Volume 135 — Iowa Reports

<p>1 Contracts: explanation: parol evidence. Where a written contract is silent as to which of the parties is to perform a condition stated therein, such fact may be shown by parol.</p> <p>2 Instructions. Instructions inconsistent with each other are erroneous.</p> <p>3 Estoppel: evidence. An estoppel arises where one party is led to act differently than he would have done had it not been for the representations of the other, or his failure to disclose facts relied upon by him when it became his duty to speak. In the instant case evidence is held sufficient to take the issue of estoppel to the jury.</p> <p>4 Same. Where a right of recovery is established in favor of the assignee of a contract as against the other party thereto, based on an estoppel, any issue as to the bad faith of the assignor in procuring th.e contract is immaterial.</p> <p>5 Instructions: prejudice. Where there are issues on which the evidence is conflicting, the appellate court cannot say that error in the instructions should be disregarded, because in no event could there have been a verdict for the complaining party.</p> <p>6 Estoppel. Where a party fails to assert his version of agreement concerning which a written memorandum thereof is silent, when it becomes his duty to speak, but stands upon the writing, he cannot, after litigation has begun, change his ground and assert a different state of facts from that which, by his silence, he has lead the other party to rely upon.</p>

— Hon. Byron W. Preston, Judge. Action in equity, in which plaintiff asked cancellation of a deed to real property, and in the event that the property was found to have passed to an innocent purchaser, so that cancellation could not be equitably granted, then that he have damages against the defendants for the value of said property. There was a decree for defendants, from which plaintiff appeals.

— Hon. James A. Howe, Judge. Action to recover the balance of an alleged unaccounted-for collection made by defendants, who are attorneys at law. Defendants admitted the collection, and pleaded a proper accounting therefor. They also pleaded a counterclaim and asked judgment for a small sum as a balance due. Plaintiff replied, admitting part of the counterclaim and denying other items.

— Hon. John T. Scott, Judge. Action to recover damages for personal injuries received by plaintiff while passing over a sidewalk in defendant town. The trial court directed a verdict for defendant on the ground that plaintiff was guilty of such contributory negligence as barred him of recovery. Plaintiff appeals.

— Hon. B. W. Preston, J udge. Action of mandamus to compel defendants to expend the balance of the county road fund arising from taxes upon property within the city of Newton upon the roads and streets within said city or the roads adjacent thereto under the direction of the city council. The trial court granted the relief prayed, and defendants appeal.

— LIon. James A. Howe, Judge. Action to recover damages for personal injuries received by plaintiff while at work as a miner in the coal mine owned and operated by defendant. There was a verdict and judgment, for plaintiff, from which defendant appeals.

<p>1 Indictment: sufficiency. Unless an indictment wholly fails to charge an offense its sufficiency cannot be attacked for the first time on appeal.</p> <p>2 Same: intoxicating liquors. It is not necessary to allege in an indictment for maintaining a liquor nuisance that the liquors were kept or sold in violation of law, as the mere keeping or sale is in itself unlawful.</p> <p>3 Evidence: production upon notice. Where a defendant has been duly served with notice that certain witnesses will be examined for the State their testimony is admissible, though they names are not indorsed on the indictment.</p> <p>4 Evidence: failure to show materiality. The admission of evidence, which was competent had it been followed up, was not erroneous' where it was stricken during the trial, and withdrawn in the formal charge to the jury because of a failure to make the connection.</p> <p>5 Intoxicating liquors: permit: duration. The authority of a pharmacist to handle intoxicating liquors is the order of the court permitting the same, and not the certificate issued by the clerk.</p>

<p>Appeal from Bremer District Court.— Hon. Clifford P. Smith, Judge.</p> <p>Action to recover damages for the slander of plaintiff bank by defendant in falsely and maliciously speaking concerning it, words intended to convey the impression that it was financially unsound, and causing injury to its good name, and the withdrawal of deposits to its pecuniary damage. There was a verdict for the defendant, and plaintiff appeals.</p>

- — Hon. O. D. Wheeler, Judge. Defendant was indicted, tried, and convicted of the crime of breaking and entering, and from the judgment imposed appeals.

<p>1 Evidence: dying declarations. Dying declarations are only admissible where the person is actually dying or suffering from a mortal wound and is fully conscious that death must soon follow. .Evidence held to show a realization of impending' death.</p> <p>2 Instructions. Error cannot be based on a refusal of instructions which are embodied in those given and are correct statements of the law, though possibly lacking in explicitness and definiteness, which objection the requested instructions did not cover.</p> <p>3 Demonstrative evidence: harmless error. On a trial for murder in which there was a defense of suicide, the introduction of demonstrative evidence having no bearing on the question of whether the wound from which deceased died, was self-inflicted or was received at the hands of defendant, is held to have been without prejudice.</p> <p>4 Same. On the question of suicide by means of a revolver shot, evidence showing little or no powder stain upon the clothing of deceased at the point where the bullet entered his body, and pieces of decedent’s clothing through which shots from the same revolver were fired at about the distance the weapon must have been held from the body of deceased in case of suicide, are competent evidence.</p> <p>5 Same: discretion of court. The admission of experimental evidence is largely discretionary, and the ruling of the trial court upon the competency of the same will not be disturbed, unless such discretion has been abused to the prejudice of the complaining party.</p> <p>6 Experimental evidence: extent of similarity. The fact that the conditions under which an experiment is made are not an exact reproduction of those „into which an inquiry is being made will not render the evidence incompetent; it is sufficient if there is a general similarity, as unlikeness in minor particulars goes to the weight of the evidence and not its admissibility.</p> <p>7 Evidence: order of introduction: . rebuttal. On a prosecution for murder the State may introduce any competent evidence tending to disprove the theory of suicide, to which the defendant has testified, even though it may also tend to make out the State’s main case.</p> <p>8 Non-expert evidence: conclusions. A non-expert witness cannot state as his conclusion that a decedent was delirious while making a dying declaration without stating any facts as the ground of his opinion.</p> <p>9 Admission of evidence: materiality. It is proper in a criminal case dependent largely upon circumstantial evidence, for the court to exercise liberality on behalf of the accused in admitting evidence of each circumstance which may fairly serve to explain away the damaging inference to be drawn from the State’s case; but this should not go to the extent of permitting clearly irrevelvant matter, which could only serve to divert the attention of the jury from the question they are to try.</p> <p>10 Same: removal of prejudice. Ordinarily any prejudice arising from the admission of improper evidence is cured by its withdrawal and a direction to the jury not to consider the same; and such will be the presumption, unless .the prejudice is of that peculiarly aggravating character which can not be removed by proper order and instruction of the court.</p> <p>11 Argument: misconduct. Although in argument counsel may transgress the bounds of good taste in criticism of certain witnesses, yet, it will not of necessity amount to such misconduct as to call for a reversal of the judgment.</p>

<p>1 Evidence: admissions. The admissions of a party that he has made statements contrary to his testimony merely tends to impeach his credibility, and is not substantive evidence against his co-defendant.</p> <p>2 Fraudulent conveyances. A conveyance of property which already belongs to the grantee will not be set aside at the suit of the grantor’s creditors, though procured by threats of a criminal prosecution.</p> <p>3 Estoppel: evidence. An estoppel which will preclude a grantee of land from denying his liability for the satisfaction of the grantor’s debts must be clearly established. Evidence held insufficient to show an estoppel.</p> <p>4 Secret trusts: estoppel. A wife who permits the title to her property to stand in her husband’s name and to be held by him in secret trust for her benefit through a series of years, is estopped to claim title and ownership as against creditors of the husband who extended credit on the strength of his ownership.</p>

<p>Appeal from Carroll District Court.— Judge. Hon. Z. A. Church,</p> <p>On November 6, 1902, plaintiff received a telegram announcing his mother’s death. Upon inquiry at defendant’s office, he ascertained that another had been received three days previous in words following: “ Huntington, Indiana, Nov. 3, 1902. Martin H. Freeman, Manning, Iowa: Mother near death’s door at Huntington. Am with her. Ida Whittaker.” The signer was plaintiff’s sister, and the telegram was not delivered until November 6th. This action was begun February 27, 1903, it being alleged that the telegram was properly addressed to plaintiff when handed to defendant’s agent, and that the mistake and delay was because of its negligence; that defendant maintained offices for the transaction of its business at Huntington, Ind., and at Manning, Iowa, and undertook to deliver messages generally; that plaintiff had lived at Manning fifteen years and was well known; that plaintiff did not ascertain, though he diligently inquired, until January 16, 1903, that the message as delivered at Huntington, Ind., was correctly addressed to him; and that on February 16, 1903, he filed with defendant his claim for damages. The defendant answered March 30, 1903, admitting the nature of its business and that offices were maintained as alleged; that the message of November 6th was delivered as stated, and that on the same day the message of November 3d, save that it was addressed to “ Freeman,” instead of “ Free,” was handed to plaintiff; that notice was served on the day stated; and otherwise put plaintiff upon his proof. The cause was then continued from term to term until January 4, 1904, when plaintiff amended his petition by annexing five interrogatories. The cause was then continued, and by agreement, the interrogatories ordered to be answered by February 10, 1904. After several more continuances, the cause was noticed for trial at the March, 1905, term of court. The defendant then moved to strike the interrogatories from the files, on the grounds that they were not attached to the petition or amendment thereto and were filed a year after the issues had been made up, that no affidavit was attached thereto, that the first three merely called for certain documents, that the last two called for facts admitted by the answer, and that the interrogatories were filed for delay. This motion was overruled, and plaintiff then moved that the claim or cause of action be sustained and judgment entered in his favor, or, in the alternative, that the pleadings of 'defendant be stricken from the files and default against it be entered. This motion was sustained, the pleadings of defendant stricken from the files, and default entered as prayed. After the introduction of evidence, defendant filed a motion in arrest of judgment on the ground that the petition showed affirmatively that no claim for damages was served on defendant within sixty days from the time the cause of action accrued. This motion was overruled, and judgment entered for $1,000. A motion for new trial, also, was overruled. The defendant appeals.</p>

— IIon. C. W. Vermillion, Judge. Action to enjoin the defendant, who is the owner of certain vacant lots in the city of Chariton, from allowing the premises to be used for the playing of baseball, and for public shows.

<p>1 Mortgages: foreclosure: extinguishment of junior lien. A mortgagor who forecloses his first mortgage, bids in the property and accepts the redemption money from one who has purchased the mortgagor’s equity of redemption without attempting at any stage of the proceeding to preserve the lien of a second mortgage held by him, loses his rights thereunder.</p> <p>2 Same: equity'of redemption : rights of purchaser. One who has purchased a mortgagor’s equity of redemption and redeemed from the foreclosure and sale, may rely on the validity of his deed to protect him from the lien of a junior mortgage.</p> <p>3 Same. An oral promise to pay a junior mortgage will not authorise its foreclosure as against the promisor, who, as the purchaser of the mortgagor’s equity of redemption, has redeemed from the sale under foreclosure of a senior mortgage held by the same party.</p>

<p>1 Benefit insurance: collection of dues: agency. The question of agency is determined by the relation of the parties, and one who has authority to act for another in certain matters is an agent notwithstanding an agreement of the parties that the relation shall not exist. Under this rule the local secretary of a mutual insurance company, charged with the duty of collecting dues of local members and remitting the same to the society, is the agent of the society and not of its local members.</p> <p>2 Same: forfeiture: estoppel: evidence. Although a beneficial insurance contract may provide that failure to pay dues at maturity shall work a forfeiture thereof, yet this provision may be waived by the acts of the local agent of the society in collecting and remitting the same, and the society be thus estopped to rely upon the provision, as to forfeiture. Evidence held sufficient to justify a finding of estoppel.</p>

<p>Appeal from Taylor District Court.— Hon. H. M. Towner, Judge.</p> <p>This is an action of mandamus to compel the board of directors of an independent school district to cancel and expunge from its record certain resolutions adopted hy the board changing a school site from a place designated by the State Superintendent of Public Instruction to a place selected by said board, and to compel the said board to erect a schoolhouse on the site selected by the State Superintendent. The trial court granted the relief asked, and defendant appeals.</p>

— Hon. W. II. McHenry, Judge. Action to test the defendant Huegle’s title and right to hold the office of County Superintendent of schools in and for Polk County for the term beginning January 7, 1907. Erom a judgment dismissing the petition, plaintiff appeals.

— Hon. W. H. McHenry, Judge. Action for damages. The facts are recited in the opinion filed on the first appeal. 103 N. W. 975. A second trial resulted in a verdict for the plaintiff which the court, on its own motion, set aside. From this ruling the plaintiff has appealed.

— TIon. W. G. Clements, Judge. Action in equity brought by the plaintiff as trustee to set aside and vacate a decree of partition. There was a judgment setting aside the decree and denying the relief prayed as to other interests represented by other parties. The defendants, and the plaintiff in behalf of Ethel Hutton, one of the beneficiaries under the trust, appeal. The defendants will herein be designated as appellants.

• — 'Hon, E. W. Eichelberger, Judge. Action to recover the purchase price of three cypress tanks, with certain equipment therefor. Defendants offered to confess judgment for the sum of $17.02, which being denied the case went to trial, resulting in a directed verdict for defendants, and plaintiff appeals.

— Hon. O. A. Byington, Judge. Mary L. Murphy died testate May 28, 1904, and her will was admitted to probate in June of the same year. On July 27, 1904, the plaintiffs filed their petition, alleging that at the time of executing the will she was of unsound mind, and that the will was procured through undue influence exerted'by W. P. Murphy. The trial resulted in a verdict for defendant, on which judgment was entered setting the will aside. The plaintiffs appeal.

— Hon. Clifford P. Smith, Judge. Action for the partition of certain real estate. Defendants denied plaintiff’s ownership of any part of the property, and pleaded title in themselves, based upon certain conveyances and the will of Bernhard Schillinger, deceased.

<p>1 Building and loan associations: maturity of stock: rights of holder. When shares of stock in a building and loan association have matured the holder is no longer a stockholder in the association, Eut becomes simply a creditor whose certificates of stock are valuable only as evidence of the number of shares on which he is entitled to receive his money.</p> <p>2 Same: loans to association. In the absence of a statute forbidding it the borrowing of money is within the implied power of a building and loan association; and a provision in the bylaws of an association that upon maturity of his shares the holder shall have no further interest or profit thereon, does not preclude him from loaning the amount due to the association and accepting its note therefor in lieu of the cash.</p> <p>3 Loans: authority of officers.to make. A building and loan association, which is not restricted from borrowing money, cannot repudiate a note made by its President and Secretary for a loan from one of its members for the amount of his ma- • tured stock, where the transaction is made a matter of record and the circumstances indicate that it was in accordance with the usual course of business.</p> <p>4 Liability to stockholder: insolvency. A building and loan association cannot predicate a denial of its liability to a member for the amount of his matured stock by a claim that it was then insolvent, where in lieu of paying him the amount due at maturity it executed to him its note therefor and continued as a going concern for sometime thereafter.</p>

<p>1 Contracts: construction: recovery. Under a written agreement to deliver fruit trees in the fall of the year in reasonably good condition and to trim, prune and replace them free of charge for five years, taken in connection with a note for the price given upon delivery and containing a stipulation that the seller ■ was to plant the orchard the following spring, when construed together are held to constitute a contract requiring not only the delivery of the trees in the fall, but keeping them alive and planting them in the spring; and, that the planting of dead trees or those in unfit condition to make an orchard was not a compliance with the contract and there could be no recovery.</p> <p>2 Evidence: competency. Evidence of the condition of an orchard in the fall, when based on the fact that the trees failed to leave out during the summer, is competent on the question of their condition in the spring.</p> <p>3 Same. In a suit to recover on a contract for the purchase of nursery stock, by the terms of which plaintiff was to plant and renew dead trees, evidence that defendant had ordered trees of the agent of another company was immaterial, where there was no showing of any connection between the two concerns , and nothing to indicate, that the agent was a representative of the company with which defendant dealt.</p> <p>4 Instructions: duplicity. Instructions are not necessarily erroneous becaus.e of duplicity.</p> <p>5 Contracts: right of action. Under a contract in the form of a promissory note containing a stipulation that the payee was to do certain things and upon performance the maker was to give a negotiable note, the payee’s right of action, if any, was for damages because of failure to give the new note when rightfully demanded and not on the original note.</p> <p>6 Justice of the peace: jurisdiction: appeal. Although a promissory note constituting part of a contract confers jurisdiction ■ upon a justice to the extent of $200, still such provision will not authorize the justice to enter judgment for damages in that amount for a breach of the contract; and his want of jurisdiction may be urged on appeal, although there was an appearance and trial before the justice.</p> <p>7 Justice of the peace: appeal: new cause of action. On appeal from a justice a party cannot by amendment set up a different cause of action than that upon which the cause was tried before the justice.</p>

Original proceeding by certiorari. An action in equity instituted by one Ridings against the Marengo Savings Bank,- the plaintiff in the present proceeding, was pending in the district court of Iowa county during the October term thereof, 1906, and on the 17th day of November, which was a date prior to the beginning of the next term of court in that county, the judge, who is the defendant in this proceeding, filed with the clerk a finding in the case that the equities were…

<p>Appeal from Franklin District Court. — YLots. J. II. Richards, Judge. '</p> <p>Action for damages resulted in a directed verdict and judgment for defendant. The plaintiff appeals.</p>

<p>1 Banks and banking: misappropriation of funds: recovery. One who accepts a bank draft, issued by the cashier against funds of the bank held by its correspondent, in payment of the indebtedness of the cashier is. charged with knowledge that the draft is drawn on the funds of the bank; and he cannot insist on his right to the proceeds thereof, as against a showing that the cashier acted without authority in transfering it to him.</p> <p>2 Same: estoppel. One who is not induced by the action of bank officials to rely on the act of the cashier, in using bank funds for his own benefit, is bound to know that he had no apparent authority so to do; and he has the burden of showing acts which will estop the bank to deny such authority.</p> <p>3 Same: ratification. The attempt on the part of a bank to as-sert a liability against its cashier for the conversion of its funds, is not a ratification of his wrongful act which will pre- • elude it from following the funds, and from reclaiming them from the person to whom they were wrongfully paid.</p> <p>4 Same: election of remedies. An unsuccessful attempt to enforce liability against one of two parties, jointly liable for a conversion, does not constitute an election of remedies which will relieve the other from liability.</p> <p>5 Same: joint conversion: settlement. A settlement with one of two parties jointly liable for conversion must be such as to fully relieve him from further liability, to operate as a discharge of the other.</p> <p>6 Same. A criminal prosecution against one of two parties jointly liable for the misappropriation of funds, will not constitute an election of remedies, or a settlement, which will relieve the civil liability of the other.</p>

— Hon. James A. Howe, Judge. Action at law to recover damages for a breach of contract. A demurrer to the petition was sustained, and plaintiff appeals.

— Hon. Fred O’Donnell, Judge. Defendant was indicted, tried and convicted of'the crime of adultery, and from the judgment imposed appeals.

— Hon. O. A. Byington, Judge. Action for the appointment of a guardian for TIanora Murphy resulted in an order as prayed, from which she appeals.

<p>Appeal from Dubuque District Court.— Hon. Fred O’Donnell, Judge.</p> <p>Action at law on two promissory notes. In addition to pleading defensive matter, the defendant interposed a counterclaim. The trial was to a jury, and.resulted in a verdict and judgment in favor of defendant. Plaintiff appeals.</p>

<p>1 Evidence: introduction of letters. A letter written in response to previous correspondence, the signature to which is identified by comparison with former letters, is receivable in evidence over the objection that no proper foundation has been laid.</p> <p>2 Same. Where a witness testified that he was acquainted with a particular tract of land and that he had written the holders of the title concerning the tract and the price they held it at, a letter from them in response which was identified by the witness, in' connection with his evidence, is held to have sufficiently identified the property to render the letter admissible in evidence.</p> <p>3 Evidence of ownership: admissions. The undisputed' admission in a letter written by the holder of the legal title to land, that the ownership is in another and that the writer only holds a mortgage on the premises, is sufficient to fix the real ownership.</p> <p>4 Same. Where the facts supporting the written admissions of a party concerning the ownership of land are peculiarly within his own knowledge and he makes no effort to explain the same, the court will not hunt for circumstances which might obviate the effect of the admission.</p> <p>5 Creditors’ suits: pleadings: proof. The allegation in a petition to subject land .to the satisfaction of a judgment, that one of defendants holds title as security for an indebtedness due him the amount of which is unknown, but that the equitable ownership is in another defendant who is the judgment debtor, when supported by the undenied written admission of such facts by the holder of the legal title, will authorize the relief asked.</p> <p>6 Tenants in common: liability of one for acts of the other. The written .statement of one tenant in common that the title held by them jointly is but security for a loan, is not binding upon the other co-tenant, in the absence of evidence to connect him therewith.</p>

-— Hon. P. B. Wolee, J udge. Action in equity to restrain defendants from maintaining an obstruction in a swale or watercourse which affords, as is alleged, natural drainage for surface water from plaintiff’s land. There was a decree dismissing the bill, and plaintiff appeals.

— Hon. A. P. Barker, J udge. Action to recover damages for personal injuries received by plaintiff on account of having been put off defendant’s street railway car at a point which was not her destination, and which was a dangerous place for alighting, arid at a place from which she could not reach her destination in the ordinary manner without encountering the danger which occasioned the injury.

<p>Appeal from Plymouth District Court.— Hon. J. L. Kennedy, Judge.</p> <p>Action at law to recover damages for injuries sustained by plaintiff due to a collision ivitb an automobile driven by defendant. .Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.</p>

— Hon. W. D. Evans, J udge. Action upon a written order given for a threshing machine outfit. Verdict and judgment for defendants, and plaintiff appeals.

<p>1 Highways: obstruction: liability for injury. One who has caused an 'excavation to be made in a highway for the purpose of drainage, in such manner as to amount to an obstruction prohibited by law, cannot relieve himself from liability for injury caused thereby by saying that he had arranged with another person to remove the same and that such person had failed to do so.</p> <p>2 Personal injury: best evidence. It is not permissible for a physician, in a personal injury action, to describe the condition of an injury as ascertained from an examination of a photograph of the same; since it is not the best evidence.</p> <p>3 Damages: prejudicial evidence. It is improper to permit a wit-ness to describe the process of amputating a limb, in a personal injury action, where there is no evidence of reasonable certainty that amputation will be necessary; as the same would tend to arouse the sympathy of the jury.</p> <p>4 Damages. It is not enough that future suffering is possible, it must be reasonably certain, to be taken into consideration in determining the compensation for an injury.</p> <p>5 Same. In a personal injury action a recovery should not be allowed for medicines not shown to have been prescribed, or necessary, or that the price paid therefor was its reasonable value.</p>

— TIon. Hugh Brennan, Judge. Action by plaintiff, as administratrix of the estate of J. A. Snyder., deceased, to recover in behalf of the estate damages for the death of the intestate, caused by an electrical shock while working as a lineman for the Des Moines Edison Light Company, alleged to have resulted by reason of the negligence of defendant in having an uninsulated guy wire connecting the light company’s pole on which deceased was working at the time of his. death with…

<p>Appeal from Marshall District Court.— Hon. Obed Caswell, Judge.</p> <p>Action upon a promissory note executed by M. Crahan and M. E. Melvin, and upon an account at one time held by Melvin against Crahan and by Melvin guaranteed and assigned to the bank. The action was aided by an attachment, which was levied upon certain real property in the city of Marshalltown as the property of defendant, Crahan. During the pending of the proceedings, Crahan died, and his administrator was substituted, as a defendant. E. IT. Helsell intervened, claiming that the attached property belonged to him. Issue was joined on his petition, and the main case with the intervention was tried to the court, a jury being waived, resulting in a judgment finding that the attached property belonged to intervener at the time attachment was levied and releasing and discharging the attachment thereon. ■ Plaintiff appeals.</p>

<p>1 Corporations: issuance of stock: specific performance. Equity will aid a stockholder by specific performance or other suitable decree, who has made timely offer to pay the stipulated price of his pro rata share of an additional issue of corporate stock, where the same is not obtainable on the open market and the officers are withholding the same for the purpose of keeping control of the corporation.</p> <p>2Same. Where the corporation provides that settlement for newstock shall be left to such time as agreeable to its board of directors, a stockholder who has made timely application therefor, or his assignee under an assignment thereof, has the right to take it up and pay for the same when called upon by the board.</p> <p>3 Same. Where ther.e is an increase in the stock of a corporation and each shareholder is entitled to his pro rata proportion, a court will not hesitate to require its issuance to those entitled, simply because it will perpetuate the control of one faction as against another.</p> <p>4 Same: waiver. A stockholder, in receiving stock to which he is entitled, does not thereby waive his right to his pro rata share of an additional issue.</p> <p>5 Same: laches. Where a corporation has resolved to take its own time in which to require settlement for additional stock, a stockholder, who, within a reasonable time and before demand offers to settle and pay for his pro rata share, has neither waived his right thereto nor is he guilty of such laches as will deprive him of relief in equity.</p> <p>6 Same: equitable relief. "Where officers of a corporation have wrongfully issued stock to those shareholders not ■ entitled thereto, for the sole purpose of gaining control of the corporation, equity will order its cancellation.and issuance to the proper parties.</p> <p>7 Corporations: election of officers: fraud: equitable relief: evidence. As a general rule a court of equity has no jurisdiction to review a corporation election or to oust parties in possession who claim to have been elected; but where fraud has been practiced in the election and usurpers are about to take possession unjustly, equity will sometimes interfere on the ground that there is no adequate remedy at law. Evidence held insufficient in the instant case to authorize equitable relief.</p>

— 'Hon. W. Gv Clements, Judge. On an indictment for murder in tbe first degree, defendant was convicted of manslaughter, and sentenced to imprisonment in the penitentiary for eight years, from which sentence he appeals.

*Appeal from Ida District Court.— Hon. E. M. Powers, Judge. Suit in equity brought by the plaintiff as administrator of the estate of Henry L. Hastings, deceased, to recover an attorney’s fee against Lulu E. Ellithorpe, for services in procuring a divorce for her, and to establish an attorney’s lien, upon certain funds now in the hands of the clerk of the district court of Ida county. There was a decree for the plaintiff, from which Lulu R. Ellithorpe appeals.

<p>1 Murder by poisoning: evidence. Under a charge for murder by administering a designated poison, it is necessary for the State to show the possession of that particular poison by defendant at the time of the- alleged crime. Evidence reviewed and h'eld insufficient to meet the rule.</p> <p>2 Evidence: privileged communications: prejudice. The state-ments of a patient made to his 'physician called to treat him professionally having relation to his condition and bearing upon the treatment to be administered are privileged; and a prolonged effort to get the same before the jury in defiance of an adverse ruling, by a course of examination indicating that defendant accused of murder, suffering under the sting of a guilty conscience had attempted self destruction, was so prejudicial that no amount of admonition from the court could eradicate the same.</p> <p>3 Same. The State cannot show by its prosecuting attorney that one accused of murder had, prior to the commission of the crime, stated to him that deceased had consulted counsel and if trouble arose he wished to' retain his services; as the same was a confidential communication.</p> <p>4 Expert evidence: physicians: statements of patient. A physician speaking as an expert witness concerning his diagnosis of a case which he was called to treat, may give the material and essential facts on which he bases his conclusion, and this covers statements of the patient concerning his condition past as well as present.</p> <p>5 Examination of witness: assumption of facts. Neither the at-torney for the State in his interrogatory nor the witness in his answer, in a prosecution of the husband for the murder of his wife, should be allowed to characterize an alleged' conversation between them as “ illtreatment ” of'the wife; and where the conversation as .detailed was of a trivial character it should be excluded entirely.</p> <p>6 Evidence: conversation: rights of defendant. 'Where the State has been permitted to inquire into.a certain act or conversation of the defendant, the court should not refuse defendant the right of denying or explaining the same.</p> <p>7 Instructions: circumstantial evidence. To warrant conviction for a crime on circumstantial evidence alone, each fact in the chain of circumstances necessary to prove guilt must be proven by competent evidence beyond a reasonable doubt, and all the facts necessary to prove guilt must be connected with each other and .with the main fact, and all the circumstances taken together must be of a conclusive nature, producing a moral'certainty that the crime was committed.</p> <p>8 Same. Where the guilt of a defendant rests entirely upon cir-cumstantial evidence the jury should be so told, and the charge should state the rules of law governing cases in which circumstantial evidence is relied upon.</p> <p>Bishop, J. in concurring opinion.</p>

— Hon. H. M. Towner, Judge. Action in equity to recover judgment on three promissory notes, and to foreclose a real estate mortgage given to secure the same. There .was a cross-petition hy two of the defendants, and the decree gave to such defendants the relief prayed by them. The plaintiff appeals.

<p>Appeal from Linn District Gourt.— Hon. J. H. Preston, Judge. .</p> <p>Ti-ie opinion states the case.</p>

<p>Appeal from Carroll District Court.— Hon. Z. A. Churci-i, Judge.</p> <p>Action on a promissory note. Verdict and judgment for defendant, and ‘plaintiff appeals.</p>

— LIon. Wm. G. Thomp- . son, Judge. On March 31, 1902, George E. Lutz became owner of lot 10, block 2, in Davis & Brooks addition to the city of Marion, Iowa, and in July, 1902, conveyed it to his son, Louis Lutz, a minor of sixteen years.

<p>1 Insurance: policy agreement: invalidity. The right to contract with respect to insurance is subject to legislative restriction; so that a provision in a policy making the insured agree that any removal of the property is per se an increase of the hazard within the meaning of Code, Section 1743, is void.</p> <p>2 Removal of property: increased hazard: burden of proof. While an insured is required to show that a removal of property to another location did not contribute to the loss, yet the question of increased risk thereby is a matter of defense, which the insurance company has the burden of establishing.</p> <p>3 Increased hazard: evidence. The opinion of an expert as to an increased hazard on account of the removal of insured property to another location, is not conclusive on the subject, but should be considered by the jury in connection with all the other material evidence bearing upon the issue.</p> <p>4 Evidence: objection to competency of witness. Objection to the competency of an expert witness should be made when he is first offered, and if withheld until his testimony is largely in, the objection is waived.</p>

— Hon. O. A. Bying-ton, Judge. Action to recover a commission for finding a purchaser to whom defendant could effect an exchange for land. Verdict was directed for defendant, and judgment entered thereon. The plaintiff appeals.

— Hon. F. C. Plat, Judge. Suit in equity to enjoin the defendants from operating a nuisance. There was a decree granting a permanent injunction, from Avhich the defendants appeal.

<p>Appeal from Cedar Rapids Superior Court —Hon. J. H. Eotiieock, Judge.</p> <p>Suit at law to recover for a car load of lumber. There was a judgment for tbe defendant, from which tbe plaintiff appeals.</p>

<p>1 Banks and banking: statements of officer: liability of bank. The statements of a bank director made at his home or on the street will not bind the corporation of which he is an officer; but if he gives the assurance in the name of the corporation and it is reported to and acted on or' acquiesced in by the corporation, it may be .shown in a controversy growing out of the transaction to which it relates.</p> <p>2 Admission of evidence: general objection: prejudice. In an ac-tion to recover on a note given in part consideration for a draft on a banking firm which failed before payment of the draft, evidence that the cashier of the issuing bank stated after the failure of the drawee that his bank had no funds therein was admissible over a general objection; but if erroneously admitted the introduction of evidence to the same effect by the issuing bank itself rendered the same without prejudice.</p> <p>3 Bank drafts: .liability of drawer to payee: evidence. Present-ment of a bank draft to the drawee for payment is not always an indispensable condition to the drawer’s liability to the payee thereon; as where the drawer has no right to. expect or demand payment by the drawee. In the instant case the evidence is held to require a submission of the question of the drawee’s obligation to pay the draft had it been presented.</p> <p>4 Same: presentment for payment: delay. The question of unreasonable delay in presenting a bank draft for payment depends largely upon circumstances, and may be governed by the mutual understanding by the parties of the purpose for which it is purchased; and is usually a question for the jury. In the instant case the circumstances are held to require submission of the issue to the jury.</p>

— TIon. W. B. Quarton, Judge. Action by plaintiff, as assignee of a lease of certain premises by her husband, Theodore Marks, to defendant Chapman, • by whom it is alleged the' lease was transferred to defendants A. B. Chapin and M. B. Chapin, to recover rent and damages, and to enforce a landlord’s lien therefor.

— Hon. A. S. Blair, Judge. Action on a promissory note. The note was executed by Daniel Arnold to plaintiff, and on the back thereof appears the name of defendant Burrhus as guarantor of payment. Both Arnold and Burrhus were named as defendants in the petition, and Arnold was personally served with notice.

<p>Appeal from, Linn District Court.— Hon. W. G. Thompson, Judge.</p> <p>Action at law to recover for a personal injury. From a verdict and judgment in favor of plaintiff, defendants appeal.—</p>

<p>Appeal from Howard District Court. — ■ Hon. L. E. Fellows, Judge.</p> <p>Action at law, wherein plaintiff garnished one George Bachel as a supposed debtor of defendant, Mabon. W. O. Leuth inteiwened, claiming that the amount owing was due him from Bachel, and that the garnishee was not indebted to Mabon. The trial court found for intervener, and plaintiff appeals.</p>

— Hon. C. II. Kelley, Judge. What purported to be tbe last will of Jacob Stufflebeam, deceased, was filed for probate August 20, 1904. The three daughters of deceased, Elsie Renn,- Cinda Selensky, and Elizabeth Eveland, contest its admission to probate, on the grounds: (1) That deceased was not of sound mind when he executed it, and (2) that it was procured by undue influence exerted on him by Rachel Stufflebeam, his'Wife, and his son, Harvey M. Stufflebeam.

<p>Appeal from Lee District Court.— IIon. H. Bank, Jr., Judge.</p> <p>The defendant was convicted of the crime of rape, and appeals.—</p>

<p>1 Contract of employment: termination: justification. The fact that one who contracted to perform certain services and to employ and pay for assistance, misrepresented to his employer the amount of wages paid the assistant, will not justify the employer in terminating the contract.</p> <p>2 Same: burden of proof. An employer who has wrongfully dis-charged a servant has the burden of showing that the servant could have obtained other like employment and thereby lessened his damage, otherwise he is entitled to the compensation agreed to be paid.</p> <p>3 Same: measure of damages. One employed to perform certain services and to furnish assistance and teams at his own expense may recover, for the wrongful termination of the contract, the agreed compensation less what it would have cost him to carry out the contract together with what he might have earned from others.</p>

<p>1 Bills and notes: holder in due course: statutory provisions. Under the Negotiable Instruments Act the payee in a note, which was executed in blank and delivered to a third party who filled it out payable to the payee and delivered it to him, is not a holder in due course, and takes the instrument subject to a defense by the maker that it was not completed in accordance with the understanding of the maker and such third party.</p>

— Hon. Fred O’Donnell, Judge. Action under the statute to recover real property, and for damages. Trial was had to a jury, and there was a verdict and judgment in favor of defendant. Plaintiff appeals.

— How. O. A. Byington, Judge. Action in equity to foreclose a mechanic’s lien. The. trial resulted in a judgment in favor of defendants. Subsequent to the entry of the judgment plaintiff presented a motion to correct the record entry, and this motion was overruled. Plaintiff appeals from the judgment and from the ruling on the motion to correct.

<p>Over payment: recovery. A borrowing member of a building and loan association, who, with knowledge of all the facts voluntarily pays to the association, in liquidation of his indebtedness, a sum in excess of the amount he contends is due cannot recover back such sum from the association.</p>

<p>Burglary: evidence. On a prosecution for burglary the evidence is examined and held sufficient to show that defendant, with others, was engaged in the common enterprise and that he was equally guilty regardless of who may have actually committed the crime. ></p> <p>2 Same. Where several parties were together when arrested for a burglary, it is competent to show that two of their number escaped and when recaptured, shortly afterward, had in their possession materials used by burglars.</p> <p>3 Evidence: re-opening case. It is not an abuse of discretion for the court to permit the State to introduce exhibits, which have'been fully identified, after argument has begun, where there is no showing of prejudice; if the defendant is thereby taken by surprise he may apply for a continuance or offer further testimony is he so requests.</p> <p>4 Motive in escaping jail: instruction In the absence of evidence bearing on the motive of an accused in escaping jail, an instruction that the fact of escape may be taken into consideration as a circumstance tending to show guilt, is sufficient on the question .of motive.</p> <p>5 Burglary: included offenses. Larceny is not included in the crime of burglary; and in submitting an issue of burglary re- . fusal to submit an issue of larceny is proper.</p>

— Hon. O. D. Wheeler, Judge. Action for damages resulted in a directed verdict for defendant on which judgment was entered. The plaintiff appeals.

— Hon. W. R. Green; J udge. Action to quiet title and for the possession of certain real estate. Defendants Goy denied plaintiff’s title, claimed ownership in themselves, pleaded an estoppel on the part of plaintiff to claim title, filed a cross-petition against plaintiff and their codefendant Woerth, and asked for general equitable relief. The trial court granted plaintiff the relief he prayed, and defendants Goy appeal.

<p>1 Domestic fowls: trespass: injunction. To avoid a multiplicity of suits an injunction will lie to restrain domestic fowls from trespassing upon the premises of another, where repeated past and threatened future trespass is shown.</p> <p>2 Appeal: matter not urged below. Matter which is not presented for the consideration of the trial court cannot be urged on appeal.</p>

<p>1 Pleadings: filing: waiver of objection. Where a pleading has been treated as filed and the cause tried upon the issue tendered therein neither party can complain of its submission, or that the paper was not filed in time, or that a nunc pro tunc order directing its filing was entered.</p> <p>2 Negotiable instruments: satisfaction and discharge The agree-ment of a bank to apply funds coming into its hands to the satisfaction of defendant’s notes held by it, is not a defense to a suit on the notes where defendant continues to issue checks which the bank honors, unless it is also shown that the bank was not to use the funds for cashing the checks.</p> <p>3 New trial: newly discovered evidence. A new trial will not be granted on the ground of newly discovered evidence where the new discovery consists of evidence of a witness who was used upon the trial.</p>

— Hon. A. H. McVey, Judge. Action to recover damages for personal injuries received by plaintiff while in defendant’s employ, and alleged to have been due to defendant’s negligence. There was a directed verdict for the defendant, and from judgment thereon plaintiff appeals.

<p>Appeal from Taylor District Court.— Hon. H. jME. Towner, Judge.</p> <p>The opinion states the case.</p>

<p>Appeal from Des Moines District Court.— Hon. James D-. Smytii, Judge.</p> <p>Suit in equity to restrain the defendant as treasurer of Des Moines county, from collecting a tax assessed against the appellee on its telegraph line. A demurrer to the petition was overruled, and, the defendant refusing to plead further and electing to stand upon his demurrer, there was a judgment for the plaintiff, from which the defendant appeals.</p>

— Hon. W. B. Quarton, Judge. Action by plaintiff, as administratrix of the estate of her deceased husband, Anton Christopherson, to recover damages for injuries causing his -death, received while in defendant’s employment. At the conclusion of plaintiff’s evidence, the court sustained defendant’s motion to direct a verdict in its favor, and from judgment on such directed verdict the plaintiff appeals.

— Iiow. J. H. Howe, J udge. Action at law to recover damages for personal injury. There was a verdict and judgment for plaintiff, and defendants appeal.

— Hon. J. R. Whitaker, Judge. Proceeding for the probate of the will of Tolman Wiltsey, deceased, proposed for probate by beneficiaries named in said will, and contested by the administratrix of the estate of Eugene Wiltsey, alleged to be the natural son of deceased, on the grounds of undue influence and want of testamentary-capacity. There was a verdict for contestant, and from the judgment refusing to admit the will to probate, the proponents appeal.

<p>Appeal from Warren District Court.— Hon. J. H. Apple-gate, Judge. ,</p> <p>The opinion states the case.</p>

— Hon. John T. Scott, Judge. Plaintiff’s petition is in three counts in the first of which it asks recovery on a promissory note executed to it by defendants; in the second, recovery for an amount due as balance of account; and, in the third, damages for breach of written contract to deliver certain buggies to plaintiff at Des Moines in good condition, free of charges for transportation.

— JIon. O. A. Byington, J udge. This is a special proceeding involving a statement of general consent for the sale of intoxicating liquors in Iowa county, Iowa. The statement was circulated and signed just after the general election of 1904, and was filed by the plaintiff herein with the county auditor of said county on. December 7, 1904.

<p>Appeal from Wapello District Court.— Hon. M. A. Boberts, Judge.</p> <p>The opinion states the case.</p>

— Hon. M. A. Roberts, Judge. The statement of facts and the first paragraph of the following opinion are adopted by me without alteration from an opinion which was prepared by Mr. Justice .

— Hon. H. E. Evans, Judge. Defendant was convicted of the larceny of domestic fowls in the night-time from inclosed premises, under chapter 133, Acts 30th General Assembly, and from sentence to imprisonment in the penitentiary, as authorized by that act, he takes this appeal.

— ITon. R. R. Gaynor, Judge. Claim for damages to land sustained by reason of the proposed construction of a system of drainage under chapter 68, Acts 30th General Assembly. The claim was rejected by the board of supervisors, and an appeal taken to the district court, where the claimant’s petition was dismissed, and she appeals.

— Hon.- Wm. , Hutchinson, Judge. Suit to recover damages for false imprisonment. Verdict and judgment for the plaintiff, from which the defendants appeal.

— ■ Hon. E. P. Howell, Judge. The indictment, after reciting the date and venue, alleged that the accused, who “ was then and there the cashier and an officer or employe of the Marengo Savings Bank, a corporation duly incorporated under the laws of the State of Iowa for a general banking business, did knowingly, willfully and feloniously make a false statement of what purported to be the actual financial condition of the said Marengo Savings Bank to the directors of the said…

— Hon. O. A. Byington, Judge. Action to recover a commission for the sale of the property of defendants to a purchaser procured by plaintiff. There was a verdict for plaintiff, but, on motion of defendants for judgment on a special finding, the court refused to enter such judgment and ordered a new trial. The defendants appeal.—

<p>Appeal from, O’Brien District Court.— Hon. F. K. Gaynor, Judge.</p> <p>The defendant was convicted of assault with intent to commit rape, and appeals.</p>

<p>Appeal from Lee District Court.— Hon. H. Bank, Judge.</p> <p>Ti-ie defendant was charged by indictment with burglary; that is, with breaking and entering a building belonging to one Nelson, in the night time, with intent to commit larceny. On trial he was convicted, and he appeals.</p>

— Hon. A. J. House, Judge. Action by plaintiff, as owner by assignment, to recover the amounts of several orders issued against the funds of certain road districts of the township of which defendants are trustees and clerk, for material furnished and labor performed in the -repair of the roads in said districts. A demurrer to the petition was sustained, and, from a judgment in favor of the defendants, the plaintiff appeals.—

— IIon. Wm. Hutchinson, Judge. - Hpon appeal to the district court from a conviction before a justice of the peace of the crime of aiding in the unlawful delivery and distribution of intoxicating liquors, defendant was found guilty and sentenced to pay a fine, and from the judgment appeals to this court.

<p>1 Criminal law: submission of issues. The question of the guilt or innocence of an accused is for the jury, unless there is a total' failure of evidence from which the jury may find the allegations of the indictment true.</p> <p>2 Same: illegal contract with township trustee. The furnishing of men and teams by a township trustee to perform labor upon the highways, under an agreement with the road superintendent to pay for the services out of township funds, is a criminal offense under the statute. The facts in the instant case furnish sufficient evidence of an agreement for compensation to require a submission of the question to the jury.</p>

<p>Appeal from Appanoose District Court. — Hon. Frank W. Eichelberger, Judge.</p> <p>Ti-ie opinion states the case.</p>

<p>1 Taxation: proof of indebtedness: best evidence. Indebtedness is a fact in and of itself which is provable orally by the testimony of those who have a personal knowledge thereof; so that a taxpayer in seeking to offset his indebtedness against an assessment of his moneys and credits need not produce the written evidence thereof on the ground that such is the best evidence.</p> <p>2 Same. Proof that a taxpayer is indebted in the amount claimed by him is not overcome by evidence that in former years he reported a less amount, nor by a certificate of the county clerk of a foreign state where the existing indebtedness is held that the same is assessed in such county, where the same fails to show that the holder is a resident of the taxing district, and that such clerk is the custodian of the tax records and authorized to certify thereto.</p> <p>3 Same: penalty: when authorized. The penalty' provided in Code, section 1357, does not apply when the taxpayer made a false statement respecting his indebtedness, but only when he refuses to furnish the assessor a verified statement of his assessable property.</p>

— Hon. Wm. Hutchinson, Judge. Adpeal from a decree of the district court canceling an assessment of omitted property made by tbe county treasurer.

— Hon. Edmund Nichols, Judge. On an agreed statement of facts presenting the question as to the liability of plaintiff county to the defendant with reference to the compensation claimed by defendant as sheriff of the county, the court rendered a decision in favor of defendant sustaining his claim to such compensation, and the plaintiff appeals.

— IIon. Byron W. Preston, Judge. Defendant pleaded guilty to the crime of an assault with intent to commit rape, and, from a sentence on that plea of twenty years in the penitentiary, he appeals.

— Hon. Jas. D. Gamble, J udge. Action' on an order for jewelry. Fraud was pleaded as a defense: Judgment was entered against the plaintiff, from which it appeals.

— Hon. M. A. Roberts, Judge. These four cases, while separately tried and determined in the lower court and submitted here separately, involve the same question, and will be disposed of in one opinion. They involve the validity of an order taxing attorney’s fees for plaintiff’s attorneys against defendant for services, rendered in this court upon appeal from the district court. The defendant in each case appeals from the orders taxing such fees.

— -Hon. H. K. Evans, Judge. Action to sever certain alleged agricultural lands from the town of Le Eoy, Iowa. Petition denied, and a'part of the petitioners appeal.

— Hon. W. S. Withrow, Judge. Action in equity originally commenced to construe a will. The case is stated in the opinion. The plaintiffs and certain of the defendants appeal.

— Hon. A. N. Hob-son, Judge. The petition contains twenty-four paragraphs, all stated in one count.

F. W. Eioiieeberger., Judge. Dependant was indicted for murder, and upon trial to a jury was convicted of manslaughter, and from a judgment of imprisonment for five years in the penitentiary appeals.

— Hon. H. M. Towner, Judge. Suit to recover damages for a personal injury. Judgment for the plaintiff, from which the defendant appeals.-

— 'Hon. Henry Bank, Jr., Judge. Suit to recover damages for personal injury. Trial and judgment for the plaintiff, from which the defendant appeals.

<p>Appeal from Jackson District Court.— Hon. D. V. Jackson, Judge.</p> <p>Suit in equity to enjoin defendants from removing certain fences and opening a highway upon and over plaintiff’s premises. Decree for defendants, and plaintiff appeals.</p>

<p>Appeal from Taylor District Court.— Hon. H. M. Towner, Judge.</p> <p>Action on a contract resulted in judgment as prayed. Defendant appeals.</p>

<p>1 Banks and banking: checks: presentation for payment: negligence. It is the duty of the holder of a bank check to present it for payment within a reasonable time after its issue, having due regard for business usages and the circumstances of the case; but the mere fact that it is forwarded through the mails direct to the drawee instead of presenting it for payment through an agent, is not such negligence as will discharge an ihdorser, in the absence of a showing of prejudice.</p> <p>2 Same: notice of dishonor. The holder of a bank check is entitled' to an unqualified notice of its dishonor by the drawee before he is required, in order to hold an indorser, to notify him that payment has been refused.</p> <p>3 Checks: presentment: reasonable time. The question of whether a check was presented- within a reasonable time is not always one of law even where the facts are undisputed; but if it were, a submission of the issue is error without prejudice, where as a matter of law the holder was not negligent in the presentation.</p>

<p>Contracts: execution: mutuality. One whose agreement has been reduced to writing and who has accepted the benefits of the same is bound thereby, although he in fact signed the same in a representative capacity.</p>

<p>1 Statutes: construction. Statutes should be construed so as to give force and effect to all unless clearly in conflict.</p> <p>2 Practice of medicine: itinerant physicians: license. The legislature in the exercise of its police power may require a State license for the practice of medicine and at the same time authorize municipalities to require a license of itinerant physicians.</p> <p>3 Same: discrimination: uniformity. An ordinance requiring a license of itinerant physicians is not open to the objection that it discriminates against non-residents; or that it is not uniform in its operation.</p>

— TIon. J. H. Richards, Judge. Action in equity to foreclose a real estate mortgage. The plaintiff was denied the relief prayed, and he appeals.

— Hon. J. H. Apple-gate, Judge. Action to recover possession of certain real estate in Dallas county, Iowa. Defendant pleaded title in himself, and upon the issues joined the case was tried to the court resulting in a decree for plaintiff, and defendant appeals.

<p>Appeal from KeoTcuk District Court.— Hon. B. W. Preston, Judge.</p> <p>Action to quiet title. There was a judgment for plaintiff, and defendants and intervener appeal.</p>

<p>1 Estates of decedents: trust property: leases. In determining the rental value of property held in trust under the terms of a will, the trustees should take into consideration its location and condition, th.e purpose for which it is to be used and its relation to other property belonging to the estate. The stipulated rentals in the instant case are not so far inadequate as to call for the interference of a court of equity.</p> <p>2 Same: sale of trust property. A lease by trustees for any number qf years is not a violation of the statute of perpetuities; nor does it violate an instrument of trust prohibiting a sale or disposition.</p> <p>3 Trusts: property leases: excessive period. Trustees holding title 3 to property- under a will with power to contract simply with reference to its use, and who are required by the will to turn over the property to the parties entitled thereto on the expiration of the trust, have no authority to execute a lease of the same for a series of years likely to extend beyond the trust period, except upon a showing that such is reasonably necessary to effectuate the purposes of the trust.</p>

— Hon. W. B. Quarton, Judge. Action on a promissory note purporting to be signed by tbe defendants E. D. Farrell, Thomas Farrell, and Anna Farrell. The defendants answered jointly, and denied that they ever signed the note in suit, and assert that the same is a forgery. Further, they answer that the note is void because not stamped as required by an act of Congress relating to the revenue, in force at the time the note purports to have been executed.

— -11 on. M. A. Roberts, Judge. Action to recover damages for personal injuries alleged to have been sustained by the plaintiff through the negligence of defendant’s employes, while plaintiff was a passenger on defendant’s train. Verdict and judgment for plaintiff, and defendant appeals.

<p>1 Landlord and tenant: contemporaneous oral agreement: fraud. It is competent to show by parol that a written lease was made subject to a condition, or that it was procured by fraud.</p> <p>2 Same: false representations. The representation that one has a personal knowledge of the materials used and manner of construction of a building, and that they are such as to be suitable to a particular business, is the statement of a fact and not the expression of an opinion.</p> <p>3 Same: breach of warranty: waiver. A tenant who had no personal knowledge of the construction of a building until some time after he had entered into possession, but relied upon the representations of his landlord, and upon learning that the same did not comply with the lessor’s warranty so notified the latter and remained for a time at his request, did not waive the breach of warranty as a matter of law.</p>

<p>1 Banks and banking: checks: presentment: delay: discharge of indorser. It is only necessary to hold an indorser of a bank check that it be presented for payment within a reasonable time after issue or its last negotiation; so that where a check was indorsed to a bank and forwarded through correspondent banks for collection, presentation for payment was not so unnecessarily delayed as to discharge an indorser from liability.</p> <p>2 Same: presentation forpayment: negligence. The fact that the holder of a bank check sends the same for collection direct to the bank on which it is drawn instead of selecting a third person to present the same and demand payment, is not such negligence as will discharge an indorser, where no prejudice is shown to have resulted from such method of presentation.</p> <p>3 Presentation of checks: knowledge of custom. One who indorses and negotiates a bank check cannot rely on his want of knowledge of the usage or custom of banks, relating to presentation for payment, to defeat his liability thereon.</p>

— Hons. James A. Howe, and. Hugh Brennan, Judges. The above-entitled actions at law are brought to test the corporate right of the defendants to maintain and operate lines of railway upon the streets $f the city of Des Moines. The cases are so similarly related, and depend so nearly upon similar states of fact that they can be con-, veniently disposed of in a single opinion.

— Hon. A. H. JVTcVey, Judge. Dependant was convicted of murder in the first degree, committed by the administration of poison to one Mabel Scofield, resulting in her death, and sentenced to imprisonment in the penitentiary for life, and from this sentence he appeals.—

<p>Appeal from Buchanan District Court.— IIon. Franklin C. Platt, Judge.</p> <p>This is a suit to recover damages for the failure of title to three acres of land, which the plaintiff alleges he purchased of the defendant. Trial to a jury, and verdict and judgment for the defendant. The plaintiff appeals.</p>

<p>Appeal from Polk District Court.— Hon. James A. Howe, Judge.</p> <p>Action at law to recover damages for malicious .prosecution. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from Polk District Court.— Hon. Hugh Brennan, Judge.</p> <p>The opinion states the case.</p>

— Hon. J. R. Whitaker, Judge. Suit in equity to enjoin defendant who is an attorney at law from practicing his profession at the town of Ackley. Trial to the court, resulting in a decree dismissing the petition. Plaintiff: appeals.