See CHARTERS (A.), 11. CONTRACTS, 13, 14, 17, 18. CORPORATIONS (B.),
11. EJECTMENT, 5. EQUITY. FORCIBLE AND UNLAWFUL ENTRY,
etc.. 1. FRAUD, 2. GRAHAM LIQUOR LAW, 2, 4. INJUNCTION, 2, 5,
9. INNKEEPERS, 1, 3. LANDLORD AND TENANT, 1, 2, 6. MALICIOUS
PROSECUTION. MANDAMUS, 2. MILL DAMS, 1, 12, 21. NUISANCE.
QUO WARRANTO. SALES, 2. SLANDER, etc., 11, 16. SCHOOL DIS-
TRICTS, 7. SUPREME COURT, 4.
1. Plaintiff engaged in defendants' service for a certain time at a certain
rate of wages, payable at the end of the term, with an agreement that
in case of a breach or nonfulfillment of the contract on his part, the
time of payment should not be changed. Before the end of the term
he was discharged, and immediately brought this action upon the
contract. Held,
(1) That he could recover in the action if the jury should find upon
the evidence that he was discharged without just cause.
(2) That if discharged for just cause he could not maintain any ac-
tion for his services (either upon the contract or upon a quantum mer-
uit) until the expiration of the term. Knutson v. Knapp et al., 86
2. Defendant bid off forfeited school lands, at a public sale thereof, paid
the amount required, and took from the proper officers the usual re-
ceipt, which stated that such payment by him entitled him to certifi
cates for such land upon return of the receipt to the office of the sec-
retary of state. This receipt he delivered to plaintiff with an indorse-
ment thereon, signed by himself, to the effect that for value received
($75.00) he assigned, transferred and set over to plaintiff the lands
called for in said receipt. Afterwards he obtained from the land
office the certificates of sale of said lands, and also got possession of
said indorsed receipt, and refused for some time to assign and deliver
the former or return the latter to plaintiff. Held, in an action as for
the conversion of said papers, etc.,
(1) That plaintiff could recover in such action damages for the
trouble, loss and expense to which he had been subjected in conse-
quence of defendant so retaining the receipt, including the expense to
which he was put in recovering the same, and such punitive damages
as the jury should think defendant ought to pay in case they found
his conduct on the occasion of such conversion to have been fraudu-
lent and oppressive, malicious or insulting.
(2) That defendant was the legal owner of the certificates (although
plaintiff might have had a remedy in equity to compel an assignment
and delivery of them to himself); and plaintiff could not maintain
the action for a conversion of such certificates. Johannesson v. Bor-
schenius,
131
3. It seems that whatever expense, trouble or loss of time plaintiff incurred
in procuring the assignment and delivery to him of the certificates,
and in setting aside a patent issued thereon to a third person to whom
defendant had previously assigned them, might be recovered for in an
action in the nature of assumpsit, for a breach of plaintiff's implied
promise not to take the certificates or the patent, or the title of the
land, to himself or any third person.
Ibid.
4. The essential difference between actions ex delicto and actions ex con-
tractu, in the form and effect of the judgments therein, forbids the re-
covery in an action of tort of damages for a breach of contract, if any
proper objection be taken. Supervisors v. Decker, 30 Wis., 631;_ An-
derson v. Case, 28 id., 505.
(B.) By whom to be brought.
1. It is well settled in this state that where one person, for a valuable con-
sideration, engages with another, by simple contract, to do some act
for the benefit of a third person, the latter may maintain an action
for a breach of such engagement. Putney v. Farnham, 27 Wis., 187,
and other cases in this court. And the same rule is here extended to
the case of a promise in an instrument under seal. McDowell v. Laev,
As to special forms of action, see CRIMINAL LAW, etc. EJECTMENT.
EQUITY. FORCIBLE OR UNLAWFUL ENTRY, etc. GARNISHMENT.
GRAHAM LIQUOR LAW. INJUNCTION. MALICIOUS PROSECUTION.
MANDAMUS. PARTITION. QUO WARRANTO. SLANDER, etc.
1. The rules that "evidence of adverse possession is always to be strictly
construed, and every presumption made in favor of the true owner,"
and that "the party whose title is to be destroyed or remedy barred
may properly stand on the letter of the statute, and insist upon a strict
compliance with its provisions" (Sydnor v. Palmer, 29 Wis., 226, 251-3),
approved and explained. Wilson v. Henry et al.,
2. In a contest between a tax title claimant and the person whose title is
sought to be cut off, or remedy barred, by virtue of adverse possession
under the tax deed and of the statute of limitations, the rules above
stated apply in favor of the latter as the " true owner;" and this not-
withstanding any technical defects found in some of the conveyances
which form his chain of title.
3. In such a case the evidence of adverse constructive possession under
the tax deed must be strictly construed; and the party defending
against such tax deed may avoid the bar of the statute by showing any
actual occupation and use of the premises under his title, for any por
tion of the three years limited by the statute. Lewis v. Disher, 32
Wis., 504,
Ibid.
4. Such actual occupancy by the former owner during any considerable
portion of the period mentioned, bars the claimant under the tax deed
who does not bring his action within that period.
5. In an action brought by one claiming under a tax deed recorded in
1858, to bar the title of the original owner, defendant offered to show
that from 1858 to the commencement of the action, during the mining
season of each year, from two to ten miners had constantly worked
and mined for lead ore upon said land, they being usually farmers,
working their farms during the summer, and mining during the win-
ter, and working the land under verbal leases from defendants or their
agent, to whom they paid rent; also "that a custom exists where this
land is situate, making it obligatory upon the land owner to hold min-
eral diggings for the miner operating them, during the summer season,
though the miner does not work during such summer season;" also
that said mining "was mostly near the surface and in open cuts, so as
to be plainly visible to all," etc. Held, that it was error to reject this
evidence, as the facts stated would have shown the action to be barred
by the statute.
Ibid.
6. In subd. 3, sec. 7, ch. 138, R. S. (which defines "adverse possession" of
land in certain cases), the words "for the purpose of husbandry, or
[for] the ordinary use of the occupant" are to be construed as relating
back to, and limiting, the words "the supply of fuel or of fencing tim-
ber." Du Pont v. Davis,
AGENCY. See CONTRACTS, 21 (3). GRAHAM LIQUOR LAW, 4.
1. Of Pleading. See GARNISHMENT, 1-4. MILL DAMS, 5.
2. Of Referee's Report. See REFERENCE.
ANSWER. See EJECTMENT, 1-3. GARNISHMENT, 25. PLEADING, 1. SLAN-
DER, etc., 4-6, 24-27.
(A.) From Justice's Court.
On appeal from a J. P., if the justice had no jurisdiction of the subject
matter of the action, the circuit court acquires none; and it should
dismiss the action on motion of either party, at whatever stage such
motion may be made. Butler v. Wagner,
(B.) To Supreme Court. See Mill Dams, 22 (7), (8).
On appeal from a justice's judgment for less than $15 damages, the cause
being heard in the circuit court on the original papers and return of
the justice, which must contain all the material evidence and the
rulings of the justice, such return becomes a part of the record; and,
on appeal to this court, it is included in the judgment roll, and no
bill of exceptions is necessary to enable this court to review questions
arising upon the evidence. Townsley et al. v. Peasley,
392
(C.) What Orders Appealable.
1. The order allowing an amended answer in this case, not being an abuse
of discretion, held not appealable. Crerar v. M. & St. P. R'y Co., 67
2. In this case an order refusing to quash a writ of certiorari, which order
was made on the ground that no return had been made to the writ, is
held not appealable. State ex rel. v. Common Council, etc.,
1. Of Chattele. See CONTRACTS, 2.
2. Of Note and Mortgage. See EVIDENCE, 17-20.
3. Of Judgment. See COSTS, 1, 2.
ASSUMPSIT. See ACTION (A.), 3.
ATTORNEY GENERAL. See INJUNCTION, 1–13.
BILL OF EXCEPTIONS. See APPEAL (B.), 1. EVIDENCE, 9. NATURALIZA-
TION, 4.
1. Of County. See COUNTY BOARD, etc. OFFICER, 6.
2. Of Town. See SCHOOL DISTRICTS.
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