Volume 137 — Iowa Reports

— Hon. ¥m. G-. Thompson, Judge. Action to recover quantum meruit for a cement walk constructed for defendants by plaintiff under a contract, and also to recover damages for the conversion of such walk. There was a directed, verdict for defendants, and from the judgment thereon plaintiff appeals.

— Hon. F. W. Eiciiilberger, ’Judge. Ti-ie defendant was put on trial for murder, and was convicted of murder in the second degree. From the judgment he appeals.

— Hon. Wm. Gr. Thompson, Judge. Action in equity to quiet title to certain lots in the city of Cedar Rapids. Decree dismissing petition, and plaintiff appeals.

— Hon. F. M. Powers, Judge. Suit on a note. Defense, want of consideration, fraud, misrepresentation, and duress. Trial to the court without a jury, and judgment for the plaintiff. The defendant appeals.

<p>Appeal from Harrison District Court.— Hon. W. R. Green, Judge.</p> <p>The, opinion states the case.</p>

— Hon. W. B. Quarton, Judge. Suit in replevin to recover building material. A demurrer to- tbe petition was overruled, and, tbe defendant electing to stand on his demurrer, judgment was entered on tbe petition. Tbe defendant appeals.

— IIon. W. G. Thompson, Judge. The respective defendants were separately convicted of maintaining an intoxicating liquor nuisance, and each has appealed. The several appeals involve the same questions, and they have been submitted together.

<p>1 Taxation: stock of foreign corporation. The capital stock of a foreign corporation is to be assessed to the owner residing within the State at -his place of residence, regardless of its assessment in the foreign State.</p> <p>2 Same: classification. For the purposes of taxation shares of stock in a corporation are classified as personal property.</p> <p>3 Same: double taxation. The taxation of corporate stock in the domicile of the corporation and also to the owner residing in another State is not double taxation within the condemnation of the law; it is only where the additional burden is imposed upon the same property by the same sovereignty.</p> <p>4 Same. There is a distinction between the capital stock of a corporation and the shares of its capital stock; each represent different property rights which are the subject of taxation.</p> <p>5 Same: constitutional law. The statutes authorizing' the listing and assessment of shares of capital stock, held by residents of the State in a foreign corporation, are not unconstitutional in the sense that they are not uniform in operation.</p>

<p>1 Divorce: grounds: -pregnancy before marriage. The fact that a husband had carnal knowledge of his wife prior to marriage will not preclude a divorce on rthe ground of her pregnancy by another at that time, where he was wrongfully induced by the wife to believe that her condition was the result of his intercourse.</p> <p>2 Same: legitimacy of issue: presumption. A child born at any time during wedlock is presumed a legitimate issue; but this may be rebutted by showing the husband incompetent, or that he had no access to the mother, or was absent during the period at which the child must have been begotten, or was present under such circumstances as clearly preclude the idea of paternity.</p> <p>3 Same: evidence. In an action for divorce on the ground that the wife was pregnant by another at the time of marriage, neither the declarations nor the evidence of either spijouse is competent on the question of access or nonaccess of one to the other; but this does not prohibit the use in evidence of the wife’s admissions of illicit relations with one other than her husband.</p>

— Hon. A. D. Bailie, Judge. S. C. Bradford owned section 27 in township 92, range 35, in Buena Vista county, with a mortgage of $6,000 to the Bankers’ Life Association of Des Moines, Iowa, on the south half and a like mortgage on the north half. March 18, 1901, to secure the payment of $10,000, he executed a conveyance of the entire section to Chas. N. Voss, who entered into an agreement to reconvey upon the payment of that amount with interest.

<p>Appeal from, Linn District Court.— Hon. B. H. Miller, Judge.</p> <p>Action in equity to construe the provisions of an instrument of will, and for general equitable relief. Trial was had and a’decree entered, to which defendants took exception, and they appeal.</p>

<p>1 Personal injury: release from liability. A release from liability for personal injury is conclusive unless it is shown to have-been procured by fraud.</p> <p>2 Same: fraudulent statements. Ordinarily a physician’s statement that a personal injury will be cured within a certain time is so much a matter of opinion that a fraudulent purpose in making the statement cannot be predicated on the mere fact that recovery does not result as soon as anticipated. In the instant case the statements of a railway physician are held' insufficient to constitute a fraudulent inducement to a settlement and release of the company from liability.</p> <p>3 Same. The settlement of a railway claim agent with an injured party before he has had time to realize what he has suffered, or is liable to suffer, may be looked upon with suspicion; but in the instant case no evidence of fraud or imposition is shown.</p> <p>4 Same. A woman of mature years and in full possession of all her mental faculties is competent to settle and release a claim for personal injury; and where neither want of capacity nor fraud is shown in the settlement the question of its validity is not for the jury.</p>

— IIon. _ Obed Caswell, Judge. Suit to recover damages for a personal injury. Trial and verdict, and judgment for the plaintiff. The defendant appeals.

— IIon. A. D. Bailie, Judge.' Suit on a promissory note. Trial to a jury, and verdict and judgment for the defendant. The plaintiff appeals.

<p>1 Execution sales: redemption. Strict redemption from an execution sale can only be made as provided by statute, that is-by paying the amount to the clerk and filing a sworn statement of the nature and amount of the redemption lienholder’s claim; so that mere payment of the amount necessary to rede.em by the lienholder to the attorney of the purchaser at the execution sale is not a statutory redemption.</p> <p>3 Same: assignment of certificate of sale: authority of attorney. The attorney for one who has, through judgment and execution sale, acquired for his client a sheriff’s certificate to the property has no implied authority to accept the amount represented thereby from a lienholder, when the certificate is in the hands of his client, and bind his client to a transfer of the certicate: in order to defeat the efficacy of the certificate in the hands of the purchaser there must be either a statutory redemption, or a binding agreement to transfer the same.</p>

<p>1 Master and servant: assumption of risk: instruction. Where a servant in an action for injuries alleges generally that the risk assumed by him was not of such dangers as were incident to his employment, which is met by a general denial, the question of assumption of risk is sufficiently presented by an instruction that such risks are those which as a matter of law are necessarily incident to the employment, and reasonably incident to a discharge of the servant’s duties.</p> <p>2 Same. An instruction that the burden is on the employer to show assumption of risks incident to the employment, and in the same connection that the master must furnish a reasonably safe place for the servant to work, is held misleading; as tending to confuse the distinction between an assumption of the 'obvious risks of the employment with the assumption of those risks incurred by continuing the service with knowledge that the master had failed to take proper precaution for the servant’s safety.</p>

— Hois. Clifford P. Smith, Judge. Action in equity to enjoin tbe collection of an assessment made to pay the cost of the construction of a ditch, and to set aside and cancel such assessment. On trial plaintiffs’ petition was dismissed as without merit, and they appeal.

<p>1 Criminal law: retrial: transcript at expense of county. Where there is a retrial after reversal upon substantially the same evidence, which is available to defendant, the county ought not to be burdened with the expense of a'second transcript.</p> <p>2 Same: bill of exceptions. The statute making the shorthand. notes and their extension a bill of exceptions does not deprive the court of the right to settle and approve a bill of exceptions according to the former practice.</p>

<p>Appeal from, Linn District Court.— Hon. Milo P. Smith, Judge.</p> <p>Defendant, having been convicted of murder in the first degree, perfected his appeal to this court, and then applied to tho district court for a transcript of the evidence adduced on the trial at the expense of the county. In support thereof was his affidavit to the effect that he was with'out money or means of any kind. On the other hand, the State filed the affidavit of the county attorney, denying that the defendant was without means, and stating that at the time of his arrest he was owner of forty-six acres of land, forty of which was exempt from execution, of the value of $3,500, and considerable personal property, and that thereafter, August 13, 1906, he executed a voluntary conveyance thereof to one Green as trustee, with direction to sell the same, and, after paying a small indebtedness, divide the remainder among his children, and that none of said real estate had been sold. Thereupon the attorney appointed to defend in the district court filed 'an affidavit that he had made thorough investigation of the facts, and that as he had been informed, and verily believed, the property in great part had been earned by the wife and children of defendant, and was considered the property of his wife; “ that defendant’s wife had continually worked on the farm and conducted the same and earned the same, and the same was always considered by herself and by the defendant as her property; that at the time of his said arrest his children and sons demanded that he convey the said property to the said children as the heirs of their said mother, and, the same being in fact and in law the property of the said heirs, he did, therefore, make such deed, and for that reason and purpose only; that he was and is unable to regain said property, as the same is' not his property; that he has no property whatsoever as alleged in his original affidavit; that said forty acres so standing in his name was not worth the sum of $3,500, but not to exceed $2,400, and was not fully paid for. He further says that said property is not available to this defendant, and that he is unable to procure one cent of it from the said Green.” The transcript of a justice of the peace showing that information was filed and defendant waived preliminary examination August 8, 1906, and the deed to Green, were introduced in evidence. The court entered an order refusing a transcript at the county’s expense. The defendant appeals.</p>

— Hon. Obed Caswell, Judge. Action for damages on failure to perform contract for •exchange of properties resulted in judgment as prayed. The defendant appeals.

HoN. OBED CAS-WELL, Judge. Action to establish a claim for the care and- maintenance of Michael Carmody, an insane person who has been kept by the county at its poor farm since 1878. The county was allowed its claim in the sum of $120 and no more, and appeals.

<p>Appeal from Linn District Court.— Hon. Wm. G. Thompson, Judge.</p> <p>The first of these cases is an action in equity brought by Nancy Reed and Mary M. Reed to restrain the city of Cedar Rapids from levying an assessment against the plaintiffs’ property for the proposed construction of a sewer, and also to restrain the appellant Dearborn from accepting sewer certificates for any sewer that might be constructed, or from disposing of such certificates, and asking that plaintiffs’ title to said property be quieted against any claim for any assessment made or any certificates issued, or against any claim or alleged lien against the property of plaintiffs by reason of said sewers. The second of the cases was an appeal by John A. Reed, Mary M. Reed, and Nancy Reed from the action of the city council of the city of Cedar Rapids in levying assessments against their property by reason of the construction of the same sewers that were involved in the first case. When the cases were called for trial, they were by agreement consolidated.</p> <p>In November, 1903, the property owners of the district covered by the sewers in question petitioned the city council of Cedar Rapids for the extension of the sanitary sewers through that district. At the same time the plaintiffs in the first suit, Nancy Reed and Mary M. Reed, circulated and filed a remonstrance against such extension of the sewers. The other appellee, John A. Reed, was not then interested in the property, and did not act other than as the attorney for the plaintiffs named. On the 20th of May the city council passed a resolution of intention to construct these sewers, and notice of such intention was published on June 1st, 2d, and 3d. On June 10, 1904, the sewers were ordered by resolution of the council, and the chairman of the public improvement committee was directed to advertise for proposals for their construction. To all of this the plaintiffs interposed their objections. Notice to contractors was thereafter published,' and on June 24, 1904, the contract for .the construction of the sewers was awarded to W. N. Dearborn, one of the defendants in the first or injunction suit, which was commenced in August, 1904. In November following the public improvement committee and city engineer reported that the sewers had been completed and recommended the acceptance of the same, and on the same day the city by resolution accepted the same, and directed ten days’ notice to be published of the intention of the council to assess the cost of their construction upon the abutting and adjacent property. Objections were' required to be in writing and filed with the city recorder on or before the second day of December, 1904. On said date the plaintiffs in the injunction suit and John A. Reed, who had in the meantime become interested in the property, filed their written objections to the assessment. At the council meeting on December 2, 1904, these objections were referred to the public improvement committee, and on the 16th day of the same month this committee reported adversely thereon, and at a meeting of the city council held that day the assessment was made. From this assessment an appeal was taken to the district court. On the trial of the consolidated cases there was a judgment for the Reeds, from which the city of Cedar Rapids and Dearborn appeal;</p>

<p>1 Contract for services: evidence: conclusion: harmless error. Where there is no serious conflict as to the current wages and plaintiff has testified to the length of time he has worked, in a suit for services under an oral contract, his statement of the amount due is not prejudicial as being a conclusion, since the amount due is merely a matter of computation.</p> <p>2 Same. Where the defense, in an action for services under an oral contract was a specific agreement to do certain work, rejection of oral evidence that men employed on the work' were not on defendant’s pay roll was not prejudicial, where the pay roll itself was subsequently admitted.</p> <p>3 Same. The testimony of defendant in an action for services as to the nature of the work contemplated by the contract of employment, but not shown to have been communicated to plaintiff, was properly excluded.</p> <p>4 Evidence: offer of compromise. An offer of compromise and settlement which amounts to an admission of indebtedness, and not made simply to avoid litigation, may be shown in evidence.</p> <p>5 Evidence: admissions against interest. In an action for services an account book kept by plaintiff and containing entries tending to show that he was doing the work by contract rather than by the day, as contended by plaintiff, is admissible as a written declaration against interest.</p>

— Hon. O. H. Kelley, Judge. Suit to recover damages for injury to a livery rig hired by the defendant. There was a verdict and judgment for the plaintiffs, from which the defendant appeals.

— Hon. Henry Bank, Jr., Judgé. Ti-ie defendants Thomas and Frank Dodson are house movers, and had contracted with the defendant Hughes to-move a certain house described as sixteen and a half feet wide by thirty feet long and twenty-one feet high, from a point in the.western limits of Ft.

<p>Appeal from Hamilton District Court.— How. J. E. Whitaker, Judge.</p> <p>Suit in equity to rescind an exchange of properties. Judgment for the plaintiff, from which the defendant appeals.</p>

— Hon. James H. Rothrock, Judge. Action at law to recover damages for personal injuries received by plaintiff while in defendant’s employ. Trial to a jury, resulting in a verdict for $5,000, which was reduced to $2,500 by the trial court, and judgment rendered for the amount of the verdict so reduced. Defendants appeal.

<p>Principal and agent: subagency: liability of principal. An agent when authorized may employ a subagent or assistant, whose knowledge concerning his act done within the scope of his authority will be imputed to the principal.</p>

— Hon. J. H. Preston, Judge. Action at law to recover a sum which plaintiff claims he by mistake overpaid to the defendant. There was a verdict and judgment for the plaintiff, and the defendant appeals.

— -Hon. J. H. Preston, Judge. Suit on a note given for tbe price of horses. Defense and counterclaim, based on breach of warranty and fraud. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.

— Hon. W. D. Evans, Judge. This is an original proceeding in certiorari to test the validity of an order and judgment finding complainant guilty of contempt in violating an injunctional order issued against him in a case of Plummer v. Hatlestad et al., 132 Iowa, 188, in the Hardin county district court.

<p>1 Divorce: fraud: new trial. A court of equity has power to grant a new trial in an action for divorce where the decree was procured by fraud, although the petition for new trial was not filed within the statutory period; but the fraud authorizing a new trial under this rule must be extrinsic or collateral to the matter directly involved in the original decree.</p> <p>2 Same. Where the petition for a new trial in a divorce action discloses a plan on the part of the plaintiff to bring about a separation and to secure all the property acquired by the joint efforts of the parties, the court is justified in granting the petition, though not filed within the statutory period; even though the defendant also alleges in the petition that the divorce was obtained by the false and fraudulent allegations of desertion.</p>

— Hon. J. H. Preston, Judge. Suit to recover damages for a malicious prosecution. There was a directed verdict for the defendant, and a judgment thereon, from which the plaintiff appeals.

<p>Appeal from Johnson District Court. — 'Hon. O. A. Byington, Judge.</p> <p>This is an appeal by the State from the ruling of the trial court sustaining a petition for new trial in an action in which judgment was rendered against the defendant that he pay $60 per year for the support of a bastard.</p>

<p>1 Fraudulent Representations: verdict upon conflicting evidence. Where there is a decided conflict in the evidence relating to alleged false representations inducing the purchase of land, and much of the testimony relied upon by the plaintiff, in the form of statements made after the deal was closed, was so explained by defendant that if true the jury might have given them no effect in proof of fraud, a verilict for defendant will be sustained.</p> <p>2 Instructions: review. Instructions not excepted to when given or in the motion for a new trial will not be considered on appeal.</p> <p>3 Fraudulent representations: evidence: instruction. In an action for false representations inducing an exchange of land, the value of the land given by plaintiff in exchange is admissible as a circumstance bearing upon the plaintiff’s probable reliance on the alleged false statements.</p> <p>4 Exclusion of evidence: prejudicial error. The rejection of evidence concerning a fact which is fully established by other competent evidence is not prejudicial error.</p> <p>5 Evidence of value. In an action for false representations inducing an exchange of land the deed is not competent evidence as to the amount paid or the value of the property: nor are subsequent deeds of the property to third persons admissible for any purpose.</p> <p>6 Hearsay, evidence. Neither what an agent of plaintiff employed to investigate land for which he had negotiated, nor what a third person at the agent’s solicitation may have reported, is competent in an action for the defendant’s alleged false statements inducing the sale.</p> <p>7 Evidence of Value. The plaintiff in an action for fraud in the exchange of land cannot show, in his evidence in chief, from whom he purchased the land which he exchanged, or what he paid for it, although the same might have been competent in rebuttal; or, where purchased from one of defendants, competent for impeachment purposes; or, as showing plaintiff’s belief as to its value.</p>

— Hon. M. A. Eoberts, Judge. Action in equity brought by plaintiff,' as tbe widow of Tbomas D. Wallace, who died on March 30, 1906, to set aside a deed, of said Thomas D. Wallace-to his children by a former marriage, which deed, as plaintiff alleges, was executed and recorded within two days prior to the marriage of said Thomas D. Wallace to plaintiff, without plaintiff’s knowledge and without consideration, and with the fraudulent intent and purpose of preventing plaintiff…

<p>Change of place of trial: costs : attorney’s fees. The allowance of traveling expenses and attorney’s fees in moving for a change in the place of trial, where a" suit is brought in the wrong county, is largely discretionary; and where there is no reason to apprehend the resistance of a motion for the change the court may refuse to allow such expense, except that reason- ■ able compensation to the attorney for preparing and filing the motion should be ordered.</p>

<p>Appeal from Cass District Court. — ■ Hon. A. B. Thoknell, Judge.</p> <p>The. opinion states the case.</p>

<p>Appeal from Polls District Court.— Hon. Jas. A. Hcvre, Judge.</p> <p>Suit on an insurance policy issued to tbe plaintiffs wife. There was a directed verdict for tbe defendant, and from a judgment tbereon tbe plaintiff appeals.</p>

— Hon'.' Edmund Nichols, Judge. The indictment against defendant charged that on a date named, in the county of Madison, he “ did unlawfully, maliciously, and willfully throw a stone which he then and there had and held in .his hand at a railroad train which was then and there on the track of the Chicago Great Western Railroad Company, and was known as ‘ train No. 3,’ the intent being to charge the crime described in Code, section 1810, which provides that ‘ if any person…

— ITon. F. W. Eiciielberger, Judge. Action at law to recover damages received upon wliat is claimed to be one of the streets of defendant town. At tbe conclusion of plaintiff’s evidence tbe trial court on motion directed a verdict for defendants, and plaintiff appeals.—

<p>1 Corporations: issuance of stock: action foe value: pleadings. In an action for the value of corporate stock claimed as compensation for services, an allegation in the answer that subsequent to the performance of the service the corporation became involved in internal difficulties, and that its records failed to show the names of persons entitled to stock was properly stricken because without merit as a defense; especially as there was no alleged difficulty respecting the stock claimed by plaintiff.</p> <p>2 Same: delivery of stock: action for value. A corporation is not required to personally deliver stock which it has contracted to issue; upon its allowance and notice it becomes the duty of the claimant to request its issuance and delivery, in default of which he cannot convert his claim into a demand for a money judgment based on the market value of the stock. "3 Same: tender after suit. In a suit for' the value of corporate stock because of alleged failure to issue and deliver the same, the defendant may plead the issuance and tender thereof, even though no demand was made, and that it brings the stock into court for plaintiff’s use and benefits, on the theory that such tender amounts to an offer to waive demand for its issuance and as evidence of its willingness to make delivery and thus avoid further controversy.</p> <p>4 Same: evidence. In an action for the value of corporate stock claimed for services rendered under a contract with an agent of the corporation, the plaintiff should not be denied the right to give the details of his employment because the authority of the agent was not shown, where the defendant in effect alleged in its answer that it had issued and tendered the stock to plaintiff and offered the same in court for his benefit.</p> <p>5 Same: evidence of value. One claiming the value of corporate stock in default of its issuance to him must show demand and refusal to deliver the same before he is entitled to prove its value.</p> <p>6 Same: evidence of ratification. On an issue of ratification of the contract of an agent for the issuance of corporate stock in payment for his services, the articles of incorporation governing the issuance of stock, authorizing the employment of agents and fixing the liability of the corporation for their acts, are admissible; and where the corporation’s governing body is a board of directors, the minutes of the board proceedings are also competent on the issue of ratification of the acts of an agent.</p> <p>7 Appeal: scope of review. Although both parties at the close of the evidence move for a directed verdict, neither can insist as against the other that the appellate court is limited, in reviewing the action of |he trial court, to a consideration of the correctness of its findings of law.</p> <p>8 Corporations: contracts of agents: ratification: evidence. Where a right of recovery against a corporation upon a contract made by an agent prior to organization depends upon ratification of the contract, it must be by the officer or governing body having authority to make such a contract, and the ratification' must be upon full knowledge of the facts. Evidence held insufficient to show ratification.</p> <p>9 Issuance of stock: demand:' action for value. A demand upon a corporation for the issuance of stock must be made upon the officer or governing body authorized to issue the stock; and a demand by letter is not sufficient to support an action for its value, since the corporation is not required to perform any other act than that of making manual delivery when called upon for that purpose.</p> <p>10 Same: refusal to issue stock. Delay in the issuance of capital stock of a corporation must be unreasonable to amount to a refusal to issue the same, and the question thus presented is for the jury.</p>

<p>1 Conveyances: delivery. Ordinarily title to real property does not pass until there has been a delivery of the instrument of conveyance, either to the grantee or his agent authorized to receive the same for him. In the instant case the husband who was the real owner of the property, without any contract relations with his wife, caused the conveyance to be in her name with delivery of same to him, and it is held that there was no delivery investing the wife with title.</p> <p>2 Action to quiet title: pleading: sufficiency. The petition in an action to quiet title need not follow the precise wording of the statute; it is sufficient if the plaintiff asserts his absolute title, that defendant is claiming an interest in the property, describing it, which is without merit and asking that his title be confirmed and that defendant’s claims be forever barred and cut off; without alleging in express terms that defendant claims adversely to him.</p> <p>3 Original notice: sufficiency. The original notice in an action to quiet title must accurately describe the property and in general terms state the nature and extent of plaintiff’s claim. In the instant case the notice is held sufficient.</p> <p>4 Judgments: vacation for fraud. A court of equity may vacate a judgment on the ground of fraud practiced in obtaining the same, in an action brought after the time allowed by statute for granting a new trial, but such fraud must be something extrinsic and collateral to the questions examined and determined in the original action; so that falsely representing in a sworn petition in an action to quit title, that plaintiff was the owner in fee of the lands described therein, is not such fraud as will authorize a court of equity to set the judgment aside.</p>

— IIon. F. R. Gaynoe, Judge. Action to recover a commission for effecting tbe trade or exchange of a hotel and livery barn belonging to defendant. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

— Hon. A. J. House, Judge. Appeal from the action of the district court in setting aside an assessment on moneys and credits against plaintiff for the year 1906.

<p>Appeal from Van Burén District Court.— Hon. Dan M. Anderson, Judge.</p> <p>The opinion states the ease.</p>

<p>Appeal from Monroe District Court.— Hon. F. W. Eichedberger, Judge.</p> <p>A statement of general consent for the sale of intoxicating liquors in Monroe county, Iowa, having been presented by the defendants to the board of supervisors, and having been by that body canvassed and adjudged sufficient, the plaintiff, J. S. Moon, a citizen of the county, appealed from said finding to tbe district court. Afterwards, and pending this appeal, two other citizens of the county, H. W. Watson and E. P. Downing, sued out a writ of certiorari to have said action of the board of supervisors adjudged illegal and void on various grounds set forth in the petition for the writ. Thereafter, the writ having been issued and return made thereto, the district court found for the defendants, and dismissed the proceedings. After the certiorari case had been thus disposed of, the defendants filed a motion to dismiss the appeal which had been taken by Moon, assigning as a ground therefor the alleged fact that Moon was a member of the same voluntary association with the plaintiff in the certiorari proceeding, and that in taking said appeal and suing out said writ of certiorari all of said parties were acting as the agents of said association, and that having elected to pursue the remedy by certiorari to an unsuccessful termination neither they nor any others constituting said association could further maintain the appeal. This motion was supported by the affidavit of one of the defendants to the effect that he “ is informed and believes ” that Moon, Watson and Downing are all members of the Monroe County Law Enforcement Association, and that in taking the appeal and in suing out the writ of certiorari said persons acted for and represented the association. The motion to dismiss was overruled, and the defendants appeal.</p>

— How. R. P. Howell, Judge. Application of tbe legatees entitled to certain moneys, mortgages, and stocks after the death of the life tenant for an order requiring said life tenant to give security that the corpus of the legacy be forthcoming at her death. The relief was granted as prayed, and defendant appeals.

— Hon. William Hutchinson, Judge. Suit ou a bond guaranteeing the collection of certain accounts. There was a directed verdict for the surety E. J. Porter, and for W. S. Warfield, administrator, and from a judgment on said verdict the plaintiff appeals.

— Hon. Edmund Nichols, Judge. Elias Cadwell died intestate April 10, 1904, and Leander E. Cardell was duly appointed administrator of his estate. In due time he filed a list of heirs and a petition praying for an order of distribution. One Sally W. Howe, a niece of deceased, had she survived him, would have been entitled to 12/1344 of the estate. She left three children, Iola B. Guppy, Rhoda B. Cottle and Demetrius C. Howe.

— IIon. Frank W». Eici-ielberger, Judge. The city of Centerville appeals from an award of damages for tbe appropriation of land for sewer outlet.

— Hon. O. W. Vermillion, Judge. Action at law to recover damages for injuries received by plaintiff in being run over by a hand car operated by defendant’s sectionmen. Directed verdict for defendant, and plaintiff appeals.

— Hon. John F. Oliver, Judge. Action to quiet title to real property, in wbicb plaintiff claims complete title under a warranty deed from N. B. Buxton, reciting the relinquishment of the dower interest of the wife of said Buxton, signed by him in his >own right and as attorney in fact for his wife. Defendants claim under a conveyance by the surviving widow of Buxton of a one-third interest in the property in controversy.

<p>Appeal from Warren District Court.— Hon. Edward Nichols, Judge.</p> <p>Suit to enforce a specific performance of a contract for the salé of real estate. There was a judgment for the plaintiff, from which the defendants appeal.</p>

<p>1 Partition: report of referees. The report of referees in partition need not be unanimous, it is sufficient if concurred in by a majority.</p> <p>S Same: right to partition. The owners of a portion of undivided interests in land may have their several interests considered as one moiety and may be united in an application for partition of the property on that basis, which should be ordered, in the absence of a showing requiring a sale of the property.</p>

— Hon. O. W. Vermillion, Judge. The plaintiff in bis petition asked for a writ of certiorari and also a writ of mandamus with reference to tbe protection and enforcement of bis right to be appointed and continued in tbe office of janitor of tbe courthouse in Wapello county, alleging that be was a veteran of tbe late Civil War, honorably discharged from tbe service of tbe Hnited States, and entitled to a preference in appointment and a continuance in that office under tbe…

<p>Appeal from Jasper District Court.— Hon. Byron, W. Pres^ ton, Judge.</p> <p>Suit on a promissory note. Trial to a jury. Verdict and judgment for the defendant. The plaintiff appeals.—</p>

— Hon. F. R. Gaynor, Judge. Action in equity to enjoin the defendant, sheriff of Monona county, from making sale of certain real estate under execution issued upon a judgment in favor of John Rawlings and against Claude Moore, husband of plaintiff. Nrom a decree in favor of plaintiff, defendant appeals.—

<p>Municipal corporations: fees of county treasurer. Money collected to pay certificates issued by a city to a contractor for public improvement is not due the city, in the sense that the county treasurer may retain a portion thereof for his services in collecting the same.</p>

— Hon. II. M. Towner, Judge. Action in replevin for one roan cow, one red cow, two heifers, and two calves. At the close of plaintiff’s evidence the petition was dismisssed, and he appeals.

— Hon. Byron W. Preston, Judge. Suit in equity to quiet plaintiffs’ title to certain real estate. Decree for plaintiffs, and defendant Mary B. Smith appeals.

<p>Appeal from Van B'uren District Court.— Hon. Robert Sloan, Judge.</p> <p>Action in replevin for the possession of two hundred and twenty-seven bags of flour of a particular description, sold by plaintiffs to defendant in a transaction which plaintiffs sought to rescind on the ground of fraud. An equitable issue, raised by intervener with reference to the reformation of a chattel mortgáge under which he claimed the right to the flour, having been determined in his favor, the issues as to plaintiffs’ right to rescind were tried to a jury, and, from a judgment against the plaintiffs on a verdict in defendant’s favor, the plaintiffs appeal.</p>

<p>Appeal from Muscatine District Court.— Hon. D. V. Jackson, Judge.</p> <p>Action to recover damage for personal injuries. Verdict and judgment for plaintiff, and defendant appeals.- — ■</p>

— ^IIon. O. A. Byington, Judge. Action for recovery of money paid on contract resulted in a verdict and judgment for the plaintiff. The defendants appeal.

— > Hon. J. H. Richard, Judge. Action to enjoin the - defendant from closing a private railway crossing. The petition was dismissed, and plaintiff appeals.

<p>1 Telegraphs: negligent transmission. It is .negligence on the part of a telegraph company to erroneously designate the name of the addressee of a message in transmitting the same.</p> <p>2 Same: negligence of addressee’s agent. Under the evidence disclosed by the record it is held that the question of whether the negligence of the addressee’s agent, in failing to designate-the correct place for the delivery of a message, was a question of fact and a directed verdict for defendant on that question was erroneous.</p> <p>3 Same: recovery of damages. The negligence of a telegraph company in failing to deliver to a real estate broker a message announcing a prospective purchaser, to whom he • might have made a sale, is not excused by reason of the fact that he subsequently sold the land to another at' a greater profit.</p>

— Hon. W. II. McHenry, Judge. Action to recover for the care and maintenance of an insane person. Judgment for tbe defendant, from wbicb tbe plaintiff appeals.

<p>Appeal from Woodbury District Gourt. — 'Hon. William Hutchinson, Judge.</p> <p>The opinion states the case.</p>

— Hon. R. M. Weight, Judge. Indictment for rape upon the person of a female child under age of consent. Verdict of guilty, and, from the judgment entered thereon, defendant appeals.

<p>1 Street railways: negligence: instruction. One about to drive across a street car track is in law required to ascertain, by the use of his senses, whether it is safe to attempt a crossing; this question should not be left to the jury.</p> <p>2 Instruction: last fair chance. Where the facts are undisputed that in the night time a street car operated over one street and a team driven along an intersecting street collided at or near the intersection and notwithstanding the effort of each, following discovery of the danger an accident occurs, the doctrine of “the last fair chance” has no application; and an instruction based on such doctrine is erroneous and prejudicial as not being within the issues.</p> <p>3 Street Railways: collision with vehicle: negligence: liability. Where in the exercise of due care by a motorman the danger of colliding with a team at an intersecting street might have been discovered in time to have avoided the accident, the street car company will be liable for the injury, notwithstanding the contributory negligence of the driver of the team. .</p> <p>4 Future damages: misleading instruction. An instruction on the question of damage in a personal injury action using the expression “ full, fair and actual present compensation,” which was made applicable to future as well as past damage, is held to have been misleading.</p> <p>5 Contributory negligence: submission of issue. Where the plaintiff testified that he looked and discovered no approaching car as he drove upon the crossing, notwithstanding his testimony is strongly discredited by the location and surroundings as shown by the evidence, the question of his contributory negligence was properly submitted.</p>

<p>Appeal from Polh District Oourt. — ‘Hon. Hugh Brennan, Judge.</p> <p>Action at law to recover damages for a personal injury. The trial resulted in a verdict and judgment for defendant, and plaintiff appeals.</p>

— Hon. Wm. Hutohinson, Judge. A default was rendered against the defendant John Southall in. an action brought by the plaintiff, and thereafter the default and judgment were set aside on the defendant’s petition. From such order the plaintiff appeals.)

— Hon. D. M. Anderson, Judge. Action to recover the purchase price of certain intoxieating liquors sold and delivered to defendants. Defendants alleged that the liquors were sold illegally and with intent to aid them in violating the laws of the State. Trial to a jury, verdict and judgment for defendants, and plaintiff appeals.

<p>1 Specific performance: abandonment. A party to a contract for the exchange of lands, who did not acquiesce in the other parties’ declaration that the deal was off, may insist on specific performance, as against the objection of abandonment.</p> <p>2 Same: reformation of instruments. An instrument containing an erroneous description of land inserted by a scrivener through the inadvertence of both parties thereto may be reformed; and the contract then may be enforced in the same action.</p> <p>3 Specific performance: false representations. Ordinarily statements of value are mere expressions of opinion which cannot be made the basis of an action for misrepresentation; especially where the aggrieved party has an equal opportunity for knowing and estimating such values.</p> <p>4 Same: evidence. Deceit in representing the area of land need not be shown to justify denial of specific performance of a contract to convey; innoce'nt misrepresentation to a substantial extent, which induced the making of the contract, is sufficient to defeat such relief at the suit of the party making the representations. Evidence held to show misrepresentation.</p>

<p>Wills: ELECTION BY WIDOW." ESTOPPEL TO CLAIM DISTRIBUTIVE SHARE. Under the provision of section 3452, Code 1873, a widow’s interest in.the estate of her husband could not be affected by any provision of his will, unless she clearly and unequivocally consented thereto and such consent was made a matter of record; and no declaration or act of hers relative to the property, short of' a statutory election, could operate to deprive her of her distributive share, or defeat her disposition thereof by will.</p>

<p>1 Perjury: waiver of objection to jurisdiction to administer oath. An' information before a justice charging the carrying of concealed weapons, which is defective because omitting the words “ on his person,” may be amended by adding the same; and a defendant, by going fo trial without raising the objection and falsely testifying as a witness, cannot rely on the defective character of the information to exculpate -him from a charge of perjury.</p> <p>2 Perjury: indictment: sufficiency. An indictment for perjury which sufficiently puts in issue the truthfulness of so much of the alleged false testimony as the court permits the jury to pass upon is sufficient, although it fails to traverse several other matters which defendant is charged to have stated under oath.</p>

— Hon. O. A. Byington, Judge. This is an appeal from the action of the district court on an appeal to that court from an action of the fence viewers of a proper township in assigning to the respective parties the parcels' of a partition fence which each should maintain.

<p>1 Telephone companies: de facto corporations: estoppel. Defendant was a member of one of three informal mutual telephone associations, a portion of whose members agreed upon consolidation and the adoption of articles of incorporation, and elected officers and directors. Prior to incorporation the proposed directors contracted with an existing telephone company for joint operation of their lines, but upon subsequent disagreements the defendant and another proposed director refused to act further and the board attempted to fill their places. The reorganized board levied an assessment for incorporation and other expenses which defendant and others refused to pay. Afterwards articles of incorporation were signed and filed by one member from each of two of the original associations and two from the third, but the articles did not include or recognize as members all who previously attempted to act as directors, and did not ratify their action. Held, that the attempted assessment could not be enforced against the defendant on the theory that there was a de facto corporation; and never having participated in the levy of the assessment, the work of incorporation or its benefits, he was not estopped to question the validity of the organization or the assessment.</p> <p>2 Same: assessment of members: validity. The defendant having withdrawn from the proposed organization and its board of directors prior to the levy of the assessment and incorporation, and not thereafter seeking membership in the corporation nor participating in its benefits and privileges, the assessment levied upon him, so far as it related to the expense of the incorporation, was invalid.</p> <p>3 Same: severance of telephone connection. Where the corporation thus formed never acquired ownership of the line with which defendant was connected and never assumed to accept the same, or the members of the association as members of its company, but acquired simply an interest in a common switchboard with which the rural association connected, it had no power to compel a severance of his connection with the line owned by t the rural company to which he belonged, for failure to pay an assessment for the expense of maintaining the switchboard; although defendant might be obligated to contribute ratably to its maintenance on penalty of having the switching service discontinued as to him.</p>

<p>1 Examination of witnesses: exclusion of evidence: discretion. The extent, subject-matter and manner of examination of witnesses is largely discretionary with trial court; and even though the objection of counsel is not broad enough to suggest the real point, the court on its own motion may exclude the testimony 'upon any legal and tenable ground: as, where the evidence, in an action for false representation as to the value of bank, stock, showed that plaintiff made inquiries of others concerning its value prior to negotiations with defendant, the court properly excluded plaintiff’s testimony on cross-examination as to why he made such inquiries and whether he relied on defendant’s statements, under an objection that the same was incompetent and not cross-examination.</p> <p>2 Same. The court also properly exercised its discretion in ex-eluding evidence on cross-examination of a witness for plaintiff which defendant might have shown by calling the witness in his own behalf.</p> <p>3 Evidence: hypothetical question. A hypothetical question in-eluding matter not then shown by the testimony should not be permitted, but if improperly excluded no prejudice resulted, for the facts sought to be proven were shown by the uncontradicted evidence of the other witnesses.</p> <p>4 Evidence: prejudice. In an action for fraud in an exchange for a stock of merchandise plaintiff may state the reason he gave defendant for disposing of his stock as a part of the transaction; but if improperly admitted no prejudice resulted from the answer.</p> <p>5 False representations: knowledge of falsity: proof of same: instructions. To establish a case of false representation it-must be shown that defendant had actual lcnqwledge of the falsity of his statement; and in determining this question his opportunities for knowing the truth or falsity of the statement should be considered; but opportunity alone is not the equivalent of knowledge.</p> <p>6 Same: instruction: means of knowledge. In an action for false representations concerning the value of bank stock transferred by defendant to plaintiff, where it appeared that defendant was vice-president and a managing director of the bank, a requested instruction that if plaintiff had equal means of information concerning its value he must have made use of such means before he could recover, on the grounds that he was mislead by defendant’s representations, was inapplicable and properly refused.</p> <p>7 Instructions: burden of proof. Where the court properly instructed, in an action for false representations, that the burden was upon plaintiff to establish all his allegations by a preponderance of the testimony, otherwise the defendant would be entitled to a verdict, a requested instruction that there is a legal presumption in favor of the honesty of the transaction, and plaintiff must show by a preponderance of the evidence that defendant made a false representation upon which plaintiff had the right to and did rely, was properly refused; since it did no more than cast the burden upon the plaintiff to show defendant’s lack of good faith, which was embodied in the instruction given.</p> <p>8 Instruction: fraud: reliance upon. A requested instruction in an action for fraud, which leaves to the jury the determination of the question whether plaintiff had the right to rely on defendant’s alleged false representations, should be refused.</p> <p>9 Fraud: reliance upon representations : instruction. An instruction that if defendant made false representations regarding the value of bank stock which he transferred to plaintiff, knowing that they were false and that if plaintiff, relying thereon, was induced to purchase without knowledge of their falsity, it was immaterial whether he made inquiries from others, or whether he might have made inquiry which would have disclosed its true value, was not misleading as suggesting that plaintiff might recover if he relied wholly upon inquiry, and was sufficient in the absence of a request for the converse of the proposition.</p>

— Hon. John T. Scott, Judge. Action by plaintiffs, who are heirs of Henry C. Altig, deceased, to set aside a conveyance of a forty-acré tract of land made during his lifetime to his son, who is the defendant in the action; the grounds alleged as entitling the plaintiff to the relief demanded being that the deceased was at the time the conveyance was executed of unsound mind, and that the same was procured by fraud and undue influence.

— Hon. John T. Soott, Judge. Suit on a promissory note. Defense and counterclaim, based on fraud- and false representations in the sale of property, for which the note was given as part payment. There was a directed verdict for the plaintiffs’ from which the defendants appeal.

<p>Appeal from Bremer District Court.— Hon. J. F. Clyde, Judge.</p> <p>The defendant was convicted of tbe crime of seduction, and appeals.</p>

— Hon. Gr. H. Scott, Judge. Two cases are here submitted fo,r determination; one an action in certiorari to review the action of the board of supervisors in vacating certain streets and highways of Manawa Park, and the other an action in equity to enjoin the board of supervisors from vacating certain streets and highways in Manawa Park. The cases were tried together. They were submitted on the same testimony and by stipulation are submitted on the same record here.

<p>1 Eminent domain: evidence of value. For the purpose of testing the knowledge of a witness and his competency to speak concerning the value of land sought to be condemned, he may be cross-examined as to the value of other like lands in the vicinity; but such testimony is not admissible as substantive evidence of the value of the property in controversy and should not be submitted to the jury for that purpose.</p> <p>2 Same: measure of damages: instruction. The measure of damages in cases of condemnation is the difference between the fair market value of the tract as a whole immediately before and after the taking; and an instruction which limits recovery to the value of the land actually taken ignoring a depreciation in value of the farm as a whole, where there is competent evidence of such depreciation, is erroneous.</p>

— Hon. A. S. Blair, Judge. Action to recover damages for injury received by plaintiff while in defendant’s employ and alleged to have resulted from defendant’s negligence. At the close of the evidence the court sustained defendant’s motion to direct a verdict in its favor, and, from a judgment on such directed verdict, plaintiff appeals.

— Hon. James A. Howe, Judge. Action iu equity for an in junctional decree. A. M. Huston and tbe board of park commissioners of the city of Des Moines intervened, and filed petitions respectively. The petitions of plaintiffs and the several petitions of the interveners were held bad on demurrer, and from the ruling entered, plaintiffs and interveners appeal.

- — -Hon. Robert Sloan, Judge. Action at law to recover upon bonds securing the performance of contracts for the construction of certain bridges. Trial to the court without a jury. Judgment for plaintiff, and the defendant appeals.

— How. A. J. House, Judge. This is a proceeding for the establishment of a highway by condemnation. The highway was established as prayed, and the defendants appeal.

<p>Appeal from Madison District Court.— Hon. Edmund Nichols, Judge.</p> <p>Demurrer to petition sustained, ánd plaintiff appeals.</p>

<p>1 Continuous account: limitations: adjudication. An account consisting of ten items, seven of which were for services rendered prior to 1895, the dates of two items not being given and the other for services in an action rendered between Dec. 21, 1892, and Feb. 28, 1896, the petitioner alleging inability to more specifically state the dates, will not as a matter of law be regarded as a continuous account so as to suspend limitations until the date of the last item; and a conclusion of the court on a petition filed April 9, 1898, that the services were rendered at such times did not amount to a finding that the items were not barred.</p> <p>2 Objection to pleadings: waiver. A codefendant who answers a cross-petition on its merits, without previous objection, submits himself and the subject matter of the petition to the jurisdiction of the court; and cannot thereafter have the cross-petition dismissed as to him on the ground that it represents matter not germane to the original petition.</p> <p>3 Appeal: trial de novo. Where the trial court dismisses a cross-petition because not presenting matter germane to the original, that question alone may be reviewed on appeal; since' the appellate court is not required to hear an equity cause de novo until there has been a hearing and decision on the merits in the court below.</p>

— Hon. B. W. Pkeston, Judge. Action at law- to recover compensation for services alleged to have been rendered in procuring the sale of property. Verdict and judgment for plaintiff, and defendants appeal. — ■

— Hon. W. H. McHenry, J ndge. This action was instituted by plaintiff, as a citizen of Polk county, to secure an abatement by injunction of a liquor nuisance alleged to be maintained by defendant. Tbe court refused to grant an injunction, and taxed tbe costs to plaintiff, and plaintiff appeals.

— Hon. K. E. Willcockson, Judge. Suit in equity to restrain defendants from locating a schoolhouse within thirty rods of plaintiff’s dwelling house. The trial court granted the relief prayed, and defendants appeal.

— Hon. Obed Caswell, Judge. Action at law to recover a sum of money alleged to be due according to tbe terms of a written contract. Trial was bad to a jury, resulting in a verdict and judgment for plaintiff. Defendant appeals.

<p>Appeal from Jachson District Court.— Hon. A. J. House, Judge.</p> <p>The opinion states the case.</p>

— Hon. James A. HowE', Judge. The defendant in each of the seven eases was indicted for having leased a house for the purpose of prostitution and lewdness. To each indictment a demurrer was interposed, which was overruled, and the defendant in each ease, having elected to stand on the ruling and refused to plead over, was condemned to pay a fine, and appeals. By agreement the seven cases are submitted together.

<p>1 Larceny: indictment: duplicity. The allegation of an indictment charging larceny which simply shows the artifice and false pretenses by which defendant obtained possession of the property, does not charge the distinct offense of cheating by false pretenses, and a motion to require the State to elect upon which it will rely is not good.</p> <p>2 Same: increased punishment. An indictment charging former convictions with a view to increasing the punishment as provided in Code Supplement, section 5091a, need not state the precise location of the prison or prisons in which defendant was previously confined.</p> <p>3 Same: constitutional law. Section 5091b, Code Supplement, providing that authenticated copies of a former judgment and commitment shall be competent evidence thereof in a subsequent prosecution, is not unconstitutional because ex post facto in its operation.</p> <p>4 Same. Section 5091a, Code Supplement, providing that a defendant who has been twice convicted of crime shall suffer an increased punishment on a .subsequent conviction for felony, is not unconstitutional because applying to convictions prior to its enactment.</p> <p>5 Same: habitual criminals: punishment. A statute which prescribes severer punishment for one shown to be an habitual criminal is not necessarily void because imposing unusual and cruel punishment.</p>

— Hon. Eranklin C. Platt, Judge. Action to recover damages for personal injuries received by plaintiff while in defendant’s employ. Plaintiff’s motion for leave to amend his petition being overruled, defendant by leave of court withdrew its answer, and interposed a demurrer to plaintiff’s petition, which was sustained, and plaintiff appeals.

— Hon. Byron W. Preston, Judge. Action to recover balance due on a promissory note and money received by defendant for plaintiff’s use. Defendant interposed a counterclaim for money due under contract. At the conclusion of the evidence, the court, on plaintiff’s motion, directed a verdict in plaintiff’s favor, disallowing defendant’s counterclaim; and from judgment on this verdict defendant appeals.

<p>1 Criminal law: instruction. An instruction is not necessarily confusing and misleading because directing the jury to consider the evidence against as well as that in support of a proposition.</p> <p>3 Same: burden of proof: preponderance of evidence. The terms “ burden of proof ” and “ preponderance of evidence ” have a well defined and generally understood meaning, and when there is nothing in the context of an instruction to obscure the meaning it is not erroneous to omit specific definitions of the phrases.</p> <p>3 Instructions: direction as to necessity for agreement. It is proper. for the court after submission of a cause to impress upon a jury the necessity of agreeing upon a verdict, and to that end of making a fair and unbiased examination of the evidence and of showing due deference to the opinions of each other, without, however, abandoning an individual conclusion if fully convinced of its correctness. The instruction in the instant case, given upon the court’s own motion, is approved.</p>

<p>Appeal from Wapello District Court.— Hon. E. W. Eichelberger, Judge.</p> <p>Action at law to recover tbe purchase price of two car loads of corn wbicb plaintiff alleges 'that he sold and delivered to Hardsocg & Burton) a firm composed of Martin Hardsocg and L. D. Burton. The said firm and the individual members thereof were made defendants. Trial was had to the court without the aid of a jury, resulting in judgment in favor of plaintiff against each of the defendants. The defendant Martin Hardsocg alone appeals.</p>

<p>Appeal from Cerro Gordo District Court.— Hon. Clifford P. Smith, Judge.</p> <p>The defendant was tried on an indictment charging him with breaking and entering a dwelling house in the nighttime with the intent to commit larceny therein. • There was • a trial to a jury, and a verdict of guilty, and from a judgment thereon, the defendant appeals.</p>

— J. E. Whitaker, Judge. Action at law to recover damages for an assault and battery. The case was dismissed as to defendants Gail and Arthur Etnier, and submitted to a jury upon the issues joined between plaintiff and Samuel Etnier, resulting in a verdict and judgment for plaintiff in the sum of $100. Defendant appeals.

— Hon. Wm. Hutchinson, Judge. Action at law to recover damages growing out of the negligence of defendant in connection with a shipment of cattle. There was a verdict in favor of plaintiff, on which judgment was entered. Both parties appeal. The defendant will be denominated the appellant; its appeal being first in point of time.

<p>Appeal from Boone District Court.— Hon. J. E. Whitaker, Judge.</p> <p>This is an action brought to set‘ aside the will of Matilda Cole, deceased, on the ground of mental incapacity and undue influence. There was a trial to a jury and a verdict against the will. The defendants, who were the proponents of the will, appeal.</p>

<p>Appeal from Webster District Govrt. — Hon. W. D. Evans, Judge.</p> <p>The defendant was president and J. W. Ryan manager of tbe Ryan Implement & Hardware Company, to wbicb plaintiff applied for employment. Ryan proposed that he purchase stock in the company, and it was subsequently arranged that he should take ten shares at the par value of $1,000, which he did. At the same time he received as security the following contract: “ Et. Dodge, Iowa, March 12, 1903. I hereby agree that at any time after six months from this date that Gustav Moench should want to withdraw his stock from the Ryan Impl. and Hdw. Co. to take it off his hands at 100c. on the dollar by giving him thirty days’ notice. (Signed) Andrew Hower.” The plaintiff worked for the company until March, 1905, and then, owing to the difference as to wages he should receive, quit, and on the 17th day of that month, he served notice on the defendant, tendering to him the shares of stock in the company and demanding payment therefor of one hundred cents on the dollar within thirty' days. This was refused, and this suit was begun on the above contract. .The defendant admitted signing it, but alleged that the agreement as made was to assure plaintiff of employment by the company within six months, and that by mistake, Ryan, in preparing the contract, did so as set out instead of as agreed; that it was intended to be so drawn as to bind the company instead of the defendant individually, and defendant prayed that the writing be reformed so as to express the understanding of the parties. The defendant pleaded, further, that the contract (1) was not mutual; (2) was without consideration; (3) was indefinite as to time of performance; (4) that plaintiff did not elect to avail himself of its benefits within a reasonable time; and (5) that plaintiff was estopped from demanding payment for that the stock had become worthless. Plaintiff put in issue these allegations, and the cause was transferred to the equity side of the calendar’. IJpon hearing, relief was granted the plaintiff as prayed, and the defendant appeals.—</p>

— Hon. C. W. Vermilion, Judge. In October, 1905, the plaintiff filed her petition in equity asking that a judgment for $372 and a decree in connection therewith making such judgment a lien upon certain lots, rendered in favor of the defendants in this action and against the plaintiff, which were entered upon default in June, 1904, be set aside and a new trial granted on account of fraud in obtaining such judgment' and unavoidable casualty and misfortune preventing this…

— ■ Hon. Hugh Brennan, Judge. Action at law to recover the purchase price of certain railway .tickets purchased by plaintiff of one of defendant’s agents, which tickets defendant refused to deliver upon demand. Defendant denied the sale of the tickets, and pleaded that the order therefor was given by its agent to plaintiff without authority as collateral security for a personal loan.

— Hon. O. A. Byington, Judge. Action in. equity for an in junctional decree. On the filing of the petition a temporary writ issued. Trial on the merits being had, the temporary writ was dissolved, and the petition dismissed, with costs. Plaintiff appeals.

— ITon. James A. Howe, Judge. Action at law to recover damages for injuries received by plaintiff caused by the fright of a horse at an object in one of the streets of the defendant city, which it is claimed defendant wrongfully and negligently suffered and permitted to remain there. Trial to a jury, verdict and judgment for plaintiff and defendant appeals.

— Hon. Pranklin O. Platt, Judge. In an action brought to recover damages for false and fraudulent representations in a contract for the exchange of properties, the plaintiff recovered judgment on a verdict of the jury against the defendant. Thereupon the defendant served notice of an appeal from such judgment, his abstract showing the judgment to have been rendered on May 26, 1905, 'and notice of appeal to have been served and filed on July 10th following.

— Hon. O. D. Wheeler Judge. Action to recover damages for false and fraudulent representations made by defendant in inducing plaintiff to become a purchaser of land. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. A. D. Bailie, Judge. Appeal from an order of the district court reversing a resolution of the board of supervisors of Buena Yista county denying a petition praying for action appropriate to the drainage of a large body of land. Some of the petitioners appeal.

— 'TIon. O. D. Wi-ieelee, Judge. The defendant was indicted upon a charge of prescribing and furnishing medicine for the sick without having first obtained a license or certificate to practice such profession. The jury returned a verdict of guilty, and, from a judgment rendered thereon an appeal has been taken to this court.—

— Hon. Z. A. Church, Judge. (An opinion was filed in this case at a former term of this court. Therein the absence from the record of a material fact was given importance to control the decision.

— IIon. W. Gr. Thompson, Judge. Action at law to recover damages for an alleged obstruction of plaintiff’s access to his property. At the conclusion of the testimony the trial court upon motion directed a verdict for defendant, and plaintiff appeals.

— Hon. J. H. Preston, Judge. Suit in equity to have certain conveyances declared mortgages, for an accounting, and a decree permitting plaintiff to redeem his property. Trial to the court, decree dismissing plaintiff’s petition, and he appeals.

— Hon. Wm. H. McHenry, Judge. The National Life Insurance Association issued its certificate insuring the life of Thomas S. Roe October 7,'1903, naming his wife, Sarah D. Roe, as beneficiary. The insured died September 4, 1904, and in this action the beneficiary seeks to recover the indemnity promised.

IAppeal from Buchanan District Court.— Hón. P. C. Platt, Judge. Action at law to recover damages for injuries sustained by plaintiff due, as is alleged, to defendant’s negligence in operating an automobile. Trial to a jury; verdict and judgment for plaintiff, and defendant appeals.

— Hon. J. H. Hici-iaeds, Judge. In an appeal by plaintiff from the action of the board of supervisors in allowing her $65 as damages occasioned by the establishment of a drainage ditch through her land under a claim for larger damages, the jury returned a verdict by which no damages whatever were allowed. Plaintiff’s motion for a new trial was sustained, and the defendants appeal.

— Hon. O. H. Kelley, Judge. Action- for balance due on account. There was a counterclaim for damages resulting from breach of contract, on which (the trial being to the court without a jury) an allowance was made to defendant, and a judgment was rendered in favor of plaintiffs for the difference between the amount due on the account arid the amount due to defendant on its counterclaim. Plaintiffs appeal.

— Hon J. H. Richards, Judge. Action iu equity to foreclose a mechanic’s lien. The decree gave plaintiff a judgment against the defendant A. W. Chamberlin, but denied a lien. Both parties appeal. The plaintiff will be designated appellant.

<p>Appeal from Marshall District Court.— G. W. Burnham, Judge.</p> <p>Action to recover damages for malicious prosecution. Verdict and judgment for plaintiff. Defendant appeals.</p>

— Hon. W. H. McHenry, Judge. Plaintiff filed a petition against defendants, asking damages in the sum of $1,000,000 due to an alleged conspiracy entered into among them. Some of the defendants filed motions to strike parts or all of the allegations of the petition, others demurred, and still others filed answers thereto.

— Hon. A. H. McVey, Judge. The Des Moines Union Bailway was owner of lot 5, in block 18, in H. M. Hoxie’s addition to Des Moines. The Pabst Brewing Company constructed a cold-storage warehouse on the east half of the lot June 19, 1891, and since then the Milwaukee Beer Company through its agent, C. M. Hovde, has used the same for the storage of beer manufactured by the Pabst Brewing Company.

— Hon. A. H. Mc-Vey, Judge. Action at law to recover damages due, as is alleged, to the negligence of the defendant, his agents and employés. Trial to a jury. Verdict and judgment for plaintiff, and defendant- appeals.

— Hon. B. H. Miller, Judge. Proceeding in probate. Erom an order directing Charles Bednar to turn over to the administratrix of said estate certain moneys in his hands, said Bednar appeals.—

— Hon. J. E. Whitaker, Judge. Action to recover damages for breach of a contract for the exchange of property, in which the plaintiff also asked to recover against the defendant as the assignee of a lease for the rent of premises which had been destroyed by fire. The defendant denied liability on the contract-for the exchange of property, and as to the claim for rent tendered $20 up to the time of the fire, and denied liability for any further amount.