American S. L. Co. v. Riverside P. Co. 171 Wis. 644.
ularizes certain expenses plaintiff incurred by way of furnishing the laundry with steam apparatus and boiler and the expense of conducting the business after their installation, which were charged up in the business accounts as disbursements to be deducted from the income of the business, and thus to ascertain what is termed loss of profits of the year's business. It also appears that no separate finding was made by the jury to determine the amount of this class of damage so attributed to the breach of contract from other damages denominated loss of profits. A search of the items on which this so-called loss of profits was predicated discloses that loss of customers to the business in 1914 and 1915 was included. It is claimed that this loss was caused by imperfect laundry work due to soot specks. The plaintiff asserts. that such specking was due to the fact that the smokestack operated in connection with the new steam boiler to supply steam for the laundry work had to be so located as to cause the soot to enter the laundry. The evidence lacks in definiteness and clearness to show that the loss of customers was solely caused by these conditions of installing the new apparatus and boiler. Nor can we ascertain but that the disbursements were augmented by items not incident to the ordinary conduct of the business and which may have affected the calculation made by the plaintiff in ascertaining its loss of profits. We cannot undertake any detailed examination of the items comprising the plaintiff's business for the two years 1914 and 1915. Under these facts and conditions it cannot be ascertained on what basis the jury acted in assessing the damages as loss of profits. This state of the issues on damages requires that a retrial on the question must be had. The judgment appealed from is reversed, and a new trial awarded on the issues of reformation of the contract and of damages.
By the Court.-The judgment is reversed, and the cause remanded to the circuit court for further proceedings in accordance with this opinion.
ABATEMENT OF NUISANCE. See DAMAGES, 3, 4. HEALTH. NUI-
ABETTORS. See CRIMINAL LAW, 1. HOMICIDE, 2.
ABSTRACTS. See CUSTOM. VENDOR AND PURCHASER, 2-4.
ABUSE OF DISCRETION. See DISCRETION.
ABUTTING OWNERS. See RAILROADS, 8.
Of assignment. See ASSIGNMENTS. ESToppel.
Of goods. See FRAUDS, STatute of.
Of payment. See SALES, 1.
ACCESSORIES. See CRIMINAL LAW, 2. INDICTMENT AND INFORMA-
ACCOUNT.
See PARTNERSHIP, 2.
Jurisdiction of court: Fraud in fiduciary relation.
An action by a corporation against one who was its promoter,
secretary, and treasurer, for an accounting and to recover
the value of stock fraudulently issued without consideration,
is one in which fraud in a fiduciary relation is alleged, and
equity will take jurisdiction. Whitewater T. & P. B. M. Co.
v. Johnson,
82
ACCRUAL of action. See LIMITATION OF ACTIONS, 1.
ACTION. See APPEAL, 4. LIMITATION OF ACTIONS.
SHIP, 2.
ADJUSTMENT of inheritance tax. See TAXATION, 8.
ADMINISTRATORS. See EXECUTORS AND ADMINISTRATORS.
ADMISSIONS. See EVIDENCe, 3.
Examination of nonresident officer of foreign corporation: Place.
See CONSTITUTIONAL LAW, 3.
1. An officer of a foreign corporation required by order of court
to be adversely examined and to produce papers under sub.
7, sec. 4096, Stats., cannot object that his examination is
being fixed at a place within some other county than that of
his residence, he having no residence in the state, nor that
he has not been served with subpoena within some county of
the state. Kentucky F. Corp. v. Paramount A. E. Corp. 586
Use of deposition at trial: Admissions. See APPEAL, 21.
2. The adverse examination of a party to an action under sec.
4096, Stats., is to enable the other party to obtain evidence,
and is not the taking of a deposition to be used as evidence on
the trial; and such evidence is not admissible when offered by
the party testifying, although admissible when offered by the
opposite party as evidence of admissions against interest.
Lange v. Heckel,
59
Order to produce documents and submit to examination.
3. Where a nonresident corporation comes voluntarily into this
state to seek the remedies afforded by its courts as plaintiff
against a defendant resident, it must submit to reasonable
orders within the proper exercise of judicial discretion re-
quiring it to produce documentary evidence or its officers to
submit to oral examination within the jurisdiction of the
court; and in the absence of a showing that such orders are
made without notice to the plaintiff and an opportunity on its
part to be heard, or that they are arbitrary or oppressive and
require the plaintiff to do that which is beyond its power or
ability to do, they will be upheld. Kentucky F. Corp. v. Para-
mount A. E. Corp.
See WAR, 2. WORKMEN'S COMPENSATION, 9.
ADVERSE POSSESSION.
Use of land up to division fence: Effect.
The use by adjoining landowners of land on their respective
sides of a fence up to the fence for more than twenty years
established title in and to the farms on each side thereof,
whether such possession or occupancy by either party went
beyond the calls of their respective deeds or not. Wilson v.
Stork,
ADVISORY VERDICT. See TRIAL, 4.
AFFIRMANCE AND REVERSAL. See APPEAL.
AGENCY. See PRINCIPAL AND AGENT.
AIDERS AND ABETTORS. See CRIMINAL LAW, 1.
ALIEN PROPERTY CUSTODIAN.
ANNULMENT OF MARRIAGE. See MARRIAGE.
ANSWER. See PLEADING, 2. REFORMATION OF INSTRUMENTS, 3.
VENDOR AND PURCHASER, 5.
ANTE-NUPTIAL CONTRACTS. See WILLS, 10.
See COSTS, 2. TRIAL, 1. WILLS, 6. WORKMEN'S COMPENSATION, 11.
Right to appeal: In criminal cases. See CRIMINAL LAW, 9, 16.
Appealable orders. See CRIMINAL LAW, 17, 18. DIVORCE, 2.
1. An order refusing to suppress the examination of a party un-
der sec. 4096, Stats., before trial, is not a "special proceeding"
as contemplated by sec. 2594, and does not continue a provi-
sional remedy under sub. (3), sec. 3069, and hence is not
appealable. Mantz v. Schoen & Walter Co.
Same: Directing that third parties be made defendants.
2. An order made under sec. 2610, Stats., granting the application
of defendant to make third persons parties defendant, is not
a special proceeding as defined in sec. 2594, nor an order
granting, refusing, continuing, or modifying a provisional
remedy within sub. (3), sec. 3069. Bell L. Co. v. Northern
Nat. Bank,
Question first raised on appeal.
3. A point not presented to the court below will not be considered
on appeal to the supreme court. State ex rel. Houghton v.
Phelps,
Same: Question raised after trial on the merits.
4. A judgment for the plaintiff in an action against the present
director general of railroads in accordance with General
Order No. 50, issued by his predecessor, will not be reversed
on his appeal, though the order was contrary to sec. 10 of the
railroad control act of March 21, 1918 (40 U. S. Stats. at
Large, 451, ch. 25), authorizing suits against railroads while
under federal control, where the director general defended
the action on the merits and first raised the question by mo-
tion for judgment notwithstanding the verdict, especially
since the decisions as to the validity of the order are con-
flicting and the question has not been determined by the
United States supreme court. Leemans v. Hines,
278
Same: Questions of fact not disputed at trial.
5. At the trial of an action by an employee of a railroad for in-
juries, a suggestion by the court, acquiesced in by defend-
ant, that it was sufficiently shown that a certain transfer
track was used indiscriminately for interstate commerce,
indicates that this fact was not disputed, and the question
cannot be raised by the defendant on its appeal from a judg-
ment in favor of plaintiff. Kalashian v. Hines,
429
Preservation of exception: Effect of single exception.
6. A single exception to a portion of a charge containing inde-
pendent propositions, some of which are proper, is too general
and will be disregarded on appeal. Suick v. Krom,
Record: Return on order vacating service of summons.
7. On an appeal from an order vacating service of summons
which recited that it was made on the summons, the return
of service, the records and proceedings, and an affidavit in
support thereof, and that an affidavit in opposition thereto
was filed, no bill of exceptions was needed, and it was suffi-
cient for the clerk to return all the original papers, although
properly he should have certified that the papers returned by
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