Volume 136 — Iowa Reports

<p>1 Banks and banking: loans: evidence. The evidence in an action to recover upon an alleged loan of money evidenced by a certificate of deposit is reviewed and held sufficient to support a verdict for defendant.</p> <p>2 Same: deposits: wrongful act of officer: liability of bank. Where a bank official, in active charge and control ^ of the bank’s business, receives'at his usual place of business the money or credits of a customer, either as a time deposit or for credit upon open account, the bank becomes at once chargeable therewith; and a failure of the officer to make proper entry on the bank books, or his wrongful act in appropriating the fund to his own use, is not a defense to an action by the depositor against the bank to recover the fund.</p>

<p>1 Railroads: eight of way fence: gates. The statutory requirement that a railway company shall fence its right of way contemplates also that where a closed crossing is constructed it shall maintain gates, corresponding in efficiency to the legal requirements for a railway fence.</p> <p>2 Same: failure to fence: injury to stock: liability. Where a railway company fails to maintain a lawful right of way fence and cattle pass through the same and are injured while upon the track, the company is liable for the damage unless the injury is the result of the owner’s willful act; mere contributory negilence of the owner will not defeat his action under such circumstances, but if the fence was sufficient the rule as to contributory negligence would be different.</p> <p>3 Same: willful act of owner: question of fact. If the owner of stock, in leaving a defective right of way gate open, had no intent or purpose to thereby permit his stock to go upon the right of way, he cannot be said as a matter of law to have willfully occasioned the damage resulting to them in passing through the gate and upon the track; this is a question for the jury.</p>

— HoN. Hugh Brennan, Judge. ActioN to recover damages for personal injuries alleged to have been received bj plaintiff, as a passenger, in dismounting from one of defendant’s electric cars. Verdict and judgment for plaintiff. Defendant appeals.

— How. W. H. Mc-Henry, Judge. Action in equity to quiet title to real estate. On bearing plaintiff’s petition was dismissed, and they appeal.

<p>Appeal from Hamilton District Court.— How. J. H. Eich-ards, Judge.</p> <p>Action to recover damages occasioned as alleged by tbe wrongful killing of a thoroughbred sow. The defendant, in answer, denied the allegations of the petition, and in a counterclaim sought to recover damages to growing crops destroyed, as alleged, by plaintiff’s hogs. There was a- jury trial, resulting in special findings of damage sustained by each party, and a general verdict in favor of defendant in the sum of $10. Both parties have appealed. The plaintiff having first appealed, is denominated the appellant.</p>

<p>1 Appeal: trial de novo: judgment. Either party is entitled to have a final decree in an equity action entered upon a trial de novo on appeal; yet if the judgment affects the title to real property it should be entered in the court where the case was originally tried, and in many such cases new pleadings and evidence may be offered in support of the issues.</p> <p>2 Same: reversal: subsequent proceedings. - After reversal of an equity cause for entry of judgment in the lower court because involving the title to real estate, or upon the issuance of a procedendo with direction to enter decree in accordance with the opinion of the appellate court, the case stands as a suit in equity between the time of submission and entry of decree for such decision as should be entered upon the pleadings and evidence as they stand, unless for cause the trial court permits amendment of the pleadings and further hearing.</p> <p>3 Res judicata. 'One who pleads the invalidity of a land contract as a defense to an action for its specific performance, and also in a cross-demand claims rents and profits, which latter issue he permits to remain in the case until a decree is entered dismissing the petition, is bound by such decree, although it makes no reference to the cross-demand; and he cannot afterward assert the same in another action, even though the court was in error in not rendering judgment for rents in the action for specific performance.</p> <p>4 Actions: multiplicity of suits. A party cannot split his cause of action and try it in different suits.</p> <p>5 Res judicata: petition for rehearing. The overruling of a petition for rehearing, after a reversal and order remanding the cause for judgment, amounts to an adjudication of those questions properly raised by the petition; but if this were not so a reversal of the cause leaves all questions for determination by the lower court on the pleadings and evidence in accordance with the order of reversal, the same as upon the original submission in that court, and a decree there entered is an adjudication of all issues remaining in the case.</p> <p>Weaver, C. J., dissenting.</p>

— Hon. W. R. Green, Judge. Alexander McCord died intestate July 1, 1887, leaving his widow surviving him, who died November 28, 1900, also intestate, and five children, Ichabod, Luther, William, and Bradley McCord and Elizabeth Lynch. William died intestate January 23, 1903, leaving as his sole heirs Alexander, William and Patrick McCord, and Mary Teamans.

— • HoN. EdMUNd Nichols, Judge. The parties hereto entered into an agreement by the terms of which plaintiffs were to exchange a stock of goods at wholesale prices with 6 per cent, added for carriage to defendants for an eighty acres of land in Adair county at $76.25 per acre and a horse, harness, and buggy at $200. If either failed to perform, a forfeiture of $500 as liquidated damages was stipulated.

— HoN. O. A. ByiNGTON, Judge. Suit in equity to enjoin defendant from selling plaintiff’s property for taxes of the years 1899, 1900, 1901, and 1902. It is claimed that the assessments were and are illegal, for the reason that they were upon moneys and credits, and that at the time they were levied plaintiff'was a resident of Keokuk, and not of Iowa, county. The trial court granted the relief prayed, and defendant appeals.

<p>Intoxicating liquors: druggists’ permits. The statute requiring that before a permit. to sell intoxicating liquor will issue a pharmacist shall show he has lawfully conducted a pharmacy for six months previous, has relation only to the observance of law with respect to keeping and selling intoxicants, and does i not comprehend an unlawful sale of cigars, ice cream, soda water and other articles of general merchandise.</p>

— Hon. W. G. CLEMENTS, Judge. ActioN at law to recover damages for injuries received by plaintiff in an accident wbicb it is claimed was due to tbe negligence of the defendant, its agents and servants, in operating an automobile upon a public highway in Jasper county. Trial to a jury, verdict and judgment for plaintiff, and defendants appeal.

— HoN. H. K. EvaNS, Judge. This is a proceeding to establish a claim against the receiver of the Corning State Savings Bank upon two certificates of deposit issued by that bank, and now held by the intervener. The trial court denied the claim on each certificate, and intervener appeals.

— iloN. 0. A. Byington, Judge. The defendant was convicted of murder in tbe first degree, and from tbe judgment he appeals.

— IIoN. E. M. Powers, Judge. AgtioN at law to recover damages arising out of false representations in connection with an exchange of properties. The defendants, additional to Kline, are W. E. Gray and J. E. Gray, and at the time in question all the parties lived in Kockwell City, Calhoun county.

— HoN. JohN T. Soott, Judge. Suit in equity to set aside a deed made by E. J. Bal-linger, plaintiff’s ward, to defendant, La Rue, purporting to convey certain property in the city of Oskaloosa upon the ground that Mrs. Ballinger was unsound of mind and mentally incapable of executing such an instrument, and upon the further ground that it was obtained from her through fraud and undue influence.

<p>1 Wills: undue influence: instruction. Where the allegations of a petition are that testatrix was of unsound mind, the result of illness, and was under the control and influence of the de-visees, and there is no evidence tending to show such influence as would have invalidated the will had she been in full possession of all her faculties, an instruction that if she was weak minded as the result of sickness, trouble or grief so as to be easily influenced and undue influence was shown the will should be set aside, was not objectionable as authorizing the setting aside of the will without proof of mental unsoundness.</p> <p>2 Repetition of instructions: A repetition of instructions, in a will contest solely on the ground of testatrix’s mental capacity, with reference to those matters which may be considered in sustaining the will is not improper.</p> <p>3 Inconsistent declarations of testator: instruction. While the declarations of a testator'inconsistent with a subsequent disposition of his property may be shown for some purposes, they are not to be considered in determining the fact of undue influence; and if no competent evidence of that fact is produced such declarations become immaterial and any instruction with reference to the weight to be given them is without prejudice.</p> <p>4 Weight of evidence: instruction. While it is improper for the court to instruct as to the relative weight to be given different items of evidence, it is proper to tell the jury the purpose for which evidence has been admitted, and to explain the rules governing the relative value of different classes of evidence.</p> <p>5 Exclusion of evidence: harmless error. Refusal to admit com petent evidence which in the progress of the trial becomes immaterial is harmless error.</p>

— HoN. M. A. Roberts, Judge. ActioN to recover balance due on the purchase price of an old school building of the plaintiff’s sold by the authority of plaintiff’s board of directors to the defendant, and to recover back from the defendant money paid to him in the purchase of a new schoolhouse site under proceedings for change of site, which were subsequently reversed on appeal to the county superintendent.

— TIon F. E. Gay-nor, Judge. ActioN by mandamus to compel tbe defendant city council to employ the plaintiff as physician and health officer under the soldiers’ preference law. ' There was judgment for the plaintiff, and the city council appeals.

— IíoN. J. H. PeestoN, Judge. A demurrer to the petition was sustained, and, as plaintiffs elected to stand on tbe ruling, the petition was dismissed and they appeal.

<p>1 Sale of land, on commission. Under a contract to produce a purchaser for real estate, a broker is entitled to his commission when he has furnished a customer, able and willing to buy the property on the terms of sale; and when there is a conflict in the evidence as to the terms of sale the verdict of the jury will not be disturbed.</p> <p>2 Same: abandonment of contract: burden of proof. The burden of proving an abandonment or revocation of an agreement to pay a commission for finding a purchaser for real estate is upon the defendant seeking to avoid the contract.</p> <p>3 Instructions: statement of issues. In submitting a case a statement of the issues with sufficient fullness to advise the jury of the precise questions in dispute is all that is required.</p> <p>4 Abandonment of agreement: evidence. That the agent continued his efforts to dispose of plaintiff’s property is competent on the question of his having abandoned his agreement to find a purchaser.</p> <p>5 New trial: newly discovered evidence. Unless the newly discovered evidence offered in support of a motion for new trial is of a character calculated to produce a different result the motion should not be granted.</p>

— Hon. J. L. Kennedy, Judge. ActioN at law upon a policy of accident insurance. From a verdict and judgment for plaintiff, defendant appeals.

— Hon. J. B. Clyde, Judge. These two actions for partition of the same property involving the rights of the same parties with reference thereto were tried together in the district court, each being pleaded in the other by way of abatement as a prior action pending. The plea in abatement was sustained in the first action and overruled in the second. Mary J. Littlejohn, who was plaintiff in the first action and one of the defendants in the second, appeals.

— HoN. Jakes A. Howe, Judge. The' defendant was indicted upon tbe charge of receiving stolen property. There was a verdict of guilty, and from a judgment rendered thereon he has appealed to this court.

<p>Appeal from Hamilton District Court.— IioN. W. D. EvaNS, Judge.</p> <p>Ti-iis is an appeal from an allowance of damages to plaintiff made by tbe district court upon appeal from the action of the board of supervisors in assessing damages to plaintiff due to the establishment of a drainage ditch over and across his land.</p>

<p>1 Fraudulent conveyances. Property conveyed by a husband to his wife pursuant to an antenuptial contract, which served as an inducement to the marriage and was accepted in good faith on the part of the wife, is not subject to the lien of prior judgments against the husband which were n'ot of record in the county in which the land is situated at the time of the conveyance, and of the existence of which the wife had no .knowledge.</p> <p>2 Judgments: set off. Judgments cannot be set off, one against the other, unless they are strictly mutual and still the property of the respective parties thereto.</p> <p>3 Judgments: limitation of actions upon. The judgment of a justice of the peace entered by the clerk of the District Court on a transcript from the justi.ce is to be treated as a judgment of the latter court from the date of such entry; and the statutory period within which an action may be brought on such judg- ■ ment commences to run from the date of the entry by the clerk of the District Court, and extends twenty years as in the case of any other judgment of that court.</p>

— HoN. James A. Howe,- Judge. . . FbaNois Whitehouse, Sb., died testate in England, March 12, 1905, seised of tbe N. % of tbe N. E. % of section 29, township 80 N. of range 25 W. of the Eifth P. M. He left, him surviving, Eliza, his widow, residing in England, and children, being the parties to this suit. His estate both in England and in this country has been fully settled.

— Hon. Hugh Beennan, Judge. Action at law to recover damages for breach of the conditions of a written lease. Trial to a jury, verdict and judgment for plaintiff, and defendants appeal.

&emdash; HoN. EeaNexiN C. Platt, Judge. The defendant was tried before a justice of the peace on an information charging him with receiving stolen goods. Being convicted, be appealed to the district court, where by agreement the case was tried without a jury, and judgment was rendered finding him guilty of the charge and adjudging that he pay a fine of $100. From this judgment, the defendant appeals.

<p>Railroads: safety of premises: stations: negligence. A railway company is only held to an exercise of ordinary care in the safety of its stations, and failure to keep a door locked in a waiting room leading to the basement was not negligence, when the same was labeled “ basement,” the stairway well lighted and the passageway was necessary to the convenient use of the building; and a passenger intending to enter the toilet room, also labeled, who, in the daytime by mistake opened the basement doer and was injured by falling down the stairs, has no right of recovery on the ground of negligence.</p>

— HoN. Byeon W. Peeston, Judge. Action at law to recover damages in the value of a stock of merchandise destroyed by fire. It was alleged in the petition that the building in which plaintiffs goods were situated was set on fire by sparks from a locomotive engine passing on defendant’s railway, resulting in a complete loss of such goods.

<p>1 Municipal Corporations: special assessments: appeal: jurisdiction. On appeal from the levy of a special'assessment against abutting property the .court has authority not only to inquire into the validity of the assessment, but may, if it finds the assessment legal, determine the proper amount thereof.</p> <p>2 Same: distribution of tax. A property owner is not bound by a special assessment merely because it is not in excess of the benefits conferred; he is entitled to have it ratably and proportionately distributed over all the property in the assessment district.</p> <p>3 Same: evidence. Evidence in the instant case is held to show that the assessments made by the .council were disproportionate and excessive and that the reduction made by the court is equitable.</p>

<p>Appeal from Gedar Rapids Superior Court.— HoN. James II. Rothroce, Judge.</p> <p>Suit in equity to enjoin defendants from issuing, delivering and selling a bond issue of tbe said city to tbe amount of $125,000. Tbe trial court dismissed tbe petition and plaintiff appeals.</p>

<p>Appeal from Plymouth District Court.— HoN. J„ L. KeN-Nedy, Judge.</p> <p>ActioN at law to recover damages for alleged slander. Verdict and judgment for plaintiff, and defendant appeals.</p>

— Hon. A. D. Bailie, J udge. This is an appeal by the First National Bank of Esther-ville and its several stockholders from the action of the city council of Estherville, sitting as a board of review and equalization of assessments made for the purposes of taxation. On trial of tbe appeal, a decree confirming the action of the board was entered, and therefrom this appeal is prosecuted.

<p>1 Actions: nature of: mandamus. An action to compel a city to accept a work of public improvement, levy an assessment and perform and complete its written contract with respect thereto is an action at law, and is not converted into an equitable action because of a request for a mandatory order of mandamus in aid thereof.</p> <p>2 Findings of court in law action. Findings of fact by the court in a law action will be given the effect of special verdicts by a jury.</p> <p>3 Municipal corporations: contracts with: recovery. Where a contractor’s variations from specifications are of a trivial character, and where the engineer to whom both parties have intrusted the work has without fraud or collusion approved the same, recovery on the contract should be allowed.</p>

— Hon. W. H. McHenry, Judge. Suit on a written'guaranty. Trial to the court on an agreed statement of facts, and judgment for the defendant. The plaintiffs appeal.

— IIoN. Pobt. SloaN, Judge. Action to recover damages for personal injuries resulting from a fall alleged to have been caused by a defective sidewalk. Verdict and judgment for plaintiff, and defendant appeals.

<p>Appeal from Boone District Court.— HoN. J. R. Wi-iitaKee, J udge.</p> <p>ActioN for divorce. Decree as prayed, and defendant appeals.</p>

— ■ HoN. Hugh BeeNNAN, Judge. ActioN for damages caused by deceit alleged to have been practiced on plaintiff resulted in a directed verdict for defendants. The plaintiff appeals.

— HoN. A. S. Blair, Judge. The defendant was convicted of aiding a prisoner lawfully detained for a felony in attempting to escape from tbe jail of Blackhawk county. He appeals.

<p>1 Criminal law: examination or witness: misconduct: pbejudice. A witness who was not before the grand jury may in good faith be called by the State for the purpose .of making a record, but that object is attained when an objection to his competency is sustained, and a further inquiry into the facts in disregard of the ruling and under the pretense of making a record is improper; but in the instant case the inquiries were of such a character that no prejudice resulted.</p> <p>2 Assault: evidence of good character: instruction. On an issue as to who was the agressor in a prosecution for assault with intent to do great bodily harm, an instruction that evidence of defendant’s good character should be considered in determining whether the witnesses for the State were mistaken or had testified untruthfully, is not approved, although as applied to the facts in the instant case was not erroneous.</p> <p>3 Instructions: definition of terms. An instruction that if defendants conspired to engage the prosecutor in a fight they could not be acquitted on the ground of self-defense was not objectionable as failing to define “conspiracy”; since the jury would be presumed to understand the word to mean merely a mutual understanding to engage in the affray, when considered in connection with the other instructions given.</p> <p>4 Assault: indecent language: instruction. Refusal to instruct that abusive and indecent language never justifies an assault is not prejudicial error, where the evidence for the State shows that such language was not employed until after the prosecutor was assaulted, and the evidence for defendant shows it was not used at any time.</p>

— HoN. W. H. McHenry, Judge. ActioN at law to recover damages for breach of a contract of lease. Defendant admitted tbe making of the lease, but pleaded that it never became operative by reason of breach of a condition precedent. A jury was waived, but before any testimony was introduced plaintiff moved for judgment upon the pleadings. This motion was sustained, and defendant appeals.

<p>1 Contracts: construction: warranty. A stipulation in a contract for the construction of a bridge, that in case the excavation for abutments should be greater than as shown by the plans and borings furnished by the city, additional compensation should be allowed for the extra labor and material used in making a suitable foundation, amounted to a warranty that the work was as represented and a liability was thereby created for the extra expense.</p> <p>2 Same: extras: measure of recovery. Where the contract for the construction of a bridge determines the character of possible extra labor and material and the measure of recovery therefor, evidence of other expenses and losses of a different character and origin than those referred to in the contract should ■ be excluded.</p> <p>3 Same: modification of contracts. Where one of the parties to a contract refuses to concur in the instrument as originally drawn and to meet the objection an addendum which expressly modifies or abrogates some provision in the original instrument is prepared and made a part of the agreement, such added matter will be given effect by the court so far as inconsistent with the agreement as originally drawn.</p> <p>4 Subcontract: abandonment: right of contractor. Where a sub-contractor abandons the work and surrenders the management and control thereof to the contractor, who completes the same, the contractor may recover any loss or damage which he sustains from carrying out the contract for which the other party is liable.</p> <p>5 Instructions: review on appeal. The trial court is required to give necessary and proper instructions on all the issues joined in an action which goes to t‘he jury, whether requested or not, and failure to instruct thereon with reasonable fullness is a prejudicial error which may be reviewed on appeal.</p> <p>6 Same: municipal contracts: breach. It is competent for a city in contracting for the construction of a bridge to provide that before final settlement all claims against the city growing out of the performance of the contract shall be presented and adjusted; and where a-breach of this condition is alleged in defense to a suit for extras and the evidence is such that the fact of presentation of such claims cannot be determined as a matter of law, failure to submit the issue under proper instruction is prejudicial error.</p>

— Hon. J. R. Whitaher, Judge. Action in equity to reform a policy of insurance and enforce payment thereunder for a loss. There was a decree for the plaintiff from which defendant appeals.

<p>1 Mortgages: reformation: foreclosure. A mortgage cannot be reformed and made to include land not originally embraced therein, and in the same action foreclosed and the equity of redemption cut off; upon reformation there must be another foreclosure.</p> <p>2 Estoppel. One holding an assignment of rents from a mortgagor acquires no better right thereto as against the mortgagee than the mortgagor had, and an estoppel as against the latter applies equally to the assignee.</p> <p>3 Use and occupation. An action for use and occupation is founded upon a promise express or implied, and will not lie as against a disseisor, a trespasser or one who is wrongfully or tortiously in possession; the remedy in such cases is trespass and the recovery damages.</p> <p>4 Mortgages: easements. Where the owner of certain lots and also an additional strip of ground adjoining erected a building covering the lots and a portion of the additional strip, a mortgagee upon foreclosure and sale under his mortgage, covering simply the building and lots, does not acquire title to the strip but simply such rights therein as are necessary to the use and enjoyment of the building; and a conveyance of the strip by the mortgagor to another will not destroy the easement but vest title in the grantee subject to the easement.</p>

— IíoN. L. E. Fee-lows, Judge. Suit in equity to cancel and set aside a judgment. From a ruling sustaining a demurrer to defendant’s answer, he appeals.

— Hon. W. B. Quarton, Judge. Suit to recover damages for breach of warranty of a stallion. There was a trial to a jury, and, after plaintiffs evidence had been introduced, there was a directed verdict for the defendants, and from a judgment on such verdict the plaintiffs appeal.

<p>1 Deeds: description: acreage: “more or less”: equitable relief. The words “ more or less ” in connection with the description in a deed reciting a certain number of acres indicate a sale in gross, even though the price stated is an exact multiple of the acreage mentioned; but they do not indicate that the purchaser takes the risk, ipso facto, of the quantity of land conveyed; they are to be construed as indicating that the acreage is approximately the number mentioned, and when the discrepancy is great equity will grant relief.</p> <p>2 Same: sale by the acre. Where a sale of land is by the acre the shortage presumed to have been contemplated by the parties is only such as results from errors in measurement, and the words “ more or less ” are intended to cover but slight inaccuracies. Evidence held to show that a sale by the acre was intended, and that the shortage was sufficient to authorize relief.</p> <p>3 Husband and wife: agency. Evidence in an action by a married woman to recover a portion of the price paid for land, on account of a deficiency in the acreage, is held to show the husband’s authority to act as her agent in the transaction.</p>

<p>1 Tenants in common: adverse possession. The statute of limitations will not commence to run as between co-tenants until there has been an ouster and an adverse possession in fact; and while a deed by one co-tenant conveying the entire property will ordinarily amount to an ouster, the statute will not operate in favor of a non-resident grantee until after his actual possession.</p> <p>2 Former adjudication. A decree in an action brought by a father to set aside a conveyance of land owned by himself and wife to his son, on the ground of fraud, is not an adjudication in an action by the heirs of the deceased wife to partition the premises.</p> <p>3 Partition: laches. Laches will not avail as a defense to an action in 'partition, where there was no obligation to sooner institute the proceeding because of the non-residence of the real parties in interest,' nor so long as the premises are occupied under a reserved- life estate.</p>

— IIoN. N. W. Maoy, Judge. ActioN at law upon, a promissory note. Defense, fraud and failure of consideration. Trial to a jury, verdict and judgment for defendant, and plaintiff appeals. After judgment plaintiff filed a petition for a new trial, based upon newly discovered evidence. This petition was also denied, and from the ruling thereon plaintiff also appeals.

— How. W. B. Quar-toN, Judge. Action to recover damages resulting from tbe death of Emil Meier due to defendant’s negligence in failing to warn him of the danger of the place when he was set to work, and to defendant’s negligence in ordering him into an unsafe place to work. Defendant denied all negligence, pleaded contributory negligence and assumption of risk.

<p>'Appeal from Howard District Court.— HoN. A. N. HobsoN, Judge.</p> <p>ActioN in equity to set aside a decree quieting tbe title to land. Bill dismissed, and plaintiffs appeal.</p>

<p>Appeal from Emmet District Court.— HoN. W. B. Quarton, Judge.</p> <p>ON September 10, 1901, tbe defendant signed an order addressed to plaintiff in words, in so far as material, following:</p> <p>Fortvard the following described soda water apparatus, and upon receipt of bill of lading or tender of goods, I will honor sight draft or other demand for $250 May 1st, 1902, and the balance I promise to pay in monthly sums, as follows: $30.00 per month until paid, 2 per cent, off cash; interest to start May 1st, 1902, with interest at six per cent, from date of shipment with each payment, and for such balance and interest will execute and deliver contract notes of like tenor and form to the one printed on the back of this order and maturing as above set forth, and will execute such other papers as may be necessary under the laws of this state to protect the title of the American Soda Fountain Co. against all third parties, and' keep the same insured until all payments are made. The delivery of said apparatus to be conditional upon the compliance with above terms and conditions; said apparatus to remain the property of the American Soda Fountain Co. until paid for. In case the American Soda Fountain Co. is to take a second hand soda water apparatus in exchange, .1 agree that it shall be free from-all liens, and I further agree to put such apparatus in as good condition as possible, pack and ship as directed by said American Soda Fountain Co. . . . Name of apparatus and varieties of marble; also of wood and finish of top. 2 onyx bodies, St. Baume ends, onyx tablets, mirror between moulding of.onyx (Bose onyx) Tuscarora top; 14 foot base; 20 foot counter, marble top and base board, same as Kehoe, all wood golden oak. All for 1250 and Tuft’s App. . . . No claim will be made by me for any goods not specified herein. *</p> <p>The order was accepted, and.an apparatus sent to the defendant differing from that ordered, in that Tennessee marble with onyx trimmings was substituted for “ two onyx bodies, St. Baume ends,” and in other material respects. The defendant promptly notified the plaintiff of these differences and that it declined to receive the apparatus as in compliance with the contract, and later that a serious accident had occurred, caused by an explosion due to a defect in the fount, and that an attempt would be made to hold plaintiff responsible for damages. After considerable correspondence, plaintiff on April 9, 1902, offered to make the changes necessary to- comply with the order, including a refrigerator base, which would require not less than four weeks to construct, upon condition that defendant would settle immediately; that is, pay the $250 and execute the notes for the balance, drawing interest from May. 1, 1902. Other correspondence followed, and on August 9, 1902, defendant wrote:</p> <p>We will not make settlement until you settle with us for damages and claims against us resulting from this explosion, and we have not received all of our apparatus yet, and your Chicago branch refuses to ship it until we waive claim for damages. We are willing to do what is right in compromise, but our attorneys think you can be held for the damages this defective fount has caused. If you still insist and refuse to settle, you can begin action against us, and we will resist with counterclaim.</p> <p>Without tendering the return of the Tuft’s apparatus, this action in replevin was begun and a delivery bond executed for the property. After evidence showing the facts as recited had been introduced each party moved that a verdict be directed in its favor. The motion of defendant was sustained, and a verdict returned and judgment entered accordingly. The plaintiff appeals. The sureties on the de-, livery bond have also appealed from a judgment against them for costs and expenses occasioned by a continuance, and ■the appeal is submitted with that in the main action. — ■</p>

— IIoN. E. M. Powers, Judge. This is a civil action for seduction. Upon trial to a jury, a verdict was returned for the plaintiff, upon which, after a reduction by the trial court, judgment was rendered and defendant appeals.

— HoN. 0. D. Wheeled, Judge. Pe-oceediNg to set aside tbe probate of a will on tbe grounds that it was not duly executed; that it was procured by fraud, duress, and undue influence of defendant, wbo is the sole devisee; and that testatrix lacked testamentary ca-. pacity. The issues raised by denials of plaintiffs’ allegations were tried to a jury, and from judgment on a verdict for defendant plaintiffs appeal.

<p>Appeal from Emmet District Court.— HoN. A. D. Bailie, Judge.</p> <p>• Suit in equity to establish tbe lien of a subcontractor. There was a judgment for the plaintiff from which the defendant Bartlett appeals.</p>

— IíoN. F. M. Íowbbs, Judge. AotioN in equity by plaintiff, as tbe widow of George E. Hutchinson, to have her dower interest in certain lands established and set off. Tbe defendants interposed a general demurrer, and this was sustained. Plaintiff elected to stand on the ruling, and she appealed from the judgment dismissing her petition and for costsv

— B[on. O. D.-Wheeler, Judge. AotioN to recover damages for personal injuries received by plaintiff while in the employ of the defendant company as switchman, resulting from being crushed between the switch engine on which he was riding and a road engine approaching it on the same track. .

— Hon. Hugi-i BbennaN, Judge. PlaiNtipp conveyed to John Wilson ten acres of land out of a half section then owned by him, and in the deed inserted this clause: “ The grantee herein further agrees to perpetually maintain a tight fence sufficient to stop hogs and all other live stock between said land described above and all property of the grantor herein adjacent thereto.” No line fence then existed, but Wilson erected partition fences, as agreed, soon thereafter, and…

<p>1 Abatement of actions: prior suit: identity of parties and issues. The pendency of an action between the same parties and involving the same issues will, when pleaded, operate to abate a subsequent suit; and it is not essential that the parties be the same in the sense that the plaintiffs and defendants are identical, or that the prior action involves issues and seeks relief not pleaded and sought in the latter.</p> <p>2 Same. Where the merits of a controversy involving the settlement of an estate cannot be determined except upon giving construction to a paragraph of the will, a subsequent action between the same parties to construe the same paragraph will be abated on a plea of a prior action pending.</p>

<p>1 Conveyances: implied covenant: breach: measure of damages. The conveyance of a portion of a lot with a private right of way over the grantor’s remaining land to an adjoining public alley amounts to an implied covenant as to the existence of the alley, which the grantor is estopped to deny; and the measure of damages for its breach is the difference in the value of the property, without the private right of way annexed, and such value as it would have had if the public alley in fact existed.</p> <p>2 Same: term “alley” construed. The term “alley” when used in connection with platted’ ground usually has reference to a public alley; and when a deed conveying platted ground refers to an alley the fair inference is that an alley platted for public purposes is intended.</p>

— IioN. Hugh BeeNNAN, Judge. ActioN at law to recover damages for breach of contract to sell and deliver coal. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

— HoN. O. A. ByihgtoN, Judge. ActioN at law upon a promissory note. Prom a judgment for plaintiff on a directed verdict, tbe defendant appeals.

<p>Appeal from Delaware District Court.— HoN. F. C. Platt, Judge.</p> <p>Suit1 for damages occasioned by a defective bridge. There was a verdict and judgment for the defendant. The plaintiff appeals.</p>

<p>Appeal from Polk District Court.— IIon. A. II. MoVey, Judge.</p> <p>Minnie Youngerman died testate April 26, 1905, and her will was duly admitted to probate. Six children survived her, and to each, or to the trustees for the benefit of the children of each, she left one-sixth of the residue of her estate remaining after the payment of certain legacies. The debts of deceased will not exceed $500, while there is $19,234.19 in the hands of the executor out ©f which to pay these, together with certain legacies, not exceeding in the aggregate $10,000. In addition to this, there are some household goods and one thousand and ninety-eight shares of stock in- a corporation known as the “ C. Youngerman Estate, Incorporated.” In the fourth paragraph of the original will, testatrix devised and bequeathed “ to Simon Casady and Grom Bowen, as trustees, in trust only for the use of my son George H. Youngerman or his heirs, as hereinafter set forth, an individual one-sixth.”</p> <p>The disposition to be ma'de of this was indicated in the next paragraph, which was subsequently superseded by item 5 of the first codicil, which may be set out in full:</p> <p>Item V. I desire and direct, that the one-sixth so devised and bequeathed to the said. Simon Casady and Crom Bowen, as trustees, in trust, for the use and benefit of my said son, George Youngerman and his children, shall be managed and controlled by them, the said trustees and their successors in this trust, during the lifetime of the said George Youngerman, they, the said trustees, to collect, all rents, incomes, and profits arising therefrom, and to make and execute all deeds, conveyances, releases and leases, and other instruments, as may be necessary and proper in their judgment, for the due execution of said trust, without obtaining the order of any court therefor, and to pay each year in quarterly payments,- the net income arising from the said interest, rents and profits, after paying all expenses thereof, and the expenses connected with or incident to this trust, to my said son George Youngerman, and to his four children now living to-wit: Mrs. Cora Oleson, Minnie Youngerman, Louisa Youngerman and Conrad Youngerman, each the one-fifth part of said net income; that is to say, to the said George Youngerman, one-fifth; to the said Mrs. Cora Oleson, one-fifth; to the said Minnie Youngerman, one-fifth; to the said Louisa Youngerman, one-fifth; and .the said Conrad Youngerman, one-fifth, and- at the death of my said son, George Youngerman, said trustees or their successors in this trust are hereby directed and required to pay over, or transfer, the principal sum then remaining of the undivided one-sixth, so devised to said trustees, to the children of my said son George Youngerman, now living, to-wit: Mrs. Cora Oleson, Minnie Youngerman, Louisa Youngerman and Conrad Youngerman, each share and share alike; and in case of the death of any one of the four children above named, prior to the death of their father, the said George Younger-man without leaving children, issue of their body, the share of said deceased child, so dying without issue, in the rents and profits, as well as the principal sum, shall be distributed between the survivors of said four children. And I hereby direct that the said quarterly payments herein ordered and directed to be paid to the said George Youngerman, by the said trustees, to-wit: one-fifth of the net income, shall be paid to the said George Youngerman in person, and in no event shall any such payment or any part thereof be paid to any assignee or creditor of the said George Youngerman, and in case any creditor of the said George Youngerman shall attempt by means of any legal process to collect the same, then I direct, that the amount so coming to the said George Youngerman shall be paid to the children of the said.George Youngerman, above named, or the survivors as above stated, in the same manner and in the same proportion as if he, the said George Youngerman, was then deceased, as hereinbefore stated.</p> <p>All of the beneficiaries are of age, and it 'is their contention that, being sui juris, and entitled to four-fifths of the use and to the property, the trust as to such four-fifths of the property should be dissolved and the same turned over to them and the trusteeship as to one-fifth thereof only continued in order that the income to be derived therefrom may be paid George H. Youngerman during the period of his natural life as contemplated by the will. The district court so decreed, and the trustees appeal.</p>

— Hon. J. H. Richard, Judge. Suit in equity to restrain the defendants, John Woodard, Sr., and John Woodard, Jr., from interfering with or obstructing the outlet to a tile drain. The owner of the land upon which the outlet is located intervened. The petition of intervention was stricken from the files, as was also the defendants’ amendment to answer and cross-bill.

— IioN. Clieeorj> P. SMITH, Judge. ActioN at law to recover tbe value of a mare killed upon or near defendant’s right of way in the city of Mason City. Trial to a jury, verdict for plaintiff, which was set set aside upon defendant’s motion for a new trial, and plaintiff appeals.

<p>Contagious disease: confinement in pest house: liability for expenses. The statutes relating to the segregation of persons afflicted with a contagious disease, in a detention hospital, do not contemplate that they shall be charged with the cost of acquiring and equipping the hospital; but simply with the expenses incident to attendance, nursing, board and treatment while so detained.</p>

<p>Appeal from. Fremont District Court.— TIoN. O. D. Wheeler, Judge.</p> <p>ActioN at law to recover a sum alleged to be due as part of the purchase price of certain real estate. There was a directed verdict and judgment in favor of defendant, and plaintiff appeals.— Reversed and remanded for a new trial.</p>

— IIoN. A. H. McYet, Judge. Action in equity for the partition of real estate. Decree dismissing the petition, and plaintiff appeals.

— FIon. W. H. McHenry, Judge. Suit to recover for a personal injury. There was a directed verdict for the defendant, and from a judgment thereon the plaintiff appeals.

<p>Appeal from Woodbury District Court.— HoN. J. L. Kennedy, Judge.</p> <p>-Action at law to recover damages growing out of a change in street grade. From a verdict and judgment in favor of plaintiff defendant appeals.</p>

— ITon. O. H. Kelley, Judge. Defendant, after trial, was convicted of tbe crime of incest, and was sentenced to a term in tbe penitentiary. After serving notice of appeal in form and manner and within tbe time prescribed by law, he applied by motion for an order directing that a transcript of tbe evidence taken upon the trial be made at the expense of tbe county for his use in prosecuting his appeal.

— Hon. A. H. McVky, Judge, Suit for an accounting by plaintiffs, who were borrowers from defendant, a building and loan association; for a decree that plaintiff’s obligations had been extinguished and their indebtedness paid; and for the cancellation of a mortgage given to secure the loan upon the record of Polk county. Defendant filed an answer and cross-bill, in which it asked the foreclosure of the mortgage. Decree for plaintiffs, and defendant appeals.

— IIoN. E. M. Powers, Judge.- Joi-iN Notas and others filed in the office of the auditor of Carroll county a petition praying. for the establishment of a drainage district and ditch under chapter 2 of title 10 of the Code, together with bond as required by law. Subsequently J. Roden and others filed an amendment thereto.

<p>Appeal from Calhoun District Court.— Hon. F. M. Pow-ees, Judge.</p> <p>ActioN to recover upon a policy of fire insurance. Verdict directed for tbe defendant. Plaintiff appeals.</p>

— Hon. J. H. Richard., Judge. Action to recover for a loss under a policy of fire insurance. Verdict and judgment for the plaintiffs, and defendant appeals.

— HoN. A. B. ThoeNedd, Judge. ActioN at law under tbe statute to recover of defendants, as stockholders in tbe Dalbey Lumber Company, a corporation, tbe value of certain lumber sold by plaintiff to said corporation. A demurrer to tbe petition was sustained, and tbe plaintiff appeals.

Appeal-from Buchanan District GouH.— IíoN. F. 0. Platt, Judge. ActioN iu equity to set aside a special assessment made to defray the expense of constructing a sanitary sewer in the defendant city, and for injunction. On trial plaintiff’s petition was dismissed with costs,' and she appeals.

<p>Appeal from Polk District Court.-— HoN. Jakes A. Howe, Judge.</p> <p>The appellant filed a claim against tbe estate of Miene Youngerman, deceased, to recover under a contract by which the testatrix had agreed during her lifetime to pay for tuition, books and clothing of the claimant for a course at a technical institution of learning, alleging that a portion of the expenses incurred by him in reliance on the contract remained unpaid. The claimant also asked a balance alleged to be due and unpaid out of a legacy made to him in the will of decedent. The defendant took issue with claimant as to the indebtedness to claimant under the contract or will, and asked a construction of the will, together with the contract, and that the court declare the contract so far as executed to be a satisfaction and discharge in full of the legacy. A motion to transfer the case to the equity docket for trial was sustained, and the court, after hearing the evidence, decreed that the obligations of the estate to .the claimant under the provisions of the contract and the will had been fully discharged, save that, on the completion of another year’s study in the institution referred to in the contract, a further sum of $500 would become due to the claimant under the provisions of said contract and will, providing that the legitimate expenses for tuition, books, and clothing of claimant in said institution or some other similar institution for the ensuing year should amount to that sum. From this decree the claimant appeals.</p>

— HoN. P. 0. Platt, Judge. Action to recover penalty for refusing to redeem an unused railway ticket. Judgment for plaintiff, and defendant appeals.—

— líoN. W. D. Evans, Judge. Action to recover for a loss under a fire insurance policy, in the amount of $1,000, on plaintiff’s stock of merchandise, etc. There was a verdict for plaintiff for $831.35, and from judgment' on this verdict defendant appeals.

<p>Appeal from Oelwein Superior Court. — TIon E. L. Elliott, Judge.</p> <p>Action at law to recover the purchase price of a hot air furnace, for • excavating therefor, and for certain merchandise sold and delivered. Defendants pleaded that the furnace did not comply with the terms of the contract, and that nothing was to be paid thereon unless it was satisfactory to them. Upon these issues the case was tried to a jury, resulting in a verdict for plaintiffs, and defendants appeal.</p>

— Hon. James D. Gamble, Judge. IN April, 1899, the defendants Thomas Huffman and W. E. Huffman, and one George C. Huffman, now deceased, whose administrator is a party defendant, executed a promissory note for $2,000 to the German Savings Bank, secured by mortgage on three adjoining forty-acre tracts of land; the purpose being to secure the sum of $2,000 with which to pay the purchase price to the amount of $1,000 on each of two of said forty-acre tracts, conveyed by one…

-— HoN. O: D. Wheeler, Judge. PlaiNtife exchanged 160 acres of land in Kossuth county, valued at $8,800, to Smith Bros, for a stock of hardware and implements at Shelby, Iowa, to be invoiced at market value, with 5 per cent, added for freight. The fixtures and tools were to be discounted 25 per cent., and the prices of.the cash register and safe were agreed upon.

— IíoN. O. D. Wheeler, Judge. Action in equity to bave set aside a conveyance of real estate, and for other relief. On trial tbe petition of plaintiffs was dismissed, and they appeal.

<p>1 Criminal law: confession: admissibility. The admissibility of a confession becomes a question for the jury where there is a conflict in the evidence as to whether it was voluntarily made, without inducement or promise of immunity from prosecution.</p> <p>2 Same. The fact that statements of one charged with crime may have been made under circumstances justifying their exclusion will not render a subsequent confession made under different circumstances and to different parties inadmissible.</p> <p>3 Same: exclusion of evidence: instruction. In the instant case, where certain evidence relating to the confession of defendant was stricken from the record in the presence of the jury just prior to submission of the case, failure to again advise the jury by instruction that the evidence should not be considered was not erroneous.</p> <p>4 Confessions: evidence. A wife’s confession of infidelity to her husband cannot be negatived by proof of specific acts of good conduct toward him.</p> <p>5 Jurors: challenges. The overruling of a challenge to a juror for cause is not reversible error where it does not appear that the juror was allowed to sit or that defendant’s peremptory challenges were exhausted.</p> <p>6 New trial: misconduct of juror. An affidavit merely that a juror was called from the jury room and had a conversation with a man unknown to affiant,-who paid the juror a sum of money, is not sufficient to support an allegation of misconduct; and the showing is too indefinite to cast on the State the burden of investigating the alleged misconduct.</p> <p>7 Same: evidence in support of new trial. A motion for new trial based on misconduct of the jury should be sustained by affidavit; and in the absence of a showing of inability to procure affidavits sufficient to make a prima facie case the court is not required to allow the subpoena of witnesses for that purpose.</p> <p>8 Same: failure to swear officer. Failure to swear an officer in charge of a jury does not in itself constitute ground for a new trial.</p>

<p>1 Fraudulent conveyances: limitation op action. A creditor’s right of action to set aside a deed to property, which the husband has caused to be conveyed to his wife, is barred in five years after the alleged fraud is discovered; and discovery occurs upon a record of the deed in connection with a. knowledge of facts suggesting fraud, or which if investigated with reasonable diligence would develop fraud.</p> <p>2 Same: homestead election: liability por debts. The election of a debtor to take a homestead right in property of his deceased wife, rather than a distributive share, is not a fraud upon his creditors; and such right is a mere personal right of possession and occupancy which cannot be subjected to his prior debts.</p>

— IIoN. W. B. Q.uaetoN, Judge. This is an appeal from an order made on defendants’ motion to retax the costs in certain proceedings to the plaintiff.

— IIoN. ByroN W. PeestoN, Judge. ActioN at law to recover damages for a breach of contract. The case was tried to the court without a jury, resulting in a judgment in favor of defendants for costs. Plaintiff appeals.

— HoN. L. E. Eel-lows, Judge. INDICTMENT charging the crime of obtaining money by false pretenses. Verdict and judgment of guilty, and defendant appeals.

— HoN. B. C. Platt, Judge. This action was brought at law to recover upon an ^accident insurance policy. There are several appeals before us, and the defendant is appellant in each. We shall dispose of all such appeals in one opinion. The situation presented, and the matters of controversy arising therefrom, will be set forth in the opinion.

— Hok. A. B. ThoeNeix, J udge. Suit for tbe partition of certain lands in Harrison county. Trial to tbe court, decree dismissing plaintiffs’ petition, and they appeal.

— HoN. F. M. Powers, Judge. Actio-N at law to recover damages for injuries received by plaintiff in driving into an open, unbarricaded, and unlighted excavation in a street in defendant city. Trial to a jury, verdict and judgment for defendant, and plaintiff appeals.

<p>Appeal from Harrison District Goiurt.— Hon. A. B. Thoenell, Judge.</p> <p>Action in mandamus resulted in the dismissal of the petition. The plaintiff appeals.</p>

<p>Appeal from Buena Vista District Gourt.— PIoN. A. D. Bailie, J udge.</p> <p>ActioN in attachment on service by publication in which judgment was rendered against the garnishee; no appearance being made by the defendant. The garnishee appeals.</p>

<p>1 Appeal: abstract: costs. Where by appellant’s oversight an amended abstract is filed by the appellee to make clear an apparent obscurity in the issues presented by the 'pleadings, it should be allowed to stand though not filed in time, and upon affirmance of the case the cost of same should not be taxed to appellee.</p> <p>2 Replevin: statement of issues. In replevin of cattle where the number in controversy was clearly settled by an amendment to the petition and admissions in the answer to be a less number than claimed in the original petition, and this state of facts was made clear to the jury in- the court’s instructions, failure of the court in its instructions to state the exact number in controversy involved no prejudicial error.</p> <p>3 Sarjie: misleading instructions. Where the court in an instruction undertook to copy a description of cattle as contained in plaintiff’s chattel mortgage, but omitted certain words, indicating the omission by three crosses or stars, the same is held not misleading as indicating marks or brands upon the cattle of which there was no evidence.</p> <p>4 Replevin: basis of recovery: instruction. In replevin* of cattle based on a right of recovery under a chattel mortgage as against an adverse chattel mortgage claim, an instruction which in effect advises the jury that plaintiff must recover on the strength of his own mortgage and cannot rely upon any weakness' in the title or mortgage of defendant, is correct.</p> <p>5 Same: identification of property: evidence. Strict identification of cattle in a replevin action as described in the mortgage relied upon is not essential to recovery, but plaintiff may show by any other competent evidence that the animals sought to be replevined are in'fact the same as those covered by the mortgage.</p> <p>6 Replevin: recovery: election: judgment: interest. Where the plaintiff in replevin is found entitled to recovery he may elect to have a return of the specific property or a judgment fox its value, and in case he takes a judgment he is entitled to interest at the statutory rate as a matter of law.</p>

— IIoN. W. G. Thomp-soN, Judge. The opinion states the case. From a verdict and judgment in favor of plaintiff, the defendants appeal.—

<p>Appeal from, Polk District Court.— Hon. Hugh Brennan, Judge.</p> <p>The petition alleges .the corporate' capacity of each party, the circumstances disclosed in Bank of Irwin v. American Bxpress Co., 127 Iowa, 1, wherein the former recovered judgment for $2,000 alleged to have been delivered to the latter by the defendant herein for transmission to said Bank of Irwin and failure so to do, and the subsequent discovery that the money had never be'en delivered to plaintiff herein by the defendant, and its ignorance of the fraud practiced by an employe of defendant in inserting pieces of paper, instead of money, in tbe package delivered to plaintiff as money by defendant for transmission to tbe Bank of Irwin, tbe payment of said judgment, and prayed for tbe recovery of tbe amount so paid.' Tbe defendant’s answer was in three divisions, tbe third of which only is involved in this appeal. In that division defendant set up tbe proceedings and judgment in Bank of Irwin v. American Express Go. as an adjudication conclusive on tbe parties to this action. . Tbe plaintiff’s demurrer thereto was sustained, and from this ruling tbe defendant appeals.</p>

<p>1 Grand jury: selection. Where the original drawing of the grand jury is set aside because two jurors are drawn from the same township there is no valid objection to returning the names to the jury box prior to another drawing.</p> <p>2 Same: grounds of challenge. The excusal of one summoned as a grand juror prior to the drawing of the jury--is not the basis for an objection to the jury as subsequently drawn and organized.</p> <p>3 Indictment: motion to vacate. A defendant held to answer before indictment cannot have the same set aside because of defects in the selecting, drawing and impaneling of the grand jury, under Code, Section 5331.</p> <p>4 Continuance of criminal cause: discretion. Where it was the general understanding that defendant would stand upon his demurrer to the indictment, and no demand for a trial was made until after the jury was excused for the term, a continuance of the cause on the court’s own motion is held not an abuse of discretion.</p> <p>5 Discharge of defendant: want of prosecution. Where a cause is not triable until late in the term at which the indictment is returned, and the court in a proper exercise of its legal discretion continues the cause until the next term, defendant is not entitled to a discharge for the want of prosecution.</p>

<p>1 Manslaughter: evidence: statements of accused. Where a witness had testified that defendant, accused of manslaughter, had related the occurrences of the night of the homicide, it was proper to ask him if he had said anything concerning the usual conduct of deceased.</p> <p>2 Same: conversation by telephone: identity. The testimony of a witness that he had talked with defendant over the telephone was sufficient proof of identity to take that question to the jury, and to permit evidence of the conversation.</p> <p>3 Same: hypothetical questions. Where there was no evidence as to how deceased was killed except thát he was found lying on the bed with a bullet hole through his body,. a hypothetical question assuming that he was in that position when killed was not improper.</p> <p>4 Same: competency of evidence. Evidence tending to establish murder will not be excluded in a prosecution for manslaughter if it bears directly upon an issue to be decided.</p> <p>5 Self-defense: evidence. A person' accused of manslaughter cannot claim immunity for the killing because he was a nervous, timid man and therefore acted upon an unreasonable conclusion that the killing was necessary to his self-defense.</p> <p>6 Sentence: fixing time: prejudice. Although the court pronounced judgment against a defendant convicted of crime without previously fixing the- time as prescribed by statute, still since accused had filed his motion for a new trial several days previous to his sentence, and made no further claim for error or in mitigation of punishment/ there was no prejudicial error.</p>

— Hon. Obed Cas-well, Judge. Action at law to recover upon a certificate of member-sbip in a life insurance association. Verdict and judgment for plaintiff, and defendant appeals.

<p>Appeal from Marshall District Court.— Hon. G. W. Bukn-■ham, Judge.</p> <p>The petition alleges that Carrie, C. W., Anna M., and Matena C. Nelson constitute the Marshall Ice Company; that the above-named parties had leased a tract of land, including a portion of the bed of the Iowa river, for a term of ten years, constructed icehouses thereon, and occupied the same, and had conducted the .ice business there ever since; that in December, 1902, they acquired the said tract by a deed of conveyance from Walter A. and Victor C. Fallgat-ter and wives,'the grantors, retaining title to an adjacent and contiguous tract, whereon is located, constructed and had been maintained for forty years a milldam six and one-half feet high across the Iowa river; that thereby a head of water, or water level, far back in the river and tributaries to the height of the dam had been maintained, subject to the reasonable use of the Marshalltown mills; that this condition existed at the time of the conveyance, and relying upon its continuance, plaintiff expended large sums of money in erecting icehouses and equipping the same on the premises so conveyed; that for nearly twenty years plaintiffs and their assignors had conducted an ice business at that location, and built up a large trade, which, with their investment, now depends on the maintenance of the water level; that the artificial condition of the water was open and apparent at all times, and constituted an easement appurtenant to the premises purchased by plaintiffs; that the premises wer.e purchased and the improvements made in contemplation of the maintenance of such artificial condition of the water level; that the defendant subsequent to said purchase procured a conveyance to himself from the grantors of the tract of land retained by the Fallgatters on which the milldam was constructed, and it is his purpose to destroy the said dam for the purpose of lowering the water level in said river; that should this be done irreparable injury would result and practically annihilate the plaintiff’s property and ice business; that said business is dependent upon the maintenance of the water level, which can only be done by continuing the dam; that all plaintiff’s improvements have been made in contemplation of the water level as it is, and it is prayed-that the defendant be temporarily enjoined from interfering with the dam save by the use thereof in operating the mill appurtenant thereto, and from preventing plaintiffs, or their grantees or assigns, from entering upon the premises and repair or maintain the said dam, and that upon hearing said injunction be made permanent. Copies of the lease and deed were attached to the petition, and the temporary writ of injunction granted. The plaintiff af-terwards amended the petition in response to the-motion for a more specific statement, which amendment need not be set out save in that it is alleged that the artificial condition of the water constitutes an appurtenance to the premises conveyed to these plaintiffs, and that the tract on which the dam is situated is charged with the servitude of maintaining such artificial condition of the water. The court then upon motion struck out that portion of the petition and amendment alleging the expenditure for improvements on the land under the lease. The plaintiffs then filed another amendment, alleging that at the time of the conveyance these plaintiffs owned ice houses and other equipments located on the premises, and that the ice business had been maintained prior thereto by virtue of said written lease with full knowledge of the grantors; that the icehouses and equipment had been used and occupied in such mánner and for such purpose for many years prior to the conveyance, and have been used and occupied since; that the principal value of the premises conveyed to plaintiffs consisted in the use that might he made of them by reason of the conditions and situation. Thereupon the defendant 'filed a general demurrer, which was sustained by the court.</p> <p>Some months later the plaintiffs filed a third amendment to the petition, alleging the leasing of privileges from riparian owners for the cutting and harvesting of ice up the river from the dam, and numerous leases were attached; that these were secured in contemplation, and their only value was based on the maintenance of conditions as they were; that these were procured at considerable expense, and their value would be destroyed by the removal of the dam. Plaintiffs further alleged that they were in full possession of the premises prior to the conveyance under the lease, and have continued without interruption since in the obvious, open, and apparent exercise of their rights, and have expended large sums of money in constructing icehouses and in their equipment for harvesting and selling ice, all of which would be a permanent injury, and they would suffer great loss by the destruction of the dam as threatened; that the immediate grantors of plaintiffs are the riparian owners of the premises below the dam and from which the water is held back, and were such at the time of the conveyance. Shortly afterwards the defendant filed an answer specifically admitting or traversing every' allegation in the plaintiff’s petition. The partnership was admitted, also the execution of the lease and deed, and that plaintiffs are the owners of the real estate as, alleged, that the dam was constructed across the river, that the dam backed water up as stated, and that it is the purpose of defendant to remove said dam and restore the water to the condition it was prior to its construction.</p> <p>Defendant put in issue all other material allegations of the petition and amendments thereto, and by way of affirmative defense the defendant alleged he is the owner of a tract of three hundred and fifty acres of land through which Asher creek, tributary to Iowa river, passes, and to which the backwater occasioned by the dam causes great damage, and that a large amount of land owned by other parties is injured by the damming of the river; that in. 1904, in an action brought by defendant against Pallgatter Bros., the then owners of the dam, to prevent raising the same by the use of flushboards, their right to use the same for the purpose of running the mill was established by grant and prescription; that thereafter this defendant, assisted by other riparian proprietors, negotiated with Pallgatter Bros, for the purchase of the real estate upon which the dam is constructed; with a view of removing the same and thereby avoiding further injury to their land; that the purchase was made with the express object of removing the dam; that this was well known to C. W. Nelson, the managing partner of plaintiffs, and that, though being aware of such negotiations, and their object, he made no objection thereto; that defendant paid the consideration in reliance upon there being no objection on the part of plaintiffs, and for this reason they are forever estopped from claiming any easement or servitude in the estate. The defendant further alleged specifically the injury to the land because of the back-up of the water due to the dam of the river, and that its removal would be of great value to the defendant and other riparian owners. The defendant further answered that the only right to dam the river was for the purpose of operating the Marshalltown Plour, Mills, and upon ceasing to use the water for that purpose the right to continue the dam was terminated; that this was well known to plaintiff, and defendant denied the right of plaintiff to trespass upon his property for the repair or maintenance of - the dam. Plaintiffs further alleged that the defendant had disposed of to the city of Marshalltown whatever easement or right he had, and that this defendant had no right to continue the dam in the river, and that the same was a public nuisance and in contravention of the criminal and civil laws of the state. A few days later the defendant filed a motion, supported by affidavits, asking that the temporary writ of injunction be dissolved. Tbis motion was sustained, and from tbis ruling plaintiffs appeal.</p>

— IíoN. Obbd Cas-well, Judge. Action to recover money received by J. J. Mosnat, deceased, as attorney for plaintiff, on certain fire insurance policies placed in bis bands by plaintiff for collection. For defendant a settlement was pleaded in wbicb, as alleged, tbe full amount of tbe money received by Mosnat beyond bis reasonable fees as attorney for plaintiff bad been paid over Or accounted for.

— HoN. O. D. Wheele-e, Judge. This proceeding to require defendants to refund to plaintiff $2,000 for extortionate fees exacted from bim by defendants in excess of a reasonable compensation in their capacity as his attorneys was instituted in the lower court by motion, as authorized by Code, section 3826. After hearing the evidence the lower court dismissed plaintiff’s action, and he appeals.

— Hon. W. G. Thomip-son, Judge. Action in equity to establish and quiet title to real estate. The case is stated in the opinion. There was judgment dismissing the petition and for costs, and the plaintiffs appeal.

— HoN. Feed O’DoN-Nell, Judge. ActioN at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.

— IIoN. J. H. EotheocK, Judge. • Action to recover damages for slander. There was a general denial and an allegation of facts tending to show privilege. At the close of the evidence for plaintiff the court sustained defendánt’s motion to direct a verdict in his behalf, and from a judgment on this directed verdict the plaintiff appeals.

— Hon.’ J. H. Richard, Judge. Nial McDonald died testaté in October, 1904, and the defendants are the duly appointed executors of his estate. On the twenty-second day of March, 1905, the plaintiff filed a petition in the district court against them as such executors, praying for tbe establishment of a claim for tbe amount due on tbe contract for tbe sale of two hundred'and forty acres of land to deceased.

— IIoN. J. H. PeestoN, Judge. Action in equity to set aside a sheriffs sale of real estate under execution. Prom a decree in favor of plaintiffs, the defendants appeal.

— Hon. M. 0.. Matthews, Judge. ActioN to recover $500, tbe amount specified in a due bill given by defendant to plaintiff for tbe balance of tbe' purchase price of a telephone system, on condition that it should be paid as soon as the terms of the bill of Sale and contract of sale had been complied with. Defendant denied compliance on the part of plaintiff with the terms of the contract, and, by way of counterclaim, asked damages for breach of the contract of sale.

— HoN. P. M. Powers, Judge. IN a receivership proceeding instituted by plaintiff to wind up the affairs of the -Dedham Savings Bank, A. J. Ayrhart was appointed receiver. Thereafter the intervener asked the allowance of its claim agáinst the bank in the sum of $1,696.60, balance due on a certificate of deposit.

— IIoN. A. D. Bailie, Judge. ActioN at law to recover a commission for finding a purchaser for a grain elevator belonging to defendant, situated in the town of Pocahontas. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.

— IíoN. A. D. Bailie, Judge. This is an action to recover the purchase price of a road grading machine, sold by plaintiff to defendant township. On a trial to a jury the defendant moved, at the close of all the evidence, that a verdict be directed in its favor, which motion was sustained, and, from a judgment on such verdict, the plaintiff appeals.

— HoN. W. B. QuartoN, Judge. ActioN in equity to set aside the probate of a will. The hearing resulted in a decree in favor of plaintiff, and the defendants appeal

<p>Appeal from Olay District Court.— How. A. D. Bailie, Judge.</p> <p>Prooeediwg for the modification of a divorce decree in so far as the same has relation to the custody of the minor children of tbe parties. The application is by defendant, and was filed in tbe main case. From a supplementary decree entered, plaintiff appeals.</p>

— HoN. J. H. Kich-ard, Judge. Suit in equity to enjoin the sale of certain real estate on execution. Decree dismissing plaintiff’s petition, and she appeals.

Superior Court.— Hok. W. L. Me- • Namaba, Judge. This is an action in equity, brought by plaintiff to compel tbe removal by defendant of certain obstructions placed on ber property by him, and to enjoin further acts of trespass. On the filing of the petition, a temporary writ of injunction issued.

<p>1 Evidence of market value: competency of witness. One shown to have been a farmer for many years is competent to testify to the market value of land upon which he previously lived and cultivated.</p> <p>2 Impeaching evidence: rebuttal. It is competent on rebuttal for plaintiff to explain impeaching testimony offered by defendant.</p> <p>3 New trial: numbering instructions. A new trial will not be granted for failure to number the instructions.</p> <p>4 Fraudulent statements of vendor: sufficiency of proof. In an action for damages for fraudulent representations inducing the sale of land, it is not necessary for plaintiff to prove every alleged statement; recovery may be had upon proof of one or more statements by a preponderance of the evidence and that plaintiff relied thereon to his injury.</p> <p>5 Same: instructions. An instruction in effect, that to recover for false representations inducing the purchase of land the same must have been false to the knowledge of the vendor, that they must have been a material inducment and relied upon by the vendee- in the belief that they were true, is approved.</p> <p>6 False representations: measure of damages: instruction: evidence. A general instruction, in an action for damages based on alleged false representations inducing the purchase of land,' that the measure of damages is the difference in value between the land as represented and its actual value is sufficient, without specific reference thereto in connection with each false statement; and the agreed price of the land is sufficient proof of its value as represented to support recovery-. ,</p> <p>7 New trial: newly discovered evidence. In an action for inducing the purchase of land by false statements, neither newly discovered evidence consisting of what certain witnesses said to plaintiff regarding the quality and condition of the land purchased by him, nor what they had heard regarding the same before he made his purchase, will support a new trial, in the absence of any showing that the information was communicated to the plaintiff prior to the purchase.</p>

<p>'Appeal from Marshall District Court.— HoN. G. W. BueN-i-iam, Judge.</p> <p>The defendant was convicted of baving committed rape, and appeals.</p>