See BILLS AND NOTES, 1, 2. CHATTEL MORTGAGE, 7.
Certain negotiations between the parties (for which see the opinion) held, no evidence of payment of the indebtedness to plaintiffs here in suit. Bassett et al. v. Hughes,
PENALTIES. See REPEAL OF STATUTE.
"PERSONAL PROPERTY." See MARRIED WOMAN.
PETITION FOR LIEN. See MECHANIC'S LIEN, 1.
CORPORATIONS (B.), 1, 2. ESTOPPEL (D.). INSURANCE AGAINST FIRE, 8, 9. LIBEL. MECHANIC'S LIEN, 4. NOVATION OF CONTRACT. TOWN INSURANCE COMPANIES. VARIANCE.
1. Where a demurrer is to the entire complaint for insufficiency of facts, it must be overruled if the complaint states one good cause of action. Hyde, Adm'r, v. Sup'rs of Kenosha Co.,
2. Whether, where it appears from the complaint that the statute of limitations has run upon the cause of action, the defendant can avail himself of the statute by demurring to the complaint for insufficiency of the facts, discussed by COLE, J., and in a separate opinion by RYAN, C. J., but not determined in this action. Howell v. Howell, 15 Wis., 55, as to the effect of a demurrer in such a case, examined. Ibid.
3. Where plaintiff sues as administrator, an averment in the complaint that a tax certificate counted upon is now lawfully possessed and owned by said administrator and plaintiff," is a sufficient averment that he claims to own it in his representative capacity. Ibid.
4. The answer not alleging that the improvements in the Wisconsin river here in question were not within the terms of the legislative grant of power to the plaintiff, or that the waters at the locus in quo were not rendered more navigable by them, the question of the validity of such a defense is not in the case. Wis. River Imp. Co. v. Manson,
5. Where there is an averment, in general terms, of an agreement to convey, it must be assumed that it was a valid agreement; and it is error to reject all evidence under the complaint for its failure to expressly allege an agreement in writing, even though the answer denies such an agreement. Pettit v. Hamlyn,
6. In view of the admissions and denials of the original answer herein, and of the judgment of this court on demurrer to the complaint (42 Wis., 377), proposed amendments to the answer, denying plaintiff's performance of his contract as building superintendent of the Northern Hospital, alleging his discharge by the building commissioners and their reasons for it, and traversing the reasons assigned in the complaint, are rejected as immaterial or redundant. Shipman v. The State,
7. In an action for moneys alleged to be due on contract, with admission of
part payment, defendant may plead a payment in excess of that admit-
ted; but the answer of payment, partial or total, should plead the
amount paid, and not merely that plaintiff has been fully paid as to one
or all of the items of his demand, especially where the amount payable
is dependent upon another amount, also traversable.
Ibid.
8. The complaint stating a cause of action in plaintiff's favor for five per cent.
of the cost of construction of the Northern Hospital to the time of his
discharge from the superintendence of its construction, and also for the
actual value of his plans for the south wing (built after his discharge), a
plea of payment for all his services to the time of discharge, and espe-
cially that he was paid five per cent. on the cost of the entire building
except the south wing-such cost not being alleged in the answer,—is
uncertain and evasive; it not appearing whether the averment is intended
to cover the plans of the entire building, nor whether it claims a greater
payment, or a less cost of the building, than is stated in the complaint.
Ibid.
9. A denial that the state has ever refused to pay plaintiff his just claim, if
any, does not traverse an averment of a presentation of plaintiff's claim
to the legislature, and a refusal by that body to allow it.
Ibid.
10. A guardian's bond is not" an instrument for the payment of money only,"
within the meaning of sec. 24, ch. 125, R. S.; and, in an action on such
bond, it is not enough to set it out in hæc verba and allege that a certain
sum is due thereon, but a breach must be distinctly assigned. Carring-
ton v. Bayley,
507
11. Averments of the complaint, not denied by the answer, are admitted. R. S.,
ch. 125, sec. 131. Marsh v. Pugh,
597
12. Where the answer did not deny plaintiff's averment that he built certain
houses for defendant according to contract, but merely set up counter-
claims for labor done and materials furnished for plaintiff by defendant
in afterwards raising said houses, there was no error in refusing an in-
struction as to the damages to be allowed defendant if such raising was
made necessary by plaintiff's breach of contract.
Ibid.
1. Possession by the pledgee is essential to a pledge: actual possession
when practicable; constructive possession when actual possession is im-
practicable. Seymour v. Colburn,
67
2. A creditor who holds notes or other obligations for the payment of money
assigned to him by his debtor as collateral security, and neglects to use
reasonable diligence to collect them when due, must bear the loss thence
accruing. Charter Oak Life Ins Co. v. Smith and others,
329
3. In an action by such creditor against the debtor, the burden is upon the
latter to show that loss upon the collaterals was caused by the creditor's
negligence.
Ibid.
4. A bond and mortgage given to secure a loan were conditioned that the bor-
rower should keep the mortgaged premises insured for the benefit of the
lender, as collateral security; and the policy of insurance, with a clause
that any loss should be payable to the lender, etc., was delivered to him.
Held, that, after a loss, the lender, on presentation of the policy, with
the bond, showing his continued interest, would have been entitled to re-
ceive from the insurer the amount of the loss.
Ibid.
5. Proof that, after a loss under the policy, the amount thereof was duly ad-
justed, and became payable on a certain day, at which time the insured
was ready and willing to pay to the lender, who had notice of the facts,
and that about a month later the insurer became insolvent and most of
the insurance money was thus lost, makes a prima facie case of negli-
gence against the lender.
Ibid.
6. Their testator, having taken from plaintiff an assignment of a life insurance
policy "to hold as security" for a note described in the assignment, de-
fendants afterwards, without plaintiff's consent, caused it to be canceled
by the insurer, and a new policy issued in its stead. Held, that the
original policy was by law canceled, and defendants' act was a conver-
sion. Wheeler v. Pereles and another,
332
7. After the commencement, and before the trial, of this action for such con-
version, defendants, upon surrender of the substitute, received back from
the insurer the original policy. Held, that the question whether such
policy is now in force, cannot properly be determined in an action to
which the insurer is not a party, and plaintiff will not be compelled to
accept it, even in mitigation of damages.
Ibid.
8. Defendants, having wrongfully converted the policy, must be presumed to
have in their possession its market value, in cash or its equivalent; and,
this being more than sufficient to pay plaintiff's note, no tender by him
was necessary before bringing this action.
Ibid.
9. The value of the original policy, and plaintiff's special damages from the
conversion, being found, the difference between the aggregate amount of
these, and the amount due on his note, is the proper measure of his re-
covery.
Ibid.
POTTER LAW. See REPEAL OF STATUTE.
See AMENDMENT, etc. APPEAL (A.). APPEAL (B.) BILL OF EXCEPTIONS.
CHANGE OF VENUE. CONSOLIDATION OF ACTIONS. COSTS. ESTOP-
PEL (D.). EXCEPTIONS. JUDDMENT (A.). MECHANIC'S LIEN, 5.
NEW TRIAL. REFERENCE. VARIANCE.
See the immediately foregoing references.
In trespass de bonis asportatis, where defendant, claiming under a chattel
mortgage, sets up an equitable counterclaim for reformation of the mort-
gage, so as to make it cover a certain part of the goods in dispute, it is
not only the proper practice, but seems imperative, that the equitable
issue be first tried; and the two issues should not be tried indiscrimi-
nately by a jury. Carroll v. Bohan,
1. Where a judgment is reversed under the rule, for nonappearance for the
respondent, under an erroneous belief of the court that the appellant has
complied with the rule as to printing and serving his case and brief, a
motion, made within thirty days, to vacate the judgment and reinstate
the cause, will be granted; and, if not granted within the thirty days, is
sufficiently in the nature of a motion for rehearing to authorize an order
directing the clerk of this court to retain the record, within the statute.
Pierce v. Kelly, 39 Wis., 568, distinguished. Bonin v. G. B. & M. Rail-
way Co.,
2. Where the clerk of this court, in taxing costs, has followed strictly the di-
rection of the court in a matter on which the mind of the court expressly
acted, and the thirty days' jurisdiction of the appeal after judgment, and
the term of judgment, have both passed, the taxation cannot be re-
viewed. G. B. & M. Canal Co. v. Sup'rs, etc.,
[3. Whether, where an error in the taxation of costs on appeal is merely that
of the clerk, it may be corrected by the court after jurisdiction of the ap-
peal has ceased, or even after the term, is not here considered.] Ibid.
PRESUMPTION. See APPEAL (A.), 11, 15, 16. CORPORATIONS (A.), 3. Ev-
IDENCE, 22, 23. PLEDGE, 8. WASTE, 2.
PRINCIPAL AND AGENT. See AGENCY.
PRINCIPAL AND SURETY. See BOND (A.).
PRIVIES. See APPEAL (A.), 16. CHATTEL MORTGAGE, 11.
PROBATE COURT. See WILLS, 2, 3.
PROMISSORY NOTE. See BILLS AND NOTES. CONSTITUTIONAL LAW, 5.
CORPORATIONS (A.). CORPORATIONS (B.), 4.
PUBLIC POLICY. See AGENCY, 2. CONTRACTS, 4, 7-10. INSURANCE
AGAINST FIRE, 7, 8, 11.
(A.) As Common Carriers. See REPEAL OF STATUTE.
1. Where a railway company, without the consent of the owner, and without
having acquired a right to the land in the manner provided by statute,
takes possession of land for which it is liable to make compensation (in
this case land forming part of a public street, but the fee of which was
in the plaintiff), it is liable in an action of trespass; and the neglect of
the owner to proceed by injunction to restrain the company from con-
structing its road on such land, is not a waiver of his right of action for
the trespass. Sherman v. The M., L. S. & W. Railway Co., 40 Wis.,
645, and earlier cases in this court. Blesch v. C. & N. W. Railway Co.,
183
2. In an action for such a trespass, it was error to give instructions implying
that plaintiff was entitled to recover the difference between the value of
the use of the premises with the railroad constructed and used as it was,
with all its inconveniences, and the value of such use as it would have
been with the railroad where it was, but without such inconveniences.
Ibid.
3. The damages recoverable in this case could not exceed the difference be-
tween what would have been the rental value of the premises (during
the continuance of the trespass, down to the commencement of the
action), in case there had been no railroad on the street, and its actual
rental value with the railroad constructed and operated as it was. Ibid.
4. The fact that only a part of the width of defendant's track was upon
plaintiff's land will not affect the rule of damages.
Ibid.
(C.) Accepted Proposition for Municipal Aid.
1. Where a town, at an election for that purpose, accepts a written proposi-
tion for aid made to it by a railroad company pursuant to ch. 182 of 1872,
the terms and construction of the proposition cannot be modified by rep-
resentations of the company made to the voters between the proposition
and the election. Town of Platteville v. G. & S. W. Railroad Co., 493
2. It is competent for a railroad company, in submitting to a municipality a
proposition for aid, to define therein, as a part of the proposition, the line
of the proposed road.
3. A company authorized to construct a railroad through this state from the
Illinois line to intersect the M. & P. du C. R. R., west of Monroe, made
a proposition to the plaintiff town, stating that it had surveyed and lo-
cated a line of its road through certain sections in that town, to a point
designated in the village of Platteville, and proposed to build that road
"on the route indicated," from Galena to the Wisconsin river; and it
asked aid of the town to build the road "on the route indicated.' The
town accepted the proposition, and issued its bonds. Held, that while
the proposition does not disclose a survey and location of the line of the
road northward beyond the point designated, yet it bound the company
to build a continuous line of road from Galena, over the surveyed line
described in the proposition, to the point designated, and from that point
to the Wisconsin river.
Ibid.
4. A feeble railroad company, of doubtful ability to construct any road be-
tween the terminal points of its charter, will be restrained, at the suit of
a municipality which has subscribed for stock, and issued bonds, in aid of
its proposed main line, from wasting its means in constructing branch
roads so as to disable it to build such main line; and where a pretended
branch is such that its completion will be a complete user of the com-
pany's original franchise, and will give it a continuous road between the
termini originally named, but not passing through or near the plaintiff
municipality as did the main line proposed, and there is no apparent de-
sign to continue the road on such main line, the construction of the pre-
tended branch will be restrained as a 66 diversion" of the road from such
municipality, within the meaning of sec. 23, ch. 119 of 1872. Ibid.
5. The fact that, pending an appeal from an order against such a diversion, the
road enjoined has been actually built, is no reason why the order should
not be reversed.
(D.) Liability for injuries to domestic animals on track.
1. Secs. 30 and 31, ch. 119 of 1872 (requiring railroads to be fenced, and de-
claring the liabilities of companies for injuries to domestic animals occa-
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