Volume 106 — Nebraska Reports

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

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

<p>Insurance: Use oe Name: Injunction. The “Grand Lodge of the Ancient Order of United Workmen of the State of Iowa” may be enjoined from transacting a fraternal insurance business in Nebraska in that name, though licensed by the state insurance board of Nebraska to do so, where such use of its name, its methods and its conduct will have a tendency to mislead the public in dealing with the “Grand Lodge of the Ancient Order of United Workmen of the State of Nebraska” and result in injury to the latter, a fraternal beneficiary association previously organized under the laws of Nebraska and transacting a fraternal insurance business therein in that name.</p>

<p>1. Wills: Revocation by Implication. Fifteen years elapsed between the date of the execution of a will and the death of the testator. The will provided that his wife, whose death preceded his by about two years, should have as her share of the estate “the provisions made by law for her.” In the interim a section of farm land in Canada was purchased that was not devised by the will. A life estate in a house and lot was devised to an only-daughter, of the value of $5,000 or $6,000, which the testator subsequently sold; he also devised a life estate in 190 acres of land to his daughter’s only son, with remainder to her in event that her son died childless. When the will was executed the testator had practically no personal property, but he then owned 1,000 acres of farm land worth about $50,000; when he died he had about $25,000 in money and owned property worth more than a quarter of a million dollars. Held, that the “changes in the conditions or circumstances of the testator” did not, under section 1295, Rev. St. 1913, work a revocation of the will by implication of law.</p> <p>2. -: -. “The common-law doctrine that the revocation of a will may be implied from subsequent changes in the conditions or circumstances of the testator obtains in this state in so far as it has not been modified by statute.” BaacJce v. BaacJce, 50 Neb. 18.</p> <p>3. -: -. There is no fixed rule by which the revocdtion of a will may be implied from subsequent changes in the condition or circumstances of the testator. Each case must be governed by its own peculiar facts.</p> <p>4. -•: Devise: Perpetuities. Where a testator devises a life estate in land to a married son and upon his son’s death a life estate in a part of the same land is devised to “his wife, if living,” the son’s wife being alive when the will was executed and when the testator died, the words “his wife” relate solely to the then present wife of the son and she would take upon the death of her husband. Held, that such devise to the wife does not violate the rule against perpetuities.</p> <p>5. -: Construction. In the construction of a will, the intention of the testator, as disclosed by the language used therein, considered in connection with the surrounding circumstances, will govern, provided that, in so doing, no rule of law is violated or sound policy disturbed. Lesiur v. Sipherd, 84 Neb. 296. •</p> <p>6. -: Devise: Perpetuities. The rule against perpetuities is not violated, unless the testator devises his land so that an estate therein is created that will vest beyond a life or lives in being and 21 years thereafter, and the period of gestation.</p> <p>7. -: -: -. A succession of life estates devised to the children of unborn children ad infinitum, if permitted, might prevent the alienation of lands for generations. Hence, the rule against perpetuities.</p>

<p>Husband and Wife: Desertion: Wife Liable on Contract. Where a husband deserts his wife and departs from the state, leaving her without maintenance or support, and remains absent therefrom continuously, with an intent to renounce the marital relation, and leaves her to act as a feme sole, and she so acts, she is liable to be sued on her contract the same as though she were unmarried.</p>

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

<p>Error to the district court for Pierce county: William V Allen, Judge.</p>

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

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

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

<p>Mandamus: Supeiciency op Pleadings. Pleadings examined, and, as against the objections made, held sufficient to warrant a writ of mandamus.</p>

<p>Appeal from the district court for Merrick county: A. M. Post, Judge.</p>

<p>1. Insurance: Suspension. Laws of a fraternal benefit association provided for automatic suspension, without notice, upon failure to pay a monthly assessment within the time limited. The insured made his last payment in May, and died in September, having been in suspension on the records since June. His beneficiary claimed the Muy payment was on the June assessment, that the suspension was wrongful, and that the insured was excused from tendering subsequent assessments. No such claim was made by the insured, there was no communication between him and the lodge after May, and no tender of later assessments. Held, no basis for the theory that neglect to make such tender was excused.</p> <p>2. -: Validity of Assessment. Where, by mutual consent, the holder of a certificate of insurance in .a fraternal benefit association surrenders the same and accepts a new certificate, his beneficiary, in an action upon the latter, can raise no question as to the validity of the assessment rates levied upon the original certificate, which were paid in full without protest.</p> <p>3. -: —:-: Tender. In an action upon a fraternal benefit certificate, the beneficiary will not be heard to claim that the insured was excused from paying or tendering assessments because the amount thereof was increased by an amendment to the bylaws not validly enacted, in the absence of evidence that payment thereof was tendered at the rate established prior to the attempted amendment.</p> <p>4. Evidence examined, and held to establish that the insured abandoned his insurance and his rights as a member.</p>

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

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

<p>1. Contracts: Building Contract: Delay: Damages. A contract between an owner and a builder failed to provide that tbe builder should not be liable in damages for delay of completion, within the time agreed on, that arose from strikes or otherwise. Completion was delayed by strikes, and by world war conditions, for a period o.f 7% months, and the building cost was thereby greatly increased. The court found that 22 weeks of the delay was attributable to the owner and the remainder was attributable to the builder. The owner did not file a cross-appeal. The builder in its cross-petition sought to recover approximately $5,500, as alleged damages, on account of increased cost of labor and material and the like that was occasioned by the delay. The owner recovered judgment for $11,499.25. .Held, that, under the facts, neither party should be permitted to recover damages.</p> <p>2. -: -: -: -. A contract between an owner and a builder for the construction of a building failed to provide for nonliability of the builder for damages, arising from strikes and the like. Held, that, in an action in equity for an accounting and for damages, neither party can recover from the other for damages arising from delays that were caused by strikes and by world war conditions, when it appears that both parties were to some extent chargeable with negligence and so contributed to the delay complained of.</p> <p>3. Questions Not Decided. Whether plaintiff is a “trustee of an express trust” and whether the contract sued on is “an agency contract,” we do not find it necessary to decide.</p>

<p>Vendor and Purchaser: Breach of Contract: Right to Recover 'Damages. When A., who is a party to a contract, fails to perform his part and thereby places it beyond the power of B., the other party to the contract, to perform his part, B. is entitled to recover in an action for damages.</p>

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

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

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

<p>Divorce: Decree: Modification. Where, on appeal from a decree awarding a divorce fr.om bed and board only, the pleadings and the findings of fact of the district court are sufficient to sustain a decree of divorce from the bonds of matrimony, this court may modify the decree so as to award an absolute divorce.</p>

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

<p>1. Insurance: Policy: Breach of Condition: Statute. Under tlie statutes of Nebraska, the violation of a condition in a fire insurance policy by the mortgaging of insured chattels does not invalidate the insurance, unless the breach of contract contributes to the loss. Rev. St. 1913, sec. 3187.</p> <p>2. -:' Attorney’s Pee. Under the statutes of Nebraska, as amended in 1919, the court has no authority to tax an attorney’s fee in favor of plaintiff upon rendering judgment in his favor in a suit on a fire insurance policy covering personal property only. Laws 1919, ch. 103, sec. 2, and ch. 105, sec. 1, subd. 5.</p>

<p>Banks and Banking: Excessive Loan. As a general rule, courts will not refuse to enforce a bank’s contract for the loan of money, or disallow damages for a breach thereof, merely because the amount lent exceeds 20 per cent, of the capital and surplus, notwithstanding a statute penalizing the banker for exceeding that limit.</p>

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

<p>Evidence: Written Contract: Parol Evidence. When plaintiff sues upon a contract, claiming Benefits thereunder, and such contract is one which was made Between two other parties, plaintiff not Being a party thereto nor in privity with either of such parties, the parties to the contract sued on may show By parol what the real agreement was Between them, though such agreement is not in accord with the recitals in the written instrument that purports to Be their contract.</p>

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

<p>1. Brokers: Commissions. A real estate broker employed to procure a purchaser for the sale of land is entitled to his commission when he has procured a purchaser ready, able, and willihg to buy on the terms proposed by the seller.</p> <p>2. Evidence examined, and held sufficient to sustain the judgment.</p>

<p>1. Landlord and Tenant: Forfeiture: Relief in Equity. Equity has power to relieve against a forfeiture of a lease for the nonpayment of rent on the day stipulated, and such power should be exercised when the circumstances are such as to call for the exercise of equitable principles, and where, if withheld, gross injustice will follow, when the failure to pay the rent was not wilful or such culpable neglect as to amount to the same thing.</p> <p>2. -: -: -. Where, by the terms of a five-year lease, $1,800 is paid in the beginning as a payment to be applied on the last year’s rent, with the further provision that' $160 should be paid on a day certain each succeeding month thereafter for four years, and $120 for the first month of the fifth year, at which time payment of rent was to cease, it being understood that the monthly instalments of rent, together with the $1,800, would be full payment for the entire period, with the further provision that, in case the lessee breached the covenant of the lease with respect to payment of the rent when due, the lessor could terminate the lease, and in that event the $1,800 cash advanced was to be forfeited to the landlord, held that, on a breach of the covenant to pay a monthly instalment when due, equity will relieve against the enforcement of such penalty.</p> <p>3. -: -: Remedies. The remedy created by sections 8466, 8467, Rev. St. 1913, does not in any way limit the power of a court of equity.</p>

<p>1 Carriers: Liability. A railroad company is liable for loss of grain shipped over its road, and the proof of loss makes a prima ■facie case against the company, by reason of the presumption that the loss resulted from some cause other than one which would exempt the company from liability; but the company is not liable ' for the natural shrinkage in weight of grain during shipment, due to its drying and losing a percentage of its moisture content.</p> <p>2. -: Loss of Grain: Burden of Proof. The burden of proving the extent of loss of grain from the car during shipment is upon the shipper and does not shift to the railroad company.</p> <p>3. -: -: -. Proof of weights of grain before and after shipment, when shown to have been carefully made and with proper apparatus, is presumptively correct; but, where the railroad company introduces evidence of mistakes, or other evidence tending to impeach the accuracy or reliability of the weights, or of the record of the weights made, the question of the correctness of the weights is for the jury and is a fact which the shipper must prove by a preponderance of the evidence.</p> <p>4. -: -: :-. Where evidence is introduced to show that grain will shrink in weight during shipment, owing to loss of moisture content, it at once appears that the mere discrepancy in weight before and after shipment cannot be relied on alone to prove the actual loss of grain from the car, and the burden, therefore, of proving such shrinkage, or the reasonable limit of such shrinkage, and of making allowance therefor, is upon the shipper. 5. Instructions on the burden of proof in such cases examined, and held erroneous.</p>

<p>1. Executors and Administrators: Sale oe Land: Validity: Bond. . When an administrator is given license in the district court to sell land for the payment of debts, and the court orders him to give bond to account for the proceeds of the sale (under section 1453, Rev. St. 1913) after the sale is confirmed, from which no appeal is taken, and the property is in the hands of a go’od-faith purchaser, an objection that the sale bond was insufficient, because the penalty of the bond appears to have been left blank, will not invalidate the sale, where the bond may be reformed in equity and a remedy had thereon.</p> <p>2. -: -: Notice: Jurisdiction. Where a notice of sale, given by the administrator, was published in a weekly paper for one day of each of the three weeks next preceding the sale, under ' section 1461, Rev. St. 1913, requiring publication “for three weeks successively next before such sale,” even though the first publicatioh was not made a full three weeks prior to the sale and is not, therefore, in strict compliance with the statute, the irregularity will not defeat the jurisdiction of the court.</p> <p>3. -: - — : Collateral Attack. Such defective notice of sale, where no prejudice is shown to have resulted, will not be sufficient ground to set the sale aside on collateral attack by the heirs in an action brought within the five-year statute of limitations. Rev. St. 1913, secs. 1485, 1486.</p> <p>4. -: -: Bond: Jtjkisdiction. The bond required by section 1453, Rev. St. 1913, to be given by an administrator before a sale is made, is not jurisdictional, since the matter of requiring such bond before sale is left to the judicial determination of the court, and is only to be given when the court concludes that the sale will bring more than sufficient to pay debts.</p> <p>5. -: -■: Allowance of Claims. Where claims are filed</p> <p>in an administration proceeding in the county court, the fact that the county court has failed to enter a formal order allowing claims is not fatal to a proceeding in the district court for license to sell lands to pay debts of the estate.</p> <p>i>. --: Sale of Homestead: Validity. When the district court in</p> <p>such a proceeding gránts a license to sell property which is a homestead, the sale will not be declared void after a confirmation, from which there has been no appeal, when it appears that the property was of greater value than $2,000, if the record shows no claim of homestead, or objection of any kind on that ground, was made in the proceeding, though the court may have • committed error in not segregating the homestead and. in not ordering $2,000 preserved to the owners, in liqu of the homestead.</p>

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

<p>Mandamus: Claim Against Estate: Appeal: Suspension oe Payment. It is within the judicial discretion of the county court (Rev. St. 1913, secs. 1399, 1400), in an administration proceeding, to suspend the payment of a disputed claim during the pendency of an appeal from an order allowing the claim, taken from the district court to the supreme court, though no supersedeas hond is-given, and such discretion cannot be arbitrarily interfered with by mandamus.</p>

<p>Appeal from the district court for Buffalo county: Bruno O. Hostetler, Judge.</p>

<p>1. Telegraphs and Telephones: Duties oe Telephone Company. Telephone companies are under the duty of furnishing to their subscribers reasonably prompt and efficient service in giving them connections with other subscribers, and they are liable for any pecuniary loss directly traceable to a breach of such duty as the proximate cause.</p> <p>2. -: Negligence: Petition: Sufficiency. In an action to recover for the loss of horses alleged to have died for want of medical treatment prevented by the negligent failure of a telephone company to connect the plaintiff with a veterinary surgeon, the averment in the petition that the horses, if afforded such treatment, could with reasonable probability have been saved, is not so uncertain and conjectural as to make the petition demurrable, but the question is one of fact.</p>

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

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

<p>1. Process: Return: Impeachment. After judgment, the sheriff’s return of service of summons can only be impeached in a collateral proceeding by clear and convincing evidence.</p> <p>2. -': --: -: Proof. Where a sheriff, whose return recites that he served a summons on defendant by leaving a copy at his usual place of residence, testifies to the specific acts, on which the return was based, the validity of the service is determined by a preponderance of the evidence, but such preponderance requires proofs of a clear and convincing nature.</p> <p>3. -: -: -: Sufficiency of Evidence. Evidence outlined in the opinion held to require a finding that the sheriff did: not leave a copy of the summons at the defendants’ place of residence, as recited in the return, and that the defendants did not have actual knowledge of the suit.</p>

<p>Appeal: Conflicting Evidence. Wlien the evidence conflicts respecting the existence of material facts, and such evidence is fairly submitted to the jury under proper instructions, the verdict will not be set aside.</p>

<p>.1. Sales: Delivery: Breach oe Warranty. When a machine does not fulfil the terms of the vendor’s warranty and, over the vendee’s protest, is left by the agent with the vendee’s prospective purchaser, such action on the agent’s part does not constitute a delivery. It follows that the vendee is not obliged to return the machine in order that he may maintain an action for damages.</p> <p>2. -: -: Notice. A contract for the sale of a machine provided that notice of defects therein should be given by the vendee by registered mail addressed to the vendor at its head office. Held that, when it clearly appears that the machine has not been delivered, the provision for notice is not obligatory.</p> <p>3. -: Warranty: Proof. When an implied warranty and an express warranty relate to the same or a closely related subject, proof of the implied warranty will be excluded.</p> <p>4. -: -: Breach. Where the vendor undertakes a practical demonstration of a machine to prove its workability, even though the contract of sale does not provide therefor, and the machine, when given a trial, fails to comply with an express warranty under which it was sold, 'the vendee is not bound by the contract.</p> <p>5. Corporations: Process: Service. Held, that the service of process herein upon the auditor of public accounts was a sufficient compliance with section 725, Rev. St. 1913, to confer jurisdiction over a foreign corporation.doing business in Nebraska.</p>

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

<p>"Taxation: Tax Liens: Foreclosure: Void Sales. In a suit to foreclose separate tax liens upon distinct tracts owned by the same person, tbe sale of all such tracts together to satisfy the combined amount of the several liens is prohibited by section 6565, Rev. St. 1913, notwithstanding the proviso thereto, permitting the court to apply the proceeds of the sale of' one tract to the payment of tlie lien upon another tract belonging to the same person. Such sale, being beyond the jurisdiction of the court to order or, by confirmation, to approve, is void and will be set aside in a collateral suit brought for that purpose.</p>

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

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

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

<p>Municipal Corporations: Violation of Ordinance: Judgment: Review. Where the proceedings in a prosecution for the violation of a village ordinance are conducted properly in all respects except that the police judge mistakenly entitled the case upon his docket as if the complaining witness instead of the state were plaintiff, proceedings to review the judgment in the district court must he conducted in the manner provided hy the statute for reviewing’ such prosecutions.</p>

<p>1. Criminal Law: “Third Term” oe Court. The words “the third term” in section 9022, Rev. St. 1913, quoted at length in the opinion, refer to regular terms as distinguished from special terms or sessions of the court.</p> <p>2. -: Consent to Continuance. AVhen a defendant actively consented to a continuance of his case over a certain term, such consent is equivalent to a delay on his application within the ♦ meaning of said section 9022, Rev. St. 1913, and constitutes á waiver of his right to count such term as one at which he should be tried.</p>

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

<p>Insurance: Application: Acceptance. Where, in his application for insurance in a fraternal benefit association, the applicant agrees to be bound by the laws of the order providing that no insurance shall be effective unless approved by the head medical examiner, actual acceptance of the application by that officer is required to create a contract of insurance, and, if the applicant dies before such acceptance, no liability will arise upon the theory of implied contract, although the application was prevented from reaching said officer by the negligence of á subordinate lodge officer whose duty it was to transmit it.</p>

<p>1. Statute of Frauds: Sale oe Land: Contbact. A contract for the sale of real property is valid and binding upon tbe owner of the property, when subscribed by his agent who has been authorized in writing by said owner to enter into said agreement.</p> <p>2. -: -: -. Section 2628, Rev. St. 1913, held to have no application to the provisions of section 2650, Rev. St. 1913, authorizing an agent by writing to subscribe a contract for the sale of lands.</p> <p>3. Brokers: Sale or Land: Attthobity or Agent. Where the owner of real estate signs a writing authorizing an agent to bargain and sell real estate within a certain time, at a stated price, and upon certain terms, and further agrees to furnish abstract and convey the lands on sale of same, held, that the agent was authorized to' enter into a contract for sale of said lands.</p>

<p>1. Sheriffs: Removal: Proof. In an action brought for the removal of a sheriff under the provisions of section 50, ch. 187, Laws 1917, for failure to do his duty in the enforcement of the provisions' of said law, satisfactory evidence that the respondent himself gave away or sold intoxicating liquor is sufficient to sustain an allegation in a complaint charging that the respondent permitted intoxicating liquors to be given away in his presence and with his knowledge.</p> <p>2. Appeal: Sheriffs: Removal: Pleading. An action under' the provisions of section 50, ch. 187, Laws 1917, for the removal of a sheriff for failure to do his duty in the enforcement of said act, is a civil proceeding, and the respondent is required to file an answer to the petition or complaint as in any other civil action. If the respondent fails to file an answer questioning the constitutionality of said act, or fails to tender that issue by demurrer, motion, or objection to the offer of testimony in the trial court before judgment, and said cause is tried in the lower court upon the theory that respondent filed a general denial, or entered a plea of not guilty, this court will not consider the question of the constitutionality of said act if presented on appeal.</p>

<p>1. Libel and. Slander: Evidence: Admissibility oe Decree. On the trial of an action for slander, a decree in an equitable action between the same parties canceling certain notes given by defendant in attempted settlement of the damages growing out of such slander, on the ground that they were “without consideration,” was received in evidence over objections of plaintiff; such decree had been affirmed, but upon the ground of undue influence, the supreme court expressly holding that they were not without consideration. Held, that the objections should have been sustained.</p> <p>2. Trial: Exception: Waiver. By introducing in evidence, upon rebuttal, the opinion of the supreme court, plaintiff did not waive his exception to the ruling of the trial court admitting the decree.</p> <p>3 New Trial: Admission of Decree: Prejudicial Error. The. decree was immaterial and incompetent evidence, and had a tendency to mislead the jury, and its admission was therefore prejudicial error calling for a new trial.</p>

<p>1. Death: Presumption. Seven years of' continued and unexplained absence from one’s home or place of residence is sufficient to give rise to a presumption of the death of the absentee, where nothing has been heard from or concerning him during that time by those who would naturally have heard from him, had he been living.</p> <p>2. Appeal: Affirmance. The action of the trial court in discharging the jury and entering judgment for the plaintiff will not be disturbed if the evidence is such that reasonable minds could not have disagreed upon findings of fact leading to such judgment.</p>

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

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

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

<p>1. Master and Servant: Workmen’s Compensation Act: Subrogation. Under the workmen’s compensation law (section 3659, Rev. St. 1913), providing, in substance, that where a third person is liable tp an employee, or to dependents, for an injury or death, the employer shall be subrogated to the right of the employee or to that of dependents against such third person, the fact that the employer’s negligence concurred with the negligence of the third person in causing the injury does not bar the employer’s right to subrogation, and it is not erroneous to fail to instruct the jury that the amount of plaintiff’s recovery should be diminished by the amount of compensation paid to plaintiff by the employer.</p> <p>2. Evidence examined, and held to support the verdict.</p>

<p>1. Insurance: Liability Insurer: Status. An insurer engaged in the business of writing liability insurance for profit is not a favorite of the law with the standing of individuals who become sureties or guarantors as mere accommodations.</p> <p>2. -: Liability Insurance: Construction of Policy. In a suit on a liability insurance policy issued by an insurer engaged in the business of writing liability insurance for profit, a narrow or technical construction of the policy, or of the petition in a former action against insured for a liability covered by the policy, is not permissible to defeat the insurance.</p> <p>3. --: -: Hospital Patient. Where a child born in a hospital is returned three months later to receive nourishment from its mother, who had previously returned for treatment of ailments attending childbirth, the child, while in the exclusive care of the hospital, is a “patient,” and not a mere licensee; the arrangement being that compensation for the treatment of the mother includes compensation for the care of the child.</p> <p>4. -: -: “Hospital Treatment.” In a hospital with a department equipped for obstetrics, the .bathing of a child born therein, if it thereby suffers bodily injury through the negligence or mistake of a hospital nurse while it is exclusively in the care of the hospital, may be “hospital treatment” within the meaning of those words as used in a policy of liability insurance.</p> <p>5. -: -: Action: Defense. A liability insurer agreeing to defend a suit against the insured for negligence, whether plaintiff’s claim is groundless or not, does not, by making a defense as agreed, lose the right to assert that insured’s loss is not covered by the insurance policy, where the insurer notifies insured in advance that such right is preserved.</p> <p>' 6. -: -: -: -. Where a judgment for a loss resulting from negligence covered by a liability insurance policy is satisfied by means of a secured note given'in good faith, the insurer, if it violated its insurance contract by failing to defend a suit for negligence and by refusing to pay the loss or any part of it, may not be allowed to defeat the insurance on the ground that the judgment was not paid in money according to the literal terms of the policy.</p> <p>7. -: -: -: Pasties. Insured may maintain an action on his liability insurance policy after he assigns, as collateral security for the payment of a note, any judgment he may obtain against the insurer.</p> <p>8. New Trial: Remittitub: Final Judgment. Where a judgment debtor, on his motion for a new trial, fails to comply with a conditional order permitting him to pay the judgment upon its being reduced by a required remittitur, and the judgment creditor, by reason of nonpayment, declines to file such remittitur, the judgment as originally entered becomes final.</p> <p>9. Insurance: Action: Defense. In a suit on a policy of liability insurance to recover a loss determined by a judgment for damages in a former action against the insured, transactions of the latter’s attorneys in purchasing the judgment for themselves for less than its face held not available to the insurer as a partial defense under the circumstances outlined in the opinion.</p>

<p>1. Specific Performance: Pabol Contract: Pboof. When it is al- ■ leged- that an oral contract has been entered into between plaintiff and another, and it appears that the party to be charged died without fulfilling the alleged terms of the contract, and it is also alleged that the contract provided that a farm owned by the alleged donor, since deceased, upon his death, should become the property of the alleged donee, the plaintiff herein, such contract, to be enforceable in equity, must possess the element of certainty, and the proof to establish the contract must be clear, convincing, unequivocal and satisfactory.</p> <p>2. -: -: -. The record examined, and held that the evidence does not possess the element of certainty that is required to establish an alleged parol gift of land.</p>

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

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

<p>Error to tbe district court for Madison county: William V. Allen, Judge.</p>

<p>1. Telegraphs and Telephones: “Common Carrier:” Supervision. Where several farmers in cooperation constructed a rural telephone line, so as to connect their farms with a public service telephone company in town, from whom they purchased telephone boxes and rented transmitters, and were afforded switching service to local and long-distance subscribers over the lines of such telephone company, and paid to the telephone company the same rates as regular subscribers, but did not exact nor receive compensation for messages transmitted over their rural line, and raised no revenue except such sums- by mutual assessment as were needed to maintain and keep’ in repair their properties, held that they were not operating as a common, carrier, defined by our statute (Rev. St. 1913, sec. 6124) as “telephone companies * * *' engaged in the transmission of messages * * * for hire,” and were not under the supervision of the Nebraska state railway commission.</p> <p>2. -: -. Though section 7418, Rev. St. 1913, grants a right of way over the public roads of the state to “any telegraph or telephone company incorporated or doing business in this state,” it does not follow that any one who erects poles and strings telephone wires upon a public road is a telephone company or a common carrier.</p> <p>3. -: -. Though such a rural telephone line may render impracticable the extension of further telephone service in that particular locality, and hence be a matter of public concern, the fact that the situation is of public interest does not alone characterise the rural line as a public service company, nor identify it as a common carrier. Its character is to be determined rather by the purpose for which the property is intended to be used and the actual use to which it is devoted.</p>

<p>1. Evidence examined, and helé to justify a directed verdict.</p> <p>2. Counties and County Officers: Drains: Agency: County Surveyor. Under article I, ch. 19, Rev. St. 1913, the county surveyor acts under the mandate of the statute, and not as agent or trustee of the county, and there is no statutory provision making the county liable for his neglect of duty.</p> <p>3. -: -: -: County Commissioners. Under article I, ch. 19, Rev. St. 1913, the board of county commissioners act as agents or trustees of the persons whose property is chargeable with the cost of the work, and not for the county, and the statute having failed to make the county liable for their neglect or delay, this action cannot be maintained.</p> <p>4. Drains: Contract: Authority oe County. The construction company, in entering into the contract mentioned in the opinion, ■ is presumed to have known the extent of the county’s authority and the limitations thereof, and to have contracted with reference to such delays as might grow out of the work to be performed.</p> <p>5. Trial. It is not error to reject documentary evidence of an admitted fact.</p>

<p>Appeal from tbe district court for Scotts Bluff county: William H. Westover, Judge.</p>

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

<p>Error to the district court for Red Willow County: Hanson M. Crimes, Judge.</p>

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

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

<p>Appeal from the district court for Douglas1 county: William A. Redick, Judge.</p>

<p>Appeal from the district court for Scott,s Bluff county: Ralppi W. Hobart, Judge.</p>

<p>Appeal: Law op the Case. A question once determined in the appellate court will not ordinarily he reexamined there on a second appeal, in the same case.</p>

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

<p>Homicide: Information: Instructions. An information charging defendant with a homicide committed in the perpetration of or attempt to perpetrate a robbery, under section 8581, Rev. St. 1913, charges only murder in the first degree, and it is error for the trial court to instruct the jury that they may find defendant guilty of murder in the first degree, guilty of murder in the second degree, or guilty of manslaughter.</p>

<p>1. Banks and Banking: Purchase oe Stock: Validity. Where the directors of a national bank that is in failing circumstances pur? chase shares of its capital stock for the bank from other shareholders in violation of section 9762, U. S. Comp St. 1918, the right's of innocent holders for value not having intervened, the validity of such transaction “can be questioned only by the United States, and not by private parties.” Thompson v. Si. Nicholas Nat. Bank, 146 U. S. 240, 251.</p> <p>2. Corporations: Action of Majority Stockholders. The action of a majority of the stockholders of a corporation must govern when such action is within its expressed or implied powers and does not violate any contract rights of the other stockholders.</p>

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

<p>1. Insurance: Policy: Waiver or Conditions. Provisions in a contract of life insurance to the effect that the policy does not become a binding contract of insurance unless and until the first premium is paid, and that no agent of the company, or other person, has power on behalf of the company to modify the contract of insurance or to extend the time of paying any premium, are for the benefit of the company and may be waived by it.</p> <p>2. -: -: -. In such case, where a rule of the company permits the agent to take a note of the insured payable to himself for the first premium, the agent being held responsible to- the company for the net premium, the agent becomes the debtor, and when he delivers the policy to the insured under an agreement to extend the time of paying the premium and to take the note of the insured for such premium, but no note is given for the reason that the agent had no blank forms with him at the time, and it was agreed that the agent would see insured in a few days -and get the note, and the agent left the city two days thereafter without procuring the note, and before his return the insured died, such transaction will be deemed ■ a payment of the premium as between the insured and the company.</p> <p>3. -: -: -. In such case, an agreement by the agent to extend the time of paying the premium will be regarded as a waiver by the company of the conditions of the' contract of insurance respecting time of paying the premium, and the limitations of the power of the agents to extend the time of such payment.</p> <p>4. -: Notice. Notice to a general agent of a life insurance company having authority to solicit insurance, to make out and forward applications, to deliver to the assured policies when returned, and to' collect and transmit premiums, will operate as notice to the company, and it will be bound by acts then done by him in respect to the business he is transacting.</p> <p>5 Evidence examined, and held to sustain the findings of the trial court.</p>

<p>1. Insurance: Failure to Pay Premiums. A provision in a life insurance policy, providing that it should become null and void upon failure to pay premiums when due, is not illegal, and where there is default in the payment of premiums, and no act or circumstance constituting a waiver or estoppel on the part of the company, preventing it from insisting upon a forfeiture, the contract will be enforced as it was made.</p> <p>2. -: Giving Note for Premium. Whether or not a note given for a renewal premium is taken as an absolute and unconditional payment of the premium, or whether the note is given, not as payment, but for the purpose of extending the time of payment, is a question of fact to be determined by the provisions of the note and the attending circumstances.</p> <p>3. -•: -: Forfeiture. Where the policy provides for such a forfeiture, and the insured executes and delivers to the company a note to cover a renewal premium, which note recites that, if not paid at maturity, the insurance policy shall become null and void without act on the part of the company, and the company issues a receipt for the note, reciting that the policy shall continue in force until the maturity of the note, it is quite clear that the note was not given as an unconditional payment of the • renewal premium, but as an extension of time for the payment of the premium, and a default in the payment of the note will work a forfeiture of the policy.</p> <p>4. -: -: -. A mere retention of the note by the company after its maturity, with no affirmative acts on the part of the company signifying an intention to enforce payment, does not result in either a waiver or an estoppel that will prevent the' company from insisting upon a forfeiture.</p> <p>5. --: -: -. A notice to the insured that such a premium note has become due and is not paid, and an offer to allow for an arrangement for him to pay it and avoid forfeiture, without any other act on the part of the company displaying an attitude to compel its payment or to insist upon the right to enforce it, are insufficient to estop the company from claiming a forfeiture of the policy by reason of the previous default.</p>

<p>1. Rape: Corroborative Evidence. In a prosecution charging rape, other direct testimony than that of the prosecutrix, as to the particular act which constitutes the offense, is not essential to* make a corroboration of her story, but corroboration may consist of the proof of such surrounding facts and circumstances as will support her testimony against the accused as to the principal ’ fact, and as will identify the accused as the party guilty of the crime. It may consist of circumstantial evidence. The conduct and demeanor of the accused may furnish such corroboration.</p> <p>2. Criminal Law: Refusal of Instruction. Instructions examined, and held, no error in the refusal to give an instruction, since it was sufficiently covered by an instruction given by the court upon its own motion.</p>

<p>1. 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.” In re Estate of Robinson, 105 Neb. 1.</p> <p>2. -: -. Where a vendor induces a vendee to enter into a contract of purchase of a tract of land by .the following written representation therein: “This farm contains 280 acres and is sold as 280 acres,” and “party of the second part agrees to pay $150 per acre” — and thereafter vendor receives from vendee the sum of $42,000 and executes a warranty deed to said premises without</p> <p>■ reference to acreage, except “according to governmeht survey,” vendor prior to the transaction having exhibited to vendee a plat showing the acreage claimed by him according to government survey, which was relied upon by vendee without independent in- " vestigation, and where it was afterward discovered that the actual boundaries of the tract were considerably within those shown by the government survey by reason of encroachment of fences and adverse possession in others, whereby there was a deficiency of 11.71 acres in the tract, held, the sale was by the acre and the vendee is entitled in equity to recover for such deficiency.</p> <p>2. Accord and Satisfaction. Evidence" examined, and held not to show a previous accord and satisfaction between the parties.</p>

<p>Elections: Canvass oe Votes: Mandamus. It is the settled law of this state that the duties of canvassing boards in canvassing the returns of an election are purely ministerial. They perform the act of tabulating the votes of the different precincts as returned to them, and have no power to hear evidence or determine any question as to the validity of the election or the votes cast, or to change such returns. Held, therefore, that mandamus will not lie to compel a county board to reconvene as a canvassing board and to go behind the returns of a special school bond election, held pursuant to section 6832, Rev. St. 1913, and to reject therefrom illegal votes cast against said proposition and declare the same carried.</p>

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

<p>1. Highways: Motor Vehicles: Statute Regulating Speed. The provision of section 28, ch. 222, Laws 1919, requiring the speed of a motor vehicle on a public highway to be reduced to, and maintained at, a rate not exceeding 15 miies an hour when approaching any of the various objects therein mentioned, has no application to a case where one motor vehicle overtakes and passes another traveling in the same direction, such passing being governed by the provisions of section 29 and the general limitations of speed found in section 28 of' said chapter.</p> <p>2. Evidence examined and found insufficient to sustain the verdict against defendant Pederson.</p>

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

<p>1. Witnesses: Competency. In an action by a nonresident married ■woman against a representative of a deceased person to recover title to lands in tliis state, her husband is a competent witness to testify to conversations with-such deceased person, notwithstanding the provisions of section 7894, Rev. St. 1913. Holladay v. Bioh, 93 Neb. 491, distinguished.</p> <p>2. Evidence: Sele-serving Declarations. Self-serving declarations made by a decedent are incompetent to disprove a prior agreement to reconvey lands.</p> <p>3. Evidence examined and found sufficient to sustain the judgment of the district court.</p> <p>4. Trusts: Creation: Statute oe Frauds. A constructive trust is not created by a daughter conveying lands by warranty deed, without consideration, to her father, upon an oral agreement with him that he will reconvey the lands to her upon his death or upon her request; but such transaction is an attempt to create an express trust, and, not being in writing, is inhibited by the statute of frauds.</p>

<p>1. Appeal: Questions of Fact: Review. In the absence of a bill of exceptions preserving the evidence, this court will presume that the district court correctly determined every issue of fact presented by the pleadings.</p> <p>2. Husband and Wife: Postnuptial Contract. Where husband and wife, because of the misconduct of one of them justifying a legal separation, find it impossible to dwell together in harmony and unity, and enter into a contract for the settlement of all their property r-ights, and each relinquishes all rights in the property of the other and to inherit from the other, and providing for immediate separation, such contract, if fair and equitable, will be enforced by the court with respect to property rights.</p> <p>3. --: -: Bar of Right to Inherit. A valid postnuptial contract between husband and wife, which provides that each relinquishes all rights to the property of the other and releases and waives all right of each to inherit from the other, if observed by both until the death of one of them, will debar the survivor from receiving frqm the estate of the other the articles of personal property and allowance which the statute provides for the surviving spouse.</p>

<p>1. Public Lands: Rights Based on Survey. Original surveys ol public lands by the United States government, on the faith of which property rights have been acquired, control over surveys subsequently made by the government which affect such rights.</p> <p>2. Replevin: Variance. In the affidavit for replevin, the hay in dispute was described as being in stacks on the north tier of forties in section 21, and there was evidence tending to show that it was located on the south portion of section 16, which adjoins section 21 on the north. There was no dispute as to the identity of the hay, but only as to its ownership. Held, that the trial court did not err in overruling defendant’s motion for a directed verdict in his favor on account of the variance between the allegations of the affidavit and the proof as to the location of the hay.</p>

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

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

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

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

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

<p>1. States: Action: Waiver. Where by its Constitution the state is immune from suits against it except as the legislature otherwise provides, the immunity thus provided cannot be waived -by a voluntary general appearance in the case and a participation in the trial thereof upon its merits by the attorney general in an unauthorized action brought against the state.</p> <p>2. --: Unauthorized Actions. A decree rendered against the-state under the circumstances above stated is void as against the state, and upon appeal to this court will be vacated and set aside in so far as the same seeks to bind the state.</p> <p>3. Dismissal and Nonsuit. Such dismissal of the state from the litigation, however, does not affect the action against other defendants against whom the plaintiff had a right to maintain a suit.</p> <p>4. Boundaries: Establishment: Sufficiency of Evidence. In a dispute arising between plaintiff and defendants as to the true boundary line between their adjoining lands, the sole question depended upon the genuineness of a certain alleged original government quarter corner. The trial court found for the plaintiff and established the corner as contended for by the plaintiff. Evidence examined, and held to support the' decree of the lower court.</p>

<p>1. Negligence: Question fob Juby. “Issues as to the existence of negligence and contributory negligence, and as to the proximate cause of an injury, are for the jury to determine, when the evidence as to the facts is conflicting, and where different minds might reasonably draw different conclusions as to these questions from the facts established.” City of Omaha v. Houlihan, 72 Neb. 326.</p> <p>2. -: -. Evidence in the case at bar examined, and held, the same required the application of the rule above quoted.</p>

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

<p>1. Trade-Name: Unfair Competition. Where an established business .with a trade-name representing good-will is drawn into competition by a recent rival wtih a name so similar and so displayed as to be likely to mislead the former’s customers and the public, the denial of a purpose to do so has little weight in the defense of a suit to prevent such a wrong.</p> <p>2. -: -: Injunction. Equity may enjoin the use of a truck painted white with the name “Carter Brothers Transfer” displayed thereon in red letters, where it has recently come into competition with a formerly established business built up under the trade-name of the “Carter Transfer & Storage Company,” a trade-name representing good-will, and displayed in red letters on trucks painted white, the similarity being such as to be likely to mislead the public and the customers of the latter company.</p>

<p>Appeal from the district court for Lancaster County! "Willard E. Stewart, Judge.</p>

<p>1. Evidence examined, and held to sustain the verdict.</p> <p>2. Rape: Chastity: Evidence. Where, on the trial of one charged with rape upon a girl over the age of 15 years and under the age of 18 years, the evidence shows that defendant was one of a party making the assault, and that before the commission of the act charged against defendant prosecutrix had been ravished by another member of the party, it is proper for the court to instruct the jury that the intercourse had by prosecutrix with the first assailant did not render her unchaste within the meaning of the statute.</p>

<p>Appeal from the district court for Platte county: A. M. Post and George II. Thomas, .Judges.</p>

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

<p>Original proceeding in mandamus to compel the state auditor to register water-works bonds of the city of O’Neill.</p>

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

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

<p>Appeal from the district court for Buffalo county: Bruno O. Hostetler, Judge.</p>

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

<p>1 Landlord and Tenant: Repairs. “In the absence of an express contract, a landlord is not bound to repair leased premises, nor to pay for repairs made tliereon by the tenant.” Murphey v. Illinois Trust cC- Savings Bank, 57 Neb. 519.</p> <p>2. Evidence examined, and held to sustain the action of the trial court in directing a verdict for the plaintiff.</p>

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

<p>1. Homestead: Sufficiency of Plea. A pleading sufficiently sets .forth the selection of the homestead from the wife’s separate property, with her consent, where it is alleged therein, that after their marriage the parties entered upon the tract in question pursuant to a prior agreement to make it their permanent home and joint homestead, that improvements were constructed sufficient for that purpose, and that it continued for several- years to-be the family residence.</p> <p>2. Husband and Wife: Homestead: Ejectment. Where the homestead has been selected, with the wife’s consent, from her separate property, she cannot withdraw from the homestead and maintain ejectment against her husband, who remains in occupancy thereof, so long as the marital relation continues.</p>

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

<p>1. Pleading: Proof. A party will not be permitted to plead one cause of action and at the trial rely upon proof establishing a different cause. The allegations and proof must agree.</p> <p>2. Judgment: Default: Vacation. Statements to the defendant in . an action by a third person, not a party to the suit, of wkich the plaintiff knows nothing, to the effect that said action has been settled, because of which statements -the defendant fails to appear or to plead and a default judgment is entered against him, do not constitute a ground for setting aside said judgment after the term under the provisions of section 8207, Rev. St. 1913, nor any recognized source of equity jurisdiction.</p>

<p>1. Principal and Agent: Revocation of Agency. “Where an agent is vested with a mere naked authority not coupled with an interest, his principal may revoke that authority before performance.” Staats v. Mangelsen, 105 Neb. 282; Hallstead v. Perrigo, 87 Neb. 128.</p> <p>:2. Appeal: Issues: Pleading. Record examined, and held that the issue of rescission of the agency contract was, without objection, limitation or restriction, fully tried out in the district court, and that objections made in this court for the first time that a rescission of the contract was not pleaded in the court below will not be considered as a ground of reversal. Boyd v. Lincoln & N. W. R. Go., 89 Neb. 840.</p> <p>3. Evidence examined, and held to sustain decree of the lower court.</p>

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

<p>1. Pleading: Variance. Where the plaintiffs cause of action is-based upon a running account, and the answer pleads a full and complete settlement, and the reply is a general denial, the issues presented by such pleadings are the correctness of the account and the settlement thereof; and a finding and judgment on1 such pleadings that “there was an unintentional mistake made by plaintiff and defendant in tlio computation of their several accounts when making settlement” held not to be sustained by the pleadings, and a material variance from the issues presented by the pleadings.</p> <p>2. Compromise and Settlement: Pleading: Burden of Proof. The presentation and auditing, from time to time, of accounts by parties having business dealings and transactions with each other, and the making of new notes for the balances and the surrender of old notes given and payment of the last note given constitute a settlement between the parties. And where suit is brought by the maker of the notes on an account between the same parties covering the same period of time, and settlement of the item sued upon is alleged by the giving of notes by the plaintiff, the plaintiff must allege that the items sued for were not included in the settlements made, and- the burden of proof is on. the maker, of the notes to show that the settlements did not include debts 'owing to him from the adverse party.</p> <p>3 Evidence examined, and held not' to sustain the judgment.</p>

<p>Appeal from tlie district court for Antelope county: William V. Allen, Judge.</p>

<p>1. Vendor and Purchaser: Coktkact. Contracts upon which this action is predicated held, to be executory contracts for the sale of real estate, and not leases.</p> <p>2. Homestead. Where the purchaser of real estate under an. executory contract of sale partially performed occupies such real estate with his wife and family as his home, his wife may become vested with a homestead interest in the same.</p>

<p>Appeal fi-om tlie district court for Lancaster county: William M.' Morning, Judge.</p>

<p>■Appeal from the district court for Seward uoünty: EdwArd E. Good and George F. Corcoran, Judges.</p>

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

<p>1. Vendor and Purchaser: Bona Fide Purchaser. A bona fide purchaser of land is one who purchases for a valuable consideration paid or parted with, without notice of any suspicious circumstance which would put a prudent man upon inquiry.</p> <p>2. -: Contract: Reformation. Where it is shown by clear, satisfactory, and convincing testimony that a mutual mistake in the' description of property in a contract of sale has been made, a court of equity will reform the instrument so as to reflect the real contract between the parties; and this rule 'will also be applied as against a third party purchaser chargeable with notice of such mistake. .</p> <p>3. -: --: Mistake: Evidence. Evidence examined, and held that the intervener was not a dona fide purchaser; that he was charged with notice of such facts as would put a prudent man upon inquiry, and which, if followed up, would have disclosed that there was a mistake made in the contract in describing the land.</p>

<p>Error to the district court for Saunders county: Edward E. Good, Judge.</p>

<p>1. Corporations: Subscription for Stock: Unauthorized Representations by Agent. Where an Order contract for the purchase of stock in a corporation provided. “No conditions, agreements or representations,' other than those printed above, shall bind said company,” and the corporation on the faith of said order, and without knowledge of any oral promises, representations and agreements made by the agent to the purchasers, issued the stock and received payment therefor, the corporation was not bound by any such promises, representations and agreements outside of those contained in the written order.</p> <p>2. Principal and Agent: Authority of Agent: Notice. A person dealing with one known to be an agent is held to the exercise of reasonable prudence, and, if an agent makes an agreement, representation or promise so unusual and unreasonable as to arouse the suspicion of a man of ordinary or average business prudence, he is put upon notice and must ascertain if actual authority has been conferred.</p>

<p>1. Appearance. Where, in a motion to quash the service of summons upon him, a defendant pleads matter amounting to a demurrer to the petition, his appearance is general and the court has jurisdiction of his person. Bankers Life Ins. Oo. v. Robbins, 59 Neb. .170, followed.</p> <p>2. Wills: Equitable Conversion. A testator devised and bequeathed real estate and personalty in this state to his wife for her life, directing that, at her death, all the property be sold and the proceeds divided equally among his children. Held, that the direction to sell worked an equitable conversion of the real estate into personalty at the time of the testator’s death.</p> <p>3. Divorce: Alimony: Award of Undivided Remainder. Where an unambiguous will, by the terms of which the real estate thereby devised becomes equitably converted into personalty, has been admitted to probate without objection, and the estate thereby conveyed has been fully ascertained and inventoried by the executor, and all debts have been paid, and administration has been fully completed except final distribution, which is delayed pnly by the existence of the life estate, an undivided remainder in the estate is not in the custody of the county court so that the district court may not award it to the wife of the remainderman in a suit by her for divorce.</p> <p>4. -: -: -. Under such circumstances and conditions the court, upon granting a divorce to an innocent wife, has power to award to her the husband’s undivided interest in remainder, in appropriate proceedings in which the property is fully identified and the court has jurisdiction of the parties.</p> <p>5. Death: Presumption. Evidence examined, and held that, under the facts and circumstances, the presumption of death from seven years’ continued absence did not arise.</p>

<p>1. Pleading: Proof. A party will not be permitted to plead one cause of action and upon the trial rely on proof establishing a different cause. The allegations and proof must agree.</p> <p>2. County Courts: Courts of Record. In Nebraska, county courts are courts of record. They have exclusive original jurisdiction of guardianship and probate proceedings, and as to such matters they are courts of general, superior, and not inferior, jurisdiction. Their records import verity, and their proceedings possess, as a rule, the same presumptions of jurisdiction and regularity as are possessed by courts of superior common-law jurisdiction. All matters necessary to give the court jurisdiction, upon which the record is silent, are presumed.</p> <p>3. Guardian and Ward: Guardian’s Sale: Notice to Nonresident Minors. The failure to give notice to nonresident minors of an application made to a county court of Nebraska for the appointment of a guardian to take charge of and conserve their property located in this state is not such a jurisdictional defect as will render a sale of the property of such minors made by the guardian so appointed, under a license issued by the proper district court, void or subject to collateral attack.</p>

<p>1. Chattel Mortgages: Trust Funds. Where a bank, with knowledge of prior mortgage indebtedness on personal property, takes, a mortgage thereon, it being agreed between the mortgagor, the owner of the property, and the bank that the property is to be sold and the proceeds deposited in such bank, and out' of the ' .proceeds the bank shall first pay the prior mortgage indebtedness against the property, held that, upon- deposit of the proceeds of the property in such bank, the bank becomes trustee of the fund and holds the same in trust for the prior mortgagees; and, in an action in equity by one of the prior mortgagees to subject the trust fund to the payment of a balance due on one of the' prior mortgages (the proceeds of the property being sufficient to-pay the entire prior mortgage indebtedness against it), the fact, that the bank had applied a part of the trust fund in liquidation of the mortgagor’s indebtedness to the bank by his direction before or at the time of the application, thereby reducing the trust' - fund 'to an amount insufficient to pay the prior mortgages, would not: constitute a defense to such an acti'on; held, further; that the relation of debtor . and creditor did not exist between. the mortgagor and the bank,' except as to any amount remaining .after the payment of the prior mortgages, and that the bank must restore so much of the .trust fund as is necessary to pay the balance due the prior mortgagee bringing the suit: The’principle stated-in Alter vs Bank of Stockham; 53 Neb. 223; that “where a mortgagor of chattels -converts the same into cash, at their full value, and deposits the money .with his agent, w;ho has ..notice of the mortgage lien, an action will lie- at .the suit of .the "mortgagee against such agent, for the proceeds of such prop"'erty,” followed.</p> <p>2. Evidence examined, and held to sustain the judgment of the trial ■court. ' ■</p>

<p>1. Divorce: Abatement. Where a divorce was granted and one of the parties died before the expiration of six months thereafter, such divorce decree never became effective, and as to such divorce the action abated.</p> <p>2. -: Alimony: Death of Paety. In such action, where, as a part of the decree, alimony was allowed and fully paid before the death of the party, the alimony judgment was not affected by the death of the party, and the court has no power to vacate the judgment or dismiss the action.</p>

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

<p>Appeal from the district court for Saunders county:</p>

<p>1. Indictment: Practice of Medicine: Negativing Exceptions in Statute. The exceptions set forth in section 2724, Rev. St. 1913, as amended in 1919 (Laws 1919, ch. 190, title VI, art II; sec: 8), form no part of the description of the offense, and it is unnecessary that they be negatived in an indictment charging a violation-of the medical practice act.</p> <p>2. Physicians and Surgeons: Act Regulating Pkactice of Medicine: Validity. The statute regulating the practice of medicine is not '■oid as discriminatory because it fails to provide that persons desiring to practice “Napropathy” may treat diseases without examination.</p> <p>3. ---: State Boakd of Health: Dutiesv Unless so provided by the legislature, it is not incumbent upon the state board of health to furnish means for examining the qualifications of all persons desiring to treat patients by drugless or other methods of healing for fee or reward, and to fail to do so is not a denial of any constitutional right.</p> <p>4. -: —-: New Methods of Healing. Neither the legislature nor the state board of health can-be expected to anticipate the inception of new methods of healing.</p>

<p>1. Schools and School Districts: High School Districts: Annexation of Territory: Approval. In a proceeding to annex territory to an existing high school district under the proviso in section 6’, ch. 243, Laws 1919, the approval of such annexation by the board of education of the district to which it is sought to annex such territory is, after the declaration of annexation by the county superintendent of schools, the only approval or consent necessary to be given and no action is required to be taken by the authorities of other school districts affected.</p> <p>2. -: -: -: Notice. In such proceedings notice to the school boards of the other districts affected is not required.</p> <p>3. -: -: Boundaries: Notice. The terms of the statute which provide for a hearing on the initial ’ question of fixing the boundaries of consolidated districts by the redistricting committee furnish sufficient notice to all parties interested of the proposed boundaries of the district.</p> <p>4. -: -: Annexation of Territory: Petition: Withdrawal of Names. Petitioners for the annexation of territory to an existing high school district, under section 6 of the act above mentioned, may withdraw their names from the petition by written request at any time before action has been taken by the county superintendent.</p> <p>5. -: -: -: -: -. After such declaration has been made and communicated to the parties mainly interested, it is too late to withdraw their names, even though ■ the declaration was not reduced to writing immediately.</p> <p>6. Evidence: Parol Evidence: Acts of Public Officials. Where the statute does not require a record to be made of official acts of a public officer, parol proof is competent and admissible to show that action was taken and the nature of such action.</p> <p>7.- Schools and School Districts: High School Districts: Annexation of Territory: Petition: Withdrawal of Names. The fact that withdrawals from such a petition were made before approval by the board of education of the “existing high school district” to which it is. sought to annex territory is not material, since the determination of the number and eligibility of the signers of such a petition is committed to the county superintendent, and his or her action upon the petition is final.</p>

• Original proceeding in mandamus to compel respondent, as auditor, to register certain bonds of Polk county, issued for the erection of a courthouse.

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

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

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

<p>1. Master and Servant: Workmen’s Compensation: Appeal: Conflicting Evidence. “Where the district court in a workmen’s compensation case finds, on substantially conflicting evidence, that the employee was injured in a particular manner, such finding of fact will not be reversed on appeal unless clearly wrong.” Swift cí Co. v. Prince, ante, p. 358.</p> <p>2. -: -: Loss of Use of Finger. Where the injured employee suffered 25 per cent, partial permanent loss of the normal use of the second or middle finger of his right hand, the extent of the injury not being ascertainable until 10 weeks after the accident, then he is entitled, under section 3662, Rev. St. 1913, as amended by section 7, ch. 85, Laws 1917, to compensation for the period of 7% weeks at $15 a week, commencing, not with the day of the accident, but with the day when the extent of the injury ■ is ascertainable, and, in addition, is entitled to $15 a week for the 10 weeks.</p> <p>3. Witnesses: - Fees of Expert. “One testifying as an expert on a subject requiring special knowledge and skill, in the absence of a special contract, is entitled only to the statutory fee.” Main v. Sherman County, 74 .Neb. 155. .</p>

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

<p>1. Appeal: Verdict: Review. A verdict of a jury, based upon sufficient evidence to support it, and which cannot be said by the court to be clearly wrong, will not be set aside merely because it [appears to be against the weight or preponderance of the evi- ■ d'ence, as the weight of the testimony is for the jury, and not for the appellate court.</p> <p>2. —: -: -. Verdict held to be supported by sufficient evidence, and not a verdict which a reviewing court could say was clearly wrong.</p>

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

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

<p>Error to the district court for Pawnee county: Willard E. Stewart, Judge.</p>

<p>1. Schools and School Districts: De Facto High School District. Where a petition is filed with the county superintendent of schools under the proviso of section 6, ch. 243, Laws 1919, containing the names of persons whom he holds to be not less than 51 per cent, of the school electors residing outside of an existing organized high school district and adjoining said high school district, asking that said territory be consolidated with said high school district, and he issues his order thereon declaring such territory to be annexed to and consolidated with said high school district and numbers the new or consolidated district, and he and the superintendent of public instruction recognize said consolidated district to be a legal entity, held, that said consolidated district is a de facto school district.</p> <p>2. -: -: Quo Warranto. Where a de facto school district is shown to exist, its legality cannot be attacked by injunction or by other collateral proceeding, but must be tested by quo xoarranto.</p> <p>3. -: Officers: Quo Warranto. Where it appears that certain persons are acting as the board of education of a school district under color of right, and they are recognized as such by the county superintendent of schools and the superintendent of public instruction, held, that the right to their offices cannot be questioned by injunction, but must be tested by quo warranto.</p>

<p>Error to the district court for Fillmore county: Ralph D. Brown, Judge.</p>

<p>1. Criminal Law: Continuance: Showing. Defendant’s motion and affidavit for a continuance on the ground of the absence of a material witness, or for time to take his testimony, examined,' and held insufficient.</p> <p>2. -: Veniremen: Competency. The question of the competency of a venireman to sit in the trial of a criminal case cannot be raised by a motion for a continuance.</p> <p>3. -: Jurors: Qualification. Where two or more persons are jointly indicted or informed against for the commission of a single offense and- sever in their trials, jurors who sat in the trial of one are thereby disqualified to sit in the trial of another.</p>

<p>1. Evidence examined, and held insufficient to support the verdict.</p> <p>2. Parent and Child: Failure to Support Child: Wilful Neglect. The failure of the husband to furnish his wife money for the maintenance of a two months old infant born in the home of her parents, after she had left the matrimonial domicile without cause and contrary to his wishes, is not in itself wilful neglect, or refusal to provide for such child, within the meaning of section 8614, Rev. St. 1913.</p> <p>3. Criminal Law: Action for Abandonment: Venue. The county in which the matrimonial home or domicile of the husband and wife is located fixes the venue of a case prosecuted under section 8614, Rev. St. 1913, and such case cannot be instituted in another county.</p> <p>4. Husband and Wife: Domicile. The husband has the right to establish the matrimonial domicile, and it is the duty of the wife to recognize that fact.</p> <p>5. Parent and Child: Abandonment: Application of Statute. No inflexible rule can be laid down for the application of section 8614, Rev. St. 1913; each case must be decided on its own merits; the statute was enacted for a wise purpose, but is capable of abuse and of being made an instrument of intolerable oppression.</p> <p>6. Penal Statutes: Construction. It is elementary that penal statutes are inelastic and must be strictly construed; they are never extended by implication.</p>

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

<p>Appeal fi-om the district court for Hodge county: Frederick W. Button, Judge.</p>

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

<p>1. Taxation: Trust Companies: Shares oe Stock. Shares of stock in a trust company are a distinct entity from the capital stock, or property and assets of the corporation.</p> <p>2. -: -: -. The tax contemplated by section 6343, Rey. St. 1913, as amended by ch. 108, Laws 1915,’ relating to the taxation of trust companies, is a tax upon the shares of stock in the hands of stockholders, and is not a tax upon the property of the corporation.</p> <p>3. -: : “Capital Stock.” The words “capital stock,” as used in section 6343, supra, does not mean capital stock in the aggregate, but shares of capital stock in the hands of stockholders which are subject to taxation.</p> <p>4. -: : Shares oe Stock: Deduction oe Securities. When the tax is laid upon shares of stock of a trust company in the hands of the stockholders, no deduction of securities exempt from taxation, owned by the trust company, is required to be made by the laws of this state or by the laws of the United States.</p>

<p>Appeal from the district court for'Fillmore county. Ralph D. Brown, Judge.</p>

<p>Master and Servant: Employers’ Lilbility Act: “Casual Employment.” One who is employed to work in an automobile garage without any understanding as to the time of his employment, or the particular character of labor he is to perform, and assembles and sets up automobiles and performs such other labor in and about the garage as he is directed to do by the foreman or manager, and such work is incident to, and in the usual course of, the business, is held not to be casually employed within the meaning of the employers’ liability act.</p>