Volume 110 — Nebraska Reports

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

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

<p>Chattel Mortgages: Waiver of Lien. “Where a mortgagee of chattels authorizes the mortgagor to sell the property described in the mortgage at private sale, and with the proceeds pay the mortgage debt, and the sale is accordingly made, the mortgagee has thereby .waived his lién.” Drexel v. Murphy, 59 Neb. 210.</p>

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

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

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

<p>1. Mortgages: Deed as Security. A deed absolute on its face, when given as security for a debt, will be held to be a mortgage,</p> <p>2. Evidence examined, and held to sustain the findings and judgment of the trial court.</p>

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

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

<p>1. Mechanics’ Lien: Statement. A mechanics’ lien statement is sufficient if the itemized account of materials furnished or labor performed and the affidavit' attached thereto, when construed together, comply with the statute.</p> <p>2. -: Evidence. Where labor and materials are contracted for use in a proposed building and delivered in pursuance of such contract and used in erecting such building, which is completed, and the prices charged therefor are fair , and reasonable, and there is no testimony tending to raise even a suspicion that the materials therefor were elsewhere obtained or that those contracted for were not used therein, the seller is entitled to a mechanic’s lien therefor.</p>

<p>l Gifts: Gift of Notes Irrevocable. Where a father, in making- a loan of $1,000 to one of his sons, required said son to execute four notes in the sum of $1,000 each, payable to each of his four daughters, which said notes the father delivered to another son, with directions to hold said notes, collect the interest thereon and pay same to father during his lifetime, and at his death to deliver the notes to each of the daughters named therein, held a complete and irrevocable gift of the notes to the daughters.</p> <p>2. '-: -. Where a gift of notes is complete and irrevocable, the mere fact that the donor thereafter, without the knowledge or consent of the donee or holder, secured the notes from the possession of the holder and destroyed them, would not reinvest the title in the donor.</p> <p>3. Witnesses: Privileged Communications. Where an attorney is employed to draw a note which was subsequently destroyed, but is in no way consulted as to the legal effect of the instrument, he is not 'prevented by section 8833, Comp. St. 1922, from disclosing the terms and conditions of the destroyed note, or the statements made to him by his employer.</p>

<p>1. Sales: Sales at Auction. If in an auction sale certain terms and conditions are announced publicly at the opening of the sale, a purchaser at such sale is bound thereby, whether he was presort or not when they were made.</p> <p>2. Vendor and purchaser: Settlement: Election. Where a real estate contract provides for alternative methods of settlement, with the right of election in the first instance in the purchaser, and he refuses to exercise his right, the right of election then shifts to the seller.</p> <p>3. Specific Performance: Decree. A court of equity may properly enter a decree for specific performance providing that, on vendee’s default in payment of the price, the premises be sold and judgment entered against him for the deficiency.</p>

<p>1. Bills and Notes: Bona Fide Purchaser. Where a note, at the time of its purchase, is not stamped as required by the revenue laws of the United States, such failure to stamp does not destroy its negotiability, but is a circumstance to be considered in connection with all the other evidence in the case in determining whether or not the indorsee is in fact a holder in due course.</p> <p>2. Depositions: Irrelevant Matter. Where a deposition was taken and filed, covering several matters not in controversy in the suit, and plaintiff offered all of the deposition covering the subject-matter of the suit, held not error for the court to refuse to require plaintiff to read other incompetent or irrelevant facts and statements therein contained.</p> <p>3. Principal and Agent: Authority of Agent. Where an agent of the payee of a note had written authority to indorse the note, which said authority was exhibited to the indorsee before the purchase, and the evidence establishes that the agent had such authority and had previously negotiated notes in the same manner, and where the. proceeds of the note were placed by the bank to the payee’s credit and paid out on order of the payee of the note, held sufficient to establish the authority of the agent to indorse the note to the plaintiff bank.</p> <p>4. Bills and Notes: Bona Fide Purchaser. The issuing of a negotiable certificate of deposit, especially where it has been negotiated to a holder in due course and subsequently paid, is parting with value.</p> <p>A --■: Good Faith: Question for Jury. Where 'plaintiff, an indorsee of a note, called as witnesses the officers who conducted the negotiation for the purchase of the note, who testified to their good faith in the purchase of the note, the question as to whether that was sufficient proof of good faith on behalf of plaintiff was a question of fact for the jury.</p> <p>6. Instructions examined and approved.</p>

<p>1. Damages: Contract: Construction: Liquidated Damages. Whether the sum mentioned as damages in a building contract and indemnity-bond is a penalty or liquidated damages may be a question of construction. In determining this question, the subject-matter of the contract, the consideration, the intention of the parties, all the evidence, facts and surrounding circumstances, and the language and context of the contract, must be carefully considered. And where the damages are uncertain, and not readily capable of exact ascertainment by any known rule, and the parties surveyed the whole situation at the time of contract, and agreed upon the amount of damages, in case of a breach in the contract to construct a building by a certain time, such sum, in case of a breach, is the true measure of recovery and is liquidated damages and not a penalty.</p> <p>2. Evidence examined, and held that this action was not prematurely brought.</p>

<p>L Street Railways: Use of Streets. The right to use street intersections in cities by street cars and pedestrians is mutual, relative, and reciprocal.</p> <p>2. Negligence: Contributory Negligence: Damages. “If, on the trial of an action ‘brought to recover damages for injuries to a person or to his property caused by the negligence of another,’ plaintiff is found to be guilty of negligence dirctly contributing to the injury complained of, he cannot recover, even though defendant was negligent, unless the contributory negligence of plaintiff was slight and the negligence of defendant was gross in comparison therewith; and if, in comparing the negligence of the parties, the contributory negligence of the plaintiff is found to exceed in any degree that which, under the circumstances, amounts to slight negligence, or if the negligence of defendant falls in any degree short of gross negligence under the circumstances, the contributory negligence of plaintiff, however slight, will defeat a recovery. And even when plaintiff has established his right to recover under this rule, it is the duty of the jury to deduct from the amount of damage sustainecl such amount as his contributory negligence, if any, bears to the whole amount of damage sustained. Rev. St. 1913, sec. 7892.” Morrison v. Scotts Bluff County, 104 Neb. 254.</p> <p>3. Trial: Instructions. The charge of the court examined, and held to be free from reversible error, and to fairly include matters contained in instructions tendered by appellant and refused by the court.</p> <p>4. Damages. Held, that under all the evidence, facts, and circumstances, the verdict in this case is not excessive.</p>

<p>1. Municipal Corporations: Building Ordinance not Retroactive. A city ordinance which requires all elevator shafts in all fire-proof buildings erected after the passage of the ordinance to be inclosed in fire-proof partitions is not retroactive so as to apply to buildings erected before the passage of the ordinance.</p> <p>2. Negligence: Maintenance op Elevator Shaft. The maintenance of an elevator shaft built before the passage of the ordinance without being so inclosed is not such a violation of a legal duty as to give rise to an implication of negligence, because of the ordinance.</p> <p>3. -: Exposure to Known Danger. A person who knowingly and of his own volition exposes himself to an obvious danger cannot recover damages for any injury which he might have avoided by the use of reasonable care.</p> <p>4. -: Presumption. Where there was no witness to an accident causing death, the presumption is, in the absence of evidence to the contrary, that decedent exercised due care; but this presumption is rebutted when the circumstances proved show that decedent was negligent.</p> <p>5. -: Contributory Negligence. Evidence examined, and Weld insufficient to show that defendants were guilty of negligence, and, further, that the death of decedent was caused by his own negligence.</p>

<p>Appeal: Sufficiency of Evidence. When on appeal the question presented is the sufficiency of the evidence to sustain the ruling of the trial court on a motion to dissolve an attachment, and from an examination of the whole record it is apparent that a finding other than that made by the trial court could not be sustained, the evidence will be held sufficient.</p>

<p>1. Appeal: Conflicting Evidence. In a personal injury action where the evidence of physicians called by'the respective parties- is conflicting, in respect of injuries sustained, but there is sufficient competent evidence to support the verdict, it will not be disturbed on f,appeal. ■</p> <p>2.--: Instructions : Presumption. Where the court instructs on comparative negligence, it will be presumed that the jury took into account the contributory negligence of plaintiff, if any, and considered it in arriving at its verdict.</p> <p>3. New Trial: Newly Discovered Evidence. Where an application for a new trial is made on account of alleged newly discovered evidence and the showing discloses that the evidence, if produced, would be cumculative in substance and effect, error cannot be predicated upon a denial of the application.</p> <p>4. Municipal Corporations: Use of Streets.-;• The right of a pedestrian to the lawful use of the crosswalks in a city or village is in all respects equal to that of a- person driving a motor-propelled vehicle thereon. Comp. St. 1922, sec. 8392.</p> <p>5. -: -: Care Required. It is the duty of the driver of an automobile to exercise reasonable care in its operation, and where pedestrians are numerous and traffic is congested, the degree of . care required must be commensurate with the danger reasonably to be anticipated. Comp. St. 1923, sec. S393.</p> <p>6. -: -: Warning by Automobilists. Section 8395, Comp. St. 1922, contemplates, not only the installation of warning devices on motór-propelled vehicles, but that they shall as well be used opportunely by the drivers of such vehicles to apprise pedestrians and other travelers of the approach of an oncoming car.</p> <p>7. Appeal: Remittitur. “Where plaintiff in a personal injury action recovers a verdict and the trial court directs a remittitur and the defendant appeals, this court will on request of plaintiff, in a proper case, set aside such remittitur either in whole or in part as the evidence may warrant.” Miller v. Central Taxi Co., ante p. 306.</p>

<p>Trial: Special Findings. “A special finding- controls a general verdict, and when inconsistent with 'the general verdict it is the duty of the court to render judgment accordingly.” .Norfolk Beet-Sugar Co. v. Premier, 55 Neb. 656.</p>

<p>Insurance: Delivery of Policy. On the facts stated iu the opinion, held that there was a delivery of the benefit certificate to the insured in her lifetime and while she was in good health.</p>

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

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

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

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

<p>1. Bills and Notes: Bona Fide Purchaser. Where 'the 'consideration • for the purchase before maturity and without-'notice "'of- a negotiable promissory- note, by regular indorsement, was a' sale of real estate, and the deed therefor had not. been delivered, but was left with a bank for delivery to grantee upon payment of $300, the remainder of the purchase ‘price, held, that the vendor was entitled to protection as a bona fide purchaser, as against a claim of the maker of the note against the payee thereof.</p> <p>2. Statute of Frauds. The fact that the agreement for sale of the real estate was not in writing is no defense, as defendants were not parties thereto, and the defense of the statute of frauds is personal to the parties.</p>

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

<p>Parent and Child: Custody of Child. "In a controversy fof the custody of an infant of tender years, the court will consider the best interests of the child and will make such order for its custody as will be for its welfare, without reference to the wishes of the parties.” Schroeder v. State, 41 Neb. 745.</p>

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

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

<p>1. Husband and Wife: Abandonment: Venue. Where the matrimonial domicile has been established in one county, and the husband sends the wife to another county to reside until such time as he could find a new home and send for her; and where a child is born to the wife in the latter county; and where the husband fails to establish a new home or communicate in any way with her except to write a letter that he has gone forever; such facts are sufficient to authorize the wife to institute proceedings for wife and child abandonment in the latter county. Comp. St. 1922, sec. 9584.</p> <p>2. Bastardy: Presumption: Rebuttal. A child born at any time during wedlock is presumed to be legitimate, but this presumption maybe rebutted by evidence that the husband was impotent, or that he did not have access.</p> <p>3. Witnesses: Husband and Wife: Illegitimacy of Child. In an action in which the legitimacy of a child born in lawful wedlock is an essential issue of fact, neither the declaration nor the testimony of husband or wife is competent on the question of access, nor should either testify to collateral facts from which an inference of access or nonaccess may be drawn; but this rule does not preclude them from testifying concerning illicit relations in actions of adultery, incest, divorce or like cases not necessarily involving the illegitimacy of children born in lawful wedlock.</p> <p>4. Evidence examined, and held sufficient to sustain a judgment of conviction.</p>

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

<p>1. Municipal Corporations: Ministerial Acts: Resolutions. In the exercise by the city of the second class of its corporate functions, where the statute definitely prescribes a method of action, such method must be followed. Where this is not done, if the action taken by the city amounts to prescribing a permanent rule of conduct which is thereafter to be observed by the inhabitants of the city, or by the officers in the transaction of the corporate business, then the rule prescribed may be more properly expressed in the form of an ordinance; but it is entirely proper to act by resolution, if the action taken is merely declaratory of the will of the corporation in a given matter, and is in the nature of a ministerial act.</p> <p>2. -; Assessments: Collateral Attack. Where, in the making of assessments for local improvements and the levy therefor, property owners have opportunity to present their objections to the municipal body and to there have a hearing and pursue proceedings for review of the final decision of that body whether by error or appeal, they cannot fail to do so and then, in the absence of a substantial jurisdictional defect in the proceedings, question the proceedings collaterally by an independent suit to restrain the making of the levy.</p>

<p>Appeal from the district court for Washington county: L. B. Day, Judge.</p>

<p>Municipal Corporations: Damages: Notice. The words, “arising from defective streets,” in section 4384, Comp. St. 1922, have reference only to claims for damages to the person or property of travelers upon the street using the same in the ordinary way, and have no reference to a claim for damages to abutting property based upon negligence or tort of the city giving rise to a cause of action at common law; as to which claim no notice need be served before suit.</p>

<p>1. Homestead: Conveyance. The homestead interest of a judgment debtor may be conveyed or incumbered to the full extent of $2,000, , and the vendee will take the title free of the judgment.</p> <p>2. -: Extinguishment. Where there is a mortgage for $5,009 upon realty subject to a homestead interest, and the owner executes a second mortgage thereon for $2,000, reciting that, “The purpose of this mortgage is to mortgage * * * all of his homestead rights,” the homestead is thereby extinguished as against an intervening judgment lien, which attaches to any excess in value above the two mortgages.</p> <p>.3. -: -: Sale under Execution. The homestead interest , having been extinguished, the sheriff was not required to take notice of a written claim of homestead, and a sale of the property on execution upon the judgment was valid, and the sheriff’s deed in pursuance thereof passed all title and interest of the claimant to the purchaser.</p>

<p>L Appeal: Procedure. Where the district court has entered an order . allowing a claim against a receiver of an insolvent state bank and directing payment of the claim from the depositors’ guaranty fund, and, on application by the state for a vacation of such order and ,■ for permission to make' defense to the claim, enters an order setting the hearing on the application upon a future date, also by the order suspends the first order until the further action of the court, • and, on the subsequent hearing, announces that the hearing will be on the merits of the cl,aim, and at such hearing the court and, litigants treat the first order as though it had been vacated, and try the merits of the claim, this court will, on appeal, disregard any technical question of procedure and treat the appeal as on the merits of the claim presented for allowance.</p> <p>2. Subrogation: Banks and Banking: Guaranty Fund. One who, pursuant to a contract with a failing state bank, pays the claims of its depositors is not thereby subrogated to the rights, of depositors as against the depositors’ guaranty fund, notwithstanding that the contract may so provide.</p>

<p>1. Criminal Law: Circumstantial Evidence. When it is sought to establish the guilt of the accused in a criminal case by circumstantial evidence, it is not sufficient that the facts create a probability, though a strong one. If, therefore, assuming all the facts to be true which the evidence tends to establish, they may yet be accounted for upon any hypothesis which does not include the guilt of the accused, the proof fails. It is essential that the circumstances, taken as a whole, and giving them their reasonable and just weight, and no more, should to a moral certainty exclude every other hypothesis.</p> <p>2. Forgery: Uttering False Will: Burden of Proof. In a prosecution for uttering a false will as. true and genuine knowing the. same to be false, with intent to defraud, and the theory of the prosecution is that the will was recently drawn by the accused or some one in collusion with him and dated back, and the instrument carries upon its face evidence inconsistent with such theory, the burden is upon the state to overcome such evidence by proof beyond a reasonable doubt.</p>