Johnson Company was made a party defendant, and plaintiff’s complaint set forth a cause of action against both companies.

T. Fairchild, Circuit Judge. The appeal is from a judgment in favor of defendants ordering that an alternative writ of mandamus issued in favor of petitioner be quashed.

Halsey, Circuit Judge. This is an appeal by the plaintiff from an order entered on June 4, 1921, denying the petition of the plaintiff for an inspection and permission to take copies of letters, telegrams, memoranda, books, papers, and other records passing between the defendant and Pickands, Brown & Company, its agent.

T. Fairchild, Circuit Judge. Action begun in the civil court of Milwaukee county upon a bond of $300 assigned by the sheriff to plaintiff and conditioned that one Kuswa, against whom plaintiff held a tort judgment for $190.91, wholly unsatisfied, should remain a true and faithful prisoner and not escape or go beyond the jail limits of Milwaukee county, unless discharged by due course of law.

Gregory, Circuit Judge. One Frank Seemann, Sr., of Milwaukee purchased on November 22, 1919, a carload of potatoes from defendants, who were commission merchants of the same place. The car was shipped from Pembine, Wisconsin, and the potatoes delivered by defendants at Seemann’s place of business on the 22d and 24th of November and paid for on delivery.

<p> Principal and agent: Agent intrusted with money: Commission: Good faith. </p> <p>1. The defendant, who advised the plaintiff to invest in the stock ■ of a supposed corporation, and, under directions to make such an investment and bring plaintiff the certificate of stock, received moneys which he deposited in his bank to his private account and later paid to the agent of the purported corporation, taking the receipts therefor in his own name and not delivering to plaintiff any certificate, is guilty of conversion.</p> <p>2. Money which has- been intrusted to an agent for a special purpose and to be used in a particular manner is converted if the agent disposes of the property in a way or for a purpose not authorized, in a manner adverse to the owner, and inconsistent with his right of dominion.</p> <p>3. In this state money is a subject of conversion.</p> <p>4. That one charged with conversion acted in good faith is no defense, wrongful intent not being an essential element of conversion.</p>

T. Fairchild, Circuit Judge. Personal injury. The defendant Fozule was called about 5 o’clock in the morning to the home of the plaintiff to attend her. She was at the time unconscious and remained so for nearly twenty-four hours. With the assistance of the husband she was removed to the Ogden Hospital, where hot-water bottles and blankets were applied in an effort to induce perspiration, it having been discovered that she was suffering from uraemic poisoning.

T. Fairci-iild, Circuit Judge. The appeal is from an order sustaining a demurrer to defendant’s counterclaim. This action is brought to recover on two judgments, aggregating about $4,400, rendered against one J. E. Latimer and the defendant, Harvey, in the courts of Ohio. The defendant counterclaimed for equitable relief enjoining the enforcement of the judgments, for the reason that the same were procured by fraud, conspiracy, and perjury.

W. B. Quinlan, Judge. The appeal is from a judgment in favor of plaintiff for $5,225.38.

T. Fairchild, Circuit Judge. This is an appeal from an order of the circuit court entered March 1, 1921, vacating a judgment of the civil court of Milwaukee county in favor of the defendants and ordering a new trial in the circuit court. The judgment in the civil court was based upon a directed verdict in favor of the defendants.

Geitrz, Circuit Judge. Action begun in the civil court of Milwaukee county to recover the purchase price of one carload of mixed rags at four cents per pound. The defendants denied the rags were accepted under the contract of purchase, alleged they were worth only two and three-fourths cents per pound, and tendered judgment for $254.20.

Gei-irz, Circuit Judge. This action was begun in the civil court of Milwaukee county to recover $2,000 damages alleged to have been sustained by reason of a defective walk upon the premises leased by the plaintiff from the defendants. Issue was joined, the matter was brought on for trial, a jury impaneled and sworn, and a recess was taken. The record then shows: “Settlement effected.

Fritz, Circuit Judge. Plaintiff and respondent was a contractor in electrical supplies and equipment and as such furnished material and did work for the defendant at his summer home in Wau-kesha county.

Gregory, Circuit Judge. Action for damages for a technical assault. The appeal is from a judgment entered January 25, 1921, in favor of the plaintiff for $3,500 damages and costs. The action was originally begun to recover damages from the defendant L. A. Wandell and one Dr. L. W. Baxter for personal injuries.

Exceptions from the superior court of Dane county. August C. Hoppmann, Judge. Exceptions allowed under sec. 4720, Stats. 1919, to review the ruling of the superior court of Dane county in the above entitled action.

R. Foley, Circuit Judge. This is an action in the nature of quo warranto, brought upon the relation of Herman Pluntz, a resident and taxpayer of Barron county, to oust the appellant from the office of sheriff of that county. A demurrer, to the answer was sustained, and from that order the defendant appealed.

<p> Fraud: Misrepresentations as to value of second mortgage: Complaint: Statement of fact or opinion: Sufficiency of evidence: Belief of purchaser that he is dealing with principal: Liability of principal for fraud of agent: Damages: Value of lands: Evidence. </p> <p>1. In an action for deceit in which the damage was a failure of the maker to pay a note secured by a second mortgage sold by defendant to plaintiff, allegations in the complaint of the foreclosure of the first mortgage and the sale of the mortgaged property for an amount sufficient only to meet such mortgage, interest, and costs, with other allegations that the mortgagor was not solvent at the time of the foreclosure and has never since been solvent, were sufficient to show damage to plaintiff without showing that he had taken steps to collect the note.</p> <p>2. Where the evidence was conflicting as to representations mads by defendants’ agent, the findings of the jury are binding on this court.</p> <p>3. Whenever there is any doubt as to whether a statement by a vendor as to value is made as an expression of opinion or as a statement of fact, the question must be determined by the jury or the court.</p> <p>4. The evidence in this case is held sufficient to support findings of the jury that defendants’ agent had represented a note as good for its face value and had misrepresented the value of the land securing the note, and that plaintiff had relied on these statements.</p> <p>5. The belief of plaintiff that he was dealing with the principal instead of the agent up to the time of the assignment of the note and the mortgage does not change the relation of principal and agent so as to relieve the principal from liability .for misrepresentations of the agent.</p> <p>6. Where one of -two innocent persons must suffer from the fraud of another, the one who furnished the means to commit or whose negligence caused the wrong to be committed must bear the loss; and a principal is liable for false representations of his agent causing damage to a party with whom the agent deals in the course of business authorized to be carried on by him, regardless of whether the principal knew of the false representations or intended them to be made.</p> <p>7. While plaintiff must exercise reasonable care and diligence to avoid loss and minimize damage, it is held that this court cannot set aside an answer of the jury to the effect that the ■ plaintiff did not fail to exercise ordinary care in taking such steps as an ordinarily prudent man would have taken in protecting and securing his second mortgage, as all the circumstances in that regard were doubtless considered by the jury.</p> <p>8. In fixing the value of lands the jury is not bound to take the average of estimates of witnesses, but should weigh the opinions of all the witnesses, and in making their determination they were not bound to ignore entirely their own knowledge with respect to the elements which combine to constitute value.</p> <p>Eschweiler and Rosenberry, JJ., dissent.</p>

This action was brought to recover on an accident policy held by the deceased in the defendant order. Plaintiff contended that her husband’s death was caused by drowning; the defendant contended that his death was caused by disease. The answer further sets up forfeiture of plaintiff’s rights by reason of the cremation of her husband’s body without first giving notice to the defendant order of the intention to cremate. The case was tried before the court and a jury.

W. B. Quinlan, Circuit Judge. Specific performance. Plaintiff is a. business woman, operating a hotel at Pulaski, Wisconsin, and engaged in buying and selling real estate. The defendants are Polish people, who1 are unable to write and speak the English language understandingly, and were the owners of a certain flat building in the city of Chicago worth $5,000 and incumbered for $2,300.

R. Burgess, Judge. The appeal is -from a judgment entered on December 28, 1920, in favor of the plaintiff and against the defendant for damages arid costs, as the result of injuries to plaintiff’s automobile. At the time in question there were .located on Douglas v avenue, a public street in the city of Racine running north and south, two sets of tracks used by the defendant in operating its interurban cars between the city of Milwaukee and the city of Kenosha.

B. Quinlan, Judge. Contract. The complaint alleges that the plaintiff was engaged in the business of promoting and carrying on fund-raising campaigns for hospitals, churches, colleges, etc., and on July 5, 1918, had entered into a contract with the defendant to furnish its system and two representatives to conduct a campaign for the defendant to start not later than July 8th, plaintiff’s compensation to be $250 per week, payable weekly.

B. Belden, Circuit Judge. The cause was submitted for the appellant on the brief of Alexander & Burke of Milwaukee, and for the respondent on that of Simmons & Walker of Racine.

• Appeal from a judgment of the circuit court for Milwaukee county: Lawrence W. Halsey, Circuit Judge. Action in equity to set aside a special tax levied upon plaintiff’s land as a benefit in a drainage proceeding. Plaintiff claims the supervisors lost jurisdiction betause they failed to assess him damages resulting from the widening and deepening of the main ditch running through his land. His benefits were assessed at $123.53.

The plaintiff in error, hereinafter called the defendant, was convicted of the crime of murder in the first degree on June 15, 1918, and sentenced to life imprisonment. To review-such sentence he sued out a writ of error.

The deceased, Kasper Wulz, was employed by defendant as a car repairer at Corliss, Wisconsin. On the morning of July 24, 1917, he was sent to Truesdell, Wisconsin, to repair two cars which had come from some place in Illinois. He carried with him a crowbar, two jacks, and a pail containing brasses used as bearings in journal boxes.

This is a mandamus proceeding brought to compel the circuit judge of the Thirteenth circuit to change the place of trial from Dodge county to Milwaukee county of an action brought by Fred W. Rogers against the Wisconsin Dry Milk Company, a Delaware corporation, and certain of its officers and directors. The action was commenced on November 15, 1921, by service of a summons and complaint. Defendants moved for a change of the place of trial, which motion was denied.

• Appeal from a judgment of the circuit court for Milwaukee county. Walter Sci-iinz, Circuit Judge. Action for personal injury brought by the plaintiff against the defendant to recover damages for the death of Vasile Surdican on the 4th day of April, 1915, a short distance south of Corliss station in Racine county.

Fritz, Circuit Judge. Action to recover $6,000 agents’ commission claimed to be due on the leasing of defendant’s real estate located in Chicago. One Albert A. Wilbur, a member of plaintiffs’ firm, attempted to secure a lessee for defendant.

Gregory, Circuit Judge. This is an action brought by plaintiff to recover damages for personal injuries sustained by him as the result of an automobile collision which occurred on one of the highways in Waukesha county on the 18th day of August, 1918.- Plaintiff was riding as an invited guest in the automobile of one William B. Johnson, who was at the time driving the car.

Gepirz, Circuit Judge. Action on false representations in the sale of a lot in Milwaukee county.

B. Quinlan, Judge. Action for personal injury. The defendant Sckissler, at the time of the happening of the injury, was the owner and operator of a Ford jitney in the city of Milwaukee, having complied with the provisions of secs. 1797 — 62 to 1797 — 68 of the Statutes, and the Automobile Liability Company, Limited Mutual, was the carrier insurer.

Gehrz, Circuit Judge. Action for damages resulting from death caused by an automobile collision which occurred March 8, 1920. The jury found defendant negligent; that its negligence was the proximate cause of the death of the deceased; damages in the sum of $3,390, and also that the driver of the deceased was guilty of negligence proximately contributing to produce her death.

This action was brought by the plaintiff, a section hand, to recover damages for personal injuries sustained while in the employ of the defendant railroad company during the time it was under federal control. Plaintiff, with others, was engaged in removing old ties from under the rails and replacing the same with new ties. He, and one Paratulla worked together in the performance of this work. Picks were used to pull out the old ties.

Fritz, Circuit Judge. This is an appeal by plaintiff from an order sustaining defendant’s demurrer to a complaint setting up two causes of action for an injury received by plaintiff while engaged in interstate commerce in defendant’s baggage room at San Diego, California. The alleged injury occurred March 2, 1916. This action was commenced November 5, 1920.

Fritz, Circuit Judge. . The appeal is from an order of the circuit, court reversing the judgment of the civil court of Milwaukee county and granting a new trial of said action in the circuit court. Action for personal injuries.

Halsey, Circuit Judge. The village of Shorewood, located in Milwaukee county, passed an ordinance pursuant to sec. 61.35, Stats. 1919, dividing it into residence and business districts. Plaintiff owned property located on one of the principal business streets of the village and less than a block from present business buildings. By the provisions of the ordinance his property was left in a residence district where business of practically all kinds was prohibited.

S. Sheridan, Judge. In the year 1844 Samuel Austin, the father of the deceased, J. Clinton Austin, and J. Darwin Austin, settled on a homestead of 160 acres adjacent to the southern boundary of the city of Milwaukee. In time additions were made to the father’s holdings. Upon the death of the father in 1878 the deceased, J. Clinton Austin, and J. Darwin Austin occupied and farmed the lands which they inherited from their, father in common and carried on a joint business..

Petition for a peremptory writ of mandamus. This matter comes before this court on the petition of the relator for a peremptory writ of mandamus, to change the place of trial of a certain action in which S. D. Wenneby is plaintiff, and the Time Insurance Company, a domestic insurance corporation, defendant, from the superior court of Douglas county to Milwaukee county.

W. Burnell, Circuit Judge. Action for divorce. A decree was granted to the defendant on the ground of plaintiff’s desertion. Her claim for divorce on the ground of cruel and inhuman treatment was not sustained.

W. Burnell, Circuit Judge. Demurrer. The amended complaint, after setting out the corporate character of the parties, alleged that on the 10th day of April, 1920, the parties entered into an agreement in writing by telegram, letters, and memoranda, copies of which are attached to- the complaint, and that by said written agreement it was mutually agreed that the defendant would sell and deliver to the plaintiff f. o. b. cars at New Holstein, Wisconsin, 2,000 cases of Standard…

<p> Municipal corporations: Cities of the first class: Election of city attorney: Constitutional law: Special legislation: Laws embracing more than one subject: Regular municipal elections: Pleading: Demurrer to answer: Sufficiency of complaint. </p> <p>1. A demurrer to an answer has the effect of presenting the complaint itself for consideration.</p> <p>2. Ch. SOS, Laws 1919, repealing sec. 4 of ch. 35 of the Laws of 1889 (providing that the term of office of the city attorney of Milwaukee shall he four years) and providing that „the term of office of city attorneys in cities of the first class shall be two years, to begin in 1922 and end in 1924, and that the city attorney shall be elected at the regular municipal election in any such city to be held on the first Tuesday in April, 1922, required the holding of an election for the office of city attorney, in April, 1922, at which time the preceding term expired.</p> <p>3. Said ch. 505, Laws 1919, is general, though in its practical application it refers only to the city of Milwaukee, and is not violative of sec. 18, art. IV, Const., in that it embraced more than one subject on its face and in its title, as all that is contained in the chapter is germane to its stated purpose.</p> <p>4. City attorneys of cities of the first class are regular elective officers, and under ch. 505, Laws 1919, requiring city attorneys in cities of the first class to be elected at the regular municipal election to be held on the first Tuesday in April, 1922, an election at which the city attorney is the only officer to be elected is a “regular municipal election” within the meaning of the statute.</p>

<p> Criminal law: Homicide: Credibility of witnesses: Question for jury: Negligence: Manslaughter: Culpable negligence: Violation of automobile statutes: Conviction based on improper statute: Trial: Verdict received in absence of defendant and counsel. </p> <p>1. The evidence in a criminal case being in sharp conflict, it was a question for the jury to determine from all the evidence as to which side was telling the truth, which testimony it considered credible or otherwise and which it would believe, and having found a verdict it cannot be disturbed on appeal.</p> <p>2. Ordinary negligence consists of a want of that care and prudence that the great majority of mankind exercise under the same or similar circumstances.</p> <p>3. The defendant was properly convicted of manslaughter in the fourth degree, though he was not guilty of gross negligence, under secs. 4337, 4363, 4365, 4367, Stats., and a conviction was proper where the accused inadvertently ran into a stationary motor truck with an automobile while violating sub. 1, sec. 1636 — 52a, relating to lights on motor vehicles, and the statute relating to speed, the term “involuntary’’ signifying inadvertence, and the term “culpable negligence” not requiring gross negligence.</p> <p>4. In a prosecution for manslaughter in the fourth degree, arising out ‘of a violation of the statutes relating to lights on motor vehicles, a conviction was not reversed where both counsel and court were under the erroneous impression that sec. 1636 — 52, Stats. 1917, was in effect, instead of sub. 1, sec. 1636 — 52a, Stats. 1919, no exceptions having been taken to the instructions of the court nor proper instructions asked, and the Statutes of 1919 not being more favorable to the accused «than the Statutes of 1917, and plaintiff in error having admitted that his headlights threw a light ahead not to exceed forty feet.</p> <p>5. It was not reversible error to permit the jury to return a verdict in the absence of the accused and his counsel, where the court informed the accused and his counsel that if the jury reached a verdict before 9 or 10 o’clock that evening he would be in attendance to receive it, and the sheriff notified counsel for the accused by telephone when the jury was ready to return its verdict.</p>

On the 29th day of June, 1917, plaintiff desired to transmit 4,000 rubles to his mother, at Simferopol, Russia, to be delivered to her within ten days from that date. For that purpose he paid $1,000 to the American Express Company at Milwaukee and the company issued to him a receipt, in words and figures as follows: “American Express Co. (619. October, 1911) Office Milwaukee. State Wis. June 29, 1917. Received of'Hyman Slivick 4,000 Rubles on Money Order Settlement $1,000.

Gehrz, Circuit Judge. Demurrer. The complaint set forth at considerable length that the defendant was a public lecturer upon “Applied Psychologythat in order to create in the minds of the public the impression that he was absolutely honest, fair, and sincere in his teaching of the subject, and as a means of furthering the defendant’s standing and reputation as a public speaker, and as a means of inducing the public to have confidence in him, “the defendant caused to be…

T. Fairchild, Circuit Judge. Plaintiff was elected a director of the defendant corporation May 16, 1919. The corporation, by appropriate action, had' fixed the salary of directors at $1,000 per year. The plaintiff served one year while the salary was so fixed. In May, 1920, the salary of directors was fixed at $10 for each week.

Gregory, Circuit Judge. The plaintiffs, copartners, were engaged in a general contracting business at Cedar Rapids, Iowa, and they began doing business as such in Milwaukee in the spring of 1918. Their first work was at the plant of the Plankinton Packing Company, and in the fall of that year and for some time thereafter they maintained their warehouse for equipment and materials at the yards of that company and for a time their office also.

Appeals from a judgment of the circuit court for Milwaukee county: John J. Gregory, Circuit Judge. This was once before this court and is reported in 169 Wis. 494, 173 N. W. 325. We shall not restate the facts here, but the statement and opinion will be in the nature of a supplement to the case as reported in 169 Wis. 494.

Gregory, Circuit Judge.- One Albert-E. Sharp was killed October 25, 1917, when the automobile which he was driving was struck by the interurban car of 'defendant at á farm crossing leading off to the west from the concrete highway of the Chicago road in the town of Oak Creek, Milwaukee county, about two and one-half miles south of South Milwaukee and fourteen miles north of Racine.

<p> Municipal corporations: Cities of the first class: Special legislation: Validation of unlaw fid contracts: Taxpayer’s action to recover moneys paid: Laches: Performance of contract while action pending: Pleading: Demurrer. </p> <p>1. Sec. 925 — 91a, Stats, (sec. 1, ch. 10, Laws 1-920, Spec. Sess.), validating' any contract for the purchase of concrete posts in connection with a municipal lighting system of any city of the first class, applied only to the city of Milwaukee, and could never apply to any other city, and was in violation of secs. 31, 32, art. IV, Const., as special legislation.</p> <p>2. Sec. 9S9w, Stats. 1919, providing for the ratification, validation, and confirmation of contracts which the common council of a city had authority to make, does not permit the ratification of any part of a contract void because the furnishing of the article provided for under it involved its manufacture by patented process, in respect to which the provisions of the city charter had not been complied with.</p> <p>3. Upon demurrer it must be assumed that the allegations in a complaint are true.</p> <p>4. When a taxpayer brings an action to restrain the performance of an alleged unlawful contract entered into by city officials, and pending the determination of the action the contract is performed, moneys expended by the city under such contract may be recovered if the court of last resort decides it to be invalid.</p> <p>5. The bringing of such an action is favored in law and equity; and the complaint is not subject to demurrer as improperly joining two causes of action, in that it prayed that attorney’s fees be paid out of the fund sought to be recovered.</p> <p>6. A corporation entering into a contract with a city to furnish an article capable of being manufactured only by patented machines, in violation of the charter of the city and with full knowledge of the invalidity of the contract, was in no position to invoke the doctrines of equity in an action by a taxpayer in behalf of the city to recover money illegally paid to it under the contract.</p> <p>7. Money illegally paid by officials of a city under such a contract could be recovered not only from the company receiving it, but also from the officials responsible for the illegal payment.</p>

Ray Stevens, Circuit Judge. By sec. 3203&, Stats. 1919, the governor and the members of the state board of control were constituted a board to be known as the board for the relief of persons who have served terms of. imprisonment upon conviction of crime against the state of which they were innocent.

The facts in this case can be presented much more clearly and briefly by aid of the accompanying diagram: The plaintiff is lessee of the premises indicated by D and E. E is vacant and upon D there is a building. The defendants own the premises A, B, and C. A is occupied by a building, B and C are vacant. The premises were formerly owned by William Rudolph and Bertha Frances Rudolph.

The complaint alleged the making and signing of a written contract by the parties on May 11, 1920. It was to the effect that, on the condition that one Mr. Loessel should buy defendants’ farm or that it should be sold for $13,500 or more, the defendants would buy the plaintiff’s “residence and lots in St. Nazianz, Wisconsin [there being no further or other description thereof], for $7,000.

On the 19th day of August, 1919, the defendant was driving his automobile eastward on the main road between Blue Mounds and Mt. Ploreb in Iowa county. Plaintiff was proceeding westward on the same road in a Ford car. A collision occurred between these two cars about two or three hundred yards east of the viaduct over the track of the Chicago & Northwestern Railroad.

H. Bancroft, Circuit Judge. Action to- recover $147.50, the purchase price of a mare sold to defendant by plaintiff at a certain auction sale in Iowa county. ■ Defendant admitted that he bought the mare, but alleged that the sale was conditioned on a warranty that the horse was sound, and that in due time he rescinded the sale because the mare was spavined, and attempted to return her, but was forced to keep, her by plaintiff.

IT. Bancroft, Circuit Judge. Promissory note. The complaint alleges that the defendants, in renewal of a prior note, made and delivered to the plaintiff their promissory note whereby they promised to pay to the order of the plaintiff, on or before April 6, 1914, .the sum of $500 with interest thereon at the rate of six per cent, per annum payable annually; that the interest on said note was paid to April 6, 1914, but that no part of the principal has been paid; that no…

E. C. Higbee, Circuit Judge. The complaint alleged that the plaintiff was the owner of a certain farm in the town of Sheldon, Monroe county, Wisconsin; the defendants were the supervisors of said town.

C. Higbee, Circuit Judge. Jn April, 1920, defendant gave plaintiffs a written order for ladies’ plush coats to be shipped from plaintiffs’ factory in New York City about August 15th, the total price being $2,174.75. The order was accepted; the goods were shipped on August 12th and reached defendant’s store in La Crosse August 17th. By mistake two or three extra garments, not ordered, were included.

C. Higbee, Circuit Judge. Plaintiff, a Wisconsin corporation, sued defendant, an Illinois corporation not engaged in business in Wisconsin, for the recovery of the stim of $566, part purchase price of a hearse manufactured by the defendant.

judgment of the circuit court for Wau-paca county: Byron B. Park, Circuit Judge. In laying out a highway the town board, pursuant to the provisions of sec. 1270, Stats. 1919, entered into a written agreement with the owner of the land through which the highway ran as to the amount of damages sustained by the owner. Two resident taxpayers, pursuant to sec. 1286a, Stats. 1919, took an appeal to the county judge from such agreement as to damages.

'Appeal from a judgment of the circuit court for Waupaca county: Byron B. Park, Circuit Judge. Breach of warranty. From the complaint it appears that the plaintiffs own and operate a dairy at Kennon, Price county, Wisconsin.

Park, Circuit Judge. The complaint alleged two separate causes of action, each based upon defendant’s alleged trespasses on lands claimed to be owned by plaintiff, the first relating to a narrow strip of about one acre on the westerly edge, and the second to a small triangular piece of about one half an acre at the southern extremity of the land claimed to be owned by defendant.

<p>Appeal from a judgment of the circuit court for Dunn county: George Thompson, Circuit Judge.</p> <p>Specific performance. This action is brought by Mary Catherine Weinzirl, widow of William Plenry Weinzirl, H. W. Rudow, as guardian ad litem of William Wayne Weinzirl, posthumous son of William Henry Weinzirl and Mary Catherine Weinzirl, and Mike Sand, administrator of the estate of William Henry Weinzirl, deceased, to compel specific performance of an oral contract alleged to have been made by the defendant with William Henry Weinzirl, deceased, in the fall of 1918, by_ the terms of which it is claimed that Henry Weinzirl agreed .to sell and convey to the deceased eighty acres of land situated in Dunn county, and to recover the value of certain personal property belonging to the deceased. William ITenry Weinzirl died on the 4th day of March, 1919, and William Wayne Weinzirl was born in November, 1919. Upon the trial the court found the facts already stated, and in regard to the appointment of the administrator and the probate of the estate of William Henry Weinzirl, deceased, and upon the merits, found as follows:</p> <p>“That at all times mentioned in the complaint the defendant was the owner in fee simple of the following described real estate [setting out the description], but that the allegations of the complaint charging that the defendant, before the death of William Henry Weinzirl, promised and agreed to convey said premises to William Henry Weinzirl, and the allegations of said complaint charging that said William Henry Weinzirl, in reliance upon such promise and agreement, entered into possession of said real estate and made substantial improvements thereon, and the allegations of said complaint charging that the defendant, in the performance of said promise, surrendered possession of said premises, and that in such performance of said promise he entered in his book of account [defendant’s ledger, page 178] the memorandum referred to in the complaint and received in evidence herein, are not proven or established by the evidence in this case.</p> <p>“That said William Henry Weinzirl, together with his two brothers John and George Weinzirl, occupied said premises, before and at the time of his death, as the tenant of the defendant Henry Weinzirl, and that he at no time held possession of any part of said premises except as such tenant. That said memorandum was entered by the defendant in his book of account not in performance of the alleged promise to convey said premises to said William Henry Weinzirl, but was entered therein by him as an intended testamentary disposition on his part.”</p> <p>The court made certain findings in regard to the personal property which are not material. The court concluded that as a matter of law the plaintiffs were not entitled to specific performance and judgment was entered dismissing the complaint, without prejudice to the right of the administrator to'bring an action in respect to the personal property. From judgment'entered, accordingly the plaintiffs appeal.</p>

<p> Specific performance: Contract to convey land: Time as essence: Intention of parties: Conduct: Waiver of nonperformance: Estoppel: Findings of court. </p> <p>1. Where time is not of the essence of a contract and the thing to be done can be as well done at a later as at an earlier day without detriment to the party for whom it is to be done, the delay will not prevent specific performance.</p> <p>2. In equity the modern tendency is not to hold time as of the essence of a contract; but if the contract, with the surrounding facts and circumstances, shows that the parties intended time to be of the essence, full effect will be given to the intention, although there is no clause in the contract declaring it so.</p> <p>3. If either party unreasonably delays in complying with the terms of the agreement the other may assign a reasonable time within which performance shall be made. The time thus allotted becomes essential, and if performance is not made before it elapses equity will not aid the defaulting party in enforcing the contract.</p> <p>4. The evidence (stated in the opinion) as to the surrounding circumstances and conduct of the parties is held to present a question for the trial court as to whether it was the intention of the parties that a contract for a conveyance of land on a fixed date made time as of the essence.</p> <p>5. Though the title of a vendor of land was defective, if he had acted with, reasonable promptness to perfect it, or if delay in perfecting it was waived, specific performance might be compelled even though title was not perfected until the time of the trial.</p> <p>6. In an action for specific performance, the evidence is held not to justify disturbing findings of the trial court that the ven-dee did not waive the delay of the vendor in perfecting title, ■ or estop himself to object.</p>

<p>Appeal from an order of the circuit court for Sauk county: E. Ray Stevens, Circuit Judge.</p> <p>The complaint in substance alleges that one Charles Payne was the owner of certain lands situated in section 10, township 10 north, range 6 east, in Sauk county, Wisconsin,-and that under and pursuant to' the provisions of his last will and testament, which upon his death was duly admitted to probate, he devised a life estate in said real estate to one William H. Payne upon condition that he keep the buildings and fences thereon in good repair, build new fences when necessary, pay all taxes of every kind and nature that might thereafter be assessed against said premises, and also pay to the widow of the said Charles Payne an annuity of $250, and after said life estate the said lands were devised in fee in equal shares to the daughter of the said William H. Payne, to wit, Martha M. Payne (now the defendant Martha Meisser), and to the sons of said Charles Payne, to wit, Jefferson C. Payne, Isaac N. Payne, and to his daughter, Elizabeth M. McGilvra, the child or children of any deceased child to take his or her share of said farm per stirpes and not per capita; that in and by the final decree in the matter of the estate of said Charles Payne, deceased, the county court of Sauk county thereafter assigned and transferred said real estate in accordance with the provisions of said last will and testament; that thereupon, and during the life of the said William H. Payne, the said Elizabeth M. Mc-Gilvra died, leaving her surviving the following children, who are among the plaintiffs herein, namely: Ernest, Nellie, Perry, Lee, Guy, Lawrence, Earl, and Russell McGilvra; that in the year 1908 said Isaac N. Payne sold and transferred all his right, title, and interest in and to said premises to the plaintiff J. C. Payne; that said William H. Payne, in October, 1908, entered into possession of said premises and remained in possession thereof until on or about March 1, 1919, when the same were sold to' one Louis Young; that after the sale of said premises to Young as aforesaid the said William H. Payne died testate, and that the defendant John Meisser was thereupon duly appointed administrator with the will annexed of the estate of the said William H. Payne; that at the time said William IT. Payne, life tenant, took possession of said premises the same were in good repair and condition, and that while in such possession he was guilty of various acts of permissive and commissive waste, to the 1 great damage of the re-versioners under the will of said Charles Payne, deceased; and that said real estate when sold realized a sum of money amounting to $7,000 less than what the same would have been worth had such acts of waste not been committed; that the defendant Martha Meisser refused to join as a party plaintiff in this action, and was therefore made a party defendant; that the actual damages sustained by the plaintiffs by reason of such alleged acts of waste amount to $5,000. The complaint, therefore, under and pursuant to the provisions of the statutes, asks for a recovery of damages from the estate of said William H. Payne, deceased, for the sum of $10,000.</p> <p>The defendants demurred to the complaint upon the grounds (1) that the same does not state facts sufficient to constitute a cause of action, and (2) because the court has no jurisdiction of the person of the defendants or the subject of the action.</p> <p>The lower court overruled the demurrer, from which order this appeal was taken.</p>

<p> S%ibrogation: Mortgage paid by money fraudulently borrowed: Rights of lender: Constructive trusts. </p> <p>1. G., an owner of a.piece of land subject to a first mortgage of $2,000 owned by P. and a second mortgage of $800 to L. G., forged releases of said mortgages and executed four successive mortgages-to different persons, ea# prior mortgage being satisfied by a forged instrument,- and the property being inadequate security for the total debt. G. then executed a mortgage on another piece of land to M., falsely representing that it was a first mortgage, whereas prior mortgages had been released by forged satisfactions, and paid the greater portion of the proceeds of the loan from M. to the attorney for P. in satisfaction of his mortgage and interest, but did not secure a written release of P.’s mortgage. Held, on the theory of subrogation, that M. was not entitled to the rights of P. under his mortgage, as M. was not to receive a lien on the land covered by P.’s mortgage and ther,e was no agreement between M. and G. as to the application of the money loaned.</p> <p>2. G., however, thereby became a constructive trustee for the lender, who was entitled to have the mortgage so paid revived and constitute an existing obligation against G. for the benefit of the lender.</p> <p>3. One from whom money lias been obtained by fraud may follow and reclaim it or have a trust , imposed upon the property into which it has gone, so long as it can be distinctly traced and identified, and provided that no injustice is done to one who stands in the position of a purchaser for value without notice.</p>

<p>Appeal from an order of the county court of Sauk county: James H. Hill, Judge.</p> <p>The appeal is from an order appointing commissioners in condemnation proceedings.</p>

<p>Appeal from a judgment of the circuit court for Dane county: .E. Ray Stevens, Circuit Judge.</p> <p>Action to recover, a commission of $460 claimed to have been earned on the sale of defendant’s farm. The contract for commission was in .writing, and it is admitted that plaintiffs on September 11, 1911, secured a purchaser,' Olson, ready, able, and willing to buy on the terms stated in the contract except that he could pay down only $500 in cash instead of $2,000. Defendant accepted the terms and a land contract with Olson for the purchase of the farm was entered into, and $500 cash was paid and a further., cash payment of $2,000 was to be made January 1, 1920. '</p> <p>Defendant claims that at the time Olson secured the land contract plaintiffs, through Brown, agreed that no commission should be paid unless Olson paid the $2,000 on January 1, 1920. Plaintiffs denied this. On December 18, 1919, Olson assigned to defendant the land contract entered into September 11, 1911, and defendant afterwards sold his farm to another party.</p> <p>The jury found that “on the day that Mr. Olson and Mr. Marty signed the contract dated September 11, 1919, Mr. Brown stated that the plaintiffs were not entitled to receive a commission unless $2,000 was paid by Mr. Olson on the purchase price.”</p> <p>The court entered a judgment dismissing the action, and the plaintiffs appealed.</p>

G. Zimmerman, Judge. Anna Anderson, an incompetent, is the owner of a one-eighth interest in eight lots which were desired by a school district which was under, the necessity of erecting a new and modern schoolhouse. On January 17, 1920, T. J. Anderson, brother of the incompetent, made a petition to the county court of Dane county to sell the interest of the incompetent.

. Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge. Prior to October, 1891, Dickinson street had been regularly platted and theretofore traveled to some extent as a public highway in the city of Madison. As so platted it was sixty-six feet wide.

Luecic, Acting Judge. The plaintiffs in error, hereinafter called the defendants, were found guilty of the charge of “keeping a house of ill fame” under sec. 4589, Stats., and sentenced to serve two years in the house of correction of Milwaukee county. The house in question is situated just outside the limits of the city of Milwaukee.

The defendant was charged in the information of the district attorney, before the county court of Walworth county, with having in his possession and under his control on the 30th day of March, 1921, in a building occupied by him and situated in the city of Lake Geneva, Walworth county, Wisconsin, in which building he conducted his retail business of selling nonintoxicating beverages, also intoxicating liquors, as defined by sec. 1569 — 3 of the Statutes, contrary to the…

Thomas, Judge. .The plaintiff in error, hereinafter called the defendant, was charged with violating that portion of sec. 1636 — 49, Stats. 1919, which reads: “No person shall operate or drive any automobile, motorcycle or other similar motor vehicle recklessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the highways and the general and usual rules of the road, or so as to endanger the property, life or limb of…

S. Sheridan, Judge. November 22, 1908, Mary Eliot Smith made her will just prior to making a European trip. She was then the owner of certain real estate in the city of Appleton and of certain shares of bank stock and her personal effects. One of the pieces of real estate in Appleton was sold prior to her death.

Gregory, Circuit Judge. The appeal is from a judgment awarding damages to the plaintiff for personal injuries sustained as a result of being struck by defendant’s automobile truck.

Halsey, Circuit Judge. Action to recover the balance due plaintiff for building a two-story garage and basement for defendants and for a mechanic’s lien on the property.

J. Monahan, Judge. This action was commenced to recover damages resulting from the wrongful death of plaintiff’s decedent. He was an employee of the Miller Scrap Iron Company. The Miller Scrap Iron Company and the decedent were -both residents of Wisconsin. The contract of employment was a Wisconsin contract, and both were under the workmen’s compensation act.

By a writ of habeas corpus issued out of this court on the 30th day of November, 1921, the warden of the state prison at Waupun was required to bring the petitioner, Carl 0. Carlson, before this court on the 16th day of December, 1921, and to show the time and cause of the imprison-nlent of the said Carl O. Carlson.

T. Fairchild, Circuit Judge. Twelfth street in the city of Milwaukee runs north and south. Cedar street runs east and west. On the 30th day of March, 1920, plaintiff was walking south on Twelfth street from the northwest corner, of the intersection. While she was crossing Cedar street she was struck by defendant’s electric automobile, which was running east on Cedar street, inflicting personal injuries. This action was brought to recover the damages sustained by her.

Gregory, Circuit Judge. Personal injury. From the complaint it appears that Ken-wood boulevard and Maryland avenue are public highways in the city of Milwaukee, Kenwood boulevard extending in an easterly and westerly direction and Maryland avenue in a northerly and southerly direction, intersecting each other at right angles; that on October. 23, 1919, the plaintiff was driving a Ford truck along and upon Kenwood boulevard in a westerly direction and across the intersection…

Appeals from a judgment of the county court of Milwaukee county: M. S. Sheridan, Judge. One Joseph Hanreddy, a resident citizen of Chicago, Illinois, died there testate April 8, 1918. On June 25, 1918, his widow, Margaret Hanreddy, was duly appointed, qualified, and ever since has acted and is still acting as executrix of his estate in the probate court of Cook county, Illinois. Claims were therein filed aggregating more than $50,000.

In 1891 one Thomas T. Reeve, resident of Oshkosh, died leaving three adult children. In November, 1892, his will was duly probated.

Action for personal injury resulting in death by coming in contact with an electric light fixture. The defendant furnished light service to the plaintiff at his summer resort at Crystal Lake. The primary service wires carried a voltage of 2,300 to a transformer placed on a pole on plaintiff’s premises. From this pole, after passing through a meter, service wires carrying 110 volts were strung to the various buildings of the plaintiff.

Ray Stevens, Circuit Judge. The appeal is from an order organizing certain lands located in sections 4, 5, 6, 7, 8, 17, and 18 of the town of Windsor, and sections 13 and 24 of the town of Vienna, into a drainage district to be known as the Catfish River Drainage District, and from the order appointing commissioners.

B. Belden, Circuit Judge. This action was brought by the plaintiff in his capacity as taxpayer of the city of Racine to restrain the city officers from paying the defendant Longanecker, who is the city superintendent of schools, what is alleged to be an unlawful increase of salary.

<p> Appeal: Demurrer: Leave to plead over: Judgment on failure to plead. </p> <p>Where, after a demurrer to a complaint, overruled in the circuit « court, was sustained on appeal, and upon remanding the record the circuit court granted leave to amend within twenty days, and upon failure of plaintiff to plead over entered final judgment dismissing the complaint, the judgment will be affirmed, the proceedings being regular and in accordance with proper practice.</p>

R. Foley, Circuit Judge. The appeal is from a judgment dismissing the plaintiff’s complaint, with costs.

<p> Federal employers1 liability: Duty of master to use safe appliances: Burden of showing proximate cause. </p> <p>1. An employer must exercise ordinary care to supply machinery and appliances reasonably safe and suitable for the use of his employee, but is not required to furnish the latest, best, and safest appliances, or to discard standard appliances upon the discovery of later improvements, provided those in use are reasonably safe.</p> <p>2. The federal Employers’ Liability Act does not give a new cause of action which did not exist at common law, but modified the common-law rule with respect to the defenses of contributory negligence, assumption of risk, and negligence of a fellow-servant; and under the federal Safety Appliance Act an injured employee, to recover, must show that the improper equipment was the proximate cause of his injury.</p> <p>3. A cake of ice had slipped from a slide leading from an ice-house to a refrigerator car which was being loaded, and came to rest on the top of the car instead of on the running-board, whereupon an employee proceeded to drag it to the ice bunker, and after he had moved it six or eight feet, in some unexplained way he lost his hold, fell off the car, and was killed. Held, even if the slide were insufficient, there was no causal connection between such insufficiency and the injuries of the deceased.</p> <p>OweN, J., dissents.</p>

Mandamus. An alternative writ of mandamus was issued out of this court directing the Hon. Walter Schinz, judge of the Second judicial circuit, to vacate his order granting a new trial in the case of Potrykus v. Davis, in which a special verdict favorable to the plaintiff had been rendered on the ground that more than sixty days from the rendition of.the verdict had elapsed, and therefore by force of sec. 2878, Stats., the motion for the new trial would be constructively…

This action was originally brought in justice’s court to recover for services rendered and materials furnished by plaintiff as dentist for. and to defendant. The amount of the bill was $83, upon which defendant had paid $16, such sum being the.total of certain items of plaintiff’s bill which were designated as materials.

Defendants agreed to sell to plaintiff two lots in the city of Janesville for $2,000.

<p> Public titilities: Discontinuance of proceedings to acquire utility: Statutory limitation on- right to discontinue. </p> <p>1. Under sec. 1797» — 81a, Stats, (created by ch. 393, Laws 1917), authorizing any municipality having “heretofore” determined to acquire an existing waterworks plant to discontinue proceedings to that end, and sub. (22), sec. 4971, defining “heretofore” in a statute as meaning any time previous to the day when the statute shall take effect, a municipality is not authorized to discontinue proceedings before the railroad commission for the acquisition of a waterworks system where such proceedings were instituted by it after the act of 1917 took effect.</p> <p>2. The amendment of sec. 1797m — 81a, Stats., by ch. 658, Laws 1919, by the addition thereto of sub._ 3, prohibiting the institution of a second proceeding to acquire a public utility by a municipality within four years after the discontinuance of the last prior proceeding, does not change the effect of the section as originally enacted in 1917, authorizing the discontinuance of such proceedings only if they had been instituted before the taking effect of the act of 1917.</p> <p>3. Though the proceeding to acquire a waterworks system might, in the absence of any statute showing legislative intent to the contrary, be discontinued at any time before the right of the owners of the utility to compensation has become absolute, sec. 1797m- — 81a, Stats., has limited the right to discontinue to such proceedings as were begun prior to the enactment of that statute.</p>