Volume 100 — Nebraska Reports

<p>Costs: Attorney’s Fee. Under the statute making a common carrier liable for an attorney’s fee in a suit wherein plaintiff recovers damages for the loss of, or injury to, freight, the supreme court is not authorized to allow plaintiff an attorney’s fee for services on appeal. Rev. St. 1913, sec. 6063.</p>

<p>Contracts: Breach: Remedies. On refusal to perform a contract for the exchange of properties, the. injured party may, at his election, treat the contract as terminated and sue for the value of the property he has delivered to the defaulting party.</p>

<p>1. Carriers: Delayed Shipment: Liability. To entitle the plaintiff to recover for negligent delay in transporting an interstate shipment of live stock, it is necessary to introduce some competent evidence tending to show the length of time ordinarily required to transport the shipment from the place where it was received to the point of delivery, and that a longer time was actually consumed than was necessary for that purpose.</p> <p>2. -: -: Refusal to Withdraw Instruction. It is reversible error for the court to refuse to withdraw from the jury a charge of negligent delay in the transportation of live stock, where no competent evidence is introduced to support such a charge.</p> <p>3. Evidence examined, its substance set out in the opinion, and held to he insufficient to support the verdict.</p>

<p>Appeal from the district court for Lancaster county: Willard E. Stewart, Judge.</p>

<p>Appeal from the district court for Cheyenne county: Hanson M. Grimes, Judge.</p>

<p>Appeal from the district court for Johnson cpunty: John B. Raper, Judge.</p>

<p>Appeal from the district court for Dawson county: Hanson M. Grimes, Judge.</p>

<p>1. Taxation: Board of Equalization: Increase of Assessment. A .- county board of equalization, since 1903, may without application or complaint by a taxpayer and upon its own initiative add omitted property to the assessment list of an individual or increase the valuation of his property, but in such case some complaint, charge or specification should be framed by the assessor, or by the board or some member of it, advising the -person interested of the proposed change, and the assessment may not be increased until such person or his agent shall be previously notified, if found in the county.</p> <p>2. -:-: Sessions. A county board of equalization may hold a session of not more than 20 days for the purpose specified in section 6437, Rev. St. 1913, but it may adjourn from day to day or from time to time within the period fixed by sections 6437, 6442, Rev. St. 1913.</p> <p>3. -: -: Increase of Assessment: Injunction. Where an assessment is increased by the county board of equalization without jurisdiction, a tax based upon the increased valuation is illegal and void, and its collection may be restrained by injunction.</p>

<p>Injunction: Publications. The publication of political matter in a newspaper cannot be enjoined merely because it is false or misleading, such relief being forbidden by the following constitutional provisions: “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth when published with good motives, and for justifiable ends, shall be a sufficient defense.” Const.', art. I, sec. 5.</p>

<p>Appeal from Justice Court: Trial de Novo. In tlie trial in the district court to a jury of an action appealed from justice court, it is error to admit in evidence, over the objection of the appellant, a transcript from the justice containing detailed findings of fact and the judgment of such justice.</p>

<p>Appeal from the district court for Franklin county: Harry S. Dungan, Judge.</p>

<p>County Officers: Removal from Office. Actions under section 5698, Rev. St. 1913, to remove county officers from office are highly penal in their nature, and the evidence must he clear and satisfactory. The language, “for habitual or wilful neglect of duty” and “for wilful maladministration in office,” involves more than oversight, carelessness or mistake. To justify removal of a county officer on such grounds, it must be clearly shown -that the action of such official was prompted by some evil intent or legal malice, or at least without sufficient grounds to believe that he was properly performing his duty.</p>

<p>I. Statutes: Modification: Constitutional Provisions. “Changes or modifications of existing statutes as an incidental result of adopting a new law covering the whole subject to which it relates are not forbidden by section 11, art. Ill of the Constitution.” De France v. Harmer, 66 Neb. 14.</p> <p>2. Counties: Claims: Verification. Section 35, ch. 19, Laws 1866, examined in connection with section 37 of the act of March 1, 1879 (Laws 1879, pp. 353, 366), and held, that the former act was superseded and repealed by the later act; that by such repeal section 2461, Rev. St. 1913, is no longer in force, and that section 965, Rev. St. 1913, prescribes the verification required to be attached to all claims filed against a county.</p>

<p>.1. Drainage Districts: Deposits: Interest. Interest received from depository banks, by a county treasurer, upon funds in his custody as ex officio treasurer of a drainage district, is the money of such district and should be credited by the treasurer to its account and not to the general fund of the county.</p> <p>2. -: Fees. Under the provision of .section 1858, Rev. St. 1913, reguiring a drainage district to pay the fees of all cpurt and county officers who may by virtue of the act render service to said district, the county in which the drainage district, or the chief portion thereof, is situated, is entitled to retain, as a part of its general fund, the fees fixed by statute, for all taxes and special assessments collected by the county treasurer of such county in his official capacity as such treasurer and by him paid into such general fund.</p>

<p>1. Landlord and Tenant: Repairs: Injury to Tenant: Liability. Where the janitor of a building used for rental purposes .is also charged with the duty of making such light repairs from time to time as seem to him to be needed, and repairs the threshold of a room in one of the apartments of such building, occupied and to be occupied by a tenant, he will be regarded as the servant of the proprietor of the building in the making of such repairs, and, if the same are negligently made, and as a result of such negligence a tenant is injured, the proprietor of the building will be liable therefor.</p> <p>2. -: -: -: -. Where such repairing of the threshold was done in a way so careless and negligent that its use resulted in a nail, invisible and concealed in a board, entering the plaintiff’s heel and wounding her when she stepped upon the threshold without knowledge of the dangerous condition of the same, the proprietor of the building will be held liable for wrongfully maintaining such threshold in such dangerous condition if the same would not have been seen and avoided by an ordinarily prudent person under like circumstances.</p> <p>3. -: -: -: -: Where the tenant had been promised by the agent of the defendant that he would put the premises in good tenantable condition and keep the same in repair, it was the duty of the defendant to put said premises in good repair, and the tenant had a right to expect that the premises would he in good condition so that she might walk safely from one part thereof to another, and anywhere in the apartment which she occupied without wearing shoes.</p> <p>4. -: -: -: -. Where the threshold of a door in an apartment used hy a tenant is, hy coming in contact with many feet, worn down in the center so as to leave it in a concave condition, and the owner of the building, hy his servant, causes a thin and elastic hoard to he nailed across the top of the threshold and a nail is driven down through the unsupported part of the board into the bottom of the threshold or the floor upon which it rests, and hy reason of such use the head of the nail is broken off, leaving a sharp point which does not protrude through the threshold hut remains concealed therein or in said hoard, hut when the threshold is stepped upon the hoard sags and causes the nail to he projected above the surface thereof, thereby rendering the threshold defective and dangerous, and a tenant, without knowledge of such defective condition of the threshold, and within a few hours after entering into the occupancy of such premises, steps upon the threshold and is injured hy the penetration of such pointed nail into the foot, an action will lie in favor of the tenant and against the owner of the building for such injury.</p>

<p>1. Constitutional Law: Sale: Cholera Serum. Section 2, ch. 170, Laws 1915, providing: “No person, firm, or corporation shall sell, barter, exchange, carry, give away, ship or deliver for shipment any anti-hog cholera serum or virus within the state of Nebraska unless such person, firm, or corporation shall first hold an uncanceled, unexpired United States government veterinary license, issued by the United States Department of Agriculture, and a permit from the Live Stock Sanitary Board” — is an attempted restriction on the power of the citizen to buy and sell anti-hog cholera serum, and is unconstitutional, for the reason that any person has the right to adopt and follow! any lawful industrial pursuit which is not injurious to the community.</p> <p>2. Monopolies: Act in Restraint op Trade. Such act, in effect, gives a monopoly to the serum-manufacturing plant, because it is the plant that is licensed under the federal act, and section 2 of the Nebraska act gives the right to sell, barter, exchange, carry, or give away to the person holding an unexpired and uncanceled United States Veterinary license issued by the United States Department of Agriculture; such person being the only person allowed to hold a permit from the Live Stock Sanitary Board.</p> <p>3. -; -: -. It is provided in 37 U. S. St. at Large, ch. 145, pp. 832, 833: “That from and after July 1, 1913, it shall be unlawful for any person, firm, or corporation to prepare, sell, barter, or exchange, * * * or to ship or deliver for shipment from one state or territory * * * to any other state or territory * * * any worthless, contaminated, dangerous, or harmful virus, serum, toxin, or analogous product intended for use in the treatment of domestic animals.” It is also provided that no person, firm, or corporation shall prepare, barter, exchange or ship such virus, serum or toxin unless and until the same shall have been prepared under and' in compliance with regulations prescribed by the secretary of agriculture and at an establishment holding an unsuspended and unrevolted license issued by the secretary of agriculture. As it is only an establishment of this kind that is permitted such a license, section 2 of the Nebraska act confines the right to sell, barter, exchange, carry, give away, ship or deliver for shipment such anti-hog cholera serum to the plant holding such license, and no person may have such permit under the Nebraska act, for only a plant is licensed.</p> <p>4. Constitutional Law: Act in Restraint oe Trade. Section 9, ch. 170, Laws 1915, provides: “No person, firm, or corporation shall give or accept a rebate or commission on any anti-hog cholera serum or virus that is sold or offered for sale within the state of Nebraska” — and also provides a punishment for the violation of the act. This is an additional bar preventing the farmer from purchasing serum with which to treat his own hogs, and preventing the veterinary surgeon from purchasing serum with which to treat the hogs belonging to his employers. Because of the bar of this provision, section 9 of the state law is unconstitutional and void.</p>

<p>Error to the district court for Johnson county: John B. Raper, Judge.</p>

<p>Indemnity: Counsel Fees. A saloon-keeper’s surety which has procured from a third person indemnity against all suits, charges, and expenses, including costs and counsel fees, by reason of such suretyship, may recover from the indemnitor necessary counsel fees and expenses paid in defending an action on the saloon-keeper’s bond against the principal and the surety, where the latter had reasonable cause to believe and did believe that such action on its part was necessary, though the principal had employed competent counsel to make a defense.</p>

<p>Appeal from the district; court for Otoe county: James T. Begley, Judge.</p>

<p>Replevin: Right of Action. Where a contract of sale of a stock of merchandise provides that the seller shall retain possession of the stock until he has been paid from the sales thereof all above a stated sum, and that the purchaser shall take charge of and manage the business and out of the proceeds retain a sufficient sum to pay the actual running expenses of the business, and the profits on stock sold, over and above the invoice price plus 8 per cent, for freight, and the parties both enter into possession of the stock and business under such agreement, each party will be held to be in possession of the entire stock, jointly with the other, but for different purposes, the purchaser for the purpose of conducting the business and the seller for the purpose of protecting his security by taking the money received from sales under the terms of the contract until the stock has been reduced to the amount of the purchaser’s stipulated interest; and replevin will not lie at the suit of either to disturb the possession of the other.</p>

<p>Appeal from the district court for Dawson county: Hanson M. Grimes, Judge.</p>

<p>Appeal: Law of the Case. When this court upon appeal determines tbe law of tbe case, tbe trial court is bound thereby, and its judgment accordingly will not under any ordinary conditions be disturbed upon another appeal.</p>

<p>Master and. Servant: Injury to Servant: Liability. If the employment of a child under the age of 14 years is the proximate cause of an injury to such child while in such employment, then the employer is liable in damages for the injury sustained.</p>

<p>Opinion on motion for rehearing of case reported in 99 Neb. 621.</p>

<p>1. Municipal Corporations: Street Improvements: Estimate op Cost. In making an estimate of the cost of street pavement, a city engineer is not required to separately estimate the cost of each item going to make up the completed whole.</p> <p>2. -: -: Contracts: Competitive Bidding. A contract for street pavement is not in violation of the statute relating to competitive bidding merely because it requires the use of a patented top coating.</p> <p>3. -: -: -: Discretion. The duty of city officers in awarding a contract for street paving is not merely ministerial,' but partakes of a judicial character requiring the exercise of discretion.</p>

<p>1. Municipal Corporations: Public Utilities: Regulation of Rates. Unless expressly authorized and empowered by the legislature so to do, a municipal corporation has no power by contract to deprive the state of the right of regulation of rates of a public service corporation.</p> <p>2. Telephones: Rates: Regulation. A contract or agreement made in a franchise ordinance by which the maximum rates to be charged by a telephone company for the use of telephones by the inhabitants of the city are determined is made subject to the right of regulation.</p> <p>3. -: -: -. Since the adoption of the constitutional amendment creating the state railway commission and the passage of the law specifying the duties of said commission, that body has power to regulate the rates charged for the use of telephones in cities of the second class.</p> <p>i. State Railway Commission: Decisions: Appeal. The statute provides that, in appeals from the decision of the railway commission in the matter of rates or charges, such a decision is prima facie evidence that the rates fixed are just and reasonable, and such rates shall remain until annulled, modified or revised by the commission, or until finally adjudged to be unreasonable and unjust in a court of competent jurisdiction. Sections 6128, 6139, Rev. St. 1913.</p> <p>6. Telephones: Rates. Evidence examined, and held, that the rate of $2.50 a month allowed by the state railway commission to be charged for the use of a telephone for business purposes in the city of Stromsburg has not been shown to be unreasonable and unjust.</p>

<p>Appeal from the district court for Rock county: Robert R. Dickson, Judge.</p>

<p>1. Master and Servant: Injury to Servant: Assumption op Risk: Pleading. “If the assumption of a risk not usually and ordinarily incident to the service is relied on as a defense in an action against the master for negligence, such assumption of risk must be specially pleaded.” Maxson v. Oase Threshing Machine Go., 81 Neb. 546.</p> <p>2. Damages. A verdict for $16,000 in an action under the federal employers’ liability act on behalf of a widow for damages for loss of support by reason of the death of her husband, a conductor, who was earning $113 a month and who had an expectancy of 34 years, plaintiff being younger, held not so large as to indicate that the verdict was the result of passion or prejudice, nor so clearly excessive as to justify interference by the court.</p> <p>3. Jury: Challenge. “It is the duty of the trial court to decide as to the fact of qualification of a juror challenged for cause from a consideration of his entire examination and such other evidence and circumstances as tend to throw light upon the subject. The trial court in determining the fact of qualification is not confined to the answers of the juror alone,-but may consider his appearance and general demeanor while undergoing the examination.” Bemis v. City of Omaha, 81 Neb. 352.</p> <p>4. -: -: Review. “In such a case the ruling of the trial court in deciding a challenge for cause will not be disturbed unless an abuse of discretion is shown.” Bemi's v. City of Omaha, 81 Neb. 352.</p>

<p>1. Intoxicating Liquors: Action eok Damages: Pasties. Persons engaged in selling intoxicating liquors under a license are jointly and severally liable for all damages arising from sucb traffic, to tbe causes of which they have contributed, and such liability extends to the sureties upon their bonds. All such persons and their sureties may be joined as defendants in a single action to recover damages.</p> <p>2. -: Bonds of Licensees. The obligation assumed in a liquor license bond is not purely contractual, but must be interpreted in the light of the provisions of the law regulating the liquor traffic. It is not a bond primarily given to indemnify a private party, though by its terms-private parties may avail themselves of its provisions. It is a public bond given to the state as a condition precedent to engaging in the liquor traffic.</p> <p>3. -: -. While, under the law of suretyship, a bond is, as a general rule, recognized to be purely a contract which, when privately given without any qualifying laws, is to be strictly construed and not extended beyond the scope of the obligation according to its express terms, still a statutory bond to the public, -■ given for the observance of a law authorizing a business only permitted under specified conditions and regulated under the police power of the state, is not in the same sense strictly contractual in its nature. Andresen v. Jetter, 76 Neb. 520, and Sullivan v. Radzuweit, 82 Neb. 657, distinguished and limited.</p> <p>4. Witnesses: Impeachment. Where a party takes the deposition of a witness, and such witness appears at the trial, and, when called to the witness-stand, surprises the party calling him, by testifying at variance with his testimony as given in his deposition, the party calling him may, after interrogating him as to the statements previously made, use the deposition, previously taken, for the purpose of showing such inconsistent statements.</p> <p>5. Intoxicating Liquors: Action on Bond: Liability. In an action upon a liquor license bond by a widow and minor children, for damages alleged to have been caused by the death of their husband and father, who, while in a state of intoxication, caused by liquors furnished him by the principal in such bond, was upon a railroad track, or in such close proximity thereto as to be struck by a locomotive and killed, the question of negligence on the part of the railroad company, or contributory negligence on the part of the decedent, is immaterial.</p> <p>6. Torts: Joint Tort-Feasors: Settlement: Release. “Settlement with one of several joint wrongdoers and payment of damages is not a defense to an action against another, unless it was agreed between the parties to the settlement that such payment was in full of all damages suffered. If the settlement is in writing, oral evidence is competent to show the intention of the parties thereto in an action against one not a party to the settlement.” Fitzgerald v. Union Stock Yards Co., 89 Neb.- 393.</p> <p>7. Intoxicating Liquors: Civil Action: Verdict: Judgment. The rule announced in Bergmann v. Koehn, 99 Neb. 525, that, in an action against a saloon-keeper and his sureties for damages, in which the jury has returned a verdict against both defendants for a sum in excess of the penalty stipulated in the bond, the trial court has power to render judgment against the principal defendant for the full amount of the verdict, and may also render judgment against the surety for the sum stipulated in the bond, is reaffirmed and declared to be the settled law in this state upon that point.</p> <p>8. Appeal: Harmless Error. Other assignments of error, set out in the opinion, held insufficient to warrant interference with the judgment.</p>

<p>Appeal: Conflicting Evidence. “Where the evidence is conflicting and the judgment is supported by competent evidence, it will not he disturbed, even though a different conclusion might have been reached.” Burwell Irrigation Go. v. Lashmett, 59 Neb. 605.</p>

<p>1. Parties: Interveners. “To authorize' a party to intervene, he must have an interest of such a direct and immediate character that he will either gain or lose by the direct legal operation of and effect of the judgment. This interest must be one arising from a claim to the subject-matter of the action or some part thereof, or a lien upon the property or some part thereof.” Kansas & G. P. B. Go. v. Fitzgerald, 33 Neb. 137, 142.</p> <p>2. Drainage Districts: Objections to Organization: Intervention. Upon the hearing of objections to the organization of a drainage district by the district court, owners of lands outside of the proposed district who have not been made parties to the proceeding, who refuse to become members of the district, and whose lands are not subject to assessment for the cost of the proposed improvements, cannot intervene and object to the organization of the district on the ground that the construction of the drainage improvements will injure their lands which adjoin a stream below the outlet of the proposed drainage ditch. Rev. St. 1913, sec. 1799.</p>

<p>1. Appeal: Conflicting Evidence. “Where the evidence is conflicting and the judgment is supported by competent evidence, it will not be disturbed, even though a different conclusion might have been reached.” Burwell Irrigation Go. v. Lashmett, 59 Neb. 605.</p> <p>2. -: Harmless Error. “To warrant the reversal of a judgment, it must affirmatively appear from the record that the ruling with respect to which error is alleged was prejudicial to the rights of the party complaining.” Dobry'v. Western Mfg. Go., 58 Neb. 667.</p>

<p>Appeal from the district court for Douglas county: Lee S. Estelle, Judge..</p>

<p>Appeal from the district court for Lancaster county: Albert J. Cornish, Judge.</p>

<p>1. Corporations: Charges: Validity op Occupation Tax. An occupation tax against a public service corporation, if valid, so directly affects the question of rates of service that in determining whether a rate is remuneratve or confiscatory the validity of an alleged occupation tax must necessarily be considered and determined.</p> <p>2. Abatement. An action in the state courts to recover an occupation tax against such corporation, begun while an action is pending in the courts of the United States to determine whether another ordinance regulating the rates of service of such corporation is confiscatory, should be abated until the action in the federal court is finally determined.</p>

<p>1. Railroads: Action eor Death: Contributory Negligence. "The act of a party in going upon a railroad crossing without first listening and looking for the approach of a train, without a reasonable excuse therefor, is such as permits of no other inference than that of negligence; and if such failure to look and listen contributes to the party’s injury he cannot recover.” Omaha & R. V. R. Go. v. Talbot, 48 Neb. 627.</p> <p>2. -: -: -. When two persons of equal authority are ' riding in a vehicle which is driven upon a railroad track in front of an approaching train in full unobstructed view, it is immaterial which of the parties is driving, since, if either party looked and listened, he must have seen the approaching train.</p> <p>3. -: -: -. A railroad company may run its train whenever necessary in the conduct of its business, and travelers at • a private crossing are guilty of negligence if they assume to know when the trains will be run, and so fail to look and listen before crossing.</p> <p>4. Negligence: Ordinary Care: Presumftion. There is no presumption of ordinary care induced by the instinct of self-preservation when there is evidence of negligence.</p> <p>5. Railroads: Action for Death: Contributory Negligence. If the circumstances and conditions proved are such that one who looked and listened before driving upon the tracks must necessarily have seen an approaching train, the conclusion necessarily follows that in attempting to cross the tracks he did not observe those precautions, and was guilty of negligence.</p> <p>6. Negligence: “Last Clear Chance.” The rule of the “last clear chance” is based upon the idea that, when any person is in a place of danger, whether negligent or not, one who knows, or who might know, and under the circumstances ought to know, of the danger, must use every precaution to avoid injuring him.</p> <p>7. Railroads: Action for Death: “Last Clear Chance.” In the absence of proof of opportunity to avoid injuring such person after his danger was discovered, or ought to have been discovered, there is no reason for the application of the “last clear chance” doctrine.</p>

<p>Errors to tbe district court for Lincoln county: Hanson M. Grimes, Judge.</p>

<p>1. Wills: Oral Contract: Specific Performance. “Where a party orally contracts to devise and bequeath to another certain real estate and money in consideration that the beneficiary shall assume a peculiar and domestic relation to the promissor, and render him services of a character to make it practically impossible to estimate their value by any pecuniary standard, and the beneficiary, in reliance upon the oral promise, in good faith assumes the relation and fully performs her part of the agreement, she will be entitled, in the event of a breach of the contract by the promissor, to a specific performance of the same as made.” Lacey v. Zeigler, 98 Neb. 380.</p> <p>2. Witnesses: Competency. Counsel for plaintiff are not disqualified as witnesses under section 329 of the Code (Rev. St. 1913, sec. 7894), since neither of them has a “direct legal interest.”</p> <p>3. -: -. A witness is not disqualified merely because of the fact that he is the son of a party. Relationship to the adverse party may affect his credibility but not his competency as a witness.</p>

<p>1. Master and Servant: Workmen’s Compensation Act: Petition. The petition for compensation under the workmen’s compensation act should set out “the injury in its extent and character” (Laws 1913, ch. 198, sec. 39), and the judgment should conform thereto determining plainly the extent and character of the injury, whether the disability is total or partial, and whether temporary or permanent; it should state definitely the time for which periodical payments must be made.</p> <p>2. -: -: Modification of Order. If the time so found by the court during which periodical payments are to be made does not exceed six months, the order is final; that is, so far as that court is concerned there is no power to modify or change such order. If the time so fixed by the court during which periodical payments are to be made exceeds six months, then, after that time has elapsed, either party may show to the court that conditions have so changed that the order should be changed also. There is no provision in the statute for any application to the district court of any nature until after the six months have elapsed.</p> <p>3. -: -: -. If the time limited for periodical compensation exceeds six months, no application to modify the order can be entertained until six months after the order is made.</p> <p>4. -: -: - — . Compensation is for disability and ends when disability ends, but the court must find whether there is disability total or partial — temporary or permanent. And if that court finds that there is disability that will not continue for more than six months and fixes the compensation therefor and renders judgment accordingly, it cannot at a subsequent term change that judgment.</p> <p>5. -: -: Disability. If the workman is disqualified to continue his regular employment, the fact that he may procure temporary employment in ’a different occupation for a few days at equal or greater wages would not be conclusive that his disability had ceased.</p> <p>'6. -: -: Appeal. If the time limited is not more than six months, the trial court has no continuing jurisdiction over the case, and upon appeal from such order the bill of exceptions must be settled with reference to the term at which such order is made.</p> <p>7. -: --. In such case if the bill of exceptions is not so settled, and motion is made to quash it for that reason, this court upon appeal cannot consider such bill of exceptions for the purpose of reviewing the original order.</p> <p>8. -=-: -: Modification of Oedee. In this case an application was made at a subsequent term to change or construe the order, and the trial court properly dismissed the application because it was made before the six months from the time of making the order had expired.</p>

<p>Appeal from the district court for Douglas county: Alexander C. Troup, Judge.</p>

<p>Appeal from the district court for Douglas county: Alexander G. Troup, Judge.</p>

<p>Appeal from the district court for Douglas county: Abraham L. Sutton, Judge.</p>

<p>Bills and Notes: Payment. When a banker has in his hands a special deposit of money, the property of the maker of a promissory note, sufficient to pay the note, and also holds the note for collection, and upon demanding payment of the maker is directed to take the requisite amount out of the special deposit, and thereupon he says-to the maker of the note, “Your note is paid,” and thereafter holds it subject to the order of the maker until it is finally delivered to him, payment will be held to have been made at the date of the conversation.</p>

<p>Appeal from the district court for York county: Edward E. Good, Judge.</p>

<p>Suit for an injunction.</p>

<p>Insurance: Policy: Construction. A policy of insurance contained the provisions: “Lightning Clause. This policy shall cover any direct loss or damage caused by lightning, * * * meaning thereby the commonly accepted term lightning, and in no case to include loss or damage by cyclone, tornado or wind storm.’’ “If a building or any part thereof fall, except as the result of fire, all insurance by this policy on such building or. its contents shall immediately cease.’’ The insured frame building had been struck by lightning and had begun to burn when all of the edifice above the floor of the first story was lifted by a tornado and deposited about 200 feet away, where it continued to burn until wholly destroyed. Eeld, that the fallen building clause did not apply, and that the insurer was liable.</p>

<p>1. Appeal: Review. A cause will be determined upon appeal upon the same theory upon which it was tried in the district court, and, where both parties have tried the case as if a certain, essential element was proved, this court will not reverse the judgment for the lack of evidence of such fact. ■'</p> <p>2. Evidence: Injuries to Live Stock: Proof. In order to recover damages for an alleged shrinkage in the weight of cattle, alleged to have been caused by delay in their transportation on the part of a common carrier, the fact that there was a shrinkage of weight must be proved by competent evidence, and cannot be established by mere opinion evidence.</p>

<p>Appeal from the district- court for Clay county: Leslie G. Hurd, Judge.</p>

<p>1. Brokers: Contracts: Validity. An oral contract for the sale of lands between the owner of the lands and a broker or agent cannot be enforced by the broker or agent. Rev. St. 1913, sec. 2628.</p> <p>2. -: - — : -. In an oral contract by a broker to assist in finding and purchasing specified personal property, a provision that certain real estate, at a specified price, shall be used as part payment for the personal property so purchased, will not make the contract one “for the sale of lands,” within the meaning of section 2628, Rev. St. 1913.</p> <p>3. -': Action on Contract: Hearing. In an action upon such oral contract to recover commission alleged to have been agreed upon, if the contract as alleged is denied, and the defendant alleges that the contract with the broker was for the sale of specified real estate, the court should hear the evidence and determine the real nature of the contract.</p>

<p>1. Appeal: Effect: New Trial. Appeal to this court from a judgment in an action does not deprive the district court of jurisdiction to grant a new trial of that action.</p> <p>2. New Trial: Time for Application. If the court upon appeal affirms the judgment of the lower court, the time allowed for application for a new trial under the statute begins from the date of the judgment in the district court. If this court upon appeal directs the district court to enter a different judgment than the one appealed from, the time runs from the entering in the district court of the judgment so directed.</p> <p>3. -: Newly Discovered Evidence: Petition. The petition for a new trial under section 8207, Rev. St. 1913, must show that the grounds alleged could not, with reasonable diligence, have been ' discovered during the term in which the verdict was entered or decision made. The alleged newly discovered evidence must relate to the issues joined in the original case, and the petition for a. new trial must set out the newly-discovered evidence and show how it is related to the issues presented. The .evidence must be material and not merely cumulative. It must be of such a substantial nature as to make it appear that, if such evidence had been received in the original trial, the judgment must probably have been different.</p> <p>4. -: -: Records. Public records will rarely be admitted as newly discovered evidence, and, if records and written documents are relied upon as newly discovered evidence, such writings should be so described, and so much of them set out in the petition for a new trial that the court can determine whether they furnish such material evidence as to require another trial of the cause.</p> <p>5. -: -. The allegation that a witness who testified upon the original trial will now vary his testimony, or even that he will contradict his former testimony upon material facts, furnishes no ground for a new trial.</p> <p>6. -_-; Petition: Demurrer. The allegations of the petition for a new trial, the general character of which is indicated in the opinion, are held insufficient to show an abuse of discretion by the trial court in sustaining the demurrer to the petition.</p>

<p>Appeal from tbe district court for Ricbardsou county: John B. Raper, Judge.</p>

<p>Appeal:' Conflicting Evidence. Where the verdict of the jury is based upon conflicting evidence, it will not be disturbed, unless it is clearly wrong.</p>

<p>1. Statutes: Constitutionality. An act complete in itself is not unconstitutional because it incidentally modifies, changes or destroys the effect of existing statutes.</p> <p>2. -: Effect: Incorporation of Existing Laws. The effect of the act providing that “the county attorney shall perform all of the duties enjoined by law upon the county coroner and the county attorney shall be ex oficio county coroner” is to incorporate in the new law the existing laws defining the duties of the coroner. Laws 1915, ch. 224, sec. 1; Rev. St. 1913, secs. 5662-5684.</p> <p>3. -: Constitutionality: Amendments. The act requiring the county attorney to perform the duties of coroner is complete in itself, and does not violate the constitutional provision relating to the amendment of laws. Laws 1915, ch. 224; Const., art. Ill, sec. 11.</p> <p>4. Coroners: Powers» and Duties. The powers and duties of the coroner are not judicial, within the meaning of the constitutional provision dividing the powers of government into three departments. Const., art. II; Rev. St. 1913, secs. 5662-5684.</p> <p>5. Constitutional Law: Statute: Administrative and Judicial Powers. The act requiring the county attorney to perform the duties of coroner is not unconstitutional as clothing an administrative or executive officer with judicial power. Const., art. II; Laws' 1915, ch. 224.</p>

<p>1. Railroads: Negligence. The erection and maintenance of convenient structures for the use of the patrons of a railroad at a public station is not negligence under ordinary circumstances. This rule applies to one who is entirely familiar with the situation.</p> <p>2. -: -: Finding: Sufficiency of Evidence. Testimony of witnesses that they did not hear the bell rung, or the whistle sounded, on an engine approaching a public crossing, will not sustain a finding by the jury that such signals were not given, where such witnesses .testified that they were not paying any particular attention to that occurrence, and that such signals might have been given without their knowledge, where other witnesses testified positively that signals were given.</p> <p>3. -: Accident at Crossing: Contributory Negligence. A traveler upon a public highway, who attempts to cross a railroad track in front of an approaching train, if he knew, or ought to have known, of its approach, is guilty of contributory negligence which will prevent a recovery for resulting injuries, if the approaching train was in such close proximity to the crossing that a reasonably prudent person could not fairly expect to cross in safety ahead of it.</p> <p>4. —•-: -: -. It is the duty of such traveler on a highway, when approaching a railroad crossing, to look and listen for the approach of trains. He must look, where, by looking, he could see, and listen, where, by listening, he could hear, and if he fails, without reasonable excuse to exercise such precautions, no recovery can be had for his death caused by a collision with a passing train.</p>

<p>Injunction: Breach of Contract. “A valid agreement in restraint of trade must be established by clear and satisfactory proof to warrant a court in restraining its breach by injunction.” Roberts v. Lemont, 73 Neb. 365.</p>

<p>Appeal from tbe district court for Lancaster county: Willard E. Stewart, Judge.</p>

<p>Appeal from the district court for Garden county: Ralph W. Hobart, Judge.</p>

<p>Judgment: Res Judicata. Where a second action for conversion is brought. on the same facts declared on in a former suit between the same plaintiffs and one of the defendants in the former case, a judgment in the former suit in favor of all the defendants and against the plaintiffs is a complete bar to the prosecution of the second action.</p>

<p>County Attorneys: Prosecutions. It is not the duty of a county attorney to appear and prosecute one who is charged with an alleged violation of a village ordinance, where the prosecution is not based on the violation of any law of the state.</p>

<p>Sales: Description oe Property: Sufficiency: Question for Court or Jury. Whether the description in a contract of conditional sale, together with the other inquiries which the contract itself suggests, .is sufficient to enable third persons to identify the property is ordinarily a question of fact for the jury; but, where only one conclusion can reasonably be drawn from the evidence, it is a a question for the court.</p>

<p>1. Appeal: Admission oe Evidence. The admission of incompetent evidence in a case tried without a jury does not furnish ground for the reversal of a judgment, provided that there is sufficient competent testimony in the record to convince this court that the judgment of the trial court is right.</p> <p>2. Husband and Wife: Antenuptial Contracts. Courts will rigidly scrutinize an antenuptial contract apparently unjust, especially where it deprives the wife of her interest in the husband’s estate without providing for her in case she survives him.</p> <p>3. -: -: Validity: Burden of Prooe. The burden is upon the husband, or his representatives, to show that an antenuptial contract apparently unjust to the wife was fairly procured.</p> <p>4. -: -: -. In view of the close and confidential relation existing between affianced persons, it is the duty of the prospective husband to make a full and fair disclosure of all material facts relating to the amount, character and value of his property, so that the prospective wife may have sufficient knowledge upon which she may exercise her judgment whether she will enter into such a contract.</p> <p>5. -: -: -: Burden of Proof. Where the provision made for the intended wife by an antenuptial contract is grossly disproportionate to the interest in the prospective husband’s estate which the intended wife would acquire by operation of law in case a marriage took place, the burden rests upon those claiming the validity of the contract to show that a full and fair disclosure was made to her before she signed it of the extent and value of the property, or that she was aware to all intents and purposes of the nature, character and value of the estate which she was relinquishing if the marriage took place.</p> <p>6. -: -: -. The mere fact that an intended wife who signs an antenuptial contract knows in a general way that the husband is reputed to be a wealthy man and to own farms and an interest in banks is not sufficient to meet the requirements of the equitable rule of fair disclosure, or charge the wife with such knowledge of the nature and value of his property as to render an unfair contract binding upon her.</p> <p>7. Parol Evidence: Admissibility. Where a contract is uncertain and ambiguous in its terms, facts may be received in evidence to show the construction placed upon it by the parties.</p> <p>8. Witnesses: Competency: Privileged Communications. Where checks paid to the wife and receipts signed by her for annual payments provided for in an antenuptial contract have been received in evidence on behalf of the representatives of the deceased husband, the widow may testify to facts with reference to the same transactions.</p> <p>9. 'Wills: Election. A statute fixing the time within which a widow must elect whether to take the provisions made for her in his lifetime by her husband or to recover her dower or other provisions made for her by statute pertains to the remedy, and, if the widow made her election in conformity with the statute in force'at the time of her husband’s death or the filing of her election, this is sufficient.</p> <p>10. Husband and Wife: Antenuptial Contract: Invalidity. Under the facts in this case, field, that the antenuptial contract in question is invalid for the reasons set forth in the opinion.</p>

<p>Appeal from the district court for Douglas county: George A. Day, Judge.</p>

<p>Appeal from the district court for Douglas county: Alexander C. Troup, Judge.</p>

<p>Appeal from the district court for Dawes county: William H. Westover, Judge.</p>

<p>Schools and School Districts: Organization of Districts: Authority of County Superintendent. The proviso to the third subdivision of sec. 6703, Rev. St. 1913, is not in conflict with the preceding portion of the subdivision, and confers authority upon the county superintendent of schools in a county in which territory lies which was not then a part of any school district to organize such territory into new districts or to attach the same to adjoining districts without petition or notice.</p>

<p>1. Evidence examined, and held to support a verdict finding plaintiff in error guilty of larceny from the person.</p> <p>2. Instructions examined, and held sufficient to describe the essential elements of that crime.</p> <p>3. Criminal Law: Trial: Instructions. Where the evidence of the commission of a crime is direct and is supported by corroborative testimony, the defendant is not entitled to an instruction that, if the evidence is reconcilable with innocence upon any reasonable hypothesis, the defendant is entitled to a verdict of acquittal.</p> <p>4. Larceny: Conviction: Probation. By the provisions of section 9148, Rev. St. 1913, one who has been convicted of larceny from the person may not be placed under probation by the district court.</p>

<p>Waters: Irrigation: Appropriation: Adverse User. To the extent that a landowner, under a prior appropriation, uses water of a river for irrigation when actually needed, diversions hy upper appropriators using water for the same purpose are not adverse.</p>

<p>Appeal from the district court for Franklin county: Harry S. Dungan, Judge.</p>

<p>Railroads: Accident at Crossing: Question fob Juey. Whether enginemen rung tbe bell or blew the whistle of a locomotive continuously for 80 rods before crossing a public highway as required by statute is a question for the jury, where witnesses who were in such position and condition that they would probably have heard the signals, if given, testified that they did not hear the whistle'or the bell, and other witnesses testified that the whistle was blown and the bell rung. Rev. St. 1913, sec. 6023.</p>

<p>1. Appeal: Harmless Error: Testimony of Experts. The question of the competency of an expert witness is largely, within the discretion of the trial court, and, while an appellate court will correct any prejudicial error arising from abuse of that discretion, a judgment will not be reversed for a technical omission in laying the foundation for expert evidence unless it affirmatively appears that the party complaining has been substantially prejudiced thereby.</p> <p>2. -: Review: Objection to Evidence. A general objection to a hypothetical question as to value as "not containing proper elements on which to base an opinion” will not be regarded upon appeal unless it appears that the attention of the trial court was drawn to the omission of some substantial element of value, or that the omission was of such importance that it must have been considered.</p>

<p>Appeal from the district court for Douglas county: Alexander O. Troup, Judge.</p>

<p>Appeal from tlie district court for Douglas county: George A. Day, Judge.</p>

<p>1. Evidence examined, and found to sustain the finding and judgment of the district court as to the appellee, Lysle I. Abbott.</p> <p>2. Corporations: Sale of Bonds: Fraud. Where a suit in equity was brought against certain defendants in the district court for Douglas county alleging misrepresentations as to the value of certain bonds in a corporation, and the evidence showed that these defendants were all stockholders, directors and officers of the corporation, and that the representations were made to induce the purchase by the plaintiff of said bonds of the corporation owned by one of these defendants, and that the sale was made by the owner of said bonds and the bonds delivered, but there was no evidence that the appellee had made any representations to the plaintiff concerning the yalue of tbe property of tbe corporation or the yalue of the bonds, and he had no interest in the sale, he will not be held liable, although he had been elected president of the company; there being no showing that he was in any way derelict in his duty.</p>

<p>Burglary: Sufficiency of Evidence. The evidence examined, and found to support the verdict of the jury declaring the defendant guilty.</p>

<p>Appeal from the district court for Douglas county: Charles Leslie, Judge.</p>

<p>Opinion on motions for rehearing of case reported, ante, p. 15.</p>

<p>Appeal from the district court for Holt county: William H. Westover, Judge.</p>

<p>Appeal from the district court for Douglas county: Willis G. Sears, Judge.</p>

<p>Municipal Corporations: Action for In juries : Petition. The substance of the petition is set out in the opinion, and held that the demurrer of the defendant thereto was properly sustained.</p>

<p>1. Information: Verification: Objections. “It is too late to object to tbe verification of an information after tbe accused has been arraigned, and pleaded not guilty, unless such plea has been withdrawn.” Johnson v. State, 53 Neb. 103.</p> <p>2. -: -. Section 5599, Rev. St. 1913, authorizes a county attorney to appoint deputies to assist him in the discharge of his duties, and a deputy so appointed and qualified may sign a criminal information.</p> <p>3. -: -: Presumptions. When the right of a person to sign an information as deputy county attorney is questioned for the first time after arraignment and plea, and while a plea of not guilty is still pending, his appointment, qualification and right to sign, in the absence of a showing to the contrary, will be presumed.</p>

<p>Appeal from the district court for Jefferson county: Leander M. Pemberton, Judge.</p>

<p>1. Eminent Domain: Condemnation Proceedings: Parties. The trial in a condemnation proceeding may be had in the name of the person as plaintiff who owned .the land condemned at the time the proceedings were commenced. In such case the court should order the payment of the judgment to the party entitled to the damages.</p> <p>2. -: Excessive Damages : Remittitur. Evidence examined, and found that the verdict was excessive, and the judgment thereon should be reversed in event the plaintiff fails to file a remittitur.</p>

<p>Appeal from tbe district court for Douglas county: Charles Leslie, Judge.</p>

<p>1. Insurance: Policy: Nature of Contract. An insurance policy is a contract between the insurer and the insured, and neither party can make a new contract for the other without his knowledge or consent.</p> <p>2. -■: -: Assignment. The owner of a policy of insurance, who has parted with the title to the premises, cannot assign the policy, after a fire, and without the knowledge and consent of the insurance company which issued the policy, so as to make it liable to a third person for the loss.</p> <p>3. -: -: Statutory Provisions. The provisions of section 3187, Rev. St. 1913, do not apply to a case where the insurance company has never entered into contractual relations with the person claiming under the policy.</p>

<p>Appeals from the. district court for Brown, Holt and Dawes counties: Robert R. Dickson and William H. Westover, Judges.</p>

<p>Appeal from the district court for Logan county: Hanson M. Grimes, Judge.</p>

<p>Appeal from the district court for Nuckolls county: Leslie G. Hurd, Judge.</p>

<p>Specific Performance: Misleading Statements. A court of equity may refuse to decree specific performance of a contract for the sale of land at the instance of the vendor, where he has misled the vendee as to the quantity to he conveyed, even though he acted innocently in so doing.</p>

<p>Appeal from the district court for Douglas county: Abraham L. Sutton, Judge.</p>

<p>Appeal from the district court for Douglas county: Alexander C. Troup, Judge.</p>

<p>Assignment of Wages: Validity. A power of attorney granting authority to assign wages, made previous to tlie existence of a contract of employment, is ineffectual to authorize such an assignment in the future and after a contract of employment has been entered into hy the maker. _</p>

<p>1. Costs: Statutory Provision. Section 8168, Rev. St. 1913, provides that, when an action is begun in the district court which should have been tried before a justice of the peace, the plaintiff cannot recover the costs of the trial in district court.</p> <p>2. -: Taxation. It is the duty of the court in which the action is tried to determine whether the action is of such a nature that it was properly brought in that court, and if the judgment in that court is of such a nature as to justify a recovery of costs by plain-' tiff, and costs are so adjudged, this court will not retax such costs upon appeal, although a remittitur is required reducing the judgment to an amount within the jurisdiction of a justice of the peace.</p> <p>3. -: Costs on Appeal. The costs in this court upon appeal are the same whether the action was begun in justice court or in district court, and the taxation of costs of this court are not governed by that statute.</p> <p>4. -: --•. Upon appeal to this court, if the appellant recovers a better judgment than the one appealed from, he is entitled .to costs of this court, unless the court for special reasons otherwise orders.</p>

<p>Appeal from the district court for Douglas county: Alexander C. Troup, Judge.</p>

<p>' Appeal from the district court for Scotts Bluff county: Ralph W. Hobart, Judge.</p>

<p>1. Master and Servant: Injury to Servant: Sufficiency of Evidence. Evidence examined, and held sufficient to support the verdict of the jury.</p> <p>2. -: -: Instructions. The instructions set out in the opinion, when construed together, held free from error.</p> <p>3. Trial: Instruction to Disregard Evidence. A trial court is not warranted in giving an instruction to a jury that, if they believe any witness has intentionally sworn falsely to any material matter in the case, they are at liberty to disregard the entire testimony of such witness, unless the evidence tends to show that a witness was wilfully guilty of false swearing on a matter material to the issues.</p>

<p>Appeal: Remittitur. Where, in a case appealed to this court, the record clearly shows that the judgment is excessive in a certain amount, a remittitur will he ordered, and if the remittitur is not filed the judgment will he r-eversed.</p>

<p>Appeal from the district court for Merrick county: Conrad Hollenbeck, Judge.</p>

<p>1. Appeal: Pinal- Order. In an action to recover damages for personal injuries, the overruling of a motion by defendant to bring in as an additional defendant another wrongdoer, alleged to be liable to the former as an indemnitor, is not a final order in the sense that it is appealable. Rev. St. 1913, sec. 8176.</p> <p>2.. Trial: New Parties. The statute providing that, “when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in,” applies to cases where “there are persons, not parties, whose rights ’must be ascertained and settled before the rights of the parties to the suit can be determined.” Rev. St. 1913, sec. 7604.</p> <p>3. Action for Tort: New Parties. In an action to recover damages for personal injuries, a wrongdoer who may be liable to defendant as an indemnitor need not be made an additional defendant under the statute providing that, “when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in.” Rev. St. 1913, sec. 7604.</p>

<p>Appeal from the district court for Lancaster county: P. James Cosgrave, Judge.</p>

<p>Appeal from the district court for Cuming county:Gut T. Graves, Judge.</p>

<p>Appeal from tbe district court for Douglas county: Charles Leslie, Judge.</p>

<p>1. False Imprisonment: Belief in Guilt: Question for Jury. In an action for false imprisonment, if it appears tbat tbe defendant was instrumental in causing the arrest of the plaintiff upon a charge of felony, and that the plaintiff was not in fact guilty of the offense charged, it becomes an important question to be submitted to the jury, if the evidence is conflicting, whether the defendant had sufficient reason to believe and did believe that the plaintiff ' was guilty.</p> <p>2. -: Responsibility for Arrest: Question for Jury. In such case, if the officer who made the arrest in the presence of the defendant made a personal investigation of the fact as to plaintiff’s guilt, and then communicated with his superiors before making the arrest, and the evidence is conflicting as to whether the arrest was made wholly upon the officer’s responsibility or was caused by the defendant, it is proper to submit that question to the jury with proper instructions.</p> <p>3. -: Damages: Question for Jury. In such case, the question of the effect of such arrest upon the health or bodily condition of the person arrested is for the jury upon conflicting evidence, and their finding will not be disturbed upon appeal, except so far as the damages allowed, or some part thereof, are clearly unsupported by the evidence.</p> <p>4. •-: -: Evidence: Hypothetical Questions. The fact that the arrest might cause the injury to plaintiff’s health complained of is not conclusive that it' did so; but it is important to know whether the arrest and the mental strain and worry caused thereby could under ordinary circumstances occasion the troubles which the plaintiff afterwards suffered, if there was other competent evidence tending to prove that, as a matter of fact, the physical troubles of the plaintiff were caused by the arrest and its accompanying circumstances. The use of the word “might” in a hypothetical question to a medical expert is not to be approved; but it would not of itself be considered so prejudicial as to require a reversal.</p> <p>5. Trial: Refusal of Instruction. The judgment of the trial court will not be reversed because of refusing a requested instruction which assumes the existence of a material fact upon which the evidence is conflicting.</p> <p>6. -: Instructions: Necessity oe Request. Nor because it appers that a more detailed instruction might have been given upon the question of the responsibility of the defendant for some of the matters complained of, when no further instruction was requested by the defendant which would have been suitable under the circumstances.</p> <p>7. Instructions complained of are found not to be so inconsistent as to require a reversal.</p> <p>8. Evidence: Hypothetical Questions. If the evidence is conflicting as to a material matter, the hypothetical question asked the expert witness is not objectional because it recites such matter as a basis for his opinion. It is for the jury to determine whether such an hypothesis is warranted by the evidence.</p> <p>9. Trial: Damages: Prejudice. The fact that the jury errs in its judgment of the amount of plaintiffs damages is not such conclusive evidence of prejudice as to admit of no other conclusion.</p>

<p>1. Replevin: Judgment. Section 783,3, Rev. St. 1913, provides that, when the finding is for the defendant in an action of replevin, the judgment shall be “for a return of the property or the value thereof in case a return cannot be had.” The “value thereof” is instead of a return of the property when a return cannot be had, and should be the equivalent of the property itself as it was at the time of the trial.</p> <p>2. -: Appeal: Bond: Damages. If, upon appeal to this court, such judgment is affirmed, and the property is returned to the defendant pursuant to such judgment, in an action upon the appeal bond the plaintiff cannot recover damages occurring prior to the original judgment.</p>

<p>Appeal from the district court for Douglacounty: George A. Day, Judge.</p>

<p>Appeal from the district court for Douglas county: Willis Gr. Sears, Judge.</p>

<p>1. Statutes: Title of Act: Validity. The title of the act (Laws 1911, ch. 145), “An act to amend section fifteen (15), article five (5), chapter eighty-nine (89) of the Compiled Statutes of Nebraska 1909, relating to drainage districts, and to add additional sections to said law, and to repeal said section fifteen (15),- as heretofore existing,” is broad enough to admit of legislation germane to the subject-matter of the act amended, and not inconsistent with the provisions of that act.</p> <p>2. -:--: -; — . The section numbered 44 in this act of 1911 (Rev. St. 1913, sec. 1914) is germane to the original act (Laws 1907, ch. 153), and is not inconsistent with section 20 of the original act, and is not unconstitutional.</p> <p>3. Drainage Districts: Organization: Elections. Under section 1872, Rev. St. 1913, “Any corporation, public, private, or municipal, owning or having an easement.in any land or lot, may vote at such election, the same as an individual may.” It was not intended to allow double representation of any part of the lands in the district. The easement for which votes may be cast must be of a substantial nature, analogous to ownership. It must include possession under a record right. Landowners cannot be allowed to represent in the election the acres' of land lying in a highway which is regularly established.</p> <p>4. -: -:-'. Exclusive possession and a record right of possession and use of the land indefinitely is an easement equivalent to ownership for the purpose of this statute.</p> <p>5. -: -: -: Ratification. If parties who assume to vote for a railroad company or for a county or township are not formally authorized, their acts may afterwards be ratified by the proper authorities. In an action in which the public authorities represented by such agents are not parties, a general allegation that such agents “were not authorized” pleads only a conclusion.</p> <p>6. Quo Warranto: Scope of Statute. Quo warranto under our statute (Rev. St. 1913, sec. 8328) is intended to prevent the exercise of powers that are not conferred by law, and is not ordinarily available to regulate the manner of exercising those powers.</p> <p>7. Drainage Districts: Organization: Quo Warranto. If the election held under section 1914, Rev. St. 1913, results in rejecting the proposition to proceed with the work under the plans and details proposed, the directors have no power to proceed further to carry out those plans and details, and quo warranto is the proper remedy to test the reáult of such election.</p>

<p>Original proceeding by the State against the Supreme Forest, Woodman Circle, and others. Application for injunction.</p>

<p>1. Insurance: Policy: Construction. In an action brought upon an insurance policy, where there was a condition to the effect that the defendant insured Henry Cook against loss of life, limb, sight and time in the minimum principal sum of $5,000, and for a minimum weekly indemnity of $25 for 12 months on account of accident, and 12 months, excluding disability due to any disease or illness contracted or suffered within 15 days of the date of the policy, on account of sickness, and the policy also contained a clause touching beneficiary insurance to apply to one person only over 18 and under 60 years of age other than the assured, it will be held that the clause may cover the person named in the policy as such beneficiary, even after the expiration of the age limitation of 60 years.</p> <p>2. -: -: -. In such case, where an accident occurs to the person named in the policy as the beneficiary, and it occurs after such person is beyond the age of 60 years, and after a renewal of the policy without mention of the beneficiary, the defendant insurance company will be held liable upon the beneficiary clause on the ground that there is a waiver by the defendant of the protection which it might claim.</p>

<p>1. Devise: Agreement to Make. An agreement upon sufficient consideration to devise or bequeath property is valid and enforceable.” Teske v. Dittberner, 70 Neb. 544.</p> <p>2. -: -: Creation of Trust. “In such case, equity will impress a trust upon the property, which will follow it into the hands of personal representatives of the promisor or grantees without consideration.” Teske v. Dittberner, 70 Neb. 544.</p> <p>8. Trusts: Creation. “Where a person, .knowing that a testator with whom he has confidential relations in leaving him a devise or bequest intends it to be applied for the benefit of another, either expressly promises or by his action at the time implies that he will carry the testator’s intention into effect, and the property is left to him with the faith on the part of the testator that his promises will be kept, he will be held as trustee.” Smullin v. Wharton, 73 Neb. 667.</p> <p>4. -: — : -: Equity. “In such case, the will has full effect by passing an absolute legacy to the legatee, but equity, in order to defeat fraud, raises a trust in favor of those intended to be benefited by the testator, and compels the legatee as a trustee ex maleficio to turn over the gift to them. The court acts not upon an express trust created by the testator but, on account of the fraud, upon the conscience of the devisee” Smullin v. Wharton, 73 Neb. 667.</p> <p>5. Evidence examined, and found sufficient to sustain the decree of the trial court.</p> <p>6. Witnesses: Competency. Testimony of witnesses having a direct legal interest in the subject of the controversy, and of the attorney and confidential adviser of the deceased, held properly excluded. See sections 7894, 7898, Rev. St. 1913.</p> <p>7. Appeal: Evidence: Pkesumptions. Error cannot be predicated for the admission of alleged incompetent evidence where a cause is tried to the court without a jury; the presumption in such case is that the court considered only competent evidence in reaching his conclusion and judgment.</p>

<p>1. Trial: Verdict: Construction of Contract. It is for the court to construe and determine the meaning of a written contract; but where the pleader is in doubt and sets out the alleged meaning in his pleading, and evidence is introduced by both plaintiff and defendant on that question, a verdict of the jury under proper instructions, not excepted to, should not be set aside.</p> <p>2. Appeal: Affirmance. A judgment should not be reversed for a refusal to strike such allegation from the petition, when the jury has correctly determined the meaning of the contract.</p> <p>3. Brokers: Commissions. Where a real estate broker, employed for a commission, presents to the principal a proposed purchaser, it is for the principal to decide whether the person is acceptable; and, if without fraud or concealment or other improper practice, he enters into a binding and enforceable contract for the sale of the land, the broker has earned his commission, and the seller should not be permitted to say that the broker has not complied with the terms of his agreement.</p> <p>4. -: Contracts: Signature. The fact that the signature of the broker to the contract appears under the name of one who signed it as a witness is not entitled to serious consideration, where the evidence shows that the broker signed it as a binding contract.</p>

<p>Appeal from the district court for Douglas county: Willis G. Sears, Judge.</p>

<p>Appeal from the district court for Douglas county: Alexander C. Troup, Judge.</p>

<p>Insurance: Contract: Liability: Estoppel. A contract of insurance in a mutual assessment company ordinarily consists of the articles of incorporation and by-laws of the association, the application and the certificate, but when such an association sets out, as one of the prominent features of its certificate of membership, a synopsis of its by-laws in such form and substance as to lead the insured to believe that it contained all the provisions of the by-laws which applied to his certificate of membership, the insured may rely upon such synopsis, and, if liability accrues, the association will be estopped to deny its liability under a clause of its by-laws which it lead the insured to either overlook or to believe that it had no application to his certificate.</p>

<p>Appeal from the district court for Douglas county: James P. English, Judge.</p>

<p>1. Negligence: Imputed Negligence. “One who is injured by reason of a defective bridge while riding in a private vehicle may recover from a county otherwise liable, notwithstanding the negligence of the driver, which may have contributed to produce the injury, the injured party being free from negligence and having no authority or control over the driver.” Loso v. Lancaster County, 77 Neb. 466.</p> <p>2. Evidence examined, and held sufficient to sustain the verdict of the jury.</p>

<p>Appeal from the district court for Antelope county: Anson A. Welch, Judge.</p>

<p>1. Jury: Impaneling: Peremptory Challenges. A custom prevails in Douglas county in civil cases that eighteen jurors who have passed their voir dire examination be called into the jury box, and counsel for each side then strike off three names peremptorily. Counsel for defendant, after striking the names of three jurors in this manner, was denied the right to challenge three other jurors peremptorily from the twelve remaining in the box. Held, that having acquiesced and participated in peremptorily challenging three men in accordance with this custom, the defendant waived its right to exercise other or further peremptory challenges.</p> <p>2. Master and Servant: Injury to Servant: Liability of Master. Where a foreman ordered a workman to hurry, and furnished him a defective box to stand upon, in order to facilitate the work he was doing, the defect in which was not obvious to the workman, he was entitled to rely upon the foreman’s selection of the box as a safe place upon which to stand.</p> <p>3. Appeal: Ckoss-Examination. .A- judgment will not be reversed merely on account of an extended cross-examination on an immaterial matter, unless it clearly appears that the substantial rights of defendant have been prejudiced.</p> <p>4. Master and Servant: Action: Appeal: Evidence. Where there is direct testimony that the plaintiff, who has theretofore been in sound health, received an injury to the abdomen from striking the edge of a vat over which he was working, on account of the slipping of a defective box on which he stood, which resulted in a severe pain and a bruised condition of the lower abdominal region, and was soon followed by hernia, an operation for which was performed in a short time, it was not erroneous to permit certain medical witnesses to testify that hernia might have resulted from such a fall.</p>

<p>Appeal from the district court for Lancaster county: Willard E. Stewart, Judge,</p>

<p>Appeal from the district court for Lancaster county: Albert J. Cornish, Judge.</p>

<p>1. Homestead. If man and wife reside in a building upon two ordinary town lots owned by them for several years and have no other home, such building will, while they make their home therein, constitute their homestead as against their creditors, although they have, during their residence therein, conducted a hotel in such building.</p> <p>2. -. Under such circumstances no formal declaration that they have selected such property as their homestead is necessary.</p> <p>3. Executors and Administrators: Sale of Homestead: Laches. A homestead is not subject to administrator’s sale to pay debts of the deceased owners thereof as against their children and heirs; but, if such sale is duly ordered and is in all respects regular, and the children and heirs, with knowledge of the sale to an innocent purchaser, acquiesce therein for more than five years after becoming of legal age, knowing that the purchaser is in the meantime making valuable and permanent improvements of the property, such conduct and laches will estop them to maintain an action in equity to establish an interest in the property.</p>

<p>Appeal from the district court for Douglas county: Willis G. Sears, Judge.</p>

<p>1. Equity: Suit for Purchase Price: Equitable Defense. In an action in equity to recover the remainder of the purchase price of land, the general rule that he who seeks equity must do equity applies, and the purchaser of the land may show any equity in his favor which will reduce the amount of the recovery.</p> <p>2. Pleading: Construction. Doubtful language in a pleading will be construed against the pleader. The reply in this case amounts to an admission that the land in question was the homestead of the deceased owner and his family, and that an administrator’s sale to pay debts of the deceased was invalid and not sufficient of itself to convey the interests of the heirs.</p> <p>3. Vendor and Purchaser: Action: Notice: Judgment. One who has conveyed land with covenants of title is entitled to notice and an opportunity to defend an action against his grantee contesting such title. But if he has notice of the pendency and character of the action, and fails to defend, he will be bound by the judgment therein.</p> <p>4. -: -: Offset. In such case, if the judgment determines that parties contesting the title of the grantee under his deed have an interest in the land in derogation of the title guaranteed by the deed, and determines the value of that interest, the grantee in the deed may pay such adverse claim and offset the same against his unpaid purchase price of the land.</p>

<p>Appeal from the district court for Knox county: Anson A. Welch, Judge.</p>

<p>Appeal from the district court for Boyd county: Robert R. Dickson, Judge.</p>

<p>Appeal from the district court for Douglas county: Charles Leslie, Judge.</p>

<p>Appeal from the district court for Dawson county: Hanson M. Grimes, Judge.</p>

<p>Appeal from the district court for Dundy county: Ernest B. Perry, Judge.</p>

<p>Appeal from the district court for Nemaha county: John B. Raper, Judge.</p>

<p>1. Decision Adhered to. The decision in State v. Douglas County, 18 Neb. 601, holding that sections 46, 47, ch. 31, Gen. St. 1873 (Ann. St. 1911, secs. 10094, 10095) are valid, is adhered to.</p> <p>2. Limitation of Actions: Action by State: State Funds. Money levied and collected by county authorities under those sections, and transferred to the general fund of the county, belongs to the state and is a part of the revenue of the state within the meaning of section 7581, Rev. St. 1913. The statute of limitations does not apply to an action to recover the same from the county.</p> <p>3. Stalest Public Funds: Appropriations: Constitutional Provisions. Those sections of the statute do not constitute appropriations of the public money within the meaning of the constitutional provisions in regard to appropriating the money of the state.</p> <p>4. Insane Persons: Claim against County. The trustees are by those sections required to fix the amount to be paid by each county for "board and care” of patients domiciled in such counties, respectively, by computation of the “sum actually paid” by the state. When no question is raised as to whether the amount so determined is accurate and right, it is not necessary to determine what remedy, if any, exists for correcting the amounts so charged.</p> <p>5. -: -: Action. It is not necessary to present the state’s claim for such money to the county board of the delinquent county under section 5638, Rev. St. 1913, before bringing action to recover the same. Such action is not based upon an account or claim against the county within the meaning of that section.</p> <p>6. -: -: Interest. The county is properly charged with interest upon money so collected and wrongfully withheld by the county.</p>

<p>Action to recover for care of insane persons. Case referred, with report that plaintiff recover, and defendant excepts.</p>

<p>Appeal from the district court for Buffalo county: James R. Hanna, Judge.</p>

<p>1. Appeal: Pleading: Demurrer. When a general demurrer is filed to a petition, the court will pass upon the sufficiency of the petition without receiving evidence by affidavit or otherwise, and this court upon appeal from an order sustaining such demurrer will consider only the sufficiency of the petition.</p> <p>2. Injunction: Practice of Dentistry: Right to Sue. One who had no license to practice dentistry, nor any permit under section 2806, Rev. St. 1913, could'not maintain an action in equity to enjoin the state board from interfering with him in attempting to so practice.</p> <p>3. Qusere. Whether mandamus will lie in a proper case to compel the state board to grant an application for examination is not ' decided.</p>

<p>Appeal from the district court for LimJn county: BCanson M. Grimes, Judge.</p>

<p>1. Criminal Law: Trial: Special Counsel. It is not error for the trial court, at the request of the county attorney, to appoint special counsel to assist in the prosecution of a misdemeanor.</p> <p>2. -: Instruction: Reasonable Doubt. Instruction set out in the opinion held.free from error. In so far as Burnett v. State, 86 Neb. 11, is in conflict with this holding, it is overruled.</p> <p>3. -: Witnesses: Cross-Examination: Discretion. “The scope of the cross-examination of a witness rests largely in the trial court, and its ruling will be upheld, unless an abuse of discretion is shown.” Peterson v. State, 63 Neb. 251.</p>

<p>1. Aliens: Right to Inherit. Under a treaty removing the statutory disqualification of a nonresident alien to inherit land in Nebraska and providing that he “shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it necessary,” the disqualifying statute is suspended, but if the alien fails to sell the land within the prescribed period the title vests in those to whom it would have descended in absence of a treaty. Rev. St. 1913, sec. 6273; 31 TJ. S. St. at Large, art. I, p. 1939.</p> <p>2. -: •-. Under a treaty suspending the statute disqualifying a nonresident alien from inheriting land in Nebraska and providing that he “shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it necessary,” it is a question for the judiciary whether the circumstances were such as to prolong the prescribed period. 31 U. S. St. at Large, art. I, p. 1939.</p>

<p>Highways: Dedication: Act op Congress. The act of the Congress of March 2, 1889, which “reserved public highways four rods wide around every section of land allotted, or opened to settlement,” in the Sioux Indian reservation, amounted to a grant or a dedication for highway purposes. 25 U. S. St. at Large, ch. 405, sec. 21, p. 897.</p>

<p>Appeal from the district court for Kearney county: Harry S. Dungan, Judge.</p>

<p>Appeal from the district court for Douglas county: George A. Day, Judge.</p>

<p>1. Fraud: Imputed Notice. Although the defendant may have had no direct actual knowledge of the fraud and misrepresentation of a third party who procures an exchange of valuable land for worthless corporation stock of the defendant, still the law may impute such notice to him from circumstances strongly indicating it, if he received title to the land and disposed of it for his own profit.</p> <p>2. -: -. In such case, if it clearly appears that false representations were made inducing the exchange, and the circumstances are such that the law will impute to defendant notice of that fact, he will he liable to plaintiff for the value of the land so obtained, and the jury should he so instructed.</p> <p>3. Appeal: Immaterial Errors. If under the competent evidence the only question for the jury is the value of the land, errors of the trial upon other issues become immaterial.</p> <p>4. -: Remittitur. And in such case, if the amount of the verdict and judgment is clearly more than the evidence warrants, a remittitur will be required as a condition of affirmance.</p>

<p>Appeal from tbe district court for Seward county: Edward E. Good, Judge.</p>

<p>Action by the State involving the validity of the Oil Inspection Law.</p>

<p>Appeal from the district court for Douglas county: Charles Leslie, Judge,</p>

<p>Negligence: Injury: Proximate Cause. The proximate cause of an injury is that cause which, in the natural and continuous sequence, unaccompanied by any efficient intervening cause, produces the injury, and without which the result would not have occurred.</p>

<p>1. Contracts: Construction. Technical terms in a contract may be given a nontechnical meaning relied upon by one party, where the other party had reason to suppose the former so understood them. Rev. St. 1913, sec. 7909.</p> <p>2. Injunction. An injunction may be granted to prevent a public service corporation from wrongfully cutting off a supply of electricity which it is under contract to furnish.</p>

<p>1. Pleading: Construction. If a petition of a minor by his next friend to recover damages for personal injury alleges the age of the minor at the time of the injury was 14 years, another allegation ' in the petition that he was under 15 years at that time must be construed as against the pleader as also alleging that he was 14 years old at the time of the injury.</p> <p>2. -: Cause oe Action: Review. If such petition counts only upon a common-law liability of the employer, and the evidence and all proceedings upon the trial are consistent only with that construction of the pleadings, and the case is, upon that theory, submitted to the trial court, this court upon appeal will so consider it, and the statute which prohibits the employment of minors between the ages of 14 and 16 years has no application.</p> <p>3. Master and Servant: Injury to Servant: Action: Review. In such action, if the petition does not allege any defect in the machinery or appliances by which the plaintiff was injured, and no question was suggested upon the trial, it will not he considered in this court upon appeal.</p>

<p>Appeal from the district court for Lancaster county: Albert J. Cornish, Judge.</p>

<p>Appeal from the district court for Knox county: Anson A. Welch, Judge.</p>