Volume 124 — Iowa Reports

— IIon. Felix T. Hughes, Judge. Action at law in which plaintiff seeks to recover the value of certain trees growing in the street parking in front of and at the side of his homestead property in the city of-Keokuk, and which were cut down by order of said city; also to recover damages to his said property caused by the cutting of such trees, and by cutting down the street surface in front thereof below the level of the established grade.

— Hon. W. G. Clements, Judge. /Dependant was indicted, tried, and convicted of the crime of rape, committed, as was alleged, upon the person of one Mae Seiberh/lTrom. the verdict, and the judgment rendered thereon, defendant appeals.

<p>Forgery: evidence. On a prosecution for forgery, where the defense 1 was authority as agent to sign the principal’s name to a note on which to realize money to pay the agent for services performed, evidence as to the length of the agent’s employment, offered prior to a- showing of authority to execute the note, was immaterial.</p> <p>Exclusion of evidence: prejudice . The exclusion of testimony which 2 in substance is afterward covered by the witness, is not prejudicial.</p> <p>Evidence: authority of agent. Where the defense to a prosecution 3 for forgery is authority to sign the principal’s name, evidence of service performed by the agent not tending to show “ authority is immaterial.</p> <p>Instruction: implied agency. Ah agent has implied authority to 4 sign his principal’s name to a note, only when' indispensable to the accomplishment _ of his agency and reasonably within the contemplation of the parties. Under the showing made in this case, an instruction embodying the above rule is held correct.</p> <p>Instructions: reasonable doubt. Where the charge to the jury in 5 different paragraphs emphasized the necessity of proof beyond a reasonable doubt, the inadvertent use of the phrase “preponderance of evidence ” in another paragraph, while unfortunate, could not have mislead the jury.</p>

<p>Cities: mandatory order : demand. Where the only reason for asking 1 a mandatory order grows out of a change in the issues during the trial, the notice provided in Code, section 4346, is not required.</p> <p>Ordinances: partial invalidity. The invalidity of one portion of 2 an ordinance does not of necessity invalidate the whole.</p> <p>Cities: implied power. The power given a city to provide light for 3 its streets, implies the power to purchase it and contract for such service.</p> <p>Cities: power to contract for lights. By Chapter 78 of the Acts 4 of the 14th General Assembly, as amended by Chapter 11 of Acts of the 22nd General Assembly, a city was expressly granted power to make a valid contract for lights for term of twenty-five years.</p> <p>Exclusive Contract. Where a city has power to contract for lights 5 for-a specified period, the contract is not void for exclusiveness.</p> <p>Ordinances: construction. An ordinance granting a twenty-five 6 year franchise to a lighting company, provided that at each five-year period the city might require the machinery and appliances to be in good condition, and of such approved design as to furnish light of required standard and power, so that the city should have the advantage of all improvements in the production of light, is held not to empower the city to require an entire change in machinery and appliances.</p>

— ■ Hon. John T. Soott, Judge. Action to recover damages on account of the death of plaintiff’s intestate. Judgment for defendant upon a directed verdict, and the plaintiff appeals.

— Hon. G. W.. Wakefield, Judge. Action at law to recover damages for a personal injury. At the time of the accident, plaintiff was a switch-man employed in the yards of the defendant company at Sioux City, and had been thus employed for about a week.. The switching crew, of which plaintiff formed a part, consisted of a foreman, the enginemen,- a head switchman, who* remained with the engine, and a fieldman, plaintiff filling-the latter position.

<p>Appeal from, Kossuth District Court.— Hon. W. B. Quarton, Judge.</p> <p>The opinion states the ease.</p>

— Hon. W. B. Q carton, Judge. Action for commission for finding purchaser of land. Judgment as prayed, from which the defendant appeals.

— IIon. J. R. Whitaker, Judge. Suit at law upon a beneficiary certificate issued by the defendant to Mary L. Kennedy. Trial to the court, and judgment for the plaintiff. The defendant appeals.

— ■ IIon. A. D. Bailie, Judge. Action to partition real property. Defense, that the defendants were, as tenants in common, owners of the entire premises, with prayer for defendants that title be quieted in them as against plaintiff. Decree for defendants, from which plaintiff appeals.

— Hon. S. F. Prouty, Judge. • Action to recover damages for a personal injury occasioned, as alleged, by the negligence of defendant. At the close of the evidence for plaintiff, there was a directed verdict in favor of .defendant. Plaintiff appeals.

<p>Appeal from Keohulc District Court.— Hon. W. Gr. Clements, Judge.</p> <p>Action in equity to set off widow’s share in. lands. Decree as prayed, and defendants appeal.</p>

— Hon. Glieeobd P. Smith, Judge. Action to recover a sum of money due on account for goods sold and delivered by plaintiff to defendants. Trial without a jury. Judgment for defendants. Plaintiff appeals.

— Hon. A. S. Blair, Judge. The petition is in two counts. In the first, plaintiff claims the sum of one hundred and twenty-six dollars and forty-six cents due him as commission for making a sale of certain real estate for defendants.

<p>Appeal from Warren District Court. — IIon. James D. Gamble, Judge.</p> <p>Suit in equity to enjoin defendants from obstructing a public highway. Defendants denied that any such highway existed as claimed by plaintiff, and asserted that plaintiff’s grantor had a mere: lincense to use part of defendants’ laud, which license was at all times revocable, and expired when he sold the land to plaintiff. The trial court dismissed plaintiff’s petition, and he appeals.</p>

<p>Corporations, charter. The charter of a corporation organized 1 under the general law consists of its articles together with the- ■ law under which the organization is perfected.</p> <p>. Sale of entire corporate property. Where the charter contains the-2 authority, a sale of ..the-.entire property may be made without the-unanimous consent of the stockholders, although the corporation is not insolvent.</p> <p>Exercise of corporate power. A corporation cannot exercise the-3 powers designated in Code, section 1609, unless so authorized by its articles Of incorporation.</p> <p>■ Sale of entire property: charter construed. The corporate charter . 4 in question is reviewed, and held to confer the power to dispose of all corporate property without the unanimous consent of the stockholders.</p> <p>Sale of entire property: purchase of corporate stocks. A charter 5 which confers power to dispose of all corporate property and also empowers the corporation to deal in. stocks of other corporations, may sell all of its property for stock in another corporation, even though the transaction amounts to a consolidation.</p> <p>.Loans in excess of limit: validity. Where a corporation has bor- . 6 rowed money in excess of its authorized indebtedness, and the same has been used for the benefit of the corporation, the stockholders cannot question the validity of the transaction, though the money was used for ultra vires purposes.</p>

— Hon. A. B. Thorn-ell and Hon. O. D. Wheeler, Judges. Action for damages. Trial resulted in judgment in favor of Gannon and against Hall, from which the latter appeals.

— Hon. W. H. McHenry, Judge. Action by plaintiff, as administrator, against the defendant Lord, his predecessor as administrator, and the other defendants as sureties on Lord’s bond, to recover the assets of the estate for which Lord has not accounted. No defense was made in behalf of Lord.

— Hon. O. D. Wheeler, Judge. Action upon a policy of insurance to recover damages for loss by fire. Verdict and judgment for • plaintiff, and defendant appeals.

— Hon. Wm. G. Thompson, Judge. Action to restrain defendant from engaging in the abstract business, and to require him to turn orders for abstracts received by him over to the plaintiff. Decree as prayed, from which the defendant appeals.

— Hon. J. H. Preston, J udge. The defendant McNaughton sold and delivered to Mrs, Lola Walker a piano, for the purchase price of which she executed her note to the W. W. Kimball Company, and secured the same by a mortgage on the instrument. This mortgage was not recorded, and, with the note, was delivered to the Kimball Company, in Chicago.

<p>Insane person: care and attendance: guardian’s claim: previous allowance. Where the guardian of a person of unsound mind secured a monthly allowance for the care of her ward, on a showing that the ward was unable to attend to her personal wants but required the guardian’s constant care and attention, she cannot, after the death of the ward, recover from the estate additional compensation for the same service.</p>

— Hon. G. W. Burn-ham, Judge. Action to recover damages on account of a breach of contract for the sale of personal property. The petition of plaintiff is in five counts.

— Hon. A. D. Bailie, Judge. ¡ On the 19th day of November, 1899, A. M. Henderson, as a trustee for himself and T. T. Henryson and M. Henderson entered into written contracts with Ed Beatty for the purchase of one hundred and forty-eight acres of land situated in sections 19 and 20 in township 97 north, of range 34, in Palo Alto county, and with Wm. Beatty for ninety-nine and three-fourths acres in the south half of section 19 in the same township.

— Hon. W. N. Treichler, Judge. Action at law to recover damage for stock killed by defendant company, due, as is alleged, to defendant’s negligence in failing to construct and maintain a sufficient gate in its fence at a private crossing on plaintiff’s land. Defendant, interposed a general denial, and on tbe issues thus joined the case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

— Hon. James H. Eothrock, Judge. Suit to recover for personal injuries caused by a collision .of cars on tbe defendant road. There was a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. S. M. Elwood, Judge. Suit for divorce on the ground of habitual drunkenness. There was a decree ■ denying the divorce, but allowing the plaintiff $100 attorney’s fees. The defendant appeals.

— Hon. Z. A. Church, Judge. Oldfield Bros, had been engaged in the mercantile business at Rockwell City for some years prior to April 25, 1903, at which time plaintiff bought a half interest therein, and, with the defendant, formed a partnership under the firm name of Oldfield & Bhrtung. On the 12th day of August of the same year a sale of the entire stock was made to J. Reed & Son. The negotiations were conducted entirely by the defendant.

<p>Certiorari from Taylor District Court.— Hon. R. L. Parrish, Judge.</p> <p>The opinion states the case.</p>

— Hon. N. W. Macy, Judge. Action to recover damages for injuries received at a railway crossing by reason of tbe negligence of tbe employes of the railway company in failing to give signals. There was a verdict for the plaintiff, accompanied by special findings on interrogatories submitted. Thereafter defendant moved for judgment in his favor on the special findings, and at the same time filed a motion for a new trial.

— Hon. H. M. Remley, Judge. Action to recover damages for personal injuries sustained by reason of a fall on a defective sidewalk. A demurrer to the petition on the ground that the action was brpught within 30 days after giving notice to the city (Code, section 1050) was sustained, and judgment was rendered for the defendant, from which the plaintiff appeals.

— Hon. H. M. Remley, Judge. Action to recover damages sustained by plaintiffs as owners of nineteen thoroughbred and registered Hereford heifers which were gotten with calf by defendant’s ill-bred and unregistered bull. Verdict for plaintiffs for $950, from judgment on which defendant appeals.

— TIon. A. H. McVey, Judge. Action in equity to quiet title. Defendant asserted title in himself superior to any claim of plaintiff. Decree for plaintiff establishing in her' a lien on the premises superior to the title of defendant, and defendant appeals.—

— IIon. Josiah Given, Judge. The defendant was convicted of the crime of murder in the first degree. There was a judgment on the verdict, and he appeals.

— Hon. W. G. Clements, Judge. Action of mandamus to compel the defendants, as directors of an independent school district, to make an order for the restoration of certain territory to a school district in an adjoining county from which such territory was. taken when the independent district was formed. The court awarded the.writ, from which judgment defendants appeal.

— Hon. Z. A. Church, Judge. ■ Action in equity to enforce specific performance of contract to convey land. Judgment for plaintiff for damages, and defendant appeals.

<p>Appeal from Muscatine District Court.— Hon. James W. Bollinger, Judge.</p> <p>The defendant appeals from a judgment convicting him of the crime of perjury.</p>

— Hon. Obed Caswell, Judge. Action to recover damages for personal injury received by plaintiff, while in the employ of defendant, by reason of the alleged negligence of defendant’s servants in operating a locomotive engine, causing it to run against and strike plaintiff. Verdict for plaintiff for $1,500. From judgment on this verdict defendant appeals.

— Hon. W. S. Witiieow, Judge. Action to recover damages caused by the killing of a mare running at large by a train on defendant’s railway. The opinion states the facts. There was a jury trial, and verdict and judgment in favor of plaintiff. Defendant appeals.

— Hon. F. R. Gaynoe, Judge. Suit in equity to enjoin defendant, who is a road supervisor, from opening a highway through plaintiff’s land. The trial court granted the relief asked, and defendant appeals.

— Hon. W. S. With-row, Judge. On the 15th day of March, 1900, Daniel Johnson died testate seised of certain real estate. His will was duly admitted to probate, and under its terms the widow took a life estate and his sis children the remainder, share and share alike. One of these children — Andrew E. Johnson —Teft Iowa in 1884, and has not been a resident of the State since.

— Hon. A. D. Bailie, Judge. Action for damages. Verdict was directed for defendant, and from judgment entered thereon, the plaintiff appeals.

District Court.— Hon. J. W. Bolinger,. Judge. Plaintiff alleges in his petition that for several years he had been a motorman in the employ of the Tri-City Railway Company, which company was engaged in operating lines of street railway in the city of Davenport; that, for the purpose of injuring him and depriving him of his said employment, the defendants, Whitehead and Stxehle, conspired and confederated together to induce said company to discharge plaintiff from its employ;…

— Hon. B. W. Pees-ton, Judge. The defendant was found guilty of'keeping a house of ill famej and from a judgment on the verdict she appeals.

<p>•Appeal from, Lee District Court.— Hon. W. S. Withrow, Judge.</p> <p>The opinion states the case.</p>

<p>Appeal from Polk District Court.— Hon. A. H. MoVey, Judge.</p> <p>Action on a policy of life insurance, brought by tbe beneficiary named in tbe policy against tbe insurance company, to recover tbe amount due under tbe policy, on account of tbe death of the assured. Tbe defendant alleged that tbe death of tbe assured resulted from a cause 'which was excepted by tbe terms of tbe policy. A demurrer to tbe answer was sustained, and, on failure of defendant to plead further, judgment was rendered in favor of tbe plaintiff for $1,000, with interest and costs. Defendant appeals from this judgment.</p>

— Hon. Robert Sloan, Judge. Action at law to recover damages for the death of William Horn, plaintiff’s minor son, due as is alleged, to defendant’s negligence. Trial to. a- jury, directed verdict for defendant, and plaintiff appeals.

— Hon. J. H. Apple-gate, Judge. Action in equity, brought by plaintiff, as trustee in bankruptcy of one S. It. Smith, to redeem from defendant, the holder of the legal title to certain premises in which said Smith had a homestead interest, in order that, after satisfying any claims of defendant to or on the premises, the same might be applied to the satisfaction of the debts of the bankrupt. There was a decree for the plaintiff, and defendant appeals.

— Hon. W. H. McHenry, Judge. Appeal from order of the district court denying plaintiff’s application for writ of injunction. The opinion states the facts.

<p>Mutual insurance: beneficiaries . The statement in a mutual benefit 1 certificate that the beneficiary is the wife of the member, is descriptive of her relation to him, and is not a provision for payment to his widow.</p> <p>Beneficiaries: divorced wife. The wife of an assured is a lawful 2 beneficiary under Code, section 1824, and a designation of .her as such which is valid at the inception of the contract remains so although she may afterwards be divorced, unless the contract provides otherwise or the assured has effected a change in beneficiary.</p>

— Hon. W. C. Clements, Judge. A. C. Hale, who was the owner of the property in controversy, died testate May 24, 1893. Prior to her death her husband, George H. Hale, had acted as her agent in carrying on the business of buying and selling grain in the market at Washington, Iowa, and in storing the same in an elevator covered by the mortgage hereinafter' mentioned, and in selling the grain so stored.

— Hon. William Hutchinson, Judge. Action at law to recover damages for the death of Daniel Campbell, due, as is alleged, to the carelessness and negligence of the defendants, their agents, servants, and employes. Trial to a jury, directed verdict for the defendants, and plaintiff appeals.

— Hon. James D. Gamble, Judge. Action in equity to enjoin tbe defendant frond maintaining certain ditches, and for ■ the recovery of damages. Decree -for plaintiff, and defendant appeals.

— Hon. W. H. McHenry,, Judge. . Action to foreclose a mortgage executed by Mrs. W. T. Jenkins and busband to' plaintiff- October 29, 1897, and recorded on the day following, to secure the payment of a note of $775, dated July 13, 1896, and due December 13, 1897, bearing interest at the rate of eight per cent, per annum. Mrs. Jenkins and husband conveyed the property mortgaged to William Patterson April 14, 1897, but the deed was not recorded until January 1, 1899.

<p>Pure food: sale of oleomargarine: construction of statutes. 1 Code, sections 2516-17-18, when construed together, prohibit the sale of oleomargarine, which is the color of butter made from pure milk or cream, even though it contains no ihgredient the sole function of which is coloration. ,</p> <p>Expert testimony. The question of whether a product intended as .a 2 substitute for butter,' bears the color of pure butter, is not one of expert testimony.</p> <p>Sale of oleomargarine: constitutionality. The statutes regulating 3 the sale of substitutes for pure butter are not unconstitutional, in that they amount to a virtual prohibition of the sale of a legitimate article of commerce and a wholesome food product, thus interfering with the natural rights of man.</p>

— Hon. George W.. Wakeeield, Judge. Action to have a conveyance set aside and have title to the premises described in such conveyance quieted in the plaintiff. Defendant pleaded the proceedings in a prior action between the same parties as constituting a previous adjudication, and also an election to recognize the conveyance in question as passing title to defendant Thomas. On a trial on the issues there was a decree for defendant Thomas, and plaintiff appeals.

<p>Seduction: jurors: qualification. The qualification of a juror is 1 a question for the trial court to determine, and its action will not be disturbed in the absence of abuse of discretion.</p> <p>Same. A defendant in a criminal case, who has discussed the facts 3with a juror, will not be heard to complain because the court sustained the State’s challenge to the qualification of the juror.</p> <p>Failure to swear a witness. A witness will be presumed, on appeal, 3 to have been sworn before testifying, unless the contrary clearly appears from the record.</p> <p>Waiver of neglect to swear a witness. Where it is known to defend-4 ant during the trial, that a witness for the State had not been sworn, and no objection to the testimony is made at the time, there is a waiver of the requirement.</p> <p>Previous chaste character. Chastity of character is essential to the 5 crime of seduction, and where the evidence leaves the question in dispute, it is for the jury to determine.' A finding of previous chaste character in this case is sustained.</p> <p>Instructions: corroborating evidence. In a prosecution for seduc6 tion, the sufficiency of' the corroborating evidence is always a question for the jury. In the instant case the court’s instructions, when considered as a whole, comply with the rule.</p> <p>Additional argument. Under the oircumstances, an additional argu7 ment by the State, pointing out the testimony on which its principal argument was based, was properly filed.</p>

<p>Appeal from Taylor District Court.— Hon. H. M. Towner, J udge.</p> <p>This case, and the ease of JohnWyckoff against the same defendants, submitted with it, are suits in equity to recover money paid as usurious interest, and asking tire cancellation of certain evidences of indebtedness and mortgages given to secure the same, to the defendant association. In each case the receivers of the association are named as defendants. In the Member Case the defendants answered generally, while in the Wyckoff Case the .receivers alone answer. The cases were tried together below, and there was a decree for each of the plaintiffs. The defendants appeal.</p>

<p>Appeal: review of verdict. The correctness of a ruling' directing a 1 verdict, can only be determined from an examination of the entire evidence.</p> <p>Filing translation, of reporter’s notes. The law does not fix the time 2 in which a translation of the reporter’s notes shall be filed in a law-action.</p> <p>Abstract: objection. Failure to make timely objection that an ab-3 stract does not contain all of the material evidence, will be treated as a waiver of the objection and an acceptance of the abstract as • ■ filed.</p> <p>Trespass: evidence. Under the evidence in the case, it. is held that é defendant, in going to the home of plaintiff to make a social call on a lady boarder, was a trespasser.</p>

— Hon. H. M. Townes, Judge. Action at law to recover damages on account of defendant’s alleged negligence in grading or repairing a street. Ver-Aict and judgment for plaintiff for $10, and defendant appeals.

— Hon. M. J. Wade, Judge. Appeal from an order granting a new trial upon application of the plaintiff as against the defendants Richey.

— Hon. J. H. Preston, Judge. Action of mandamus. A demurrer to the petition was overruled. Defendants electing to stand upon the demurrer, and failing to show further cause, a writ was ordered to issue as prayed, and there was judgment against defendants for costs. Defendants appeal.

<p>Appeal from, Madison District Court.— Hon. A. W. Wilkinson, Judge.</p> <p>The opinion states tbe case.</p>

— Hon. A. H. McVey, Judge. The issue finally determined in this case by the lower court arose on cross-petition of M. Erankel against Jacob S. Emery and Arthur Reynolds, in which it was alleged that, in connection with á purchase by Erankel from Emery of seven hundred and eighty-two shares of common stock in the Harlris-Emery Company, the sum of $1,600 of the amount to be paid to Emery was deposited with Reynolds, awaiting the determination of the question whether certain…

— Hon. P. L. Parrish, Judge. Action to qtiiet title, coupled with a demand that costs, including statutory attorney’s fees, be taxed against defendant. The latter filed a disclaimer, and denied that any request for a quitclaim deed or tender of fee therefor had been made. On hearing, decree was entered as prayed, with costs, and an attorney’s fee of $10 taxed against the defendant. He appeals.-

<p>Appeal from Des Moines District Court.— Hon. Jas. D. Smyth, Judge.</p> <p>In September, 1889, M. L. Wherry executed a promissory note for tbe sum of $2,500, payable to her father, John Hanna. She took the note to him, and he indorsed it, “ Payment guaranteed,” and returned it to her. It was afterwards and before maturity deposited with the plaintiff as collateral security for the indebtedness of J. W. Wherry, the husband of the maker. It was filed as a claim against the estate of John Hanna and allowed. The executors appeal.</p>

<p>Intoxicating liquors: granting permits: ineligibility. A judgment, finding defendant . guilty of' violating his liquor permit, whether entered by confession or in settlement of criminal or civil proceedings growing out of such violation, renders him ineligible to receive another permit within two years, under Code, section 2387.</p>

<p>Cities: personal injury: service of notice. The mayor of a city 1 has power to accept service of notice of injury from a defective sidewalk, as provided in Code, section 3447.</p> <p>Negligence: pleadings. Where the notice of an injury served on a 2 city specifies the circumstances of the accident and condition of the walk, the plaintiff may. plead the particular grounds of negligence at any time within two years from the accident.</p> <p>Evidence: manner of construction of walk: instruction. In an 3 action for injury from a defective sidewalk, an ordinance adopted after the walk in question was built, requiring corlstruction in a different manner, was inadmissible; but in view of the court’s instruction held to be without prejudice.</p> <p>Evidence: admissibility. Certain rulings on the admission of evi4 dence, in relation to the manner of construction and repair of the walk, and its condition, are sustained.</p> <p>Immaterial evidence. Where there is no claim that the verdict is ex-5 cessive, a consideration of immaterial evidence is without prejudice.</p>

— Hon. C. W. Vermillion, Judge. The plaintiff is owner of lot 5 and a strip eleven feet wide off the west side of lot 6, in block 11, in the Hirst Survey of the city of Albia, having a north frontage on Washington street of forty-four feet. Thereon is a double two-story brick building covering the ground from the street back ninety feet.

<p>Building contract: forfeiture: evidence. Under the evidence, it is 1 held that a building contract was substantially performed, so that there could be no recovery under a stipulation as to forfeiture for non-completion, either as liquidated damages or as a penalty. '</p> <p>Liquidated damage: recovery. There can be no recovery under a 2 penalty provided in a building contract, for failure to complete the building' within a required time, where no damage for the delay is shown.</p> <p>Liquidated damages: equitable relief. A contract provision for 3 liquidated damages may be enforced in equity; but chancery will relieve against an unreasonable provision.</p>

<p>Appeal from Polk District Court.— Hon. A. H. McVey, Judge.</p> <p>Action to recover possession of the south six feet of the north fifteen feet of lot three in Harger’s subdivision of a tract of land included in the corporate limits of the. city, of Des Moines. The defendant interposed an equitable defense, and the case was, against plaintiff’s objection, transferred to the equity docket, and on the trial a decree was rendered for the defendant. Plaintiff appeals.</p>

— Hon. J. -T. Scott, Judge. This suit was originally brought against the defendant Bridger alone, alleging the conversion of certain promissory notes. Thereafter the court ordered the plaintiff to make the heirs of John Stroup, her deceased husband, parties defendant, which was done.

Benton District Court.— Hon. G. W. Burn-ham, Judge. The defendant was convicted of the crime of breaking and entering a dwelling house in the nighttime with intent to commit rape. From a judgment on the verdict, he appeals,

<p>'Appeal from Polh District Court.— Hon. Josiah Given, Judge.</p> <p>Defendant was indicted for the crime of murder in the first degree, and on trial by a jury he was convicted of manslaughter, and sentenced to imprisonment in the penitentiary for the term of eight years. From this sentence he appeals.</p>

<p>Street railways: personal injury: negligence: evidence. In an 1 action for injuries resulting from a collision with a street car, the evidence is considered, and it is held that the negligence of defendant and contributory negligence of plaintiff were for the jury to determine.</p> <p>Negligence of third party. The negligence of a third person, though 2 contributory to an injury, will not relieve a defendant from the consequences of his negligence.</p> <p>Damages: verdict. It is the province of the jury to determine the 3 quantum of damages, and unless so excessive, or inadequate as to indicate passion, prejudice, or corruption, will not be disturbed. Under the evidence a verdict of $500.00 for the loss of the use of a hand is sustained.</p>

<p>Appeal from Cerro Gordo District Court.— How. O. H. Kelley, Judge.</p> <p>Conviction of assault with intent to commit rape. The defendant appeals.</p>

— Hon, J, H. Richard, Judge. Action at law to recover the value of certain, property transferred by William H. Koell, a bankrupt, to the defendant Fultz. Trial to a jury, verdict and judgment for defendant, and plaintiff appeals.

<p>Injunction: removal of line hedges. A suit in injunction will not lie to compel an adjoining landowner to dig out and destroy a division hedge, on the ground that it has become a nuisance, as the same is common property which neither can destroy without the consent of the other.</p>

— Hon. J. H. Richard, Judge. The plaintiff brought two suits to recover damages caused by trespassing stock, and the- cases were consolidated and tried as one in the district court. The defendant counterclaimed for damages for an assault and battery. There was a verdict and judgment for the plaintiff, from which the defendant appeals.

<p>Master and servant: negligence of master: safe place to work. 1 Under the evidence, it is held that the master failed to furnish plaintiff a reasonably safe place to work, in that cog wheels under the table at which plaintiff was employed were left unguarded.</p> <p>Assumption of risk. A servant who works in an-insufficiently lighted S place without complaint or promise that it will be remedied, assumes the risk of injury therefrom. Under the evidence plaintiff assumed the risk.</p> <p>Same. Under the evidence as to complaint and notice of the danger 3 to a" servant from unguarded machinery, the servant is held not ' to have assumed the risk incident to continuing his employment.</p> <p>Negligence: proximate cause. Where an injury to an employe 4 would not have happened had the master provided a safe place to work, it is immaterial that there was another concurrent cause of the injury resulting from the negligence of a co-employe.</p> <p>Contributory negligence 1 An employe, knowing his danger, is re-5 quired to use care to avoid it, but under the circumstances of this case it is held that the question of plaintiff’s negligence was for the jury.</p> <p>Appeal: delay in argument: affirmance. A slight delay in the 6 service of argument, which was unavoidable and causes no real prejudice, will not support a motion by appellee for affirmance of the judgment.</p>

— Hon. N. W. Macy, Judge. Action at law, aided by an attachment, to recover a sum alleged to be dne plaintiff from defendant as rental for certain premises, for damages done said premises, and on an account. The defendant denied any indebtedness, and pleaded a counterclaim for damages, due to the wrongful suing out of the attachment, and other matters not necessary to be mentioned.

’Appeal from Winnebago District Court.— Hon. C. H. Kelly, J udge. Action for commission alleged to have been earned in finding a purchaser for land. Judgment for defendant, and the plaintiff appeals.

<p>Railroads: trespasser: negligence. In an action for the death of a boy, it is held that he was a trespasser upon defendant’s tracks, and that there was no evidence of negligence rendering the company liable.</p>

<p>Itinerant merchants: classification: police power. The business 1 of a traveling optician who merely prescribes and collects for eye glasses, is not that of a merchant, and a city has no authority under Code, section 700, to classify him by ordinance as an itinerant merchant.</p> <p>Traveling optician: license. A license cannot be exacted from a 2 traveling optician under an ordinance unlawfully classifying him as an “ itinerant merchant,” although the same might be imposed under an appropriate ordinance enacted therefor.</p>

— Hon. G. W. Burn-ham, Judge. Action to recover for personal injuries received by plaintiff while an employe in defendant’s foundry and machine shop. Verdict and judgment for plaintiff. Defendant appeals.

<p>Practice: re-opening case. Opening a case for further proof, after 1 demurrer to the evidence, motion to dismiss or to direct a verdict, is discretionary with the trial court, and its order will not be disturbed in the absence of abuse of discretion.</p> <p>Same. It is not an abuse of discretion to re-open the case for plaintiff 2 after he had rested, on the statement of counsel that he had overlooked important testimony.</p> <p>Negligence: ’ care required of blind person. A blind person is held 3 to no higher degree of care and caution to avoid an injury, while upon a public street, than one in possession of his sight; but in determining the question of ordinary care the fact of blindness should be considered by the jury in connection with the other circumstances.</p> <p>Instructions: amplification. Where the court correctly states the 4 law, omission to amplify the charge in the absence of a request, is not error.</p> <p>Same. The same subject is discussed in the third paragraph of the 5 opinion.</p> <p>Personal injury: verdict. The verdict for injuries from a defective 6 sidewalk is held to be supported by the evidence and is not excessive.</p>

<p>Appeal from Audubon District Court.— Hon O. D. Wheeler, Judge.</p> <p>The opinion states the case.</p>

— -Hon. H. M. Kemley,. Judge. This suit was brought by the plaintiff, as the guardian-of Marguerite A. Goulding, to recover damages caused by the sale of intoxicating liquor' to George IL Goulding, the father-of Marguerite A. Goulding. There was a trial to a jury,, and a verdict and judgment for the defendants. The plaintiff appeals.

— Hon. W. G. Clements, Judge. Action at law to recover damages resulting from injuries sustained by plaintiff in coming in contact with an electric light wire and lamp in the bathroom of a hotel at Colfax, Iowa. The case was tried to a jury, resulting in a verdict, and judgment for plaintiff, and defendant appeals.

<p>Appeal from Cedar District Court.— Hon. H. B. Miller, Judge.</p> <p>Action to recover damages. Verdict and judgment for plaintiff, and defendant appeals. A statement of the material facts is contained in the opinion.</p>

<p>Appeal from, Benton District Court.— Hon. G. W. Burn-ham, Judge.</p> <p>Action for damages. Prom a judgment against it, defendant appeals.</p>

— Hon. Z. A. Church, Judge. Plaintiff, as its name implies, is a corporation doing business as a savings bank at Manning, Carroll county. Tbe capital'stock of the bank is $50,000, and is conceded to be of par value. In the year 1900 the assessor made and returned an assessment, against the bank as upon its capital stock in the sum of $32,.500.

— Hon. J. H. Preston, Judge. Action in equity to quiet the title of the plaintiff town to certain land claimed to have been dedicated to the public as a street. Decree for the defendants, and the plaintiff appeals.

— Hon. J. H. Apple-gate, Judge. The plaintiff is the daughter of Gr. W. Harrison, deceased, and files a claim against his estate for services rendered him during his lifetime. There was a trial to a jury, and a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. James II. Roti-irock, Judge. This was- originally an action aided by attachment to recover judgment on certain notes made payable at Cedar Rapids. The -writ of attachment was levied on certain property of the defendant, consisting of cattle, corn, and hay, in Palo Alto county. Subsequently, by amendment, plaintiff asked the appointment of a receiver to take charge of the attached property.

— Hon. J. H. Preston, Judge. Action at law to recover damages for the flooding of plaintiff’s cellar, due, as is alleged, to the negligence and^ carelessness of defendants in removing a tile drain and digging a ditch in which water accumulated and found its way through the tile upon plaintiff’s property. Defendants denied liability, and interposed certain defenses, which will be referred to in the body of the opinion. Trial to a jury.

— Hon. G. W. Waktceield, Judge. The defendant Seibold leased his farm in Woodbury county for the year 1899 to August and Otto Schachtschabel.

— :Hon. W. D. Evans, Judge. The defendant insured the plaintiff’s property in the sum of $1,500 for one year from February 9, 1902, and it was destroyed by fire June 10, 1902. In an action for the indemnity stipulated, the defendant interposed certain defenses, all of which, were resolved against it by the jury. Judgment was entered accordingly, and it appeals.

— Hon. W. H. Green, J udge. Action to recover damages for injuries received by reason of a defective bridge, which the board of supervisors of defendant county had negligently failed to keep in repair. Verdict and judgment for plaintiff for the sum of $4,000. Defendant appeals.

<p>Appeal from Lima District Court.— Hon. Wm. G. Thompson, Judge.</p> <p>Action for damages. The plaintiff appeals from a judgment on a directed verdict for the defendant.</p>

— Hon. A. U. Bailie, Judge. Shoemaker & Anderson recovered judgment in the district court of Pocahontas county against the Commercial Mutual Insurance Company of Des Moines for $1,035.60 and costs on the 16th day of January, 1899. Thereafter notice of appeal was served upon the clerk of court, and an attempt'made to serve the same upon the judgment plaintiff.

<p>'Appeal from Harrison District Court.— Hon. O. I). Wheeler, Judge.</p> <p>Action in replevin. Judgment as prayed, and defendants appeal.</p>

— Hon. J. E. Whitaker, Judge. Action against E. E. Bigelow, as principal, and S. G. Hamilton, and Margaret Hamilton, as sureties, on a bond given to secure the discharge of an attachment, under the provisions of Code, section 3907. Judgment for plaintiffs, from which the sureties appeal.

-— Hon. B. H. Miller, J udge. This is an appeal by defendant, Hunter, as warden of ibe penitentiary at Anamosa, from an order made in a habeas ■corpus proceeding discharging Frank Davis from further imprisonment in said penitentiary under commitment on conviction for the crime of murder in the second degree, and a •sentence of seventeen years’ imprisonment at hard labor.

'Appeal from, Polk DistHct Court.— Hon. C. A. Bishop, Judge. The Bankers’ Casualty Company, a corporation organized for the purpose of insuring banks against loss from burglaries, thefts, aud other losses, issued its policy to plaintiff, an incorporated bank located at Hermosillo, Mexico, June 22, 1900.

Appeal ' from Linn ' District Court. — 11 on. William G-. Thompson, Judge.

— Hon. E. O. Platt, Judge. The petition in equity alleged that in 1892 David Stevenson died, leaving a will, in which he nominated the defendants as executors of his estate; that the will was duly admitted to probate in New York, and was subsequently admitted as a foreign will and recorded in Buchanan county; that on or about the 10th day of April, 1895, defendants qualified as executors of the estate of deceased in that county; that the will devised and bequeathed to said…

<p>Contractor’s bond: liability of sureties to material men. Where 1 it appears from the proven circumstances and conditions of the building contractor’s bond, that it was the purpose of the bond not only to secure the owner of the building but subcontractors and material men also, the latter may maintain an action in their own name against the sureties- for material furnished,-although they are not specially named in the bond and no consideration passed directly from them to the sureties.</p> <p>Liability of sureties: false representation. The mere fact that a 3builder’s contract and bond refer to the obligee in the bond as “ owner ” of the premises, when in fact the legal title is in another, is not such a false representation as will release the surety from liability.</p> <p>Liability of sureties: interest. The liability of a surety on a bond 3 is the full amount of the penalty named, to which may be added interest from the time the obligation to pay arose.</p> <p>Liability of sureties: payment of contract price. The contention 4 that sureties on a contractor’s bond are not liable until the owner has paid the full contract price, is not tenable, where the full sum is accounted for by the amounts actually paid the contractor, allowed the owner as damages, and the balance is paid into court.</p> <p>Appeal. An issue not raised upon the trial, but presented upon appeal 5 merely by assertion in argument with a simple reference to “the files in this court,” will not be considered.</p> <p>Building contract: payment upon architect’s certificates. Under 6 a building contract providing for payments to the contractor upon written certificates of the architect based on estimates to be made by him of the amount earned, where there is no specified form of certificate, any form of statement which intelligibly conveys to the parties the required information is sufficient, including bills presented for payment which are indorsed by the architect “ O. K.”</p> <p>Agency: authority. Under the record it is held, that the resident 7 official agent of a surety company who issued a contractor’s bond, had authority, to bind her principal by the approval of pajunents made to the contractor.</p> <p>Agency: proof of authority. The offer of a printed blank, with the 8 statement of the agent that her commission was issued upon a blank of the same kind, is not competent evidence of her authority.</p> <p>Surety companies: agency. The law of agency relating to the con-9 tract liability of insurance companies is applicable to surety companies.</p> <p>Surety bonds: subcontractor’s rights. Where a contractor’s bond 10is given to protect a subcontractor as well as the owner of the property, an act of the latter for which the subcontractor is not responsible, will not affect his rights.</p>

<p>Appeal from Polk District Cowrt.— Hon. W. H. McHenry, Judge.</p> <p>The facts are stated in the opinion.</p>

— Hon. H. M. Towner, Judge. Action to recover damages for a personal injury.

<p>Appeal from Pottawattamie District Oourt.— Hon. N. W. Maoy, Judge.</p> <p>Action to recover damages for personal injury. Judgment for plaintiff and defendant appeals.</p>

— Hon. A. S. Blair, Judge. Action on bonds executed by George W. Harbin, as president of the Equitable Mutual Life Association. Trial without jury resulted in a judgment for the plaintiff. The defendants appeal.

— Hon. Geo.. W. Burnham, Judge. Plaintiff was injured through the discharge of an unexploded charge of dynamite in defendant’s mine, and brings this action to recover damages for the injuries received by him. Trial to a jury, directed verdict for defendant, and plaintiff appeals.—=

— JIoñ. C. H. Kelley, Judge. Action at law to recover damages for personal injuries-received by plaintiff in being thrown from a car which was-being operated by the defendant company. Trial to a jury,, verdict and judgment for plaintiff, and defendant appeals.

— Hon. J. H. Richard, Judge. Action for services rendered and material furnished under two different accounts, and for damages done to plaintiff’s crops by defendant’s animals; the total of plaintiff’s claims being $521.85, with a credit for house rent and cow pasture of $238.50, leaving the balance claimed to be due from defendant to plaintiff $283.35. Defendant denied plaintiff’s claim in toto, and interposed six separate counterclaims, in the total amount of $1,633.

— Hon. O. D. Wheeler, Judge. Plaintiffs, as legatees under the will of Nancy Miller, deceased, asked that they be declared to be the owners, by virtúe of the provisions of said will, of certain property bequeathed by the will to Nancy Cronin, now deceased, who died after receiving the legacy given to her by the will of said Nancy Miller.

— Hon. A. B. Thornell, Judge. Action at law to recover damages for personal injuries received by plaintiff in falling through a hole in one of the sidewalks in defendant town. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. Wm. G. Thompson, Judge. Action at law to recover damages for an alleged assault made by one of tbe defendant’s employes upon the plaintiff while a passenger on one of defendant’s trains. Trial to a jury. Yerdiet and judgment for defendant, and plaintiff appeals.

<p>Recovery of real property: pleadings : necessary allegations. 1 Under the Code, pleadings are to be liberally construed, but nothing will be assumed in favor of the pleader which is not averred, or may not, upon a liberal and fair interpretation, be implied from the averments made.- Under this rule a junior mortgagee claiming title under a foreclosure, paramount to that derived through the-foreclosure of a senior mortgage, whose petition fails to state that she was a party to the foreclosure of the first mortgage and that defendants were parties to the foreclosure of the second, which are material allegations, is demurrable.</p> <p>Mortgage foreclosure: failure of second mortgagee to redeem, A 2 junior mortgagee, if made a party to the foreclosure of a senior mortgage, who fails to protect his rights either by bidding in the property or by making redemption, loses his lien, and the mortgagor may transfer the legal title divested thereof.</p> <p>Second mortgage: preservation of lien. Where a second mortgagee 3 fails to redeem from a foreclosure of the first mortgage, the lien of the second mortgage is not preserved by a foreclosure and sale thereunder, to which the mortgagors only are made parties.</p> <p>Mortgages: sale of equity: redemption by mortgagor. Where a 4 mortgagor conveys his equity of redemption after a sale on foreclosure of the first mortgage, a redemption by the mortgagor will enure to the benefit of his grantee, and will not leave the land subject to the lien of a junior mortgage.</p> <p>Fraud: sale of mortgagor’s equity. Where a junior mortgagee has 5 permitted the time for redemption from a sale under a prior mortgage to expire, fraud cannot be predicated on a sale of the equity of redemption by the mortgagors, in the absence of allegations of insolvency.</p> <p>Fraud: innocent purchaser. Where a grantee takes title to real 6 property, without any knowledge of a fraudulent intent on the part of his grantors, his grantee will acquire good title, although at the time of the conveyance to him he may know of the fraudulent • purpose of the original grantors.</p>

— Hon. L. E. Eellows, Judge. Dependant was tried on an indictment for robbery, and was convicted, and sentenced to imprisonment in tbe penitentiary at hard labor for tbe term of fifteen years, and from this sentence be appeals.

— Hon. Obed Caswell, J udge. Action at law to recover damages on account of the publication of an alleged libel. At the close of the evidence the court directed a verdict in favor of the defendant. The plaintiff appeals.

— Hon. Z. A. Church, Judge. Action in equity to compel, conveyance to plaintiff of the legal title to certain real estate, consisting of a vacant lot in the city of Carroll. Plaintiff and the defendant, Edmund Erler, are father and son, respectively. Defendant Anna Erler is the wife of Edmund.

— Hon. L. E. Eel-lows, Judge. Action in equity to quiet the title to certain real estate, described. The. opinion states the case. There was a decree in favor of plaintiffs in tie court below, and defendants-appeal.

— Hon. George W. Dyer, Judge. Action to recover possession of real estate and to quiet the title thereto, and for other relief. The facts are sufficiently stated in the opinion. On hearing, the petition of plaintiff was dismissed, with costs, and he appeals.

<p>Sales: construction of contract: rejection. Where a contract 1 for the manufacture of machines, provides that the same in all respects shall be to the full satisfaction 'of the purchaser, any objection thereto made in good faith will sustain a rejection of the same.</p> <p>Evidence: waiver: immateriality. Letters from a manufacturer 2 complaining of difficulties interposed to installing his machines, are inadmissible in an action for the price, when it appears that the time for completion of the contract was subsequently extended, and for the further reason that the proof of the acts complained of was sufficient.</p> <p>Sales: recovery of. price: instruction. Where the contract pro-3 vided for a complete machine when installed, it was error to instruct that payment should be enforced upon deducting from the contract price the cost of a part found defective, provided the machine would do the work according to contract.</p> <p>Sales: action for purchase price. An absolute rejection by the pur4 chaser of machinery will authorize a suit for the price at any time, although by the contract it was payable at a stated time after it had been installed.</p> <p>Evidence: acceptance of machines. Where, by the same contract, 5 several machines are to be furnished, evidence of the purpose and reason for the use of a part should be received, on the question of an acceptance of all by reason of such use.</p> <p>Contracts: entire and severable. To determine whether a contract 6 is entire or severable, reference must be had to the intention of the parties as manifested by their acts, and to the circumstances of the case. ''</p>

<p>Landlord and tenant: breach of contract : vacation. A lessee occupying rooms under a lease in which the landlord agreed to heat the same, but failed to do so, may, after demand for compliance with the contract, vacate the same without formal notice to the landlord, and he will not be liable for the sum agreed to be paid for heat'.</p>

— Hon. H. M. Towner, Judge. Action at law to recover damages occasioned, as alleged, by the maintenance of a nuisance. Trial to jury, and verdict and judgment for plaintiff. Defendant appeals.

— Hon. George W. Wakefield, Judge. Action to recover damages for a personal injury occasioned, as alleged, by the negligence of defendant. The facts are sufficiently stated in the opinion. There was trial to a jury, and verdict and judgment in favor of plaintiff. The defendant appeals.

<p>Appeal from Boone District Court,— Hon. J. B. Whitaker, Judge.</p> <p>On August 15, 1901, defendant Hull entered into a written contract with E. O. Culver for the erection of a dwelling house in Eoone, the material provisions thereof being that said Culver agreed to furnish all labor -and material, and said Hull agreed to pay the sum .of $2,955, in four installments, as follows: Eighty-five per cent, of the finished work at the following stages: (1) When the foundation is complete; (2) when the roof is complete; (3) when the house is inclosed, completed outside, except last coat of paint; (4) within forty days after completion of the contract. Payments to he made upon written statement of the architect. “ If at any time there shall be evidence of any claim or lien for which, if established,-the owner might become liable, * * * the owner shall have the right to' retain out of any payment then due or thereafter to become due an amount sufficient to indemnify her against such claim or lien.” Plaintiff, Wheelock,. commenced this action in equity August 19, 1902, making Elorette E. R. Hull, John A. Davis, and the Eehlheisen-Rosacker Lumber Company defendants, claiming that Culver contracted with him to do the plumbing work in said house at the agreed price of $350; that to secure payment of said sum, and on April 8, 1902, Culver gave him a written oi'der, addressed to defendant Hull, as follows: “ Pay W. M. Wheelock for plumbing contract of house on Greene street to be due as architect shall specify, $350 and deduct from my contract, [signed] E. C. Culver; ” that on April 10, 1902, he served upon defendant a written notice advising her of his contract with Culver and of said order, with copy thereof attached. Plaintiff alleges performance of his contract, and it is his contention that by said order and notice there was assigned to bfm the sum of $350 of the amount due or to become due. Culver; that more than said sum is due from defendant Hull, and she is indebted to him (plaintiff) in said sum. The other defendants are referred to as subcontractors under Culver, who filed liens subsequent to the date of the plaintiffs ordér and the notice alleged. Judgment is asked against defendant Hull, and that the other defendants be decreed to have no superior rights in the premises. Defendant Hull answered, admitting the contract with Culver; alleging that he abandoned the work before completion, and that she has been compelled to expend on that account the sum of $80.43; admitting that there is still due from her on said contract the sum of $814.51; that liens and claims have been filed exceeding in amount said sum; and that, while she is willing to pay, she is unable to determine' who is of right entitled thereto. She offers to confess judgment for the amount in her hands, etc.</p> <p>The defendant lumber company answered, denying the allegations of plaintiff’s petition; alleging its claim and mechanic’s lien for materials furnished, filed June 4, 1902 ; that the lien claimed by it is superior to the claim of plaintiff; and praying foreclosure. August 26, 1902, John A. Davis, being the defendant Davis in the Wheelock case, commenced his suit against Mrs. Hull, and making E. O. Culver and the lumber company defendants; alleging a contract with defendant Culver for the painting of the Hull house, and the performance of the work, for which he was to be paid the sum of $125; alleging the filing of his claim for lien June 19, 1902, and notice thereof in writing to defendant Hull on the same day; further, that defendant Hull had actual knowledge of the work being done by plaintiff before paying the April estimate to and for Culver, and that such estimate as made by the architect was based in part upon the fact that the first coat of paint had been put on the house by plaintiff. Judgment and decree of foreclosure is demanded. Davis also answered the petition of plaintiff, Wheelock, in which he admitted his lien claim, and made reference to his suit brought to foreclose the same; denying each and every other allegation. The defendant Hull answered the petition of Davis as in the Wheelock case. By agreement of all parties, the said causes were consolidated, and upon the issues thus formed trial -yas had resulting in a decree finding; first, that defendant Hull was entitled to credit for $80.48, cost of completion ; second, providing for the costs of suit; third, finding in favor of plaintiff, Wheelock, for the sum of $350, and ordering payment; fourth, finding in favor of the lumber company for the balance in the hands of defendant Hull, viz., $491.52 and ordering payment; fifth, canceling the lien of D'avis and the lien of the lumber company for the amount in excess of that ordered paid. From said decree the lumber company and John A. Davis separately appeal.</p>