Volume 179 — Wisconsin Reports

T. Fairchild, Circuit Judge. The appeal is from an order overruling the demurrer of the petitioner herein to the return of the civil court of Milwaukee county to an alternative writ of mandamus issued out of said circuit court to said civil court.

<p> Executors: Account: Interest on income not paid to person entitled: Rate of interest on tmst funds: Interest not received: Degree of business judgment required: Landlord and tenant: Board of lessor and wife as part rental: Death or removal of lessor. </p> <p>1. Where the lessor and his wife were' living with the lessee, their son-in-law, which was a part of the rental consideration of a lease, and after the lessor died his widow voluntarily-removed from the farm, the lessee was not chargeable with additional rent merely because .of such removal; and the executrix of the lessor, who was also the wife of the lessee, cannot be required to account for a greater amount than the agreed rental.</p> <p>2. An executrix is properly chargeable with interest on all income which she fails to pay to a beneficiary from the date such payment should have been made.</p> <p>3.' It is a general rule that a trustee is bound to account for all interest or profit actually received by him out of the assets of an estate; but where no interest was actually received he is not chargeable therewith, in the absence of special circumstances to warrant such a charge, as where he makes some’misuse of the funds for intended profit, or unreasonably detains them, or fails duly to invest and make the funds productive, or is guilty of negligence in collecting or accounting for them. '</p> <p>4. Where a testator appointed his daughter, a farmer’s wife, executrix, and she secured only three per cent, interest on estate funds, which was as much as an investment in government bonds, as authorized in sec. 2100&, Stats., would have yielded, it was error for the trial court to penalize her an additional two per cent, because five per cent, could have been easily obtained in the community on safe security.</p> <p>5. The executrix, who was a farmer’s wife unaccustomed to business, should not be penalized if she did not use the highest degree of business judgment in the management of the estate.</p>

This is a suit in equity to restrain the defendant from erecting a proposed veterinary hospital on certain lots owned by him in the northeast corner, of block 21 in the city of Antigo.

<p>Appeal from a judgment of the circuit court for Outa-gamie county: Edgar V. Werner, Circuit Judge.</p> <p>For some years prior to September, 1920, the defendant had conducted a substantial and lucrative laundry business in the city of Appleton known as the National. He decided to dispose of said business and placed the same with an agent for that purpose. Through such agent plaintiff met defendant, and after several days’ negotiations and examination of the business an agreement was made between the parties. The defendant at the time owned real estate on which was situated the building in which the laundry business was conducted and also a piece on the opposite side of the street on which was a varase and stable used with the laundry. Negotiations were also had with reference to the leasing by defendant to plaintiff of the said pieces of real estate. September 20, 1920, a bill of sale on the usual form was executed and delivered by defendant to plaintiff reciting a consideration of $11,060 for the. sale and transfer of a specified lot of machinery in connection with the laundry business, including a boiler, engine, pumps, a. truck and liability insurance on it, as well as. other personal property. There was in such bill of sale the usual covenant by such vendor that he was the lawful owner of the property, that the.same was free from all incumbrances, that he had good right to sell the same, and will warrant and defend the property so sold 'against the lawful claims and demands of all persons. At the same time the defendant and his wife and plaintiff executed two .certain leases, each for the period of ten years, one for the laundry building at an annual rental of $1,440, and the other for the barn and garage property at an annual rental of $240, each lease containing the usual covenants and conditions, none of which are material here.</p> <p>These papers, prior to the signature, were examined by plaintiff, and then, pursuant to the only suggestion he made as to such writings, a clause wás inserted in each of the leases to the effect that in the event of any proposed sale of the premises during the period of such leases plaintiff was to have an option to purchase. The plaintiff paid a substantial amount of cash on such sale and gave his promissory notes for the agreed balance, securing the same by chattel mortgage.</p> <p>The defendant, after assisting the plaintiff in looking after the business for several weeks according to agreement, then, pursuant to his intention expressed to plaintiff prior to and at the time of the sale, left for California after offering his household property for sale, but not finding conditions satisfactory there returned to-Appleton-about December 10th of the same year. About Match 19, 1921, he purchased another laundry in Appleton which had been in operation for a number of years until just prior to this time. After remodeling such other laundry he opened it for business about June 20, 1921, announcing that fact-to the public. He employed a driver who had worked for him prior to his sale to the plaintiff and obtained through him and otherwise some of the customers that had formerly dealt with him.</p> <p>The plaintiff brought this action July 12, 1921, to recover damages for defendant’s competition by his re-engaging in the business contrary to what plaintiff .claimed was agreed between them. Defendant by answer admitted, among other things, the sale of the laundry equipment and supplies, the making of the leases and his purchase of another laundry, but specifically denied-that he ever agreed that he would not at any time thereafter set up or carry on .a laundry business in Appleton.</p> <p>The substance of the special'verdict as answered by the jury was as follows:</p> <p>(1) The defendant, as part of the consideration of the sale of the laundry equipment, supplies, and the leases' of the premises, sold and conveyed to the plaintiff the good will of the laundry business.</p> <p>(2) As a further part of the consideration of such sale defendant agreed not to enter into the laundry business directly or indirectly within the city of Appleton in competition with the plaintiff’s laundry business so purchased during the time the plaintiff operated and continued it and during the period of the leases given.</p> <p>(3) That such agreement as so found in the second question, considering the character of the business, was a reasonable restraint of trade as to time, place, and. territory.</p> <p>(4) That the defendant did solicit customers of the plaintiff and entered into competition with the plaintiff prior to the commencement of the action.</p> <p>(5) Plaintiff’s damages $1,900.</p> <p>Upon motions made by the respective parties after verdict those of the defendant were denied and judgment was directed in favor of the plaintiff for the said sum of $1,900' and costs. From such judgment the defendant has appealed.</p>

R. Foley, Circuit Judge. Action to recover damages sustained by reason of false representations claimed to have been made by the defendant in the sale of two cows represented .to have been pure-bred shorthorns. The jury found a special verdict in favor of the plaintiff, and from a judgment entered thereon the defendant appealed. For the appellant there was a brief by McNally & Doar of New Richmond, and oral argument by W. T. Doar.

R. Foley/Circuit Judge. Quo warranto actions consolidated to test the validity of the establishment of a union free high school district under sec. 40.47, Stats., containing an incorporated village.

W. Halsey, Circuit Judge. Plaintiff was a section-hand in the employ of the defendant from the 23d day of September to the 4th day of October, 1921. He was working with a gang of track-repair men, with temporary headquarters at Brookfield. It was customary for this gang of men to leave Brookfield in the morning and proceed on handcar and motor car to the place of their day’s work. A number of the men rode on the handcar and the others on the motor car.