
    Beers, Respondent, vs. Atlas Assurance Company, Ltd., and others, Appellants.
    
      October 11
    
    November 5, 1935.
    
    
      For the appellants there was a brief by Wolfe & Hart, attorneys for all appellants except the Western Fire Insurance Company, and Bender, Trump & McIntyre, attorneys for the Western Fire Insurance Company, all of Milwaukee, and oral argument by Herbert 0. Wolfe.
    
    
      William G. Wheeler of Janesville, for the respondent.
   Rosenberry, C. J.

The court held upon the first appeal that the complaint did not state a cause of action for fraud, but that a cause of action for breach of contract could be spelled out of the complaint. Without in any way disaffirm-ing the contract, the plaintiff, by his amended complaint, again seeks to recover damages for the alleged fraud. So considered the case is ruled by the decision on the former appeal and for the reasons there stated. All the allegations, however much characterization may accompany them, come down merely to the proposition that the plaintiff was induced to enter into a contract which was fraudulent, because the defendants, at the time the contract was made, did not intend to perform it. That was the identical question dealt with on the former appeal, and for the reason therein stated we adhere to the prior decision. Despite the fact that neither the trial court nor the plaintiff concurs in the views of this court, the former decision is the law of this case.

By the Court. — The order appealed from is affirmed, and cause remanded for further proceedings according to law.  