Volume 107 — Nebraska Reports

<p>1. Master and Servant: Action for Death: Negligence. Wliere, in an action for damages for the death of plaintiff’s decedent against the director general of railroads, instituted under the federal employers’ liability act, arising out of an alleged violation of the federal safety appliance act, it appears from the undisputed testimony that, while in transit, the automatic coupler to one of the defendant’s cars become broken and discarded as unfit for further use, and instead of conveying said “bad-order” car to the nearest point for repair, as required under the statute, the defendant caused said car to be fastened to the car behind it by means of a chain, and, thus fastened, mingled said “bad-order” car with other commercial cars and proceeded to haul it toward its destination at a distant point in a neighboring state, held, said act on the part of the defendant to be negligence per se.</p> <p>2. -: -: Question for Jury: Sufficiency of Evidence: Assumption of Risk. On the claim by defendant that decedent, in being where he was and in doing what he did at the time of the happening of the accident, resulting in his death, was a mere volunteer, and not engaged in the master’s service, and that it was the duty of the court to so declare as a matter of law and direct a verdict for the defendant accordingly, held, that under the evidence the question was one of fact properly to be submitted to the jury. This having been done, under a proper instruction, and a verdict favorable to the plaintiff returned, held, further, that the evidence is ample to support a finding for plaintiff in this respect; held, further, that, if decedent was properly engaged in the master’s service at the time and place of the accident, he did not assume the risk of danger incurred thereby, even though he had full prior knowledge of the same.</p> <p>3. -: -: Measure oír Damages. In an action for damages against the director general of railroads for the death of plaintiff’s decedent, instituted in a state court under the federal employers’ liability act, upon a finding for plaintiff, the. measure of damages must be settled according to the principles of law as administered by the federal courts requiring the ascertained proceeds of the probable future earnings of decedent to be reduced to their present worth and to include in the verdict to be returned by the jury such sum only, and it is the duty of the state court to so instruct the jury. The defendant having tendered such instruction to the trial court, and the same being refused, and the court giving no other instruction upon the subject, held error.</p> <p>4. -: -: Excessive Damages. In view of the foregoing and in connection therewith, held, further, that -the verdict and the judgment rendered thereon is grossly excessive, because of which a new trial must be granted.</p>

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

<p>1. Master and Servant: Action fob Death: Questions fob Juey. Where, in an action for damages against the director general of railroads, for the death of plaintiff’s decedent, caused by the alleged negligent maintenance of defendant’s roadbed and track, the evidence as to negligence and the proximate cause of the accident is sharply conflicting, although the defendant’s testimony may strongly tend to overcome that of the plaintiff, yet if the evidence upon these issues, taken as a whole, is such as from which different minds may honestly draw different inferences and conclusions, and the testimony is sufficient to sustain a verdict for the plaintiff, if one be found in her favor, the situation presents one proper to be submitted to a jury.</p> <p>2 -: -: Sufficiency of Evidence. Evidence upon the issues referred to examined, and held proper to submit the same to the jury; held, further, that the evidence upon the same is sufficient to sustain a verdict for the plaintiff if submitted to the jury on proper instructions.</p> <p>3. Quaere. Where, in an action for damages against the director general of railroads for the death of plaintiff’s decedent, caused by the alleged negligent maintenance of defendant’s roadbed and track, wherein it appeared that the engine which the decedent was operating became derailed, the train wrecked, and the decedent killed, the court submitted the question of negligence to the jury by an instruction, perhaps otherwise proper, but containing the statement, “You are not confined to the statements of witnesses alone, but- you are at liberty to consider what occurred (italics ours),” held probable error, but not definitely decided for reasons stated in the opinion.</p> <p>4. Master and Servant: Action fob Death: Assumption of Risk: Question fob Juey. The defendant, interposing the defense of assumption of risk, introduced evidence strongly tending to establish the same. Held, nevertheless, it was one of the questions, among other things, proper to be submitted to the jury, which was done by a proper instruction on the subject.</p> <p>5. -: -: Measure of Damages. In an action for damages t against the director general of railroads for the death of plaintiff’s decedent, instituted in a state court under the federal employers’ liability act, upon a finding for plaintiff, the measure of damages must be settled according to the principles of law as administered by the federal courts requiring the ascertained proceeds of the probable future earnings of decedent to be reduced to their present worth and to include in the verdict to be rendered by the jury such sum only, and it is the duty of the state court to so instruct the jury. The defendant having tendered such instruction to the trial court, and the court having refused the same, and giving no instruction upon the subject, held error. Sweat v. Riñes, ante, p. i.</p> <p>6. -: -: Excessive Damages. In view of the foregoing and in connection therewith, held, further, that the verdict and the judgment rendered thereon is grossly excessive, because of which a new trial must be granted.</p>

<p>Appeal: Issues. “It is the settled law of this state that a cause is to he tried in the appellate court upon the same issues that were presented in the court from which the appeal was taken, with the exception of new matter arising after the first trial.” Oo'b’bey v. Buchanan, 48 Neh. 391.</p>

<p>Appeal from tbe district court for Franklin county. William A. Dilworth, Judge.</p>

<p>1. Appeal: Misjoinder. A complaint that there has been a misjoinder of parties defendant should be called to the attention of the district court before trial, a'nd it is too late to raise this objection for the first time in the appellate court.</p> <p>2. Carriers: Failure to Deliver Shipment: Negligence. Under the Carmack amendment to the interstate commerce act (34 U. S. St. at Large, ch. 3591, p. 584), in order to recover against an initial carrier for loss or damage to an interstate shipment, it is unnecessary to establish negligence on its part.</p> <p>3. -: -: ' Instructions. In an action against the initial and a connecting carrier for damages for failure to deliver cattle shipped, the court instructed the jury that the liability of the defendants “is not a joint liability;” and in other instructions suggested or implied that a verdict for the plaintiff against all of the defendants was proper. Held that, under the pleadings and the evidence, the first instruction was correct, and that the latter was inconsistent with it. Held, further, that the error was prejudicial to the defendant, whose liability was not established by the proofs, and against whom a judgment was rendered.</p> <p>4. -: Costs:, Attorney’s Fees. It is a prerequisite to the allowance of an attorney’s fee under the provisions of section 6063, Rev. St. 1913, as amended by chapter 134, Laws 1919, that the requirements of said section with reference to the presentation of the claim to the carrier accompanied by bill of lading, etc., within the time specified, be observed.</p>

<p>1. Waters: Irrigation: Kigi-its of Owners of Land. The owner of land through which an irrigation ditch or canal is constructed under the provisions of subdivision 2, sec. 13, art. II, ch. 68, Laws 1889, is entitled to the use of the water for irrigation purposes upon payment of “the usual and customary rates” for the use of the water.</p> <p>2 -: -: -. “The owner or operator of any works for the storage, carriage or diversion of water except irrigation districts must deliver all water legally appropriated to the parties entitled to the use of the water for beneficial purposes, at a reasonable rate, to be fixed by the state railway commission, according to the law in such cases relating to common carriers.” Rev. St. 1913, sec. 3454.</p> <p>3. Evidence examined, and held not to show any title in defendant to an interest in the ditch or canal of the plaintiff.</p>

<p>1. Remainders: Suit to Quiet "Title. Under the statutes of Nebraska remaindermen- may maintain a suit to quiet title before the termination of the life estate.</p> <p>2. Wills: Construction: Remainders. The law favors the early vesting of estates, and in construing a will containing a devise of a life estate and a devise of the remainder, the inference of a vested remainder is stronger than the inference of a contingent remainder, if the meaning of the testator is obscure in this respect.</p> <p>3. -: ■- — : -. A will devising a life estate to the wife of testator, his property at her death to be divided equally among his four children, and providing, in case of the death of one or more of them without heirs, that his property shall descend in equal shares to the survivors, construed to devise a vested remainder to the children living at the death of testator.</p> <p>4. Descent: Widows. For the purposes of the Nebraska statutes of descent a widow may be an heir of her deceased husband.</p>

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

<p>1. Appeal in Equity: Trial de Novo. When an action in equity is appealed, it is the duty of this court to try the issues de novo■ and to reach an independent conclusion without reference to the findings of the district court. Rev. St. 1913, sec. 8198. But when the evidence on material issues so conflicts that it cannot be reconciled, “this court will consider the fact that the trial court observed the witnesses and their manner of testifying, and must have adopted one version of the facts rather than the opposite.”’ Shafer v. Beatrice State Bank, 99 Neb. 317.</p> <p>2. Trusts: Partnership: Transactions in Lands. When two or more persons agree orally to buy and to deal generally in land, each of the parties contributing equally to the purchase price, and when the title to the land so acquired has, by agreement, been placed in the name of one of the parties, a trust relation is thereby created and the trustee holding the title can be required to account in equity to his associates for the profits arising from the transactions.</p> <p>3. Statute of Frauds: Transactions in Lands: Paeol Contract. When two or more persons orally agree to furnish the money to buy real estate to sell again and to share the profits and the losses arising from the joint enterprise, such agreement does not come within the inhibition of the statute of frauds and need not be in writing. Rev. St. 1913, ch. 25, secs. 2621-2652.</p>

<p>1. Hospitals: Cause of Injury. In respect to the causes of the alleged injury the verdict of the jury is a complete and specific answer.</p> <p>2. -: Negligence: Question for Jury. Whether or not the nurse was careless and negligent in administering the hypodermic injection is a question for the jury.</p> <p>3. Master and Servant: Torts of Servant: Liability. A master is responsible for the torts of a servant when he is acting within the scope of his employment.</p> <p>4. Charities: Hospital Operated for Gain. A hospital supported and maintained and built by private subscription and the subscription of stockholders, and which declares dividends to its stockholders, and usually charges reasonable fees for services rendered, is not an eleemosynary institution, but one for private gain.</p> <p>5. Hospitals: Liability. A hospital incorporated and conducted for private gain is liable to patients for the negligence of nurses and other employees.</p> <p>6. Evidence: Hypothetical Questions. It is sufficient in propounding a hypothetical question to limit the question to the statement of facts containing the idea upon which the evidence is elicited or brought out.</p>

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

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

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

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

<p>Error to tbe district court for Morrill county: Anson A. Welch, Judge.</p>

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

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

<p>1. Taxation:’ Action to Redeem: Trial to Court. An action to redeem from a void tax foreclosure sale is properly triable to tbe court without the intervention of a jury.</p> <p>2. -: Foreclosure: Jurisdiction, In an action to foreclose tax sale certifícales, where an affidavit is filed alleging that the defendant named is a nonresident of the state, when in fact he died a resident of the state previous to that time, and the only service obtained was constructive service under such an affidavit, the court acquired no jurisdiction, and a decree and sale under such circumstances is void.</p> <p>3. --: .-: -: Lis Pendens. In an action of foreclosure, where the plaintiff has failed to secure proper service, a notice of Ms pendens filed at the time of the commencement of the action is not a substitute for legal service and confers no jurisdiction upon the court for any purpose.</p> <p>4. Limitation of Actions: Foreclosure of Tax Liens: Insane De'-. fend ant. Where the owner of real property is confined in an asylum for the insane at the time of an attempted foreclosure of tax liens against his property, and continues , to be mentally incompetent after his discharge from the hospital for the insane, the statute pf limitations, does not. commence to run ag:ainst his right to redeem until he has been sufficiently restored to his mental power's to be able to comprehend that he was the owner of the property, and able to take some action to protect his rights with reference thereto.</p>

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

<p>1. Appeal in Equity: Incompetent Evidence. Upon appeal in actions in equity, this court will not consider incompetent evidence received by the trial court.</p> <p>2. -: Conflicting Evidence. Upon appeal in actions in equity, when the testimony of witnesses orally examined before 'the court upon the vital issues is conflicting, this court will, while trying the "case de novo, consider the fact that the trial court observed the witnesses and their manner of testifying, and must have accepted cne version of the facts rather than the opposite.</p>

<p>1. Intoxicating Liquors: Action for Death: Instructions. Under section 52 of the 1917 liquor law (Laws 1917, ch. 187), interpreted in the light of sections 54 and 58 thereof, it is not improper .to instruct the jury that, if they find that the defendants furnished the deceased “intoxicating liquors which caused or contributed to his intoxication and that his death occurred by accident caused or contributed to by such intoxication,” they should find for the plaintiffs.</p> <p>2. Trial: Quotient Verdict. Where the jurymen separately indicate the amount of damages, the amounts are added, the total sum divided by the number of jurors, the quotient afterward assented to as the amount of their verdict and returned into court and declared by the jury to be their verdict, the judgment based thereon will not be set aside.</p> <p>3. Appeal: Misconduct oe Attorneys: Review. A litigant desiring to claim error on account of the misconduct of opposing parties or counsel must call the attention of the trial court to such misconduct at the time it occurs, ask the court for protection, and preserve in the bill of exceptions the record of what occurs, so that the trial court may have an opportunity to protect the litigant, and, failing that, this court may not properly review the action of the trial court.</p>

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

<p>1. Specific Performance: Marriage Contract. On examination of entire case, held that the proofs tend to show an oral contract of marriage, and not a contract to act as housekeeper and to care for deceased as long as he lives, in consideration of his property.</p> <p>2. Statute of Frauds: Contract in Consideration oe Marriage. A contract in consideration of marriage is void, unless it, or some note or memorandum thereof, he in writing and subscribed by the party to be charged therewith. Rev. St. 1913, sec. 2630.</p>

<p>Error to the district court for Gage county: Leonard W. Colby, Judge.</p>

<p>1. Wills: Construction: “Issue of the Body.” Where there was a devise of land to James for life, and at his death to the issue of his body in fee simple, if he shall leave any such issue surviving him, if not, then the same to go to the heirs of testator’s blood, held, that by the term “issue of his body" testator meant lineal descendants, and not children only.</p> <p>2. -: -: Devise. A devise of land to James for life, and at his death to the issue of his body, if he shall leave any such surviving him, but, if he shall not, then said land to go to the heirs at law of testator, held, an estate in remainder, and not an executory devise to the issue of James, and that B. and D., sons of James, took a vested estate in remainder at the death of testator, subject to open and let in afterborn issue.</p> <p>3. -: -: -. Held, further, that said vested estate, or interest, was defeasible, and not absolute, and that the death of D., one of the sons of James, during the life of his father, defeated his interest, and that his (D.’s) three minor children took the interest of their father, not as his heirs at law, however, but as issue of the body of their grandparent as substituted devisees in place of their deceased father, and conditional upon their surviving their said grandparent.</p>

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

<p>1. Adverse Possession: Islands : Accretions. Title by prescription may be acquired to an island in a stream, which otherwise would belong to a riparian owner. Accretions to an island so held and occupied for more than the statutory period belong to the owner of the island, and not to the riparian owner to whom the island or a part of it would otherwise belong.</p> <p>2. -: -: - — . Evidence examined, and held to establish title in defendants to the original island and its accretions by adverse possession.</p>

<p>1. Vendor and Purchaser: Executory Contract: Abandonment. It is the duty of one who claims an interest in real estate under an executory contract of sale, which the vendor refuses to perform, and which property is advancing in value, not to unreasonably delay the assertion of his claim and thus lull the adverse party into security. If he fails to assert his rights within a reasonable length of time after the breach of the contract by the other party, he may under certain circumstances be held to have abandoned his right to enforce it, and the determination of what constitutes a reasonable time under all the circumstances of the case, and an abandonment, rests in the sound discretion of the court.</p> <p>2. -: -: -. Under the facts disclosed by the record, held that there was an abandonment of the contract by defendant.</p>

<p>1. Insurance: Contract. A life insurance risk, before the issuance of a policy for which an application has been made, is not assumed until the minds of both applicant and insurer meet on definite terms to that effect.</p> <p>2. -: -. An application for a life insurance policy to bear the same date as the application, a letter from the insurer to the applicant, acknowledging the receipt of the application with settlement for the first annual premium, and a receipt for the first annual premium, containing a promise to return the full amount received, if the policy should not be issued, held not to constitute a present binding contract of life insurance before the issuance of a policy, where those documents show that the. premium was accepted subject to the further physical examination of the applicant and to the subsequent approval of the risk.</p>

<p>Jury: Peremptory Challenges. The rule is that peremptory challenges are not to be exercised until the jurors have been passed for cause and twelve persons are in the jury-box having the qualifications of jurors.</p>

<p>1. Divorce: Extreme Cruelty. “There may be extreme cruelty justifying a decree of divorce without physical injury or violence. Unjustifiable conduct on the part of husband or wife, which utterly destroys the legitimate ends and objects of matrimony, may constitute extreme cruelty.” Myers v. Myers, 88 Neb. 656.</p> <p>2. Evidence examined, and held sufficient to support the decree.</p>

<p>Insurance: Beneficiary: Rights of Divorcee. Where a decree of divorce Ras been entered, under section 1606, Rev. St. 1913, the marriage status of tbe parties continues until tlie decree becomes operative to dissolve it, and, where the husband dies within six months after the entry of such decree, the relation of the surviving wife to the husband and to his estate is held not to be so fixed and altered by such a decree that the wife is, in practical effect, a divorced wife, so as to be prevented from taking as a beneficiary under a certificate of insurance, where a by-law denies a divorced wife the right to the proceeds.</p>

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

<p>1. Appeal: Final Order. Where the statutory method of revivor is followed and a conditional order of revivor made and, in pursuance thereof, an absolute order entered, suctí latter order is, in this state, a final order and appealable, under the provisions of our statute. Rev. St. 1913, see. 8176.</p> <p>2. Revivor. Where an action for damages, grounded on negligence causing death, is brought against a defendant, and the defendant dies pending the proceeding, held, that the action may be revived and continued as against the representative of his estate by reason of the provisions of section 8023, Rev. St. 1913.</p>

<p>1. Evidence: Written Contracts: Parol Evidence. Where the statement in a written instrument as to the consideration is more than a mere statement of fact or acknowledgment of the payment of a money consideration, and is of a contractual nature, parol or extrinsic evidence is not admissible to vary or contradict the consideration expressed.</p> <p>2. -: -: -. The rule that parol evidence is admissible to prove that contemporaneously with, or preliminary to, the execution of a written contract the parties entered into a distinct oral agreement on- some collateral matter or as a condition on which the performance of the written contract is to depend, does not apply where the written contract is complete in itself and unambiguous, and where it expresses a contractual consideration. "Wehnes v. Roberts, 92 Neb. 696; Huffman v. . Ellis, 64 Neb. 623;' Norman v. Waite, 30 Neb. 302; Barnett v. Pratt, 37 Neb. 349, and De Laval Separator Go. v. JelineJc, 77 Neb. 192, examined and distinguished.</p> <p>3. Sales: Default: Remedy. Where a contract of sale provides ' for deliveries in instalments and for the payment of the price of each instalment as delivered or. within a stated time thereafter, the buyer cannot refuse to pay the price of an instalment when delivered, on the ground of a claim for damages for an alleged breach by the seller of another contract, and still insist upon further deliveries under the contract. In such case the buyer’s default is a breach of the contract, entitling the seller to rescind and, if the market price has declined, to recover as damages the difference between the contract price and the market price of the instalments remaining undelivered.</p>

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

<p>Master and Servant: Assault: Liability oe Employer. The employment of a foreman in a factory or shop, with authority to direct the method of doing the work and with power to engage and discharge employees, does not bring within the scope of such employment the right or duty to inflict corporal punishment upon an employee, and, if following the discharge of an employee, but before his departure from the premises, the foreman makes an assault upon him, the employer will not be held liable for the injury received, in the absence of proof that the foreman was a person of violent temper, or dangerous character, and that the employer knew, or ought to have known, of his infirmity, unless it be shown that the employer either directed or authorized the assault.</p>

<p>1. Appeal: Review. Equity cases on appeal are required, under the law, to be tried here de novo, without reference to the findings of the trial court. But when in a case of that character the testimony is so conflicting on material facts that both versions cannot be accepted as true, we will consider the fact that the trial court had an opportunity to observe the witnesses and their demeanor, and when witnesses, who are apparently of equal credibility, disagree with respect to material facts, the circumstances in the case which tend to verify one version rather than the other will also be carefully considered. Shafer v. Beatrice State Bank, 99 Neb. 317.</p> <p>2. Evidence examined and in part set out and discussed in the opinion, held that the trial court did not err in dismissing plaintiff’s petition.</p>

<p>1. Carriers: Damage to Goods Shipped: Presumption. Where a party delivers goods to a common carrier for shipment in good condition and the goods arrive at destination in a damaged condition, a prima facie case is made against the carrier by reason of a presumption that the damage resulted from some cause other than one which would exempt the carrier from liability.</p> <p>2. -: -: -. A party relying upon such a presumption has a right to rest secure, until prima facie evidence has been adduced by 'the opposite party; but the presumption should never be placed in the scales to be weighed as evidence.</p> <p>3. Prima facie evidence means sufficient evidence upon which a party will he entitled to recover if his opponent produces no further testimony.</p> <p>4. Evidence: Jtjdiciai. Notice. Spontaneous combustion means the ignition of a body by the internal development of heat without the action of an external agent, and the court will not take Judicial notice that charcoal is predisposed to generate internal heat, sufficient to start fire.</p> <p>5. Trial: Instructions. There is no evidence in this case tending to support the theory of spontaneous combustion, and the instruction complained of was rightly given and those requested properly refused.</p> <p>6. Attorney’s Fees. The attorney fee allowed is in the nature of reimbursement of costs, and the law authorizing it is not unconstitutional as providing a penalty.</p>

<p>Evidence examined, and found insufficient to sustain a verdict against defendants Hixenbaugh, and held that the trial court was right in dismissing them from the case.</p>

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

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

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

<p>1. Statute of Frauds: Parol Contract: Motion to Direct Verdict. Where no objection is made to evidence of an oral contract claimed by defendant to be within the statute of frauds, and there is evidence tending to prove a part payment on the contract, a motion made at the close of the evidence for plaintiff to direct a verdict for the defendant on the ground that the contract was within the statute was properly overruled.</p> <p>2. Appeal: Objections to Evidence. In order to save a question as to the reception of evidence for review by the supreme court, objection to such evidence must be made in the trial court.</p> <p>3. Landlord and Tenant: Action by Tenant. Where a landlord and tenant, on the share rent plan, were the owners of a crop , of corn, and the tenant alone brought an action to recover for damages for a breach of a contract to purchase the whole crop, and the landlord testified that the tenant was authorized to sell the crop, and that he had authorized the action to be brought in the name of the tenant for both interests, a motion to dismiss the suit, as not being brought by the real party in interest, was properly overruled.</p>

<p>1. Brokers: Sale oe Land. A letter which merely states the terms upon which the owner is willing to sell his land does not empower the person addressed to execute a contract in the owner’s name for the sale of the land. Boss v. Craven, 84 Neb. 520.</p> <p>2. -: -: Offer: Acceptance. It is elementary that an acceptance of a written offer to sell land, in order to create a contract, must conform strictly to the terms of the offer. Boss v. Craven, 84 Neb. 520.</p> <p>3. Ratification by defendant of an alleged contract for the sale’ of land is not shown in the record.</p>

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

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

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

<p>1. Divorce: Extreme Cruelty. “There may be extreme cruelty justifying a decree of divorce without physical injury or violence. Unjustifiable conduct on the part of husband or wife, which utterly destroys the legitimate ends and objects of matrimony, may constitute extreme cruelty.”. Myers v. Myers, 88 Neb. 656.</p> <p>2. -: Alimony. Alimony, as that term is technically understood, may not be allowed to the husband out of the wife’s separate property, in an action for dissolution of the marriage; but where it is shown that the accumulated property in the name of the wife is the result of the joint earnings of the parties, the court will inquire as to the source of the accumulated property, and, in the exercise of a reasonable discretion, will divide the property between the parties, awarding to the husband his equit-1 able portion thereof, and may enter a judgment in favor of the husband for the equitable amount found to be due him.</p>

<p>1. Municipal Corporations: City Clerk: Directory Duties. Section 5147, Rev. St. 1913, prescribing generally the duties of the city clerk of a city of the second class and requiring him to “keep a correct journal of the proceedings of the council,” so far as it covers the matter of recording the reading of a city ordinance, is directory merely, and not mandatory.</p> <p>2. -: Ordinances: Presumption. Where the minutes of the city council show that an ordinance was adopted, and set forth the record of the yea and nay vote thereon, the silence of the record on the matter of the reading of the ordinance, not required by the statute to be recorded, does not prove that the ordinance was not read, but, on the other hand, the presumption is that the ordinance was properly enacted.</p> <p>3. --: -: -. Where the municipal record of such a city does not affirmatively show that the ordinance was not read the third time before final passage, but it does appear that the ordinance was passed and the vote thereon is spread upon the record, it will be presumed that the ordinance was duly read before it was adopted.</p> <p>4. Evidence: Legislative Record: Parol Evidence. Though parol evidence may be admissible to supply that part of a legislative record which is lost or destroyed, it is not admissible to supplement the record upon matters as to which the record is merely silent.</p> <p>5. -: -: -. Where the municipal record shows that an engineer’s estimate was filed and approved and adopted, parol evidence is admissible to prove such estimate where it is shown that it has been lost.</p> <p>■6. Municipal Corporations: Paving: Notice. Section 5113, Rev. St. 1913, providing that personal notice may be given to property owners in a paving district, and which does not prescribe the length of time of such notice, construed to require that the notice be given so as to allow a party a reasonable time to prepare for the hearing and to arrange matters so as to enable him to attend.</p>

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

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

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

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

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

<p>Insurance: Beneficiables. Where the statutes of the state under which a mutual benefit association is organized, as well as its own by-laws, specify the classes of persons in whose favor a beneficiary certificate may be issued, and a member of such association, by false and fraudulent representations that the beneficiary named by him comes within one of the classes specified, procures a certificate to issue in favor of such person, such issuance is ultra vires, and no recovery may be had upon the certificate either by the beneficiary named or by the heirs at law.</p>

<p>1. Insurance: “Riot or Civil Commotion.” Riot and civil commotion import occasional local or temporary outbreaks of unlawful violence, which, though temporarily destructive, do not rise to the proportions of organized rebellion against the government.</p> <p>2. -: -. The words “riot or civil commotion” as used in a policy of burglary insurance will be given their popular or usual meaning, and, as used in the policy in suit, field to imply the wild or irregular action or tumultuous conduct on the part of three or more persons assembled together for the purpose of doing an unlawful act.</p> <p>3. Trial: Taking Case erom Jury. Where on the trial of an issue of fact the proof relating to the disputed issue is so clear and conclusive that reasonable minds cannot reach different conclusions, it is not error for the trial court to dismiss the jury and enter judgment in accordance with the evidence. •</p>

<p>1. Mandamus. A writ of mandamus should not be issued if a relator does not establish a clear legal right to the performance by the respondent of the particular duty sought to be enforced.</p> <p>2. Bill of Exceptions. A person who desires to present a bill of exceptions of the rulings of the district court upon a motion for a new trial is not required to procure a transcript from the official court reporter of affidavits filed in support of the motion, nor to obtain his certificate to the same.</p> <p>3. -: Extension oe Time: . Discretion oe Court. Where an affidavit presented in support of a motion for a new trial is on file in the office of the clerk of the district court, and a copy was in the possession of the party desiring a bill of exceptions settled, and this was tbe only evidence necessary to be embodied in tbe bill, it is not an abuse of discretion by tbe trial court to refuse to allow an extension of time, over tbe statutory 15 days, for tbe presentation of a bill of exceptions.</p>

<p>Appeal from the Department of Public Works.</p>

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

<p>Appeal from the district court for Talley county: Edwin P. Clements, Judge.</p>

<p>Evidence examined, and held insufficient to establish judgment of guilt.</p>

<p>1. Aliens: Inheritance. Where a citizen oí the United States, who at the time of his death was the owner of a tract of farm land not within any of the exceptions of section 6276, Rev. St. 1913, dies intestate, leaving as ‘ his • next of kin two nieces who were citizens of the United States, and three nephews who were nonresident aliens residing in England, and subjects of the Kingdom of Great Britain and Ireland, there being no treaty between the United States and the Kingdom of Great Britain and Ireland affecting the question, held, that the provisions of section 6273, Rev. St. 1913, preclude the three nephews from acquiring any title or interest in such lands, and that the entire estate in the land vested in the two nieces who were residents and citizens of the United States.</p> <p>2. -: -. The exception in section 6273, Rev. St. 1913, giving to the widow and heirs of aliens who have acquired lands in this state prior to March 16, 1889, the right to hold such lands by devise or descent for a limited period, and providing a method for escheating such lands, has no application where the deceased landowner was a citizen of the United States.</p> <p>3. Case Overruled. The decision in State v. Thomas, 103 Neb. 147, in so far as it is contrary to the views herein expressed, is overruled.</p>

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

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

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

<p>Negligence: Instructions. In an action to recover for injuries sustained by collision with an automobile, an instruction which erroneously states the speed limit authorized by law for a motor vehicle upon approaching another vehicle, and states that the law requires lights to be exhibited on motor vehicles in use during the period from one hour after sunset to one hour before sunrise, and, without qualification, informs the jury that the failure of any person operating an automobile upon a public highway to comply with any of such provisions, in itself, constitutes negligence, is erroneous.</p>

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

<p>1. Courts: Nuno Pro Tunc Entry. “A court has the power at a subsequent term to amend or correct its records to conform to the facts, and may proceed upon any satisfactory evidence.” Ackerman v. Ackerman, 61 Neb. 72.</p> <p>2. Appeal: Bill oe Exceptions. “The evidence used in the district court, upon a hearing of a motion to correct an entry in the journal, must be preserved in a bill of exceptions, or it will not be considered in this court.” Miller v. Brown, 1 Neb. (Unof.) 754.</p> <p>3. -: -. In the absence of a bill of exceptions, this court will presume that the judge had before him competent evidence on which to base his findings sustaining the order complained of.</p>

<p>1. Grand Juries. District courts are empowered under the provisions of chapter 148, Laws 1917, and section 8143, Rev. St. 1913, to order the calling of a grand jury at any time during a term of court, whenever, in the judgment of the court or a judge thereof, the necessities of the public business require it.</p> <p>2. Statutes: Reenactment. The provisions of section 8143, Rev. St. 1913, relating to grand juries, held in Jones v. State, 18 Neb. 401, to have been repealed by implication, were reenacted by the adoption of the revision of the codes and statutes by section 1, ch. 3, Laws 1913.</p> <p>3. Grand Juries: Procedure. The procedure outlined and designated in sections 8137-8139, Rev. St. 1913, lias no application to the calling of a grand or petit jury after the commencement of the term at which such jurors are to serve.</p> <p>4. Perjury: Evidence. Upon the trial of a defendant charged with the crime of perjury, the pleadings upon which the case was tried where the perjured testimony is charged to have been given are properly admissible in evidence, for the purpose of showing whether the alleged false testimony was material to the issues then being tried.</p> <p>5 Witnesses: Impeachment. One of the modes recognized by law for impeaching the veracity of a witness is the introduction of persons as witnesses who testify that they are acquainted with the general reputation for truth and veracity of the person sought to be impeached in the neighborhood or community where he resides, and that such reputation is bad, and this rule applies where a defendant upon trial charged with the crime of perjury testifies as a witness upon such trial.</p> <p>6. Instructions criticised, examined, and, when considered together, held to correctly state the law.</p> <p>7. Evidence examined, and held to sustain the verdict.</p>

<p>1. Husband and Wife: Joint Actions. Husband and wife may jointly bring action relative to title to real estate belonging to either of them.</p> <p>2. Judgment: Plea of Res Judicata. Plea of res judicata cannot be maintained except in cases where the issues and the necessary parties in the instant case are the same as in the case wherein the judgment pleaded as a bar was rendered. In the present ease, the facts, which are fully set forth in the opinion herein, show that neither the issues nor necessary parties in this action are the same as in the case in which judgment pleaded as a bar was rendered. Held, that the plea of res judicata is not sustained.</p> <p>3. Appeal: Reversal: Recovery of Land Sold to Satisfy Judgment. This is an action brought under section 8087, Rev. St. 1913, to recover lands sold to satisfy a judgment which was not superseded and was afterwards reversed and vacated by this court. Section 8087 reads as follows: “If any judgment or judgments, in satisfaction of which any lands or tenements are sold, shall at any time thereafter be reversed, such reversal shall not defeat or affect the title of the purchaser or purchasers; but, in such case, restitution shall be made by the judgment creditor, of the moneys for which such lands or tenements were sold, with lawful interest from the day of sale.” Held, that the term “purchaser” used in this section means a tona fide purchaser; that is, • one who is not a party to the erroneous judgment nor responsible therefor; one that does not have reason to believe that such erroneous judgment will be vacated by an appellate court. It applies only to strangers to the judgment who have purchased under the honest belief that the judgment is sufficient. Held, also, that the assignee of the party against whom such erroneous judgment was rendered may demand restitution of the property sold to satisfy such judgment, and maintain action to recover the same. Held, further, that real estate so sold may be recovered by an action to quiet title.</p> <p>4. -: -: Rights of Purchaser at Execution Sale. One who makes a tona fide contract to purchase land sold to satisfy a judgment, which was not superseded, and was afterwards vacated on appeal to the supreme court, and pays part of the purchase price before notice that such judgment was erroneous, will be protected by said statute to the extent of the amount so paid, with interest, but no further.</p> <p>5. -: --•: ■-. A judgment was rendered against C., and his real estate levied on and sold to the judgment creditor to satisfy the same. The judgment was appealed to the supreme court, but no supersedeas bond was given, and was by said court vacated. Held, that the wife of C., to whom he had conveyed his interest in the land after the same had been sold to satisfy the judgment erroneously rendered against him, could maintain an action to recover the land; and that the facts developed on the trial in district court, and which are fully set out in the opinion herein, warrant a decree in her favor, subject, however, to the payment of $950 and interest thereon at the legal rate to one S., who had made a bona fide contract with the grantee of the purchaser, i. e., the judgment creditor, at the execution sale, and had paid that amount of the purchase price agreed upon. And judgment in favor of C. should he rendered against the judgment creditor for said amount 'so required to satisfy the bona fide interest of S. in said land.</p> <p>6. -. Where one is properly in court as a defendant and makes no claim of interest in the subject-matter of the action, files an answer denying generally the allegations of a cross-petition of a codefendant only, and takes no appeal from a decree of the trial court adverse to himself, and makes no appearance in this court, there is nothing for this court to consider, so far as his interest is concerned, and no order or judgment can be made in respect thereto.</p> <p>7. -: Reversal: Action to Recover Land Sold to Satisfy Judgment: Evidence. In an action brought under section 8087, Rev. St. 1913, for restitution of property sold on execution issued on a judgment not superseded, and afterwards vacated by the supreme court, it is immaterial as to what further proceedings were had regarding such erroneous judgment, and evidence tending to show that a second judgment was rendered was properly rejected hy the trial court; and the same is true as to evidence offered to show that such second judgment had been fully paid.</p>

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

<p>1. Appeal: Direction oe Verdict. Where the evidence on the trial in the district court is not conflicting, and reasonable minds cannot differ as to the conclusion to be derived therefrom, a verdict directed by the court in accordance with such conclusion will not be disturbed on appeal.</p> <p>2. Marriage Contract: Breach: Evidence. In an action for damages for breach of promise to marry, it was proper for the trial court to receive in evidence testimony of the plaintiif giving conversations during the courtship, in which defendant told her what he was worth financially and of what his property consisted.</p> <p>3. -: -: Instruction. In such a case, where plaintiff was the only witness and the above was the only proof on the subject, it was not error for the court to instruct the jury that an element for them to consider, in measuring the damages, was the value of the defendant’s property and his financial standing.</p>

<p>1. Appeal: Review. When, a case is brought to the supreme court on appeal without a bill of exceptions or special findings, the only question that can be considered by this court is the sufficiency of the pleadings to sustain the judgment of the lower court.</p> <p>2. Pleadings examined, and found sufficient to sustain the judgment of the district court.</p>

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

<p>1. Master and Servant: Negligence of Chauffeur. Where a servant, while driving an automobile, in his master’s service, from the garage where it was kept to his place of employment, deviates slightly from the direct route, the master will not, merely on account of such deviation, be relieved from responsibility for the servant’s negligence in the use of the automobile, whereby a third party is injured.</p> <p>2. Appeal: Review. A party will not be heard to complain in this court of the admission of evidence in the trial court to which he made no -objection or exception:</p>

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

<p>1. Process: Venue: Summons to Another County. A transitory action may be brought against two defendants jointly liable in any county in the state where one of the defendants may be served with summons, even though neither defendant is a resident of that county, and thereupon jurisdiction over the other defendant may be acquired by summons served upon him in the county of his residence.</p> <p>2. -: Exemption erom Service. Where an action is commenced against two defendants to enforce a joint liability in a county in which neither defendant resides, and one of the defendants is served in that county and the other in the county of his residence, the latter cannot oust the court of jurisdiction over him by reason of the fact that the defendant who was served in the county where the suit is pending was at the time exempt from the service of summons because he was then in custody of the sheriff and had been brought into and was held in that county solely as a witness in certain criminal actions there pending, since such exemption was a personal privilege which the defendant so served could urge or not as he saw fit, and his codefendant could not claim the privilege for him.</p> <p>3. Appeal: Instructions: Review. “Error alleged in an instruction to the jury must be called to the attention of the trial court in the motion for a new trial before it will be considered by this court.” Stevenson v. Omaha Transfer Go., 87 Neb. 794.</p>

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

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

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

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

<p>1. Sales: False Representations: Remedies. A party induced to purchase property, by false representations respecting the character of property, to whom a written guaranty is given, covering the representations made, providing for the return of the • property and of the consideration therefor in case the property does not prove as represented, upon discovery of the falsity of such representation, may elect to rescind the contract of purchase and recover back the purchase price paid, or he may sue on the written guaranty for damages for breach thereof. If he elects to rescind the contract and brings suit therefor, it is not an action on the guaranty.</p> <p>2. Action: Rescission. A petition by two plaintiffs, which alleges that they were induced to purchase property of defendant by false representations made by the defendant respecting the property, and alleges that said representations were made by defendant both by parol and in writing, alleging that the written representations were made in an instrument which is copied in the petition, which instrument was addressed to one of the plaintiffs only, and contained the representation charged to be false and also a statement that the seller agreed to guarantee the property to have certain qualities, and, if not as represented by him, to take it back and refund all money paid therefor, which petition also alleged plaintiffs’ election to rescind the purchase, and also alleged all other facts necessary in an action based on a rescission of a contract for purchase, states but one cause of action, i. e., an action by both parties purchasing said property for rescission and return' of the purchase price paid by them therefor. It does not state a cause of action on the agreement to guarantee.</p>

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

<p>1. Landlord, and Tenant: Lessee in Possession: Claim: of Title. As á general rule, before a lessee may dispute bis lessor’s title and claim title in himself, he must yield possession of the leased premises.</p> <p>2. Decision Limited. The proposition of law set forth in the fifth paragraph of the syllabus in Stone v. Blanchard, 87 Neb. 1, explained and limited.</p>

<p>1. Jury: Trial by Jury Denied. In this an action to recover the possession of real estate, to cancel a mortgage thereon executed by defendant, and to quiet the title of plaintiff, in which action the defendant admits plaintiff’s title, but prays for specific performance of an alleged contract of sale to defendant, and to quiet the title in him, plaintiff is not entitled to a trial by jury as .a matter of right, and it was not error to refuse it.</p> <p>2. Evidence: Secondary Evidence. Where plaintiff denies that a written contract, which defendant testifies is in his possession, ever existed, or that he ever had such a paper, such a denial furnishes sufficient foundation for the introduction of secondary evidence of the contents of the paper, without the service of a notice to produce the paper, or the issuance and service of a subpoena duces tecum.</p> <p>3. Appeal: Trial de Novo. Although the issues of fact in an equity case are required to be tried de novo upon appeal to this court, where the evidence is conflicting, this court will consider the fact that the trial court had the opportunity of seeing and hearing the witnesses, and will give consideration to this fact and to its findings in determining which witnesses are most worthy of belief.</p>

<p>1. Intoxicating Liquors: Forfeitures: Incident' to Conviction. “The forfeiture of an automobile under section 2, ch. 109, Laws 1919, is no part of the sentence imposed by the justice of the peace, but is an incident to the conviction of the owner or person in charge of the car.” Robinson Cadillac Motor Car Co. v. RateTcin, 104 Neb. 369.</p> <p>2. -: Complaint: Sufficiency. A complaint which charges that a defendant unlawfully had in his possession, at a place other than his private residence, “within and being 'conveyed by a train of automobiles,” describing them, “certain intoxicating liquor, namely, about 3,000 pints of whiskey,” is sufficient to charge the defendant with the unlawful possession and transportation of the same.</p>

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

<p>1. Commission Merchants: Custom and Usage. A commission merchant has the right to rely and act upon custom and usage in selling live stock consigned to him.</p> <p>2. -: -: Instructions. Held, it was reversible error for the trial court to give instruction No. 12, disregarding the custom and usage of the defendant commission merchants.</p>

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

<p>1. Master and Servant: Injuries to Servant: Compensation. ■ Where an employee, working under the provisions of the workmen’s compensation act, before the 1921 amendment became effective, sustains an injury resulting in temporary total disability, he is entitled to recover compensation under subdivision 1, sec. 3662, Rev. St. 1913, as amended by chapter 85, Laws 1917, during the period of total disability, not exceeding 300 weeks, and, in addition thereto, when it becomes ascertainable that the injury will result in a certain percentage of permanent partial loss of the use of the injured member, the employee is entitled to compensation for such loss under the provisions of subdivision 3 of said section 3662, Rev. St. 1913.</p> <p>2. Evidence examined and held to sustain the judgment of the trial court.</p>

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

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

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

<p>Error to 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>Appeal from the district court for Burt county: Charles A. Goss, Judge.</p>

<p>1. Negligence: Instruction. In an action involving the question of negligence on the part of the defendant, and contributory negligence on the part of the plaintiff, it is not error on the part of the court to instruct the jury as to the effect of defendant's violation of a statute or ordinance, and make no reference to the plaintiff in regard thereto, when the evidence fails to show any such violation on the part of the plaintiff.</p> <p>2. Master and Servant: Negligence op Chaufpeur: Evidence. In order to hold the owner of a car liable for the tortious acts of another driving or operating the same, it must be shown that the party driving or operating the car was at the time the servant or agent of the owner, and was driving or operating the car in the owner’s service. The fact that the person operating or driving the car had been recently in the employ of the owner, that the car was being used in the manner and in the locality where the owner usually used the same, and for a purpose not inconsistent with the owner’s business, is evidence of employment and service to be considered by the jury.</p> <p>3. Corporations: Admissions op Agents. Admissions made by the officer or agent of a private corporation, relative to any matter over which he has control or authority to decide and act upon, are binding upon the corporation</p>

<p>Husband and Wife: Antenuptial Agreement. Parties contemplating marriage entered into an agreement, whereby their property rights after marriage were settled or attempted to be settled. Among other things, the agreement provided: “In consideration of said marriage and covenants herein, the party of the first part gives to the party of the second part during her natural life, provided in event she survives the party of the first part, so long as she shall remain single and the widow of the party of the first part, the following described real estate.” Held, that the true intent of the parties in making such agreement was that the woman should have maintenance during her life, and that such provision of the agreement gave her the right to possession of the real estate and the rents and profits arising therefrom, in the event she survived the man; such arrangement commencing at the time of his death and continuing as long as she lived as his widow.</p>

<p>1. Deeds: Undue Influence. The undue influence which will avoid a deed is an unlawful or fraudulent influence which controls the will of the grantor. The affection, confidence and gratitude of a parent toward a child or grandchild, or other relatives, which inspires the gift, is a natural and lawful influence, and will not render it voidable unless this influence has been so used as to confuse the judgment and control the will of the donor. ■</p> <p>2. - — : Delivery. “The delivery of an instrument is a question of fact to be determined by ascertaining the intention of the parties thereto.” Some Fire Ins. Co. v. Collins, 61 Neb. 198.</p> <p>3. -: -: Acceptance. The recording of a deed by the grantor is evidence both of delivery and acceptance, if the conveyance is beneficial to the grantee.</p>

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

<p>Appeal from the district court for Nuckolls county: Ralph I). Brown, Judge.</p>

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

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

<p>1. Judgment: Suit to Vacate: Venue. A suit in equity to vacate and set aside a judgment of a district court on the ground that it was procured by perjury and other forms of fraud must be brought in the court in which the judgment was rendered.</p> <p>2. ; — : -•: Transcript. Under section' 7996, Rev. St. 1913, the transcript of a judgment in the district court of another county is “in the same plight” as the original judgment. It is an incident thereto and can only be vacated and set aside for grounds inhering in the judgment, in a suit to set aside the judgment. This applies also to a suit to remove an apparent cloud upon the title to lands caused by the filing of such a transcript.</p> <p>3. -: -Relief in Equity. Equity acts in personam. Even though property is beyond the reach of the process of the court, 'and it can exert no power or control over it, it may, by a decree against a person over whom it had acquired jurisdiction, enforce action or nonaction _ with respect to such property, and while it cannot require another court of co-ordinate jurisdiction to set aside its judgment, alleged to have been procured by fraud, it may, if the facts justify it, restrain such persons from enforcing such a judgment and grant other adequate relief.</p> <p>4. -: -: Jurisdiction. Such an action is of a transitory nature and the court may acquire jurisdiction over the parties either by service of summons or by their general ap- - pearance in the action.</p> <p>5. Appearance: Jurisdiction. “An appearance for the purpose of objecting to the jurisdiction of the court of the subject matter of the action, whether by motion or formal pleading, is a waiver of all objections to the jurisdiction of the court over the person of defendant, whether the defendant intended such waiver or ' not.” Perrine v. Knights Templar’s cG Masons’ Life Indemnity Go., 71 Neb. 273.</p>

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

<p>Municipal Corporations: Bonds: Elections: Primary and General. A state-wide primary election is a “general' election” at which, a majority vote is sufficient to carry a proposition to authorize the issuance of municipal bonds, within the meaning of the “Home Rule Charter” of the city of Lincoln, though the general city election is held on a different date and 60 per cent, of the vote on such a proposition is necessary to carry it at a special election.</p>

<p>1. Judgment: Action for Rescission: Dismissal Without Prejudice. When a suit is begun for the rescission of a contract on the ground of fraud, the plaintiff may dismiss her action without prejudice, and begin an action at law to recover damages for the perpetration of the fraud under facts which are not inconsistent with the facts in the former action, and no estoppel is worked thereby, where the plaintiff has acquired no benefit in the former action and no detriment has been caused to the defendant in such action.</p> <p>2. Election of Remedies: Motion to Dismiss: Parties. In an action to rescind a contract on the ground of fraud, G. and his wife were made parties defendant. The action was subsequently dismissed without prejudice by plaintiff and an action at law to recover for the damages pleaded in the former action was subsequently commenced by her against G. and his son. A motion to dismiss the action on the ground that the former action was an election of remedies and was therefore a bar to the second action was overruled. Held, that the court did not err in overruling the motion on the ground, among others, that the parties in both actions were not the same.</p> <p>3. Limitation of Actions: Fraud: Rescission. A contract for an exchange of lands was entered into between plaintiff and defendants, the former a widow of 57 years and wholly inexperienced in business affairs! The jury found that defendants made false and fraudulent respresentations to her, which she believed and relied and acted upon, whereby she was defrauded. By their representations and conduct and their treatment of the plaintiff generally after the exchange was made she was lulled into a sense of security. Subsequently she discovered the fraud and, within the time after such discovery which is permitted by the statute of limitations, she began this action. Held, that the action was not barred.</p> <p>4. Appeal: Conflicting Evidence. When questions of fact are submitted to the jury without objection in respect of the theory on which the case appears to have been tried, the verdict will not be disturbed, even though the evidence conflicts, if there is sufficient evidence to support it.</p> <p>5. -: Review. The record examined, and held that reversible error has not been shown.</p>

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

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

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

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

<p>Original proceeding in mandamus to compel respondent, as auditor of public accounts, to register bonds of relator.</p>

<p>1. Adoption: Right oe Inheritance. The only manner hy which the right of inheritance can be conferred hy an adopting parent upon a child is hy a legal adoption, conducted in substantial compliance with all the essential requirements of the statute.</p> <p>2. - — : -: Oral Contract. Even where there is no legal adoption, an oral contract to adopt a child and make it. an heir, when saved from the operation of the statute of frauds hy part performance, may he enforced in equity hy awarding to the child an equivalent of such inheritance.</p> <p>3. -: Evidence. A contract to adopt a child and make him an heir can only he proved hy the most clear, satisfactory, and convincing evidence.</p> <p>4. -: -. Evidence examined, and held insufficient to show a contract to adopt and make the child an heir.</p> <p>5. -:- Deed oe Adoption: Construction. Where the deed of adoption in a statutory adoption proceeding, under sections 796-801, ch. 57, Gen. St. 1873, confers a right of inheritance upon the child, adopted hy that proceeding, but on condition that her inheritance shall not exclude from sharing in the estate another child, who has been taken into the home by the same parents, but hy no legal adoption, and provides that the legally adopted child shall share equally with the other child all rights in .the. estate accruing to her, held, that there was an implied promise, on the part of the legally adopted child, arising from an acceptance of the statutory adoption, to carry out that 'condition, and that, after the adopting parent had died and the legally adopted child had become an heir to the estate to the exclusion of the other, upon her repudiation of the promise, in a suit claiming the entire title, she would he declared a trustee ex maleficio as to the property share which it was intended that the other child should take.</p> <p>6. Trusts: Implied Agreement. Where a trust ex maleficio is based on a promise, the promise need not be expressly made, for actual cooperation or silent acquiescence may have the same effect.</p> <p>7. -: Repudiation: Fraudulent Intent. Where the trust is repudiated, it is not necessary to show that the promise upon which it is based was fraudulently made, with no intention of carrying it out. A fraudulent intent, on the part of the promisor in making the promise, may be inferred from his repudiation and a refusal to perform:</p> <p>S. Limitation of Actions: Trusts. Where a party comes into a court of equity asking affirmative equitable relief, he may be required to do equity with regard to the subject-matter of the action; and the statute of limitations is not available to him as a defense again'st the imposition of such requirements.</p> <p>9. -: -. Where a party asserting title to property is proved to be a trustee ex maleficio for the adverse party to the suit, held, that the statute of limitations did not commence-to run against the rights of the cestui que trust until the trustee repudiated the trust, since until that time the fraud •had not become known.</p>

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

<p>Appeal: Assigjoiestt oe Errors. Assignment of errors in the following language: “(1) The court erred in ordering confirmation of the sale; (2) the decree is so indefinite and uncertain that therefrom cannot be determined the redemptor nor the rights of Jennie Sellers, now Johnson, in the property” — held to be insufflioient under section 8192, Rev. St. 1913.</p>

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

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

<p>1. Notes: Action by Indorsee: Good Faith: Proof. • In an action by an indorsee against the maker, upon a promissory note, when it is shown that it was obtained by fraud practiced upon the maker, the plaintiff, in order to recover, must allege and prove that he took the note in good faith in the ordinary course of business and paid value, without notice of any defense thereto or infirmity in the note.</p> <p>2. Appeal: Issues. Where plaintiff and defendants have assumed that their pleadings presented a certain issue, and the trial and judgment proceed on such assumption, neither party can, for the first time on appeal, question the fact whether such issue was raised by the pleadings. S. Notes: Renewal: Defenses. The taking of a new note for an existing note is a renewal of the old indebtedness, and not a payment of the debt, unless there is a specific agreement between the parties that the new_ note shall extinguish the original debt. As between the original parties and as against transferees who are not dona fide purchasers for value, a renewal note is open to all defenses which might have been made against the original note.</p> <p>4. -: Good Faith: Question foe Jury. Whether plaintiff has sufficiently satisfied the burden resting upon him and made good his claim to be an innocent purchaser of a note is a question of fact for the jury, save in those instances where the testimony is not only consistent with the good faith of such purchase, • but is such that no fair-minded person can draw any other inference therefrom:</p> <p>5. Trial: Motion for Direction oe Verdict. Where defendant, at the close of plaintiff’s testimony, moved for a directed verdict and same is overruled, and defendant thereafter submitted testimony, said motion, to be available, must be renewed at the close of the testimony.</p>

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

<p>1. Petition: Construction: Action on Overdraft. In an action to recover for an overdraft due to an error in crediting a deposit, the petition examined, and held not to allege that the item in question was deposited hy defendant.</p> <p>2. Appeal: Direction of Verdict: Presumption. In a trial resulting in a directed verdict, the presumption that a court only considers competent evidence in reaching its conclusion applies.</p> <p>3. -: -. Evidence examined, and held that any errors made in the admission thereof could not have prejudiced the defendant, and that the competent evidence introduced justified the direction of a verdict against defendant.</p>

<p>1. Rape: Identification of Accused: Evidence. Evidence as to the identification of the defendant examined, and held sufficient to sustain the verdict.</p> <p>2. Criminal Law: Admission of Evidence. The admission as rebuttal evidence of a portion of a letter written by the defendant’s wife to him and found in his possession, admitted on her cross-examination to have been written by her, and not relating to any matter material to the issues in the case, held to be error.</p> <p>3. Rape: Corroboration: Instruction. Instruction numbered 7 examined, and held, in view of the defendant’s testimony, to be erroneous. •</p> <p>4. Criminal Law: Error without Prejudice. An examination of the entire record disclosing that no substantial miscarriage of justice actually occurred, held that the judgment will not be reversed because of the errors committed. Laws 1921, ch. 157.</p>

<p>1. Contracts: Time. Time may be of the essence of a contract by an express provision to 'that effect, and, in the absence of waiver or estoppel, such provision will be enforced by the court.</p> <p>2. Judgment: Transcript: Lien. A judgment creditor, by transcripting his judgment to the district court, does not obtain a lien upon real estate, which had been conveyed to a third party by the judgment debtor, by a duly recorded deed.</p> <p>3. Vendor and Purchaser: Title. A title to be good or marketable must be free from reasonable doubt either in law or in fact.</p> <p>4. -: -. It is not necessary that such a title be shown to be bad, nor is it enough even that the court may on the whole consider it good, if ¡there he doubt or uncertainty about it sufficient to form the basis of litigation.</p> <p>5. -: Bona Fide Purchaser. It is a well-settled general rule, in determining whether a purchaser had notice of outstanding equities so as to preclude him from being entitled to protection as a liona fide purchaser, that if there be circumstances which, in the exercise of common reason and prudence, ought to put a man upon particular inquiry, he will be presumed to have made that inquiry, and will -be charged with notice of every fact which that inquiry would give him.</p> <p>6. -: Contract: Time: Election. Though time is made of the essence of the contract, .a default does not ipso facto terminate the contract, but only renders it voidable at the election of the party entitled to insist upon its performance.</p> <p>7. -: -=-: Breach: Waiver. A purchaser who, instead of terminating the contract, acquiesces in the attempt of the vendor to perfect his title waives the right to insist upon strict performance of the contract, at least for the time reasonably necessary to complete . the attempt, in contemplation of the parties.</p> <p>8. Specific Performance. Where time is not of the essence of the contract, or where time being originally of the essence of the contract is waived, a vendor who is unable to make title at the time he should convey may have specific performance by tendering a good title at any time before decree, provided he acted in good faith and specific performance can be enforced without injustice to the vendee.</p>

<p>1. Contracts: Sufficiency. A contract by one party “to sell and ship” to another party, who agrees “to buy and receive,” certain Illinois coal, which specifies in general terms all the requirements or fixes approximately the number of car-loads of coal, the prices and dates of shipments, is' not void for indefiniteness or ambiguity, provided such requirements can be reasonably estimated. '</p> <p>2. --:--. A contract for the sale of coal, which gives the buyer the option of having the shipments made either from the Shiloh mine or from the Trenton mine, is not void for lack of mutuality, as the seller has agreed to sell and ship and the buyer has agreed to buy and receive his requirements for the season from either mine.</p> <p>3. -: -. A contract of sale which contains the provision that the buyer “is at liberty to buy other Illinois coal of similar quality, if able to do so at lower prices than those prcr vided in this contract,” is not- unilateral,- but is in the nature of a guaranty by the seller that the prices shall not go below those stated in the contract. The contingency depends, not on the will of the buyer, but on the decline of the market, which is beyond his control; this is an inducement for the buyer to make a seasonal contract and will be enforced.</p> <p>4. --: Construction by Parties. The interpretation or construction given contracts by the parties to them, while engaged in their performance before any controversy has arisen, is one of the best indications of their true intent and meaning, and the courts should ordinarily enforce such construction. Gady v. Travelers Ins. Go., 93 Neb. 634.</p>

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

<p>1. Schools and School Districts: Election Board. At an election called for the consolidation of school districts, an election board appointed by the county superintendent with the consent and approval of the electors interested is at least a cle facto board and its acts will be valid.</p> <p>2. -: Judges and Clerks of Election. The electors of a school district will not be disfranchised, in the absence of fraud, because the officer appointing the judges and clerks of election was not expressly authorized by law to make such appointments.</p> <p>G. Elections: Illegal Votes. Illegal votes, to invalidate an election, must have been received and counted sufficient in number to change the result of such election; it is not enough to show that illegal votes were cast and counted by the election board.</p> <p>4. -: Validity: Injunction. Injunction is not the proper remedy to settle questions of the qualifications of election officers or whether legal votes have been rejected and illegal votes received sufficient to change tlie result of such election.</p>

<p>1. Witnesses: Competency. Section 7894, Rev. St. 1913, excluding as incompetent, except as specified, tlie testimony of one having a direct legal interest in the result of a suit, does not apply where the transaction or conversation, concerning which the witness is called to testify, was not between the witness and the deceased person, but between the latter and a third party, in whicli the witness took no part.</p> <p>2. -: -: Admissibility of Evidence. Where a witness, having a legal interest in the result of an action, and therefore incompetent under section 7894, Rev. St. 1913, testifies to a conversation or transaction with a deceased person, and the adverse party, the, representative of such deceased person, thereafter introduced in evidence documents relating to the same transaction, concerning which such witness testified, held, that, although the testimony of said witness may have heen incompetent when received, it was made competent through the action of the representative of the deceased in introducing such documentary evidence.</p> <p>3. Evidence: Pleadings. Where a party to a suit introduces in evidence the pleadings of an adversary without any reservation or limitation as to the purpose for which offered, all the statements in such documents, like other admissions, are to he taken together, what makes for the pleader, as well as what makes against him; and in such case, where the allegations of such pleadings are not rebutted or controverted by other evidence, such allegations will stand as admissions.</p> <p>4. Quieting Title: Sufficiency of Evidence. Evidence examined, and held sufficient to sustain the decree of the district court quieting title in the plaintiffs to the property in controversy.</p>

<p>Brokers: Commissions. The plaintiff, a lumber and box broker, undertook to sell box sbooks on commission. He secured agreements, which, were in the nature of options to the buyer, to purchase shooks in car-load lots at specified prices, the same to be manufactured and shipped on specifications being furnished and orders for shipment being given during the term of contract. Held, th-at plaintiff was only entitled to commission on cars actually ordered and shipped within the time limited; that to -be entitled to any further commission he must have secured for the defendant a contract under which the defendant could have compelled acceptance of the additional cars of shooks, on which commission is claimed, or compelled the purchaser to respond in damages.</p>

<p>1. Continuance: Jurisdiction. The municipal court has jurisdiction to try a case and enter judgment against defendant, notwithstanding the adjournment of the case for more than 90 days, where the adjournments were on the application of the defendant, or by consent of the parties.</p> <p>2. --: -. Where, in an action pending in the municipal court, continuances were had beyond the period of 90 days by agreement of parties, and, on a date to which the case had been continued by agreement, the record shows, “This cause is continued indefinitely by agreement of the attorneys, to be taken up ’ at such time as attorneys agree upon, or fixed by the court for trial,” held that, under such stipulation, the court had jurisdiction to try the case and enter judgment on a date fixed by the court.</p> <p>3. -: -. Where, in such case, the muncipal court on the date for which a case is set for trial is actually engaged in the trial of another case, and, for that reason, adjourns the case until the following day, jurisdiction is not lost.</p> <p>4. Evidence examined, and held sufficient to sustain verdict.</p> <p>5. Railroads: Costs: Attorney’s Fees. The taxing of an attorney’s fee as a part of the costs under the provisions of section 6063, Rev. St. 1913, as amended by chapter 134, Laws 1919, not being a fine, penalty, or forfeiture, may be taxed as a part of the costs in an. appropriate action against the director general of railroads.</p> <p>6. Parties. On motion of plaintiff the name of James C. Davis, director general and agent, is substituted as defendant, instead of Walker D. Hines, director general of railroafis.</p>

<p>1. Criminal Law: Evidence: Sufficiency'. “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.” Laiohead v. State, 46 Neb. 607; JEfritter v. 'State, 105 Neb. 601.</p> <p>'2. -: Refusal of Instruction. Where a proposition embodied in a requested instruction is covered by an instruction given by the court on its own motion, it is not error to refuse to give an instruction in the language requested by a party to a suit. . ...</p> <p>3. -: Testimony of Accomplice: Question for Jury. While the attention of the jury is properly directed to the importance of cautiously considering the testimony of* an accomplice, the weight to be given such testimony, as in the case of other witnesses, is a matter exclusively for the determination of the jury.</p> <p>4. Evidence examined, and held sufficient to sustain the verdict.</p>

<p>1. Release: Avoidance: Mutual Mistake. To avoid a written release of damages for personal injuries on ground of mutual mistake of the parties, the mistake must relate to a present or past fact or facts that are material to the contract of settlement, and not to an opinion as to .the future conditions as to results of present known facts.</p> <p>2. -: -: • — -■. A mistake as to the future development of a known injury is one of opinion, and not a mistake as to fact.</p> <p>3. -: Bar: Unknown Injuries. Where one .who has sustained personal injuries and with his attention directed to the known injuries, which are trivial, contracts for the settlement of his damages with reference thereto, in ignorance of other and more serious injuries, both parties believing that the known injuries are the only ones sustained, then there' is a mutual mistake, and a release executed under such mistake, although couched in general terms, will not bar an action for the more serious and unknown injuries.</p>

<p>1. .Quaere. Whether the members of a. village board of trustees, who, when awarding a contract for the construction of a bridge, fail and neglect to take from the contractor a bond obligating him to pay for the material used in its construction, are personally liable to the materialman for damages if the contractor fails to pay for the material, quaere.</p> <p>2. Municipal Corporations: Contracts: Failure to Procure Bond: Liability. When members of a village board of trustees, in awarding a contract for the construction of a bridge, fail and neglect to take from the contractor a bond obligating him to pay for the material used in its construction, as provided by section 3840, Bev. St. 1913, no cause of action for damages arises in favor of the materialman if he furnished the material with knowledge that no bond had been taken, nor if he furnished the material not relying upon the belief that such bond had been taken, nor unless it affirmatively appears that the contractor has failed to pay for the material.</p> <p>3. Petition examined, field not to state a cause of action.</p>

<p>1. Master' and Servant: Federal Employers’ Liability Act: Defense of Contributory Negligence. The defense of contributory-negligence is not available under the federal employers’ liability act. Its only effect, where it exists, is to reduce the amount of damages.</p> <p>2. -: •: Fellow Servants. The fellow servant doctrine is not available as a defense under the provisions of said act.</p> <p>3. -: : Negligence. The act expressly makes the common carrier liable for the negligence of its officers, agents, or employees.</p> <p>4. -: : Assumption’ of Risks. There is no evidence-in this case that plaintiff was injured because of the violation of any safety appliance statute; therefore the defense, assumption of risk, remains.</p> <p>5. -: : Appliances. A master must exercise reasonable care to furnish a servant suitable and safe tools for the work. •</p> <p>6. -: ———: Duty of Master. It is tlie duty of the master to warn and instruct as to defects and dangers of which he knows, or ought, in the exercise of reasonable care and diligence, to know, and of which the servant has no knowledge actual or constructive.</p> <p>7. Instructions examined, and found not to be prejudicial to appellant.</p> <p>8. Appeal: Bill of Exceptions. Affidavits alleging misconduct of opposing counsel, in order to be considered by this court, must be incorporated in and made a part of the bill of exceptions.</p> <p>9. -: Verdict. The verdict is sustained by sufficient evidence, except as to the amount thereof.</p> <p>10. Damages: Remittitur. The evidence examined, and the verdict held, to be excessive, and a new trial ordered unless a remittitur of $4,000 is filed, in which case the judgment for $8,000 will be affirmed.</p>

<p>1. Embezzlement: Name: Variance. In a prosecution upon a charge of embezzlement from a corporation, the fact that the name by which the corporation is designated in the information differs from the one assigned to it in its articles of incorporation is immaterial, if the corporation is the same and the corporate name set out in the information is the one under which it does business and by which it was known at the time of the alleged embezzlement.</p> <p>2. • — ■——: Sueeiciency oe Evidence. The evidence in the record', helé to be sufficient to sustain the verdict.</p>

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

<p>1. Principal and Agent: Action Against Agent: Measure of Damages. In an action against an agent for damages alleged to have been caused by the agent’s payment of a fund, contrary to the principal’s direction but in line of his' duty, the measure of •recovery, generally, is the- actual damages sustained.</p> <p>2. -: --: -. Where an agent was authorized by his principal to pay money to a certain person upon that person giving a bond for the fulfilment of a promise to give possession of real estate on a stated date, and the agent paid the money without exacting such bond, but taking other and inadequate purported security, such agent is not guilty of conversion of the fund, but is liable for the actual damages the principal has suffered by reason of the failure to follow the instructions of the principal.</p>

<p>1. Appeal: Conflicting Evidence. “A finding of the district court on an issue of fact in a compensation case will not be set aside on appeal, where it is supported by sufficient evidence, or where the evidence is substantially conflicting, unless the finding is clearly wrong.” Simon v. Cathroe Co., 106 Neb. 535.</p> <p>2. Master and. Servant: Compensation Award: Commutation. The spirit and intention of the compensation act is to safeguard a compensation award. Commutation to a lump-sum payment should he approved by the courts only for strong and urgent reasons.</p>

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

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

<p>Habeas Corpus. When on a habeas corpus proceeding the return to the writ shows relator to be in the custody of the officer against whom it is directed, and no fact appears which warrants a further restraint of respondent, it is the duty of the court to order his discharge.</p>

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

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

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

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

<p>1. Appeal: Conflicting Evidence. AVhere the issue is oue purely of fact, the verdict of the jury rendered upon conflicting evidence will not he disturbed unless clearly wrong.</p> <p>2. Instructions given, when considered as a whole, held free from error.</p>

<p>1. Carriers: Conversion. Conversion is an unauthorized act of ' dominion or ownership, exercised by one person over the personal property of another. Negligence of a railway company, however extreme, and the consequent loss of goods, in its hands for transportation, is not alone sufficient to constitute conversion. The act alleged to be a conversion must be positive and tortious.</p> <p>2. -: -. Where a railway company makes a positive refusal to deliver goods to a consignee, entitled to their possession, except upon a condition which has no legal foundation and which does not rest upon reasonable grounds or contentions, its declared refusal to deliver would obviate the necessity of the consignee making any express and formal demand for the goods, and such wrongful detention of and dominion over the goods by the railway company would constitute conversion.</p> <p>3. —:-: -: Damages. Where, after such conversion, the consignee accepts a return of the goods, but they are returned to him in a damaged condition, he is entitled to recover damages to cover the depreciation in their value.</p> <p>4. Railroads: Federal Control: Right oe Action. Where the cause of action against the railway company accrued prior to the time that the United States government, through its director general, took control of the railroads, the fact that the director general took control and received possession of the goods which had been converted would not affect the plaintiff’s right of action in conversion against the railway company.</p>