Volume 108 — Nebraska Reports

<p>1. Trial: Requests for Direction of Verdict: Findings of Fact. Where each party to a trial by jury requests the court to direct a verdict in his favor, he wpives the right to a finding or trial of the issues 'by the jury, and consents that the court shall find the facts and apply the law thereto.</p> <p>2. Insurance: Location of Personalty: Warranty. Except as to personal property that has a distinct and definite abiding place, a description in an insurance policy as to the location of the property, although it may be a warranty in presentí, is not, in the absence of an express stipulation, a promissory warranty that the property will remain in the location described.</p> <p>3. Appeal: Requested Instruction. Where an instruction is given upon an issue submitted to the jury at the request of a party to a suit, he will not be heard to say that there was no evidence upon which to base the instruction.</p> <p>4. Insurance: Acts of Agent. Insurer’s agent, empowered to receive and transmit applications and to receive payments of the premium, binds the company by knowledge acquired in and about the preparation of the application and by representations made to the insured while so doing.</p> <p>5. -: Fraud: Evidence. Evidence of alleged fraud and misrepresentation examined and held not to require such inference.</p>

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

<p>1. Torts: Joint and Several Liability. Where an injury is suffered in consequence of the wrongful acts of several persons, all of whom contribute directly to cause the injury, though there was no conspiracy or joint concert of action, they are jointly and severally liable.</p> <p>2 Nuisance: Injunction: Damages. An action for an injunction to restrain or abate a continuing nuisance may be maintained by any person who suffered damage or injury thereby, and he may in the same action be allowed to recover for any past or present damage which he has sustained by reason of. the nuisance.</p> <p>3. Costs. Litigants cannot escape their liability for costs in an action, where they cease the commission of the acts amounting to a nuisance after action is commenced, and where they answer to the merits and contest the right of plaintiff to the relief prayed at the trial.</p> <p>4. Nuisance: Injunction: Damages. Evidence examined, and held to sustain the action of the trial court as to the granting of the permanent injunction; but, the trial court having made the finding that the nuisance complained of caused the damage to the plaintiff, and the amount of such damage not being in dispute, the plaintiff should be entitled to recover his damages.</p>

<p>Evidence. As between the indorser and indorsee, the form of indorsement of a past due note is not conclusive, but the nature of the contract may be proved by parol testimony.</p>

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

<p>1. Payment: Avoidance. Payments or concessions exacted from the owner of property unlawfully withheld, in order to obtain possession thereof, where the detention is accompanied by immediate hardship or irreparable injury, may be avoided on the ground of compulsion, although not amounting to technical duress.</p> <p>2. —-: -. Evidence considered, and the case lielcl not within the rule above stated.</p>

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

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

<p>1. Contracts: • Injunction: Oral Contract to Refrain from Trade. A verbal contract, whereby parties who are officers of a state bank sell a majority of the capital stock of the bank and agree not to again engage in the banking business in the village where the bank is located, is valid, and if the vendors violate the agreement, they may be enjoined from continuing such violation.</p> <p>2. -: --: -: Consideration. The purchase by one party of the property of another furnishes a sufficient consideration for an agreement of the latter not to engage in a certain . business again in that vicinity.</p> <p>3. ---: Public Policy. A contract to be against public policy must have a mischievous tendency, and in some way militate against the public welfare and the rights of the public.</p> <p>4.. ■-: --. In the absence of statutory provisions governing the subject, a seller of corporate stock may agree not to engage in a business which would compete with that of the corporation. 6 R. C. L. 795, sec. 198.</p>

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

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

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

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

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

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

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

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

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

<p>1. Corporations: Licenses: Contracts. It is the public policy of Missouri to hold void contracts of foreign corporations, if made ■ in that state with its residents without a license in defiance of a Missouri statute enacted to protect the public from fraud and imposition and subjecting the offenders to fine and imprisonment, though the statute does not in express terms declare such contracts void.</p> <p>2. - — •: -: Sale oe Stock. A sale of capital stock issued by a Maine corporation, having authority to transact business in Nebraska, may be declared void in Nebraska, if made in Missouri to a resident thereof without a license in defiance of a Missouri statute enacted to protect the people of that state from fraud and imposition and subjecting the offender to fine and imprisonment.</p> <p>3. -: -: -. Where a Maine corporation, having a principal place of business in Nebraska, sends its agents to Missouri and there persuades a resident of that state to sign a subscription for shares of stock and a note for the purchase price and there delivers the stock which is there accepted, the sale is a Missouri transaction, though made in defiance of its laws.</p> <p>4. -: -: -. Where the laws of a state forbid a foreign corporation to sell or attempt to sell therein shares of stock without a license, a subscription for such stock is an inhibited act and is included in a sale.</p> <p>5. Sales: Rescission. The delay of a buyer in - rescinding an unlawful sale, if caused by the seller’s fraud, does not necessarily prevent a rescission.</p> <p>•6. Corporations: Sale oe Stock: Tender. Tender of shares of stock to the corporation which issued them, the sale being fradu- ■ lent and void, held sufficient under the circumstances outlined in the opinion.</p> <p>7.---; Action for Price of Stock: Nonsuit. An involuntary nonsuit in an action to recover the price' paid by plaintiff upon a void sale of corporate stock issued by defendant held erroneous.</p>

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

<p>1. Bankruptcy: Preferences. Where a creditor, to secure a debt, procures from an insolvent debtor, within four months of the filing of a petition in bankruptcy, the assignment of a secured note, without actual knowledge of the insolvency, but with notice of facts sufficient to put the creditor on an inquiry which, if pursued, would lead to such knowledge, the assignment may be declared void under the federal bankruptcy act, if the effect of the transfer is to create in favor of the creditor a preference through which he would obtain a greater percentage of his debt than other creditors of the same class.</p> <p>2. -: -: Notice. “If a debtor who is insolvent pays or secures one of his creditors, such creditor is chargeable with notice of such facts as a reasonable inquiry, in view of the circumstances with respect to the debtor’s insolvency which were brought home to him, might fairly be expected to disclose.” Walter v. National Fire Ins. Co., 101 Neb. 639.</p>

<p>Banks and Banking: .Notes: Innocent Holder. Where a banking corporation is chargeable with knowledge that a note, payable on its face to the individual who is its managing officer, is trust property of another person for whom such individual is trustee, neither the bank nor the secretary of the state banking department can become an innocent holder of the note by assignment of the trustee for the purpose of paying with the trust property an overdraft in the bank by another corporation of which such trustee is also manager.</p>

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

<p>1. Schools and School Districts: High Schools: Nonresident Pupil: Tuition. Where a high school district receives a pupil from a school district which maintains a nine-months’ school, but maintains no high school grades, the receiving district, under chapter 153, Laws 1919, is entitled to receive $1.50 from the sending district for each week’s attendance by such nonresident pupil.</p> <p>2. -: -: -: -. Where a high school district receives a pupil from a school district, which is authorized under the law to send a pupil to such high school district, and the sending district, pursuant to chapter 153, Laws 1919, has become liable to the receiving district for the tuition of such pupil, neither the parent nor guardian of such pupil can be compelled to pay the receiving district for the school privileges granted to such pupil.</p> <p>3. -; School Laws: Construction. The public school laws are to be liberally construed so that all persons of school age, without distinction and without discrimination, may enjoy public school privileges.</p>

<p>1. Nuisance: Disorderly House: Evidence. In a prosecution brought under chapter 63, Laws 1911, being sections 8775-8784, Rev. S-t. 1913, for keeping a place for prostitution, evidence of the general reputation of the place and of the persons frequenting it, together with other pertinent facts and circumstances relevant to the issue, are sufficient to warrant conviction. Particular acts of prostitution need not be shown by the state: Drake v. State, -14 Neb. 535.</p> <p>2. Appeal' in Equity: Trial de Novo. “Upon appeal in actions in equity, this court is required by the statute to try the issues ele novo, without reference to findings of the trial court; but, when the testimony of witnesses orally examined before the court upon the vital issues in the case is conflicting, so that it would be impossible that both versions of the transaction can be true, this court will consider the fact that -the trial court observed the witnesses and their manner of testifying, and must have accepted one version of the facts rather than the opposite.” Shafer v. Beatrice State Bank, 99 Neb. 317.</p>

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

<p>1. Insurance: Application: Expression op Opinion. The question in the applicaton, “Have you, either of your grandparents, parents, uncles, aunts, brothers or sisters, wife or children, been afflicted with consumption, insanity or mental derangement, scrofula, or any hereditary disease?” calls for an expression of opinion, judgment and belief, and not for a statement of fact based on personal knowledge.</p> <p>2. --: -: Misrepresentations. An untrue representation made by the insured in his application, where the question eliciting such statement calls for matters of opinion, judgment, or belief, will not avoid a policy issued thereon, unless it is shown that the misrepresentation was knowingly made with intent to deceive.</p> <p>3. -:--: -: Question for Jury. Evidence examined, and held that whether the answer to the question in the application was knowingly made with the intention to deceive was a question for the jury to determine.</p> <p>4. -: -: -: Defense. Section 3187, Rev. St. 1913, does not prevent an insurance company from defending, in an action brought to recover upon a policy, on the ground that fraudulent representations were made by the insured in his application for insurance, where such representations related to matters material to the risk, and where if a true answer had been made no contract of insurance would have been entered into. In such case, the right of such defense is not defeated by a showing that the false statement did not contribute to the loss.</p>

<p>1. Injunction: Street Railways: Use of Streets. It is not necessary, in order that a street railway company question the authority of another street railway company to construct tracks upon the streets of a city, so as to handle business which the first company is lawfully carrying on, that the first company should have an exclusive franchise, but, where it has a lawful right to carry on a street railway business, its right is exclusive as against any person or company which attempts to operate in competition with it upon streets where the second company has no legal authority to go.</p> <p>2. -: -: -: Grant of Powers: Irregularities. A right accruing to a street railway company, by virtue of its construction and operation of street railway lines, under an irregular grant of power from the city, an.d which grant-was given by the approval of a vote of the majority of the electors of the city, is a property right which cannot unlawfully be interfered with, and such company is entitled to protection against unlawful encroachment upon its business by another company, the same as if the franchise grant to it had been regular.</p> <p>S. Street Railways: Grant of Powers: Construction. The grant of powers under a franchise to a street railway company is to be construed most strictly against the company, and, where the grant to go upon particular streets is not expressly made, or does not follow by necessary implication from the grants which are made, or where there is any doubt about the matter, the holding will be against the grant.</p> <p>4. -: Use of Streets: Joint Use of Tracks. A local street railway company, with its tracks upon the city’s streets, does not have the exclusive right to the use of those streets, and, though its . trackage system and appurtenances are private property, it may, hy legislative authority, be compelled to permit another company, where proper conditions are imposed and where compensation is provided, to use a portion of its tracks, if the public interest will be promoted thereby, and if the rendition of that use does not result in such detriment or prejudice to the company affected as to make the regulation unreasonable.</p> <p>5. --: -: Powers of City Council. The statute (Laws 1917, ch. 216, sec. 9), providing that the city council may require a local street railway company to permit an interurban company to use its tracks, so that the interurban company may enter the city and have terminal facilities therein, is not broad enough in scope to authorize the city council to grant to an interurban company the right to use other tracks of the street railway company for the purpose of extending the interurban’s local street railway business within the city and of diverting to its own lines street railway business which would otherwise have gone to the local company.</p>

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

<p>1. Vendor and Purchaser: Exchange oe Property. Where real estate is parted with for a valuable consideration, even if only a portion thereof is money and the remainder is other property, if the bargain is made, and the value of the real estate parted with is measured in money terms, and the real estate is paid for in money or its equivalent, or in something which the parties agree to treat as having a fixed and definite value in money, the transaction is a sale, as distinguished from an exchange.</p> <p>2. -: -: Saxe. Where a 68-acre tract of land, valued at $5,100, is transferred for a gasoline tractor plow outfit, valued at $i,000, and $1,600 in cash and a note for $2,500 secured by a mortgage on the land transferred, the transaction held to be a sale, and not an exchange.</p> <p>3. Brokers: Contract: Statute oe Frauds. In an action to recover compensation for services rendered as a broker in effecting a sale of real estate, a petition that discloses on its face that the brokerage contract was not in writing is subject to attack by demurrer.</p>

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

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

<p>1. Insurance: Statutes and By-Laws: Construction. The fundamental principle and rule in the construction of a statute or bylaw is to ascertain the intent of the body by which it was enacted or passed; and, if such intent is plainly and clearly expressed therein, there is no necessity or room for construction or interpretation.</p> <p>2. Statutes: Proviso: Construction. A proviso should be construed as referring to what immediately precedes it only, unless a different intention is apparent from the act itself.</p> <p>3. Insurance: By-Law: Amendment: Construction. The by-law set out in the opinion examined, and held, that the amendment of 1917 thereto does not in any manner exempt a member who engages in the hazardous occupation of a brakeman on a railway freight train from paying the additional premium required by the original by-law, nor release him from the penalty, therein provided, for a failure to give notice of such change of occupation or to pay such additional premium.</p>

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

<p>1. Limitation of Actions: Petition: Demurrer. Where it appears from the statement of facts in the petition that the cause of action is on its face barred by the statute of limitations, and there are no allegations tolling the statute, a demurrer can be properly interposed to such cause of action.</p> <p>2. -. The two causes of action set forth in paragraphs 3 and 4 of plaintiff’s petition having accrued over 25 years before the com- ’ mencement of suit, and not containing allegations evidencing fraud or the establishment of trusts or tolling the statute, are each barred under the statute of limitations.</p> <p>3. Specific Performance: Adoption: Contract: Consideration. An agreement with a child' sufficient as a basis for an action for specific performance of contract must be unequivocal in terms and provide for a definite amount or share of property, or for some specific property, and must be upon valid consideration. An agreement made after decree of adoption, which provides only for the services required by such decree, is void for lack of legal consideration.</p> <p>4. Adoption: Rights of Adoptee. A contract with a child or a decree of adoption, which does not obligate the parents to give the child any more than one born to them in lawful wedlock, does not restrict the rights of the parents to dispose of their property by deed or will.</p> <p>5. -: -. A decree of adoption under the laws of Nebraska or an agreement with a child granting no greater rights only confers upon such child the right to inherit what property remains undisposed of, on equal terms with the child or children born in lawful wedlock to such adopting parents.</p>

<p>1. Petition examined, and held to be a suit against defendants as partners.</p> <p>2. Judgment: Partnership. Where a group of business men meet and organize for the purpose of promoting a public entertainment and select certain persons as officers to conduct the same, and subsequently the officers are sued as partners, and the record discloses there was no partnership proved, a judgment against them will not be upheld.</p> <p>3. Evidence examined, and held not to sustain the judgment.</p>

<p>1. Taxation: Tax laws. A tax law is a legislative enactment which defines the measure of every man’s duty in support of the public burdens, and a tax thus imposed is not founded on contract, and does not establish the relation of debtor and creditor between the taxpayer and the state, and may be repealed or amended by a subsequent legislature.</p> <p>2. -: -: Exemptions. The Constitution only limits a legislative body in the matter of property. And where a part of the taxable property within the state is not being taxed, in whole or in part, there is no pledge or agreement, expressed or implied, that the laws shall not be repealed or amended by a subsequent legislature to meet the conditions which exempt the property from taxation and the placing of it on the tax list.</p> <p>3. Constitutional Law: Taxation: Mortgaged Land. Before the amendment of sections 6350 and 6351, Rev. St. 1913, by the legislature of 1919 (Laws 1919, ch. 138), a landowner mortgaged his land to a federal land bank company, there being no provision in the mortgage that the mortgagor would pay the tax thereon, and the mortgage being exempt from taxation under a federal law, held, that the owner of the real estate was not, in 1920, entitled to have his interest in the land, for the purpose of taxation, fixed and determined by deducting from the assessed value the unpaid part of the mortgage, and that, in the determination of his interest in the land for taxation purposes, the federal mortgage should not be deducted from the value of the land. Held, further, that the act of the legislature oí 1919 (Laws 1919, ch. 138), amending sections 6350 and 6351, Rev. St. 1913, relating to taxes, does not impair the obligation of a contract or destroy a vested right.</p> <p>4/ Mandamus: Taxation. Record examined, and held not to entitle the relator to the relief demanded.</p>

<p>1. Infants: Petition: Charge: Jury Trial. Petition set forth in the opinion examined, and held not to charge defendant with crime, and not to entitle him to a jury trial, and no arraignment necessary.</p> <p>2. Appeal: Immaterial Evidence. A case tried to the court without intervention of a jury will not he reversed on account of the introduction of immaterial testimony, if there is sufficient competent and material evidence in the record to sustain the judgment.</p> <p>3. Evidence examined, and held to sustain the judgment of the trial court.</p>

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

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

<p>1. Evidence examined, and held sufficient to sustain a finding that the relation of employer and employee existed.</p> <p>2. Trial: Verdict: Joint Tort-Feasors. In an action where several persons are proceeded against jointly for a wrong, the mere fact that one of the joint tort-feasors is released hy the jury’s verdict will not necessarily release the others, and the verdict against the others may stand.</p> <p>3. -: Instructions: Contributory'Negligence. It is not error to fail to instruct on the law of contributory negligence, when no such instruction is requested and no evidence of contributory negligence is offered.</p>

<p>Appeal from 'the district court for Thurston county: Guy T. Graves, Judge.</p>

<p>1. Appeal: Objection: AYaiver. “In the absence of a record showing that an objection was made in the court of original jurisdiction, a waiver of the defect will be presumed in the appellate court.” In re Estate of Graff, 86 Neb. 535.</p> <p>2. Judgment by Default: Application to Vacate. Record examined, and held that defendant’s amended application is sufficient under section 7646, Rev. St. 1913, to vacate judgment rendered against him by default.</p>

Original proceeding in mandamus to compel respondent, as auditor of public accounts, to register bonds of relator school district.

<p>Evidence examined, and found to sustain the decree of the trial court.</p>

<p>1. Landlord and Tenant: Liability oe Lessor. The general rule is, where a lessor of a portion of a building remains in possession and control of a part, or the remaining portion thereof, in the absence of a specific agreement, or of deceit or fraud by him, he is not bound to make repairs, employ a watchman, or to maintain a fire alarm service for his lessee, nor can the lessee recover for injuries to his property received through latent defects, of which the lessor had no knowledge a,t the time of making the lease, and which were as patent to the lessee as to the lessor.</p> <p>2. Evidence examined, and held sufficient to warrant the direction of a verdict.</p>

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