Volume 105 — Nebraska Reports

<p>Vendor and Purchaser: Abatement in Price. When a vendor sells real estate that is described in gross for a gross sum and the property is subsequently discovered to be slightly less in quantity than that described in the deed, the purchaser is not entitled to an abatement in the purchase price unless it appears that fraudulent representations were made by the vendor as to quantity that induced the vendee to purchase.</p>

<p>Highways: Objection to Location: Waiveb. “Where a landowner flies a claim for damages caused by the location of a public road over his land, he thereby waives all objections on the ground of irregularities in locating the road.” Davis v. Boone County, 28 Neb. 837.</p>

<p>1. Appeal: Continuance. A continuance of a cause is largely within the discretion of the trial court, and an order denying a continuance will not be reversed except for an abuse of discretion.</p> <p>2. Principal and Agent: Authobity oe Agent. "Where a principal has, by his voluntary act, placed an agent in such a situation that a person of ordinary prudence, conversant with business usages and the nature of the particular business, is justified in presuming that such agent has authority to perform a particular act, and therefore deals with the agent, the principal is estopped as against ■ such third person from denying the agent’s authority. Whether or not an act is within the scope of an agent’s apparent authority is to be determined under the foregoing rule as a question of fact from all the circumstances of the transaction and the business.” Johnston v. Milwaukee c6 Wyoming Investment Co., 46 Neb. 480, followed.</p>

<p>1. Homicide: Information: Construction. In determining whether an information for murder contains all of the essential averments necessary to charge that crime, the information should he construed as a whole, and the language employed should he given its usual and well-understood meaning.</p> <p>2.--: -: Sufficiency. When so construed, if the information fairly and with reasonable certainty charges the elements of the crime of murder, it will he held to be sufficient.</p> <p>3. -: -: Construction. The word “so” in the information construed in connection with the context, and held to .he the equivalent of the words, “by reason of the mortal wounds inflicted as aforesaid.”</p> <p>4. Criminal Law: Demonstrative Evidence. In a prosecution for murder, bloody garments and photographs of wounds upon the body of the victim are proper to he received in evidence, when sufficient foundation has been laid, where they tend to illustrate or make clear any controverted issue in the case.</p> <p>5. Information examined, and held to sufficiently charge the crime of murder.</p> <p>6. Instructions examined, and held not erroneous.</p> <p>7. Evidence examined, and held to sustain the verdict and judgment.</p>

<p>1. Principal and Agent: Contract in Excess of Agent’s Authority. Where an agent, authorized by his principal to execute a contract • only upon a certain condition to be embodied therein, informs the other party of the limitation upon his authority, but nevertheless executes, on behalf of his principal, a written contract embodying a different and opposite condition, the principal will not be bound thereby.</p> <p>2. -:--: Parol Evidence. In an action upon a written contract executed by am agent on behalf of his principal, where the defense is that one of the conditions of the contract was in ex- • cess of the agent’s authority, it is not a violation of the rule forbidding written contracts to be varied by parol to permit the principal to show, hy the testimony of witnesses present during the negotiation, that before the contract was executed the agent informed the other party that he was not authorized to execute the same if it embodied the condition in question.</p>

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

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

<p>1. Judgment: Validity. Section 1, art. IV of the Constitution of the United States, requiring that full faith and credit shall be given to the judgment of a. sister state, has no application to such a judgment rendered against one of several joint obligors who was a nonresident of the state, and had no notice or knowledge of the pendency of the action, and did not appear therein. D’íroy v. Ketohum, 11 How. (U. S.) *165; Thompson v. Whitman, 18 Wall. (U. S.) 457; Knowles v. Gaslight & Golee Go., 19 Wall. (U. S.) 58; Ball v. Lanning, 91 V. S. 160.</p> <p>2. -: Conclusiveness. A judgment rendered against an indemnitee on a bond upon which he was surety is not conclusive upon the indemnitor of his liability thereon, when such indemnitor , was a nonresident of the state in which the judgment was rendered, and had no notice or knowledge of the pendency of the action on the bond, and did not appear therein.</p> <p>3. Evidence: Judicial Recobd: Authentication. It is indispensable to the authentication of a judicial record of a sister state that it have attached thereto a certificate of the presiding judge that the attestation is “in due form” or “in due form of law.” Ohapman v. Chapman, 74 Neb. 388; Rev. St. 1913, sec. 7979.</p> <p>4. Evidence examined, and held to sustain the judgment of the trial court.</p>

<p>Appeal from the district court for Lancaster county: William M. Morning, Judge.</p>

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

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

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

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

Original proceeding in quo warranto to determine the right of respondents to hold office as members of a hoard of education.

<p>Error to the district court for Franklin county: William A. Dilworth, Judge.</p>

<p>Appeal from the district court for Adams county.Harry S. Dungan and William C. Dorsey, Judges;.</p>

<p>Appeal from the district court for Lancaster county: Leonard A. Flansburg, Judge.</p>

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

<p>Error ' to the district court for Douglas county: William A. Redice, Judge.</p>

<p>1. Mortgages: Deed as Mortgage: Intent. “Whether a deed absolute on its face is a sale or a mortgage depends upon the intention of the parties, and such intention is to be gathered from their declarations and conduct, as well as from the papers which they subscribed.” Sanders v. Ayres, 63 Neb. 271.</p> <p>2. ■-: Parol Evidence. “Where it is sought to vary the effect of a deed of conveyance by parol testimony so as to declare it to be a mortgage, the evidence must be clear, convincing, and satisfactory in its nature in order to warrant a court to grant the relief prayed.” O’Hanlon v. Barry, 87 Neb. 522.</p> <p>3. -: Possession: Rents. When it is established that a deed wa^ in fact given as security only, the grantor therein stands in the relationship to the premises as mortgagor, and is entitled to redeem. In such case the mortgagor is entitled to the possession of the premises and to receive the rents and profits therefrom.</p> <p>4. -: Evidence. Evidence examined, and transaction held to be one of security, and not an absolute sale.</p>

<p>1. Master and Servant: Injury to Locomotive Engineer: Negligence. It is negligence as a matter of law for the employees of a railroad company in charge of a work train, under orders to have the train in the clear on a side-track at a designated time and place where a regular, scheduled passenger train was due to pass, without stopping, to fail to observe such orders; and where through such negligence an engineer on the passenger train is injured the company is liable.</p> <p>2. -: -: -. It is also negligence per se for a work train to remain standing on the main-line track at a time and place a regular, scheduled passenger train is due to pass without stopping, without a flagman or other warning being given to the approaching train, as required by the rules of the company; and where through such negligence an engineer oh the approaching train is injured the company is liable.</p> <p>3. -: Assumption of Risks. An employee, by entering and continuing in the employment of a master without complaint, assumes the ordinary risks and dangers incident to the employment, and the extraordinary risks and dangers which he knows or which by the exercise of ordinary care he would have known; but he does not assume the extraordinary risks caused by direct acts of negligence of his employer.</p> <p>4. -: .Contributory Negligence: Federal Act. Under the federal employers’ liability act of April 22, 1908, 35 U. S. St. at Large, ch. 149, sec. 3, p. 65, providing that contributory negligence shall not bar a recovery, but shall be considered in abatement of recovery in accordance with the degree thereof, no degree of contritmtory negligence, however great, will bar a recovery of any damages. It is only when the plaintiff’s act is the sole cause— where the defendant’s act is no part of the causation — that defendant is free from liability under the act.</p> <p>5. —-: Assumption op Risks. A locomotive engineer upon a passenger train, although warned by a “permissive card” to “proceed expecting to find a train in the block,” does not assume the risk of the negligence of the forward train, in failing to have the train in the clear on the siding, as required by the rules of the company, at a time and place where the passenger train was due to Pdss without stopping. Neither does he assume the risk of the negligence of the employees of the forward train in permitting their train to be standing on the main-line track at a time and place where the passenger train was due, without flagging or other warnings, as required by. the rules of the company.</p> <p>6. -: -: Withdrawal From Jury. Under the evidence, the court properly withdrew the defense of assumption of risk from the jury.</p> <p>7. Appeal: Harmless Error. Under section 7713, Rev. St. 1913, an error which does not affect the substantial rights of a party will not justify a reversal of a judgment.</p> <p>8. Damages. A verdict for $28,800 for personal injuries sustained by a locomotive engineer 49 years of age, under the facts, held excessive, and a remittitur of $6,800 ordered.</p>

<p>1. Criminal Law: Jeopardy. Under section 9126, Rev. St. 1913, a jury charged with the trial of a criminal case, after deliberating for so long a time “that there is no probability of agreeing,” may be discharged by 'the court, and the accused held to a further trial, without any infringement of the constitutional provision that a person shall not “be twice put in jeopardy for the same offense.” Const., art. I, sec. 12.</p> <p>2. -: Jury: Discharge. When a jury in a capital case have been deliberating for 36 hours, excluding necessary time for sleep, meals, and exercise, and report to the court that there is no probability of an agreement on a verdict, it is the proper exercise of the power of the court to discharge them and remand the prisoner for further trial.</p> <p>3. -: -: -: Journal Entry. Section 9126, Rev. St. 1913, requiring that when a jury are discharged “the reasons for such discharge shall be entered upon the journal,” is met by the entry: “And the said jury in open court report to the court that they are unable to agree upon a verdict herein, and, the court being satisfied that this is true, it is by the court ordered that the said jury be, and they hereby are, excused from further consideration of this case”- — supplemented by a further order during the term: “Upon discharging the jury the court .was convinced that there was no possibility of their agreement, and that it would be useless to hold them longer on the case, and discharged them fpr that reason, and the court then so stated, and this entry is made now for then.”</p> <p>4. Evidence upon the November, 1918, trial examined, and held sufficient to submit the issue of guilt to the jury.</p> <p>5. Homicide: Sufficiency of Evidence. Evidence upon the present trial examined, and held sufficient to support the verdict.</p>

<p>1. Carriers: Transportation op Live Stock: Liability. A' railroad company is liable for damage to live stock carried by it, except for such damage as results from the act of God, the public enemy, the fault of the owner, or the natural propensities of the animals.</p> <p>2. -: Injuries to Live Stock: Presumption. When live stock, unaccompanied by a caretaker, is received by a railroad company-in good condition and is delivered later to the consignee in a damaged condition, a prima facie case- is made against the railroad company by reason of a presumption that the damage resulted from some cause other than one which would exempt the company from liability.</p> <p>3.--: -: -. Such presumption is not evidence, and expires when ’ sufficient evidence is introduced of the facts out of which the damage grew to support a finding that the damage was from a cause for which the company would not be liable.</p> <p>4. Evidence: Records: Competency. A book record, kept by the stock yards company, of dead and crippled animals received in shipment, kept in regular course of business and as a record upon which the transactions with the packing companies purchasing hogs' is based, is not rendered incompetent, as not being a book of original entry, from the fact that the entries are made by a clerk from data collected by various other employees.</p> <p>5. Carriers: Liability oe Initial Carrier. When a railroad company makes a contract to deliver live stock at a point beyond its own line, it becomes liable for the default of the connecting and terminal carriers under section 6058, Rev. St. 1913, and cannot, in the event of such a contract, limit its liability as a carrier to its own line.</p> <p>6. Constitutional Law: Statute Fixing Liability of Carriers. Though such statute fixes a liability on the initial carrier for the default of another carrier, and gives no express right of reimbursement to the initial carrier, the initial carrier has the right of reimbursement from the connecting carrier under the general principle of subrogation, and the statute cannot be said, on that objection, to be unconstitutional, as depriving the initial carrier of its property without due process of law; nor is the statute unconstitutional as denying such carrier the equal protection of' the law.</p> <p>7. Trial: Instructions: Burden of Proof. An instruction that “the burden of proof is upon any one * *• * to establish * * * such several allegations as he asserts are material to such one’s success” is improper and misleading, but -held not reversible error . in "this case, since other instructions definitely cover the subject.</p> <p>8. -: -: Credibility of Witnesses. In passing on the credibility of witnesses, the jury are not required to lay aside their general knowledge which comes from the common experience of mankind, and an instruction to that effect is not improper.</p> <p>9. Carriers: Attorney’s Fees. Section 6063, Rev. St. 1913, making provision for attorney’s fees to plaintiff’s attorneys, upon claims against a railroad, held to allow recovery in the nature of reim-bursement of costs, and not unconstitutional as providing a penalty in favor of an individual.</p> <p>10. Costs: Attorney’s Fees. An attorney’s fee to be reasonable, under such a statute, should be based upon a consideration of the value of the attorney’s service to his client and the amount of time and labor expended by him, but should not bear an unfair proportion to the amount of the judgment recovered.</p>

<p>Appeal from the district court for York county: George F. Corcoran, Judge.</p>

<p>Gaming: Speculation in Wheat. “Evidence examined, and held that the only conclusion to be reached from the plaintiff’s evidence is that the contract was based on a wagering transaction, and that there was, in fact, no- intention on the part of the parties to engage in a bona fide purchase to be followed by an actual delivery of the commodity in which they nominally dealt, and that such transaction was a gambling venture and speculation in the fluctuation in the price of wheat in the markets, and is void as being contrary to public policy.” Rogers é Bro. v. Marriott, 59 Neb. 759.</p>

<p>1. Rape: Corroborative Evidence. “In a prosecution for tiie crime commonly called statutory rape, where the prosecuting witness testifies positively to the facts constituting the crime, and the defendant as positively and explicitly denies her statements, her testimony must be corroborated by facts and circumstances established by other competent evidence in order to sustain a conviction.” Mott v. State, 83 Neb. 226.</p> <p>2. Evidence examined, and held not sufficient to sustain the verdict.</p>

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

<p>Appeal: Failure to File Answer. Where an action is tried upon the theory that an answer and reply have been filed, the failure to file the answer is not alone ground for reversal.</p>

<p>Appeal from the district court for Lancaster county: Leonard A. Flansburg, Judge.</p>

<p>Appeal from the district court for Adams county: William C. Dorsey, Judge.</p>

<p>Payment: Pleading and Proof. The plea of settlement or ratification is an affirmative defense, tbe burden of wbicb is upon defendant; 4 and, in order to be availed of by bim] sucb defense must be pleaded.</p>

<p>1. Street Railways: Excessive Speed: Inference of Negligence as Evidence. If the rate of speed of. an automobile or of a street car is in excess of the rate limited by statute or ordinance, this fact affords grounds for inferring negligence in the operation of the vehicle, and is proper to be submitted to the jury as evidence of negligence, together with the other evidence in the case. Omaha Street R. Oo. v. Duvall, 40 Neb. 29, 35.</p> <p>2. —-: -: Statutes and Ordinances. The rule is the same in this respect both as to statutes and valid ordinances. Stevens v. Luther, ante, p. 184.</p> <p>3. Affirmance. Evidence and instructions examined. Verdict sustained.</p>

<p>Trial: Instructions. Instructions are to be considered together, to the end that they may be properly understood, and when so construed, if as a whole they fairly state the law applicable to the evidence, error cannot be predicated upon the giving of the same.</p>

<p>Appeal from tbe district court for Lancaster county: William M. Morning, Judge.</p>

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

<p>Appeal from the district -court for Lancaster county: William M. Morning, Judge.</p>

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

<p>1. Malicious Proscution: Probable Cause: Question of Law. Whether the facts and circumstances established by uncontradicted evidence amount to probable cause in an action for malicious prosecution is a question of law for the court, and not an issue of fact for the jury.</p> <p>2. -: -. Such facts and circumstances as would lead an unprejudiced person of ordinary prudence and intelligence to believe that accused is guilty of a crime which some one has in fact committed constitute probable cause for a criminal prosecution.</p> <p>3. -: -. The undisputed facts and' circumstances outlined in the opinion held to show probable cause for the prosecution of accused for arson as a matter of law.</p>

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

<p>1. Constitutional Law: District Courts: Jurisdiction. Under the state Constitution, district courts have equity jurisdiction, and it may be exercised without legislative enactment.</p> <p>2. Charities: Administration. In the exercise of equity jurisdiction, the district courts may supervise the administration of charitable trusts.</p> <p>3. -: Trust Property: Alienation. Alienation of trust property to carry out the original design of the donor may be permitted by a court of equity, though not authorized by the instrument creating the trust or by legislative enactment.</p> <p>4. -: -: -. Owing to changed conditions, equity may permit a trustee to sell real estate charged with a charitable trust, to invest the proceeds in interest-bearing securities, and to apply the interest to beneficial uses in lieu of the former rents, when manifestly for the benefit of the trust, though the terms of the grant do not authorize such a sale.</p> <p>5. -: -: Equity Jurisdiction. Where the form of trust property is legally changed, the trust follows it in its new form with equity’s supervisory power of administration unchanged.</p>

<p>1. Master and Servant: Workmen’s Compensation Act: Casual Employee. Under the workmen’s compensation act, an employee whose employment is “casual” is not entitled to compensation from his employer for personal injuries. Rev. St. 1913, sec. 3656, as amended by Laws 1917, ch. 85, sec. 4.</p> <p>2. -: -: -. The term “casual,” as used in that part of the workmen’s compensation act precluding an employee whose employment is casual from recovering from his employer compensation for personal injuries, is defined by the act itself to mean “occasional; coming at certain times without regularity, in distinction from stated or regular,” and should be so construed in applying the statute.</p> <p>3. -: -: -. An employee unloading cars of coal for 25 cents a ton at irregular intervals under a separate employment for the unloading of each particular car held, on the facts, stated in the opinion, to be a person whose employment was “casual,” and not entitled to compensation for personal injuries.</p>

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

Original proceeding in mandamus by relator to compel respondent, as county clerk, to provide in tbe nonpartisan ballot for tbe election of a judge of tbe supreme court to fill a vacancy.

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

<p>Criminal Law: Sufficiency of Evidence. Evidence examined, and held sufficient to support the verdict of the jury. Held, that no prejudicial error occurred at the trial.</p>

<p>1. Evidence: Reversal. Where evidence essential to a recovery by plaintiff is clearly disproved by physical facts and conditions, a verdict in his favor should be reversed.</p> <p>2. -: Negative Testimony. “When there is positive and substantial affirmative testimony by a number of witnesses that a gong was sounded, the fact that there is testimony by one or more witnesses that they did not hear the gong and that it did not ring does not authorize that question to be submitted to the jury, where it is shown that the attention of such witnesses was diverted at the time the gong is said to have rung, and when their position, mental condition, and surroundings were not such as would raise a presumption that they would have heard it if it had sounded. - Before their negative testimony is entitled to weight, it must appear that they had such knowledge as would justify them in speaking affirmatively in denial of the fact.” Dodds, v. Omaha é O. B. Street B. Co., 104 Neb. 692.</p> <p>3. Evidence examined, and held, insufficient to support the verdict of the jury.</p>

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

<p>Habeas Corpus: Custody of Child. In habeas corpus proceedings to determine the right to possession of a nine-year-old boy as between father and an aunt, where it appears that the aunt took the child when he was a week or two old, and for nine years has cared for and brought him up in her home, which is pleasant and suitable for bringing up children, the father paying for his support, this court will decide the case in accordance with the right of the father and with regard to the best interest of the child. Held, that it is for the best interest of the child to leave him where he is in the home of the aunt, and to place the responsibility of the boy’s educational and religious training under the direction and control of the father.</p>

<p>1. Waters: Irrigation District: Repairs: Notice.. In an action against an irrigation district for failure to deliver water, by reason of negligently failing to repair a washout in a flume used for diverting water to the ditch, the written notice, required by section 3526, Rev. St. 1913, is filed in time, if filed within 30 days, from the time the district has had reasonable opportunity of making repair and negligently fails to do so, or, without reasonable excuse, signifies that the repair will not be made.</p> <p>2. Pleading: Amendment' oe Petition: Waiver. Where, during the trial, the court permits amendment of the petition to show the giving of such written notice, and the defendant then files an amended answer to the petition as amended, and the trial proceeds upon the theory presented by the amended pleadings, the defendant cannot later complain of the amendment of the petition.</p> <p>3. Evidence examined, and field sufficient to support the verdict.</p>

<p>1. Witnesses: Cross-Examination. When testimony is given by a witness on direct examination, from which, an inference of fact arises favorable to the party producing him, anything within the knowledge of the witness tending to rebut that inference is admissible on cross-examination, and the opposing party is entitled to pursue that line of cross-examination as a matter- of right.</p> <p>2. Appeal: Denial of Gross-Examination. A denial of that right of cross-examination, when the ruling is prejudicial, is sufficient ground for reversal.</p>

<p>Infants: Defendant. A child may he said to he “dependent” or “neglected,” under section 1244, Rev. St. 1913, and the rights of the parent to the custody of the child must yield, when it is Shown that the parent is of immoral character and is rearing the child in a place and among surroundings which are not free from immoral influence.</p>

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

<p>1. Negligence: Proximate Cause: Comparative Negligence. Evidence examined, and held, not to show such contributory negligence on the plaintiff’s part, in driving at excessive speed, and without warning signals, as to establish as a matter of law that her negligence was the proximate cause of the accident or that it was more than slight in comparison with the negligence of the defendant, within the meaning of the comparative negligence statute (Rev. St. 1913, sec. 7892).</p> <p>2. -: -: -: Question for Jury. Where, in an action for damages arising from a collision between vehicles at a street intersection, there is evidence that the defendant’s servant was driving toward the intersection at reckless speed, keeping no lookout, but preoccupied in looking back toward another vehicle with which he was racing, the question of the comparative negligence of the parties and the proximate cause of the accident is for the jury, although there is evidence from which the jury would be justified in believing that the plaintiff was also negligent in driving at excessive speed and failing to give warning signals.</p> <p>3. Trial: View of Premises: Discretion of Court. The granting or refusal of an order directing a view by the jury of the locality of the accident rests within the sound" discretion of the trial court, ftn$ the fact tjiat one party consents to the request of the other that such view be directed will not control tbe discretion of tbe court in that regard.</p> <p>4. -: -: - . The fact that the trial court in the first instance directs a view of the premises will not deprive it of power to rescind the order, if, within its sound discretion, the granting of a view finally seems inadvisable.</p> <p>5. -: -: -. It is not abuse of discretion to deny a view of the premises if it does not appear that such view is necessary to a clear understanding by the jury of the physical conditions, or where it is not made affirmatively to appear by the party requesting the view that no material change has occurred in the conditions of the locality in question.</p> <p>6. -: Refusal of Specific Instruction. It is not error for the trial court to omit to give a specific instruction bearing upon a certain ground of contributory negligence set up as a' defense in the answer, unless the defendant tenders a request for an instruction upon the omitted issue, which fairly reflects and calls, attention to it and is a substantially correct statement of the law pertaining thereto.</p>

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

<p>1. Principal and Agent: Revocation of Authority: Liability of Principal. “Where an agent is vested with a mere naked authority not coupled with an interest, his principal may revoke that authority before performance; but, if the agent has rendered services and incurred expense in the course of his employment before his authority was canceled, the principal will be liable therefor, unless it is otherwise provided hy the terms of their agreement.” Hallstead. v. Perrlgo, 87 Neb. 128.</p> <p>2. Brokers: Sale of Land: Right to Commission. Even though a real estate broker’s contract, not coupled with an interest, gives him the exclusive agency to sell the land, the owner of the land is not thereby precluded from selling it himself without the aid or knowledge of the broker; and, while a sale by the owner necessarily operates to revoke the agent’s power to sell, it does not, under such a contract as in this case, annul the agreement for compensation. Hallstead v. Perrigo, supra, and Maddox v. Harding, 91 Neb. 292, explained and followed.</p> <p>3. -: -: -. In such case, if the broker, before he has notice or knowledge of the sale by the owner, has performed his part of the contract in good faith by securing a purchaser to buy the land on the terms fixed by the owner, the owner is liable to the broker for the compensation stipulated in the contract.</p>

<p>1. Vendor and Purchaser: Nonperformance: Measure of Damages. In a cross-action by a vendor in a contract to sell real estate to recover damages for the failure of the vendee to perform, the proper measure of damages is the difference between the actual market value of the land at the time of the breach and the price which the vendee was to pay. In other words, the loss of profits on the part of the vendor.</p> <p>2. -: -:-. In such an action the expenses of a resale are not proper elements of damage.</p> <p>3. Evidence examined, and held to sustain the verdict.</p>

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

<p>Criminal Law: Motor Vehicle Act: Constitutionality. Chapter 160, Laws 1919, entitled “An act to amend section 1, of chapter 200, Session Laws of 1917, entitled ‘An act relating to the stealing buying or concealing of automobiles and motorcycles,’ to declare • what facts shall be considered prima facie evidence of guilt, and to provide for including different counts in the same indictment,” is not violative of the constitutional provision that “no bill shall contain more than one subject, and the same shall be clearly expressed in its title.” Const., art. Ill, sec. 11.</p>

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

<p>Error to the district court for Douglas county: William A. Redick, Judge.</p>

<p>1. Disturbing Religious Meeting. Without violating the statute for- „ bidding the disturbance of a religious meeting, a member of a church, if permitted by its precepts and usages, may, in a becoming manner with good motives, interrupt a minister in the midst of a sermon to correct an utterance at variance with the established tenets or rites of such church.</p> <p>2. -: Insufficiency of Evidence. Conviction for disturbing a religious meeting held, not sustained by the evidence.</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 C. Troup, Judge.</p>

<p>1. Waters: Department op Public Works: Discretion. The department of public works is an administrative body, having quasi judicial functions, and is invested with reasonable discretion in the exercise of its supervisory powers.</p> <p>2. -: Diversion por Power Purposes: Extension op Time. The department of public works in event of abnormal conditions, such as those created by the world war, has discretion to extend the 'time within which the work of diverting water for power purposes, under a permit previously given, may be completed.</p> <p>3. -: Department op Public Works: Findings: Review. In the exercise of its supervisory powers, the findings and orders of the department of public works will not be disturbed, in the absence of an abuse of discretion.</p> <p>4. Evidence examined, and held that it sustains the findings and orders of the department of public works.</p>

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

<p>1. Intoxicating Liquors: Prosecution: Evidence. In a prosecution for Raving in possession an alcoholic preparation, or remedy containing drugs or medicines, such as are described in section 27, ch. 187, Laws 1917, and unfit for use as a beverage, it is essential to a conviction that the compound, preparation or remedy be “manufactured, bought, sold or dealt in for use as a beverage or intoxicant.”</p> <p>2. -: Beverage: Question of Fact. Whether an alcoholic compound, preparation, etc., such as those described in section 27, ch. 187, Laws 1917, is unfit for use as a beverage, is a question of fact to be determined from the evidence in each case.</p> <p>3. -: -. If any of the preparations, compounds, etc., described in said section 27, ch. 187, Laws 1917 (in which class Jamaica ginger is included),-are found by the jury to be fit for use as a beverage, they are within the general provisions of the prohibition act.</p>

<p>1. Information: Sufficiency: Cattle Stealing. An information based upon a violation of section 8632, Rev. St. 1913 (making cattle stealing a distinct offense), which avers that the accused, at a time and place named, did “unlawfully and feloniously steal, take and carry away one red steer with white face, branded T X on left side, the personal property of Vernon L, Hanson, of the value of sixty dollars,” sufficiently charges the crime.</p> <p>2. Criminal Law: Instruction. An instruction which does not purport to set out all the essential elements constituting the offense will not be held to be prejudicially erroneous, when by another instruction the whole case is covered and the essential elements necessary to be established are set out, when there is no inconsistency in the two instructions.</p> <p>3. -:-: Larceny. An instruction which defines larceny as the unlawful and felonious stealing, taking and carrying away of the personal property of another, of some value, with the felonious intent on the part of the taker to permanently deprive the owner of his property, embraces all the essential elements of the crime. In such case it is not necessary to add, “and with the intent to convert the stolen property to the taker’s own use,” or words of similar import. In so far as Ladeaux v. State, 74 Neb. 19, and Cheney v. State, 101 Neb. 461, announce a different rule, they are disapproved.</p> <p>4. -: -: Reasonable Doubt. The instruction defining “reasonable doubt,” set out in the opinion, and, under the circumstances, held correct.</p> <p>5. Larceny: Asportation. Any removal of the property, after the same is under the complete control of the taker, from the spot where found, with the requisite intent of the taker to steal, is a sufficient asportation to satisfy the law.</p> <p>6. -:.-. When one, with a felonious intent to steal a steer and sell the meat, to aid himself in such purpose, shoots and kills such animal and afterwards, in furtherance of such intent, drags the carcass from the spot where killed, and for fear of detection ■ flees, he may be convicted of larceny of the steer.</p> <p>7. Criminal Law: Evidence: Confession. Evidence examined, and held that the admissions of the accused that he committed the crime were voluntary, and the evidence in that behalf properly received.</p>

<p>1. Adverse Possession. Where a fence is constructed as upon the boundary between two properties and openly intended as a boundary-line fence, and where a party claims ownership of the land up to the fence for the full statutory period, and is not interrupted in his possession or control during that time, he will, by adverse possession, gain title to such land as may have been improperly inclosed with his own.</p> <p>2. -: Requisites. There must be claim of title, either actual or presumed from the circumstances, in order to acquire land by adverse possession, and, where title to land is claimed on th'e ground, as in this case, that it is part of a farm owned by plaintiff, it being a strip along the boundary inclosed by a boundary-line fence, it must appear that the plaintiff and his predecessors in interest either had title to the farm or that their possession was such as to show a claim of title to it throughout the period of adverse possession, since the nature of their claim to the disputed strip throughout the period would, under such circumstances, depend upon the general character of the claim that they were making to the farm.</p> <p>3. -: Evidence: Possession. In an action to determine title to land, based upon alleged adverse possession, it is improper to allow a witness to testify to his conclusion as to who was in possession of the land during the statutory period, since possession is one of the ultimate facts for the jury to determine.</p> <p>4. Husband and Wife: Touts: Agency. The mere fact that the wife was present when a tortious act is committed by her husband raises no presumption that the act was committed by him as her agent, even though the act has some connection with or reference to her separate estate, when it is not shown that she participated, nor that she encouraged or instigated him to do the act, and where there is no other evidence of agency.</p>

<p>1. Perjury: Taxation: Assessment List: False Oath. One who swears falsely to a list of property, which' is furnished the county assessor, and with the fraudulent purpose of evading taxation, and in violation of the provisions of the statute (Rev. St. 1913, sec. 6340), is guilty of false swearing under the statute, though the oath to such property list is administered by a de facto precinct assessor.</p> <p>2. Criminal Law: Evidence at Former Trial: Absent Witness. Former testimony, taken at a previous trial of the same criminal case, of a witness whose presence at the trial cannot be enforced, by reason of his having located permanently in another state and beyond the jurisdiction of the court, may be given by the official reporter, who testifies to his recollection that his stenographic notes were accurate and correct, when made, even though such reporter can give no present recollection of the testimony without referring to such notes.</p> <p>3. -: Indorsement of Names on Information. The court may, in its discretion, permit names of additional witnesses to be indorsed upon an information after trial has begun, and where the defendant is not prejudiced thereby.</p> <p>4. Rulings on the admission of evidence examined and held no error.</p>

<p>Error to the district court for Otoe county: James T. Begley, Judge.</p>

<p>Error to the district court for Morrill county: Ralph W. Hobart, Judge!</p>

<p>1. Sales: Offer: Acceptance. A letter to a firm of contractors, proposing, for a stated sum, to furnish all the material of a certain kind required in the erection of a certain building, according to its plans and specifications, in case the firm should be the successful bidders therefor, is such an offer as will, when accepted after the contract for the building has been awarded to the firm, constitute a valid and enforceable agreement.</p> <p>2. -: Oral Acceptance: Evidence. Evidence examined, and</p> <p>held sufficient to establish the unqualified oral acceptance by the appellees of the proposition to furnish the material aforesaid.</p> <p>3. Statute of Frauds: Sales: Oral Acceptance. The oral acceptance of a written offer to sell goods is sufficient to satisfy the statute of frauds, if the person making the offer is the party to be charged and the written offer contains all the essential terms of the proposed contract.</p> <p>4. -: Memorandum: Written Offer of Sale. The written offer</p> <p>in this case held tó set forth all the terms essential to constitute a sufficient memorandum to satisfy the requirements of the statute of frauds. Rev. St. 1913, sec. 2631.</p> <p>5. Contracts: Informal Agreement. Though a more formal contract is expected to be afterwards made, an informal agreement complete in its terms will take effect if the parties so intend, provided that the formal contract is not to contain material provisions not contained in or to be inferred from the preliminary informal agreement. Where, therefore, such complete informal agreement has been conclusively established, it is not error to exclude as immaterial offered evidence to the effect that it was the custom of the parties in their previous dealings to embody their agreements in formal contracts.</p> <p>6. Appeal: Failure to Reply. Where a case is tried in all respects as if the averments of the answer _ had been denied by reply, the fact that no reply was actually filed cannot be taken advantage of on appeal.</p>

<p>1. Wills: Equitable Conversion. Where a will gives the executor power to sell real estate to carry out the provisions thereof, and, because of deficiency of personal estate, they cannot be carried out without converting the real estate into money, the conditions being such that the testator must have intended that such conversion should take place, the power, although not in express terms a positive direction to sell the real estate, will be construed as such, and an equitable conversion of the real estate into money will be deemed to have occurred at the testator’s death.</p> <p>2. -:-: Rents. In such a case a beneficiary, who is given by the will a share of the remainder of the estate after the payment of debts and legacies, takes no interest in the real estate, as such, and cannot maintain an action for rents.</p>

<p>1. Criminal Law: Homicide: Instruction: Degree of Crime. Under section 9130, Rev. St. 1913, requiring the court, upon a plea of guilty in a homicide case, to take testimony and to determine the degree of the crime, held, that an instruction to the jury, declaring that the defendant is convicted of murder in the first degree, is a judicial determination of the degree of the crime, though the court may have erroneously stated in such instruction that the degree of the crime had been determined by reason of the plea of guilty.</p> <p>2. -: -: Plea of Guiltt: • Degree of Crime: Evidence. When a plea of guilty is entered by defendant in a homicide case, and the court takes testimony with express reference to the crime committed, as it relates to the defendant, it is presumed that the evidence is taken for the purpose of consideration by the court in fixing the degree of the crime, and by the jury in determining the punishment to be imposed, though the record does not affirmatively so disclose.</p> <p>3. -: -: -: —:-: -. When a plea of guilty is entered by the defendant in such a case, and the court takes testimony showing the circumstances surrounding the crime, the court has jurisdiction to determine the degree of the crime, and a judicial determination on that question will not be subject to collateral attack, though the court gives erroneous reasons for his conclusion.</p>

<p>1. Boundaries: Location: Evidence: Burden of Proof. “Government corners fixed by a United States surveyor at tbe time of tbe original survey will control the field notes of the survey taken at the time the corner was erected and will control the field notes or courses and distances of any subsequent survey. Such corner, if identified by the proofs, is the best evidence of where the line should be. But in the absence of such corner, or of satisfactory proof of its location, the field notes of the survey will govern and determine the true line, and such field notes and government plats in such case are prima facie evidence of its true location, and the burden is then shifted to the party who wishes to establish the corner at a place different from that called for by- the field notes and government plat of the original survey.” Knoll v. Randolph, 3 Neb. (Unof.) 599.</p> <p>2. Instructions set out in the opinion held free from error.</p> <p>3. Evidence held sufficient to support the verdict o£ the jury.</p>

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

<p>1. Information: Plea in Bar: Demurrer: Amended Information. When', on the trial of one charged with a misdemeanor, defendant has entered a plea in har to the information, and the county attorney has filed a demurrer thereto, and the court overrules the demurrer, it is not error for the court to fail to discharge defendant, nor error to permit the county attorney to withdraw the information and file an amended information.</p> <p>2. Criminal Law: Information: Plea in Bar: Jury Trial. In such case it was npt error to refuse a jury trial on the issues raised by the plea in bar, since it was not filed nor urged against the information on which defendant went to trial.</p> <p>3. Evidence examined, and held sufficient to sustain the verdict. ’</p> <p>4. Criminal Law: Sentence. , A sentence of 60 days’ imprisonment in the county jail on the third conviction of a violation of chapter 187, Laws 1917, is not excessive.</p>

<p>Master and Servant: Workmen’s Compensation: Review. “On appeal from the district court to the supreme court in a workmen’s compensation case, findings of fact supported by sufficient evidence and findings of fact on substantially conflicting evidence will not he reversed unless clearly wrong.” American Smelting & Refining Co. v. Cassil, 104 Neh. 706.</p>

<p>1. Evidence examined, and held to sustain the verdict.</p> <p>2. Criminal Law: Exhibits . When'articles are introduced in evidence as exhibits, it is essential to their consideration by a reviewing court that they be properly identified as forming part of the evidence in the case..</p> <p>3. -:-. When such objects are introduced in evidence, they are thereby placed in the custody of the court, and should not, without leave of court, be taken from the custody of the official court reporter. The county authorities should provide that officer with a safe place in which to keep such exhibits under his sole control.</p>

<p>1. Insurance: Beneficiary Association: Contract: Future By-Laws. An agreement by a member of a fraternal beneficiary association to comply with existing and subsequently enacted by-laws applies to a future by-law exacting, on penalty of forfeiting bis insurance, payment of .reasonable, increased assessments to cover increased hazards resulting from a change of occupation.</p> <p>2. —-: : By-Laws: Reasonableness. Reasonableness, in view of the powers, purposes and duties of a fraternal beneficiary association, is the test of a by-law, when challenged by a member as interfering with vested rights.</p> <p>3. -: : .Status of Members. The status of a member of a fraternal beneficiary association, who agrees to be bound by subsequently enacted by-laws, is not merely that of an insured, since he is part of a fraternal insurer, and is thus bound by the obligations of his membership to contribute his share to a general fund raised by assessments to pay the insurance of all beneficial members in good standing</p> <p>4. -: : Obligation of Members. By statute the government of a fraternal beneficiary association is required to be representative, and each member, being represented in its sovereign body, is bound by its legal enactments.</p> <p>{?. —,-: : Forfeiture. Forfeiture of fraternal insurance is a reasonable and necessary penalty for the enforcement of contributions to a fraternal insurance fund and for the protection thereof!</p> <p>6. -:-: Change of Occupation: Notice. A by-law requiring a member of a fraternal beneficiary association to give notice within 30 days of a change of occupation from laborer to switch-man, and to pay in addition to his regular assessments 30 cents for each thousand of his insurance on penalty of forfeiture, is on its face reasonable, and is binding on a member who agreed in advance to comply with subsequently enacted by-laws, though the occupation of switchman was not a prohibited one or one requiring payment of increased dues when he became a member.</p> <p>7. -:• -: Future By-Laws. A person becoming a member of a fraternal beneficiary association under a promise to conform to existing and subsequently enacted by-laws is charged with the duty of informing himself in regard to rules and regulations, and this duty extends to the exercise of the association’s reserved power to make amendments or to enact new by-laws.</p> <p>8. Pleading. Under the statutory rules of pleading, new matter in the reply to the answer is treated as denied.</p> <p>9. Insurance: Forfeiture: Waiver. In a suit on a fraternal beneficiary certificate, waiver of a forfeiture arising from insured's failure to pay increased dues required by a change of occupation is not established by defendant’s acceptance and retention of unearned dues, where the undisputed evidence shows that defendant was without knowledge of the facts resulting in the forfeiture, and did not thereafter intend to waive it.</p> <p>10. -: Beneficiary Association: Change of Occupation. Foreman of a switching crew in the switchyards of his employer held to he a switchman within the meaning of a fraternal beneficiary certificate, where he was required to perform the services of a switchman as a substantive part of the duties of his employment.</p>

<p>Trusts. Evidence examined and held insufficient to establish the parol trust pleaded in the petition.</p>

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

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

<p>Error to the district court for Furnas county: Charles E. Éldred, Judge.</p>

<p>Appeal from tlie district court for Deuel county; Hanson M. Grimes, Judge.</p>

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

<p>Opinion on motion for rehearing of case reported in 104 Neb. 260.</p>

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

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

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

<p>Appeal from the district court for Thomas county. Bayard H. .Paine, Judge.</p>

<p>Taxation: Scavenger Act: Deed: Limitations. Under section 6615, Rev. St. 1913, where one holds possession of real estate for a period of five years, claiming title thereto under a treasurer’s deed issued under proceedings had under the scavenger act, no action can be maintained against said person to recover the title to said land, even though the deed is void for jurisdictional defects.</p>

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

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

<p>1. Negligence: Motor Ve'hicles: Unlawful Rate of Speed. When a driver of a motor vehicle exceeds the speed limit provided by statute, such driving is not negligence per se, but is to be. considered by the jury with all of the evidence and circumstances of the case in passing on the question of negligence.</p> <p>2. -: -: -. “If a driver of a motor vehicle runs it at' a rate of speed ‘forbidden by ordinances enacted for the safety of the general public, and injuries result, these facts afford reasonable grounds for inferring negligence prejudicial to the rights of those in whose interests and for whose protection such municipal regulations were adopted.’ Omaha Street R. Oo. v. Duvall, 40 Neb.-29.” Stevens v. Luther, ante, p. 184.</p>

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

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

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

<p>1. Partnership: Death of Partner: Right of Survivor to Assets. On tbe death of a partner, the partnership assets, both real and personal, pass to the surviving partner, and he is entitled to the possession thereof, and to hold the same for the purpose of paying the firm debts and the residue for the benefit of himself and the estate ■ of the deceased partner.</p> <p>2. -: -■ — : Conversion of Assets by Survivor: Remedies: If, however, instead of gathering the assets, paying the debts, winding up the business and distributing the surplus, he converts the assets to his own use and mingles the proceeds with his own funds or commits such acts in relation to the same that they are wasted or dissipated, a court of equity may give appropriate relief. The partnership creditors or the administrator of the deceased partner may, in such case, obtain the appointment of a'receiver and an accounting of the partnership affairs.</p>

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

<p>Appeal from the district court for Lancaster county: Leonard A. Flansburg, Judge.</p>

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

<p>1. Infants: Judgment: Conclusiveness. An infant defendant may-appeal by bis gualdian ad litem from a judgment against bim, and if his defense and appeal have been made in good faith, and without fraud or collusion, such an appeal determines the question whether errors occurred in the proceedings, and the judgment cannot, after he attains his majority, be opened up under section . 8010, Rev. St. 1913, on the grounds that the district and supreme courts erred in their decision.</p> <p>2. -: -: -. The grounds upon which a judgment may be opened up under section 8010 are those existing at the time of the trial and rendition of the judgment, and not matters occurring thereafter.</p>

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

<p>1. Sales: Warranty: Notice of Breach: Waiver. “The fact that notice of failure of a machine to fulfil the requirements of a printed warranty is not given in the manner provided by the contract is no defense against an alleged breach of warranty where the vendor under such notice as is given him by the vendee undertakes to remedy the defects complained of by the latter.” Advance Thresher Go. v. Tin> Teel, 84 Neb. 429.</p> <p>2. -: Contract: Waiver. “tVhere- a contract for the sale of a machine provides that a retention thereof by the vendee beyond a given period will operate as a waiver of defects, held to be inapplicable where the vendor induced the vendee to retain the machine under a promise that the defects would be remedied.” Advance Thresher Go. v. Tinclcel, 84 Neb. 429.</p>

<p>Error to the district court for Red Willow county: Charles E. Eldred, Judge.</p>

<p>1. Damages: Contract to Lend Money: Breach: Measure of Damages. The measure of damages for a breach of contract to lend money is usually the difference between the contract interest rate and the increased interest rate the borrower is obliged to pay in procuring a new loan. Where, however, the specific purpose for which the loan was made was communicated to the lender, and it appears that the borrower has suffered special damages by the breach, which are pleaded and proved, the damages recoverable are such as may fairly and reasonably be supposed to have been in the contemplation of both parties at the time of making the contract, as the probable result of a breach of it.</p> <p>2. -: -: Question for Jury. Whether certain claimed damages, not too remote and speculative, arising out of the increased cost of constructing a building, can be recovered in an action for damages for a breach of a contract to lend money to aid in its construction depends upon whether such damages were fairly and reasonably within the contemplation of the parties at the time of making the contract, as a probable consequence of a breach of it, and is a question of fact to be determined by the jury.</p> <p>3. -: - — : Speculative Damages. Damages claimed for the loss of anticipated rents of a building during a period of delay in its construction, claimed to have been occasioned by a breach of contract to lend money for its construction, are, under the circumstances proved, too remote and speculative to be recoverable.</p> <p>4. -: —-: Attorney’s Fees: Costs. ' Under the circumstances proved, claimed damages for attorney fees and costs in perfecting the title in order to procure a loan are not recoverable.</p>

<p>Appeal from the district court for Furnas county: Charles E. Eldred, Judge.</p>

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

<p>1. States: Board oe Commissioners oe State Institutions: Contracts: Discretion. Under our statute (Laws 1915, ch. 129) requiring the board of commissioners of state institutions to award a contract to the “lowest responsible bidder,” the board, in passing upon the question of the responsibility of the bidders, exercises a discretionary power, and its action on that question is judicial ih its nature.</p> <p>2. --: -: -: -. The board cannot, however, act arbitrarily or capriciously in the matter, and before it can reject a bid on the ground that the bidder is not “responsible,” as that term of the statute is understood, the board must have before it information, or evidence, sufficient to show a rational and reasonable basis for its decision.</p> <p>3. --: ^-: -: -. The term “responsible” as used in the statute is not limited in its meaning to mere financial responsibility, but includes within its purview the general ability and capacity of the bidder to perform the work, his facilities and suitability for the task, and those qualities which he must necessarily have in order that he be able to perform the contract strictly in accordance with its terms.</p> <p>4. -:--: -: -. When the state board has made a decision, in the exercise of a dona fide judgment, that a certain bidder is not responsible, and when its decision is rational and based on facts and not a¿tuated by favoritism, ill will, or fraudj the court cannot set aside the decision.</p> <p>5. Mandamus: Inferior Tribunals: Control oe Discretion. The court has no power by mandamus to control the decision of those matters which 'are left by statute to the discretion of inferior tribunals. «</p>

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

<p>1. Sales: Seeds: Acceptance. Where an executory contract to grow and. deliver seed provides that it shall have a certain percentage of germinating vitality, the buyer has the right to test the seed within a reasonable time after delivery as a condition to acceptance, and acceptance will not be presumed from the mere fact that seed was delivered to and received into the possession of the buyer, if such test be practicable, customary or contemplated by the parties.</p> <p>2. -: -: Testing: Pleading and Pboof. If, in the case of an executory contract to deliver seed of a 'certain germinating vitality, the contract is silent as to whether a test to determine its vitality is practicable, customary or contemplated, those facts become the subject of pleading and proof, and the court will not assume them or tate judicial notice thereof.</p> <p>3. -: -: -: Defense. Where a contract to deliver seed of a certain germinating vitality is silent as to whether a test to determine its vitality was practicable within a reasonable time after delivery, or was customary or contemplated, it is sufficient for the seller, who has delivered seed thereunder to the buyer, in his petition in an action for the price, to set forth the contract and allege delivery pursuant thereto. If such test was practicable, customary or contemplated, and the buyer desires to avail himself thereof, it is, in such case, matter of affirmative defense.</p> <p>4. -: -: -: -- — . In such case, an answer which consists .only of an admission of the receipt of the seed and an allegation that it was inferior in germinating vitality to the contract requirement, but fails to affirmatively plead that such test was practicable, customary or contemplated, does not state a defense.</p>

<p>1. Mortgages: Mortgagee in Possession: Accounting. Where, before foreclosure, a mortgagee takes possession of the mortgaged premises, under an agreement with the mortgagor that he will manage the same and apply the net rents and profits toward the payment of the mortgaged debt, he must account, not only for the rents and profits he actually receives, but for such as, with diligence, he could have received. Evidence examined, and held not to show that the mortgagee, with diligence, could have received more than he actually received.</p> <p>2. -: -: Improvements. While, as a general rule, a mortgagee in possession of the mortgaged premises with the consent of the mortgagor cannot recover for permanent improvements made by him thereon, yet, if the improvement was absolutely necessary for the preservation and management of the property and was made in good faith, the mere fact that it was permanent in character will not deprive the mortgagee of the right to credit therefor in an accounting between them.</p> <p>3. Appeal: Accounting: Admission oe Evidence. In a suit for an accounting, plaintiff produced a witness having personal knowledge of the facts, who testified to various items of the receipt and disbursement of trust funds and identified canceled checks drawn by her showing the items of disbursement, verifying each. Held, that the admission in evidence of receipts signed by the persons to whom such payments were made was not prejudicial, there being sufficient competent evidence, if believed, to establish plaintiff’s account.</p> <p>4. Mortgages: Mortgagee in Possession: Appointment oe Receiver. ■A mortgagee, who takes possession of the mortgaged premises under an agreement with ihe mortgagor to manage the same and apply the net rents and profits toward the payment of the mortgage debt, cannot renounce the trust thus voluntarily assumed and successfully apply for the appointment of a receiver to do what was his duty and within his power to do. Held, that the court erred in appointing a receiver.</p>

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

<p>Appeal: Conflicting Evidence. Where there is evidence on both sides of an issue of fact in an action at law, the finding in the trial court on that issue will not he disturbed in the supreme court on appeal unless clearly wrong-.</p>

<p>Justice of the Peace: Appeal: Neglect oe Justice. A party who is free from fault and laches should not be deprived of his right to an appeal solely by the negligent failure of a justice of the peace to prepare a transcript in time for such party to have it filed in the district court within 30 days.</p>

<p>1. Criminal Law: Uncorroborated Evidence oe Accomplice. “A conviction may rest upon the uncorroborated evidence of an accomplice when sufficient, in connection with the other evidence, to satisfy the jury beyond a reasonable doubt of the guilt of the accused.” Lawhead v. State, 46 N'eb. 607.</p> <p>2. -: Error. Error, to be available on review, must affirmatively appear on the face of the record.</p> <p>3. -: Indorsement oe Witnesses During Trial. A conviction should not be reversed on the ground that the trial court permitted the state to indorse on the information during the trial the name of a witness, where there is no showing that accused was thus prejudiced, or that he asked for a postponement. Laws 1915, ch. 164; Sheppard v. State, 104 Neb. 709.</p>

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

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

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

<p>1. Eminent Domain: Evidence oe Value. Ib. a condemnation proceeding, evidence as to the price paid by the state for lots purchased from other property owners, and which form a part of the tract openly intended to be acquired by condemnation in case purchases could not be made, is not competent on the question of the value of the lots of the defendant.</p> <p>2. -:--. Recitals of consideration in deeds covering lots not in controversy are incompetent as evidence of the actual price paid for those lots, though our statute requires the parties to such deeds, under penalty, to set forth the true consideration.</p> <p>3. Evidence examined, and held to support the verdict.</p>

<p>Adverse Possession. When a fence is constructed as a boundary line fence between two properties, and where the parties claim ownership of the land up to the fence for the full statutory period and are not interrupted in their possession or control during that time, they will, by adverse possession, gain title to such land as may have been improperly inclosed with their own.</p>

<p>1. Deeds: Construction. In the construction of every instrument for the conveyance of real estate or any interest therein, it is the duty of the courts to carry into effect the true intent of the parties, so far as such intent can he ascertained from the whole instrument and is consistent with the rules of law. Rev. St. 1913, sec. 6195; Benedict v. Minton, 83 Neb. 782.</p> <p>2. -: Interest Conveyed. '“Every conveyance of real estate shall pass all the interest of the grantor therein unless a contrary intent can be reasonably inferred from the terms used.” Rev. St. 1913, sec. 6192.</p> <p>3. -: Construction. An instrument, duly executed, contained the following language: “The East Omaha Land Company does hereby grant, bargain, sell and convey unto the said Omaha Bridge and Terminal Railway Company, its successors and assigns, for terminal and railway purposes and uses, the following described real estate:” Held, that the phrase, “for terminal and railway purposes and uses,” did not of itself limit the estate conveyed, or operate as an implied reversion in case the lands conveyed were devoted to a different use.</p> <p>4. Estoppel: Grantors. A grantor is estopped by his deed to question the capacity of his grantee to take the estate conveyed by the deed.</p> <p>5. Deeds: Deed to Railroad Company: Construction. Instrument and evidence examined, and the instrument held to convey an absolute title in fee.</p>

<p>1. Brokers: Commissions. Where the undisputed evidence shows that a real estate broker, without the knowledge of his principal, was acting in the interest of the purchaser of the land instead of in the interest of his principal, the broker is not entitled to any commission. Campbell v. Baxter, 41 Neb. 729, and Strawbriége v. Swan, 43 Neb. 781, followed.</p> <p>2. -: -. If, in case of a claim of a real estate broker for commission on the sale of land, the undisputed evidence shows that neither the broker nor any one for him effected the sale or contributed to that result, the broker cannot recover. any commission.</p> <p>3. -: -: Evidence. Evidence examined, and held that the broker was acting in the interest of the purchaser, and that the broker did not effect the sale or contribute to that result, and was entitled to no compensation.</p>

<p>1. Wills: Undue Influence. An unequal distribution of property among the children of testator, of itself, raises no presumption of the exercise of undue influence. Undue influence, in order to invalidate a will, must be of such character as to destroy the free agency of the testator and substitute another person’s will for his own.</p> <p>2. Appeal: Harmless Error. A judgment will not be reversed because of the exclusion of evidence, when it clearly appears that its exclusion, if error, was without prejudice to appellant.</p> <p>3. Killings of the court on instructions to the jury approved.</p> <p>4. Evidence 7ield sufficient to sustain the verdict.</p>

<p>Appeal from the district court for Kearney county: William A. Dilworth, Judge.</p>

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

<p>1. Municipal Corporations: Street Intersections: Law of the Road. In the absence of some regulation to the contrary, the rule of the road with respect to vehicles approaching a street crossing at intersecting points is that the first to enter upon the crossing has the right of way.</p> <p>2. -:-:-. In such case, the law of the road does not require that a wagon should stop and allow an automobile to pass in front simply because it is a faster-moving vehicle.</p> <p>3. -: -: -. In such case, the law requires of both users of the street intersection the exercise of reasonable and ordinary care.</p> <p>4. -: -: -. Where a wagon-driver, having the right of way, has entered upon a crossing at a street intersection, he may assume that the driver of an automobile approaching the crossing at right angles will not negligently operate the car so as to place the occupants in danger of a collision; and he may safely' act upon this assumption until a situation is presented which, to the mind of a reasonable person, places the occupants of the car in a position of peril. It then becomes the duty of the wagon-driver to exercise every reasonable precaution to avoid injury. ~</p> <p>5. -: Collision: Last Clear Chance. Evidence examined, and held not to present a case for the application of the “last clear chance” doctrine.</p>

<p>1. Husband and Wife: Alienation of Affections: Instructions. In an action for damages by a wife against her father-in-law for alienating the affections of her husband, it is not error to fail to instruct the jury that parental advice, honestly given, without malice, and with the intention of benefiting the son, is a defense, when parental advice is not pleaded as a defense nor proved on the trial.</p> <p>2. Instructions which, when construed as a whole, correctly state the law, and are not misleading, will be held sufficient, even though a single paragraph thereof standing' alone may not be entirely accurate.</p> <p>3. Evidence examined, the substance of which is set out in the opinion and held sufficient to support the verdict.</p>

<p>1. Insurance: Nonpayment of Premiums: Forfeiture; Where the terms of a life insurance contract provide that, upon failure of the insured to pay the stipulated premium on a day named, the “policy shall he ipso facto null and void and all premiums forfeited to the company, except as herein provided,” such provision is not illegal or against public policy, and, there being no condition creating a waiver or estoppel, the contract will be enforced as made.</p> <p>2. -: -: -. In such case, the failure to make the payments as provided in the contract works a forfeiture.</p> <p>3. -:--: -: Notice. In such case, no no'ice or declaration of forfeiture is necessary on the part of the insurer, in the absence of a statute requiring such notice, or some stipulation in the contract that notice should be given.</p>

<p>Error to the district court for Douglas county: Lee g. Estelle, Judge.</p>

<p>Appeal from the district court for Lancaster county: William M. Morning, Judge.</p>

<p>Judgment: Res Judicata. Issues once determined by a judgment cannot be relitigated in a subsequent action between tbe same parties.</p>

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

<p>Appeal. In the absence of a bill of exceptions, when the sufficiency of tbe pleadings is not questioned, tbe judgment of tbe trial court will be affirmed.</p>

<p>Wills: Probate: Suit to Set Aside. In this, a proceeding to set aside the prohate of a will, brought about 14 years after the decree of probate was rendered, the evidence is examined, and it is held that there was not sufficient proof of undue influence to make a prima facie case, or to justify a refusal of probate on that account; that concealment and fraud have not been shown sufficient to justify the opening of the decree; and that the plaintiffs have been guilty of such laches and delay that they are not entitled to equitable relief.</p>

<p>1. Master and Servant: Injury to Employee: Act “Arising out of the Employment.” Where the nature of the employment is such as to expose a worker to a wrongful act by another worker, which may reasonably be said to have been induced by the peculiar conditions of the employment, the manner in which it was carried on, and the appliances required, such an act may reasonably be said to “arise out of the employment.”</p> <p>2. -: Workmen’s Compensation Act: Liability of Employer. While the fact that an employer may have anticipated such an accident as liable to happen is not a ground of liability under the workmens’ compensation act, since negligence is not an element in the determination of the award, it affords some light upon the question whether the injury may reasonably be said to “arise out of the employment.”</p> <p>3. Case Overruled. The case of Pierce v. Boyer-Van Kuran Lumber Co., 99 Neb. 321, in so far as it conflicts with the principles announced in this case, is overruled.</p>

<p>Appeal from the district court for Adams county: William C. Dorsey, Judge.</p>

<p>1. Master and Servant: Workmen’s Compensation: Award. An employer appealed from an award of the compensation commissioner, who had allowed its employee 100 weeks’ compensation for the loss of the sight of an eye, notwithstanding compensation for 25 weeks had previously been paid by the employer. On appeal the district court deducted the 25 week’s compensation, formerly paid, 'and rendered a judgment against the employer for the remaining 75 weeks’ compensation, as provided by the act, and for statutory ‘“waiting time” from the date of the award by the commissioner. Held, that the court did not err. Rev. St. 1913, sec. 3666, as amended, Laws 1917, eh. 85, sec. 9%.</p> <p>2. -: -- — : Appeal: “Waiting Time.-” When an employer appeals from a judgment of the district court in favor of his employee and it is affirmed in this court, such employer is liable for the statutory “waiting time,” from thé date of such judgment, for the full period of time allowed by the employers’ liability act, until it is paid under the mandate issued by this court, when the appeal taken to this court is not based on such a reasonable controversy as would justify an appeal.</p> <p>3. -: -: Ignorance of Law. Ignorance of the law is not a shield from liability for its infraction.</p> <p>4. -: -: Attorney’s Fees. In an action under the employers’ liability act, even though a recovery is had, an attorney’s fee cannot be taxed as a part of the costs under section 3212, Rev. St. 1913, as amended, Laws 1919, eh. 103, sec. 2, which applies only to an action at law on an insurance policy against an .insurance company.</p>

<p>Appeal from the district court for Seward county: George P. Corcoran, Judge.</p>

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

<p>1. Telegraphs and Telephones: Physical Connections oe Telephone Lines. The statute requiring physical connections to be made between telephone companies (Rev. St. 1913, secs. 7414, 7417) applies to companies operating “trunk and toll” lines, and contemplates only the forwarding of messages when such lines are used.</p> <p>2. -: -: Powers oe State Railway Commission. The railway commission is, by the Constitution, given plenary power to regulate and control telephone companies which are operated as public utilities, but such powers are subject to the general constitutional limitations and subject to whatever specific legislation is enacted providing the manner and limit and extent that the power shall be exercised.</p> <p>3. -: -: -. Though at common law such public utilities could not be required to make physical connections of their telephone systems, the legislature or the railway commission may order such connections when public convenience and necessity require, provided that the company required to render the service will receive proper compensation for the additional service which it renders, and that such conditions are imposed as will protect such company in its individual management and control of its own property, and that the order does not so operate as to create or allow of such discriminatory conditions as will cause injury to the company concerned.</p> <p>4. -: --: -: Due Process of Law. Where the railway commission, as a condition of an order requiring the physical connection of two companies, directs that the two companies shall divide all new business, in such proportions that the relation in size' of the one company to the other shall not change but shall be continuously maintained so long as the order of exchange of service shall operate, the right of either company to accept as subscribers all who shall apply .in the territory covered by their system is denied, and the effect of such order is to take the company’s property without due process of law.</p> <p>5. -; -; Power of Courts. A regulation requiring the exchange of service between telephone companies is legislative in character and cannot be modified, but must be either approved or set aside by the courts, except, however, such portions as are distinctly separable may be sustained or annulled as separate and independent regulations.</p>

<p>1. Brokers: Contract: Construction. When an owner of land enters into a written contract, wkereby be lists his land with a broker “for sale,” though the description of the land and the terms of sale are set out therein, the broker’s authority to enter into a contract of sale for his principal will not be inferred from the words “for sale,” used in the contract, and, in order that such authority exists, it must affirmatively and unequivocally appear from the writing, or, at least, must be so indicated from other terms used, that the contract, in the light of surrounding circumstances or the construction placed upon it by the parties, or other proper evidence to explain ambiguity, will clearly show that such authority was intended.</p> <p>2. Case Disapproved. Paragraph 1 of Weaver v. Snively, 73 Neb. . 35, disapproved to the extent that it differs from the .rule as stated herein. '</p>

<p>Appeal from tbe district court for Thurston county: Guy T. Graves, Judge.</p>

<p>1. Limitation of Actions: Part Payment. Voluntary part payment of an existing debt arising upon contract will toll tbe statute of limitations, and, if the debt is barred by the statute, will revive it. Rev. St. 1913, sec. 7579; Rolfe v. Filloud, 16 Neb. 21; Bier sole v. Omaha Rat, Batik, 71 Neb. 778.</p> <p>2. -: —•-. Where there is an uninterrupted continuity of employment extending over many years, under an oral contract which fixes the rate of compensation per year, but not the time of payment or the duration of the employment, and the employer admits a total sum due on the contract, any payment made by him to the employee, in the absence of evidence to the' contrary, will be presumed to have been made upon the gross sum due, and not upon the compensation for any of the several years.</p> <p>3. Executors and Administrators: Claims: Objections: Withdrawal. Where objections are filed by the heirs to a claim against an estate and other objections are filed thereto by the executrix, it is not prejudicial error for the executrix to withdraw her objections during the trial, the objections of the heirs still remaining.</p> <p>4. Appeal: Incompetent Evidence. A party cannot predicate error on the admission of incompetent evidence elicited upon his own cross-examination, where he makes no objection or motion to strike.</p>

<p>Specific Performance: Adoption: Parol Contract. In an action for specific performance of an oral agreement alleged to have been made with a deceased person to adopt a child and make him an heir, the contract must be .proved by evidence that is clear, convincing and satisfactory, and the party seeking to enforce it must show such performance on his part that a failure to enforce it would be a fraud upon his rights.</p>

<p>Appeal from the district court for Colfax county: Frederick W. Button, Judge.</p>

<p>Error to the district court for Douglas county: William A. Redick, Judge.</p>

<p>Municipal Corporations: Street Improvements: Petitioners: Withdrawal of Names. In the absence of fraud or of statutory or municipal authority, a petitioner for a city pavement cannot withdraw his name after the petition has been duly approved and the paving legally ordered by the city council.</p>

<p>1. Evidence: Written Contract: Parol Evidence. Where a written contract is not uncertain, indefinite or ambiguous, and where the terms used have an apparent .intent, which cannot reasonably be taken to have other meaning than as used, the statute (Rev. St. 1913, sec. 7909) has no application, and evidence, extrinsic to the writing, cannot be admitted to show an oral agreement during the negotiations leading up to the signing of the written instrument.</p> <p>2. -: -: -. Even though a written contract, in the light of its purpose and subject-matter and the circumstances under which it was executed, may have been determined to be incomplete, extrinsic evidence cannot be admitted for the purpose of proving a supplemental provision, inconsistent or in conflict with the expressed intention of the parties, as embodied in the writing.</p>

<p>1. Appeal: Affirmance. A verdict of the jury, which is not contrary to law, will not he set aside, where there is competent evidence to support it, unless this court can, from the record, say that the verdict is clearly wrong, or that it is the result of passion, prejudice or mistake.</p> <p>2. -: Instructions: Presumption. Tliougli it may appear probable, it will never be presumed, that the jury disregarded one of the instructions given by the court, where the record does not positively and affirmatively show such to be the fact.</p>

<p>Jury: Delinquency: Trial by Jury. The trial of a person charged with causing or contributing to the delinquency of a child, in violation of section 1263, Rev. St. 1913, is required to be conducted in the manner that is provided generally by the Criminal Code for other misdemeanors, and the accused is entitled to a jury trial.</p>

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

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

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

<p>1. Public Lands: Grant of Railroad Right of Wat. By granting a right of way of 200 feet in width to a railroad, congress must have determined that a strip of that width was necessary for the proper construction, operation, and improvement, and future necessities of the road, and the general public has no right to conjecture that aiiy portion of the right of way is not necessary for railroad purposes.</p> <p>2. -: --. The fact that only a portion of the right of way granted to a railroad company by the general government has ever been occupied for railroad purposes is immaterial.</p> <p>3. Adverse Possession: Railroad Right of Way. An individual cannot for private purposes acquire hy adverse possession any portion of a right of way granted hy the United States to a railroad company in the manner and under the conditions as the right of way was granted in the instant case, except hy such acts as eonstitute adverse possession since the passage of the Norris' act of June 24, 1912, 37 U. S. St. at Large, ch. 181, p. 138.</p>

<p>Appeal from the district court for Madison county: William Y. Allen, Judge.</p>

<p>Appeal from tbe district court for Butler county: George F. Oorgoran, Judge.</p>

<p>Appeal from the district court for Greeley county: Bayard H. Paine, Judge.</p>

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

<p>1. Courts: Dismissal: Pinal Order. When, after a formal order sustaining a demurrer and dismissing a cause, the district court of the United States for the district of Nebraska gives leave to file an amended petition in the case, and retains the cause for further proceedings,- this court will adopt the construction that court made of its order, and will not hold a judgment final which it refused to so consider.</p> <p>2. “Master and Servant: Defective Aptliance. The uncoupling of the end car upon the stoppage of a train being hacked is proof under the safety appliance acts that the coupling was defective.</p> <p>3. -: Injury to Servant: Interstate Commerce. Under the facts stated in the opinion, the act of plaintiff when injured wa's so closely related to interstate commerce as to bring him within the operation of the federal employers’ liability act.</p> <p>4. -: -: Proximate Cause. The uncoupling of the car under the circumstances was the proximate cause of plaintiff’s injuries.</p> <p>5. Evidence as to the duties of switchmen and customs in the yards of other standard railroads held admissible.</p> <p>6. Damages held excessive, and remittitur ordered as a condition of • affirmance.</p>

<p>1. Venue: Action for Neglect of County Attorney. A cause of action for the neglect of a county attorney, after an accused has been held to appear, to file an information. at the next term of the district court, or to file reasons for failing to do so, arises in the county where such district court is held.</p> <p>2. Criminal Law: Persons Held to District Court. Since the amendment of 1915 (Laws 1915, ch. 162) to section 8957, Rey. St. 1913, persons bound or held over to the district court at the next term on criminal charges should be held or hound over to appear at “the first day of the next jury term” of such court, instead of to “the first day of the term” as theretofore.</p>

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

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

<p>1. Criminal Law: Extradition. Where a person is charged in two States with the commission of a separate offense in each, and has been arrested in one of them, such state has exclusive jurisdiction of the alleged offender until the demands of its laws are satisfied. Nevertheless the governor of such state may honor the requisition of the governor of a demanding state and such surrender of the prisoner will operate as a waiver of the jurisdiction of the asylum state.</p> <p>2. Habeas Corpus: Fugitive from Justice: Conflict of Evidence. When in an interstate extradition proceeding the evidence confliets on the question of the prisoner’s presence in or absence from the demanding state at the time of the commission of the alleged offense, such conflict in the evidence will not require the discharge of the prisoner in habeas corpus.</p> <p>3. -: -: Sufficiency of Indictment. The technical sufficiency of the indictment of a demanding state, which charges the elements of a crime under the laws of such state, is not a proper subject of inquiry in habeas corpus, where interstate extradition proceedings are involved. That is a question for the decision of the courts of the demanding state.</p> <p>4.--: Extradition: Complaint: Evidence. “In habeas corpus to release a prisoner detained under a warrant of extradition, the fact that a complaint was filed against him in the demanding state is prima facie evidence that he was there charged with a crime.” Chandler v. Sipes, 103 Neb. 111.</p> <p>5. Extradition: Revocation of Warrant. The power to revoke his warrant, issued by the governor for the surrender of an alleged fugitive from justice, may be exercised by him at any time before the prisoner is taken from the state.</p>

<p>1. Specific Performance: Parol Contract. A parol contract is enforceable in a court of equity when one 'party has wholly performed his part and the other has not performed his part, when it clearly appears that nonfulfilment would work a fraud upon the party who has fully performed.</p> <p>2. -. “Specific performance is a matter of discretion in a court, which withholds or grants relief according to the circumstances of each particular case, where the general rules and principles governing the court do not furnish any exact measure of justice between the parties.” KofJca v. Rosielcy, 41 Neb. 328.</p> <p>3. Evidence: Declarations Against Interest. “It is fundamental that declarations against interest cannot ordinarily be annulled or explained away by counter declarations.” Evans v. Kelly, 104 Neb. 712.</p> <p>4. Specific Performance: Evidence. The evidence examined, and held that the making of the oral contract in ,suit, and the fulfilment by plaintiff of the part to be performed , by her, is clearly established by the evidence.</p>

<p>1. Taxation: Valuation of Bridge. In determining the true value of a bridge under the provisions of section 6364, Rev. St. 1913, for taxation purposes, all the elements which go to make up value should be considered. Generally these are the cost of construction, the life of the structure, depreciation, cost of reproduction, net earnings, value of stock and bonds, and, while none of these élements are controlling, each has its proper bearing upon the ultimate question of true value.</p> <p>2.--: Equalization of Assessment: Review. “The findings of a board of equalization must be so manifestly wrong that reasonable minds could not differ thereon before this court will disturb them.” Woods v. Lincoln Gas Electric Light Go., 74 Neb. 526.</p> <p>3. -: Assessment. Where property is assessed for taxation at its true value, and other property in the district is assessed at 55 per cent, of its true value, the remedy, to secure equal taxation, is to have the property assessed helow its true value raised, rather than to have the property assessed at its true value reduced. Section 6300, Rev. St. 1913, contemplates that all property he assessed at its true value.</p> <p>4. Evidence examined, and héld to sustain the judgment of the district court.</p>

<p>Error to the district court for Adams county: William A. Dilworth, Judge.</p>

<p>Opinion on motion for rehearing of case reported, ante} p. 38.</p>

<p>Master and Servant: Action for Wages: Defenses. Where an employee is wrongfully discharged prior to the termination of his contract of employment, in an action to recover the stipulated wages for the entire term covered by the contract, the burden is upon the defendant to plead and prove in mitigation of damages that the plaintiff obtained, or by the exercise of due diligence might have obtained, other employment, and it constitutes a defense which plaintiff is not required to anticipate. First paragraph of the gyllabus in the case of School District v. Foster, 31 Neb. 501, dis- ■ tinguished.</p>

<p>1. Sales: Auction Sale: Warrants op Title. Where one was acting as a clerk of an auction sale, the fact of his employment and the exercise of the duties incidental thereto do not constitute him a warrantor of the title or ownership of the property sold at the sale.</p> <p>2. -: -: -: Liability op Clerk. When the clerk of an auction sale receives, as such clerk, money from the purchaser of stolen property sold at said sale, in payment of the property purchased, and the clerk pays the money to the person who offered and procured the sale of the same, believing him to be the true owner, and the purchaser, previous to the sale, knew who offered the articles for sale .and that he purported to be the owner thereof, held, the clerk was not liable to the purchaser for the amount so paid.</p>