Volume 109 — Nebraska Reports

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

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

<p>1. Trial: Direction of Verdict. Held, that the trial court did not , err in refusing to direct a verdict for defendant, sufficient competent evidence having been introduced by plaintiff to warrant the submission of the case to the jury.</p> <p>2. Appeal: Conflicting Evidence. The verdict of the jury on disputed questions of fact will not be disturbed unless clearly wrong.</p>

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

<p>Judgment: Premature Entry. Where plaintiff files an action, in the nature of an interpleader, praying that certain claimants to the fund in his hands be brought into court, .and that the court determine the respective rights of such claimants; and where the claimants file a cross-petition' against the plaintiff, praying for judgment against him in excess of the amount tendered into court, although no summons may be necessary to be served on the plaintiff, nevertheless the plaintiff is entitled to the same time to plead to the cross-petition as though the defendant filing the cross-petition -was plaintiff and the plaintiff was sole defendant., .In such case, a default and judgment against the plaintiff on the cross-petition, before the time to plead has expired, is erroneous.</p>

<p>1. Commerce: Federal - Employers’ Liabilty Act: Interstate Employment. Where one is engaged in shoveling coal into a pit, to be elevated by machinery into a coal chute for, immediate use in engines, used in both interstate and intrastate traffic, he is engaged in a work so closely related to interstate transportation as to be a part of it, and is within the protection of the federal employers’ liability act.</p> <p>2. Evidence, examined and set out in the opinion, held sufficient to sustain a finding of negligence.</p> <p>U. Master and Servant: Injury to Servant: Defense of' Contributory Negligence-. In actions under the federal employers’ .liability act, contributory negligence, no matter how great, is not a defense, but may be considered for the purpose of reducing a- recovery.</p> <p>■4. -: . Instructions : Assumption of Risk. Where the defense of assumption of risk is submitted to the jury on- conflicting evidence and under proper instructions, their verdict is conclusive.</p> <p>.5. Instruction, examined and substance, stated in the opinion, held to correctly state the law applicable to assumption of risk.</p>

<p>1. Municipal Corporations: Disconnecting Territory: Evidence. Evidence, examined and set out in the opinion, held sufficient to support a finding that justice and equity require plaintiff’s lands to be disconnected from the city of Rulo.</p> <p>2. -: -. That part of section 4263, Comp. St- 1922, which reads: “The provisions of this section shall not apply to lands laid out into city or village blocks, lots and streets” — construed, and held to refer to conditions as existing at the time of bringing action to detach territory from a city or village, and that it does not operate to prevent the detaching of territory which had been platted and laid out into lots and blocks, when such plat had been vacated prior to bringing the action to detach territory.</p>

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

<p>1. Appeal: Review. In a law action, begun to recover a payment of money .made by plaintiff on an executory written contract for the purchase of real estate, on the ground of fraud, where the defendants denied the alleged fraud, and prayed for specific performance of the contract, the issue is triable to the court without a jury. In such a trial the function of a jury, if one is called, is advisory only. No error can be predicated- upon the giving or refusal of instructions.</p> <p>g. Vendor and Purchaser: Fraud : Sufficiency of Evidence. Evidence examined, and found sufficient to sustain the decree of the district court awarding relief to plaintiff and refusing specific performance.</p>

<p>Parol Evidence. “Where the controversy is between a party to a written contract and one who is neither a party nor a privy to it, the rule excluding parol evidence tending to vary, modify or contradict the writing does not apply.” First Nat. Bank v. Tolerton & Stetson Co., 5 Neb. (Unof.) 43.</p>

<p>1. Contract: Construction. The agreement sued on and set forth in opinion construed, and held a contract of employment, and not one of partnership.</p> <p>2. Trial: Accounting: Trial to Jury. Suit upon a contract of employment to recover the stipulated compensation named therein for services performed, even though- said compensation or part thereof consists of a certain per cent, of the net income of defendant’s business, is triable primarily before a court and jury, and neither party is entitled,' as matter of right, to have the case transferred to a court of equity, unless it should manifestly appear that the • issues and items therein are so numerous and the evidence to sustain them so variant, technical and voluminous that a jury is incompetent to deal intelligently with them and come to a just conclusion.</p> <p>3. -: -: -. Issues and evidence examined in the case at -bar and held the trial court did not err in overruling defendant’s motion to transfer the .case to an equity court.</p>

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