Volume 144 — Iowa Reports

<p>1 Master and servant: negligence of master: evidence. In this action for injuries to a servant while assisting in the removal of a fire box from defendant’s mills, the evidence is held to justify a finding of negligence on the part of defendant, in ordering plaintiff to go upon the fire box after its supports had been removed.</p> <p>2 Same: contributory negligence. A servant is ordinarily justified in assuming that the master has performed his duty and will expose him to no hidden peril of which he has not been warned. The question of plaintiff’s contributory negligence in the instant case was for the jury.</p> <p>3 Same: safe place to work: assumption of risk: instructions. The general rule that the master is required to furnish his servant a</p> <p>safe place to work, is subject to the limitation that where the nature of the work in which the servant is engaged renders the place .unsafe, he assumes the risk arising therefrom: but he does not assume the risk of enhanced dangers arising, while thus engaged, from any negligent act or omission of the master. In the instant case plaintiff’s employment at the time of his injury made this phase of the law embodied in the limitation an important matter for instruction to the jury.</p>

— Hon. J. H. Richard, Judge. Appeal by defendants from assessment of damages awarded to plaintiff resulting from extending a ditch across their right of way.

— Hon. James A. Howe, Judge. Action to recover damages for personal injuries alleged to have been received by plaintiff as the result of a collision with a street car on one of the streets of the city of Des Moines. On the previous trial of the case there was a verdict and judgment for plaintiff from which the defendant appealed, and the judgment was reversed. See 137 Iowa, 358.

<p>1 Slander and libel: imputation op unchastity. It is slanderous per se to charge an unmarried woman with unchastity; and there need not be a direct charge, but it is enough that the words used were calculated to induce the hearer to suppose or understand that the person spoken of was guilty of either immorality or unchastity.</p> <p>2 Same: instruction. An instruction authorizing recovery for slander, if the defendant uttered some or all of the language charged in the petition, or substantially as charged therein, intending thereby to impute to plaintiff want of chastity, and defendant • was so understood, is not objectionable as authorizing recovery if defendant used some of the language charged, whether actionable per se or not.</p> <p>3 Slander: translation of language: burden of proof. Where the alleged slanderous words were spoken in a foreign language, and defendant merely denied using the language charged, but made no denial of the correctness of the translation as testified to by the witness to whom the words were spoken, it was not necessary to instruct that plaintiff had the burden of proving the correctness of the translation.</p>

<p>Judgments: conclusiveness. The husband of plaintiff was a party to a suit on certain collateral notes held by the plaintiff bank, but which had been assigned to this plaintiff without the bank’s knowledge. One of the defendants in that action pleaded a counterclaim, but plaintiff’s husband disclaimed any interest in the notes, and there being no defense to the counterclaim a part of the same was allowed and judgment was entered for the balance due on the notes. The husband had acted as plaintiff’s agent in all other matters connected with the notes. Held, that plaintiff in this action against the bank for an accounting on the notes is precluded by the judgment establishing the counterclaim from requiring the bank to account to him for the amount thereof.</p>

<p>1 Contracts: breach of confidential relations. Defendants were engaged in selling machinery on commission, for both plaintiff and another company, under licenses from the manufacturers requiring that no sale be made at less than a specified price. Defendants represented to plaintiff that they could obtain machines on more favorable terms from the other company and plaintiff agreed to pay a larger commission if defendants 'could secure evidence that the other company was underselling them, and also to pay a stated sum upon proof that it had committed a breach of its license, which evidence was procured and turned over to plaintiff. Held, that no confidential relation existed between defendants and the other company, and that the contract was not illegal as a breach of such an agreement.</p> <p>2 Same. Plaintiff’s agreement to pay defendants • for procuring evidence of the other company’s breach of contract was not illegal; as the procuring of the same had no reference to the outcome of a suit in which the evidence was to be used.</p> <p>3 Evidence: statement of agent. The statements made by one of plaintiff’s agents to another regarding his efforts to obtain from defendants a contract between them and another company relating to the sale of goods, and which were within the scope of the agent’s authority, were admissible against plaintiff.</p> <p>4 Practice: special verdict: new trial. The court is not required to submit each of several items of a demand for a separate verdict, where there is no request for the same, And where a general verdict is returned embracing several items, the court may grant a new trial as to one of the items deducting the amount thereof from the general verdict, where it is plain the same was included.</p> <p>5 Compromise and settlement: intent: instruction. Where the evidence was conclusive that the notes sued upon were given for specific items of indebtedness in the usual course of dealing between 'the parties, and were not intended as a full settlement of account, refusal of an instruction to the effect that the giving of the notes raised a presumption that all accounts between the parties were thereby settled, was proper.</p> <p>6 New trial: presumption as to courts ruling. The presumption on appeal is strong in favor of the correctness of the ruling of the court in granting a new trial.</p>

<p>Appeal from Clay District Court. — Hon. A. D. Bailie, Judge.</p> <p>Action on a promissory note to which defendant pleaded a counterclaim and recovered judgment thereon.</p>

<p> Certiorari from Carroll District Court. </p>

— Hon. Milo P. Smith, Judge. Plaintiff, as assignee of W. M. Welch, instituted this action in equity’to restrain the defendants as officers from selling, or attempting to sell or incumber, seventy-six certificates of sale of parcels of real estate bid in at tax sale in Linn County for said Welch by one George W. Wilson.

— Hon. F. M. Powers, Judge. L. P. Brigham, a resident of Carroll County, died' November 3, 1892, and in June following J. Brunnier was •appointed administrator of his estate. In August, 1895, Brunnier reported to -the court that no claims had been filed against him as administrator and no property had come into his hands, and he was discharged. In February, 1897, on application of TV.

— Hon. M. C. Mathews, Judge. Suit to recover for services as attorney. Coupterclaim for money loaned. Trial to a jury, and verdict and judgment for the defendant. Plaintiff appeals.

— Hon. Robert Bonson, Judge. Suit to recover money alleged to have been wrongfully received from the plaintiff. A demurrer to the answer was overruled, and judgment was rendered against plaintiff for costs, and it appeals.

— Hon. Wm. Treichler, Judge. Action for damages resulted in a directed verdict for defendants, and judgment thereon. The plaintiff appeals.

— IIon. Frank W. Eichelberger, Judge. This is an action for damages for alleged destruction of crops resulting from tbe flooding of plaintiff’s field through the alleged negligence of the defendant. The answer was a general denial. There was a verdict and judgment for plaintiff. Defendant appeals.

<p>1 Damages: notice of claim : proof of service. The statement in the affidavit of service of notice of a claim for damages, that the service was made upon the duly authorized agent of the defendant corporation at a certain place, is not objectionable as a mere conclusion, thus rendering the notice and return inadmissible in evidence.</p> <p>2 Same. Proof of service of notice of a claim for damages may be in form the same as the return of service of an original notice, except that it must be sworn to as required by Code section 4681; but in case the service is insufficient because not sworn to it may be proven by the direct testimony of the person making the service.</p> <p>3 Agency: evidence. The testimony of a witness that he was frequently at the office of the defendant telegraph company, knew the operator and saw him attending to the actual business of the company, is competent, and sufficient to make a prima facie case of agency.</p> <p>4 Telegrams: negligent delivery: proximate cause. Negligent delay in the delivery of a telegram will not give rise to a cause of action unless such negligence was the proximate cause of the injury complained of; so that where the evidence showed that if a message sent on the 28th of the month had been delivered ón the 29th or 30th no injury would have resulted, a notice of claim for damages served within sixty days after the 30th was a compliance with Code section 2164, providing that such notice must be served within sixty days from the time the cause of action accrues.</p> <p>5 Same. Where the evidence would have justified the jury in finding that had a message sent on the 28th of the month been delivered on the 29th, the telegraph company would not have been guilty of negligent delay, notice of claim for injury served within sixty days from the latter date was within the statute as to time of service.</p> <p>6 Same. Plaintiff’s claim for damages was based on defendant’s negligent delay in delivering a message sent on the 28th until the 31st of December, notifying him of his mother’s illness too late to reach her bedside prior to her death. Held, that even though defendant may have been negligent in failing to deliver the message on the 28th still such negligence continued up to the 31st and notice of his claim for mental pain served on the 28th of February following was timely.</p> <p>7 Telegrams: delay in delivery: damages: notice of claim: evidence. Where the provision printed on the back of a telegraph blank, on which a message was written, providing that a claim for negligent delivery should be presented within sixty days from filing the message for transmission, was not offered in evidence, such provision was not controlling on the question of notice of such claim.</p> <p>8 Same. The sendee of a telegram may bring an action in tort for negligent delay in its delivery, waiving his rights under the contract; and where this is done a provision of the contract requiring notice of claim for damages to be served within a specified time is not effective. •</p> <p>9 Same: statutory provisions. By the provisions of Code sections 2163 and 2164, the sendee of a telegram has a cause of action for a negligent delay in its delivery, independent of any provisions of any contract with respect thereto; the statute operating to limit the right of telegraph companies to require by contract the presentation of a claim for damages within a specified time as a basis of a right of action for negligence.</p>

<p>Appeal from, Polk District Court. — Hon. James A. Howe, Judge.</p> <p>The opinion states the facts. The defendants, Hanson and Fike only, appeal.</p>

<p>Appeal from Fremont District Court. — Hon. N. W. Macy, Judge.</p> <p>Action to enjoin the assessment and collection of a part of the alleged cost of excavating certain ditches. The contractors in a cross-petition prayed that their claim for unpaid balances be established, that the auditor issue warrants therefor, and the board of supervisors be ordered to mate an additional assessment of lands included in the drainage district, out of the proceeds of which to pay the same. There was a decree awarding the plaintiffs the relief prayed as to any compensation for which warrants had not been issued and holding contractors entitled to payment of the outstanding warrants. From' this decree both parties appeal; that of plaintiffs being first perfected.</p>

<p>Appeal from Wapello District Court. — Hon. M. A. Roberts, Judge.</p> <p>The defendant was convicted of having committed the crime of rape, and appeals.</p>

— Hon. C. W. Vermillion, Judge. Action at law to recover damages for personal injuries received by plaintiff due to a fall upon a sidewalk in the defendant city. At the conclusion of the testimony, the trial court directed a verdict for defendant on the ground that plaintiff had not given the notice required by statute before bringing her action. Plaintiff appeals.

<p>Corporations: insolvency: distribution of assets: preference. An insolvent corporation surrendered control of its assets to its existing creditors who undertook to continue the business through a trustee, in accordance with an agreement between themselves and the corporation to that effect. Held, that the new creditors of the trustee, on distribution of the assets of the corporation, were entitled to preference over the original creditors of the corporation. And this was true as to a creditor who had loaned money to the corporation prior to the agreement, and who was a party to the agreement, v</p>

<p>Appeal from Winneshiek District Court. — Hon. L. E. Fellows, Judge.</p> <p>The defendant was convicted of the crime of assisting a prisoner to escape from the jail of the county, and appeals.</p>

— Hon. R. P. Howell, Judge. Action to recover a sum of money from defendant by reason of the allegation that it has been withheld from plaintiffs, and by defendant converted to her own use. The action was aided by an attachment, which was served by garnishing Hon. Milton Remley, or Remley & Remley, attorneys for defendant. Defendant moved to dissolve the attachment, and the motion was sustained.

— Hon. Henry Bank, Jr., Judge. An action to test the sufficiency of a statement of general consent to sell intoxicating liquors in certain towns in Lee County. Upon a trial the statement was found sufficient, and the plaintiff appeals.

<p>Taxation: redemption: notice. The statute requires that proof of service of notice of expiration of the right of redemption from a tax sale must show at whose direction the notice is given; but this statute will be liberally construed, and if the notice and affidavit of service fairly show who directed the service it will be sufficient.</p>

<p>Appeal from Monona District Court. — Hon. F. R. Gaynor, Judge.</p> <p>The plaintiff appeals from the judgment of the district court affirming an assessment made against it for benefits alleged to have accrued to its road or right of way by the improvement of a drainage district.</p>

— Hon. H. M. Towner, Judge. Two appeals are herein presented to us upon the same record; the' same plaintiff being appellant in each case. The first case was an action of replevin brought by the plaintiff as mortgagee under a chattel mortgage. The second case was an action of foreclosure of such chattel mortgage. The defense in each case was that the mortgage had been fully paid. The cases were tried together upon the same evidence.

— Hon. F. R. Gaynor, Judge. Action to recover damages for tbe wrongful attachment of plaintiff’s property, in an action instituted by this defendant against William and Charles Sapp, from whom plaintiff claims to have acquired title to the property prior to the levy of the attachment. There was a verdict for the plaintiff, and from the judgment thereon defendant appeals.

<p>Proceeding in certiorari.</p>

<p>Appeal from Lee District Court. — Hon. H. Bank, Jr., Judge.</p> <p>Suit in equity to enjoin the issuance of a certificate of tax sale for certain special taxes or assessments evidenced by two certificates of assessment issued by defendant city to defendants Cameron & McManus in the year 1896, in payment for certain pavement laid by it on streets abutting plaintiff’s property. Plaintiff also ashed that the certificates of purchase be cancelled and annulled, and that he be given such other relief as might appear equitable. On issues joined the trial court dismissed the petition, and plaintiff appeals.</p>

<p>Appeal: entry of final decree. Although a case is triable de novo on appeal, still it is optional with the Supreme Court to render judgment, or reverse the case for that purpose in the district court. And where the appellate court does not order the cause remanded and application for judgment is not made within the time during which jurisdiction is retained by it, it will be presumed that the party in whose favor the decision is rendered has elected to have final decree in the lower court, and the filing of a 'procedendo confers jurisdiction on the trial court for that purpose.</p>

— Hon. M. A. Roberts, Judge. The plaintiff William Abegg, as administrator of the estate of William Hirst, deceased, reported as the property of the estate a one-half interest in a note ,and mortgage, which had been purchased with decedent’s money during his lifetime, and assigned in writing to “William and Jane Hirst,” who were the decedent and his wife, then living.

<p>Appeal from Dallas District Court. — Hon. J. H. Applegate, Judge:</p> <p>Action for the partition of lands. Julia Schloesser intervened, alleging that, as the widow of Julius Schloesser, the former owner of said lands, she had a dower right therein. She appeals from a judgment against such claim.</p>

— Hon. E. E. Willcockson, Judge. Action at law upon promissory note. Judgment for defendant, and plaintiff appeals. An opinion affirming said judgment was handed down by this court on ^February 17, 1909. On petition for rehearing it has been made to appear that certain features of the record were overlooked in our review of the case, and said opinion is therefore withdrawn, and the following is substituted therefor.

<p>Appeal from Dallas District Court. — Hon. Edmund Nichols, Judge.</p> <p>Action to establish a mechanic’s lien. The petition, was dismissed, and plaintiff appeals.</p>

— Hon. H. K. Evans, Judge. Action in equity to subject real estate and personal property to the payment of judgments. There was a decree granting the plaintiff a part of the relief ashed. Both parties appeal. The defendants will be designated appellants,

<p>1 Parol evidence. Parol evidence is competent to show the making of a written contract which has been lost, and to show that a deed absolute in form was intended as a mortgage.</p> <p>2 Mortgages: redemption: who may plead laches. The purchaser of land from one holding the absolute title as security, even though he has paid no part of the incumbrances thereon which he assumed as the consideration for the conveyance, but who went into possession thereunder and made extensive improvements upon the property without notice of the character of his grantor’s title, may plead laches in an action to redeem from the deed under which his grantor held.</p> <p>3 Same: adverse possession: redemption. Where a grantee of land as security goes into possession, and there has been no repudiation of the relation of the mortgagor and mortgagee until after a conveyance by the grantee to a third person, adverse possession does not exist prior to the conveyance; but where, as in this case, grantor allowed the grantee to remain in possession for a long series of years, making valuable improvements, and until the property increased in value from practically the amount of the indebtedness to a much larger sum, and without asserting any interest therein or demanding an accounting for rents, an action to redeem can not be maintained.</p> <p>4 Same: period of redemption: limitations. Where no time is fixed by the terms of a" contract within which to redeem from a conveyance of lahd as security, the law will presume that the-redemption was to be made within a reasonable time, which is to be determined from all the circumstances; and in no case will it extend beyond the period of the statute of limitations.</p>

<p>1 Fraternal insurance: false representations: defenses: waiver. Under the statute an insurance company which fails to attach a copy of the application to the policy can not plead or prove the falsity of. any representations contained in the application; and the assured can not waive the requirement to so attach a copy of the application.</p> <p>2 Same: liability of insurance company. An insurance society cannot avoid liability because the beneficiary named is not within any of the classes designated by law, nor an heir or legatee of the member.</p> <p>3 Same. Where a beneficiary can not recover because not within any of the classes designated by law, nor an heir or legatee, the administrator of the deceased member may recover.</p>

<p>Appeal from Poweshiele District Court. — Hon. K. E. Willcockson, Judge.</p> <p>Action to recover damages for personal injury. Judgment for plaintiff, and defendant appeals.</p>

— Hon. Henry Bank, Jr., Judge. This is an action to quiet title. It was brought originally against ~W. C. Howell alone as defendant. The defendant Howell filed a disclaimer of any interest, and other parties intervened. There was a decree for the plaintiff against the defendant Howell,, without costs. There was also an order permitting John Maxwell to intervene as defendant. Plaintiff appeals.

<p>Appeal from Sioux District Court. — H9N. William Hutchinson, Judge.</p> <p>Action to recover damages against defendant, as sheriff, for the conversion of moneys collected under execution running against the plaintiff, issued in an action in which judgment was rendered against him, and also to recover a penalty for selling the property of plaintiff on execution without the notice required by Code, section 4027. On a trial to the court there was a judgment against plaintiff for costs, and plaintiff appeals.</p>

<p>Appeal from Guthrie District Court. — Hon. J. H. Apple-gate, Judge.</p> <p>Suits to set aside certain deeds and the transfer of certain shares of bank stock. There was a judgment dismissing the petitions. The plaintiff appeals.</p>

F. R. Gaynor. Judge. Suit in equity to restrain defendants from conducting a liquor nuisance. Both temporary and permanent injunctions were asked. A temporary injunction issued on the 1st day of October, 1907, a continuance of the application therefor having been granted in the meantime.

<p>Appeal from Lucas District Court. — Hon. M. A. Roberts, Judge.</p> <p>The opinion states the material facts.</p>

<p>Appeal from, Monona District Court. — Hon. David Mould, Judge.</p> <p>The defeudaut was indicted for the crime of seduction. There was a verdict and judgment of guilty. Defendant appeals.</p>

<p>Appeal from Madison District Court. — Hon. Edmund Nichols, Judge.</p> <p>Action to recover damages for personal injury sustained by plaintiff while passing along a public street, by reason of the alleged negligence of the defendant in failing to maintain such street in a reasonably safe condition for travel. There was a demurrer to the petition on the ground that plaintiff failed to allege written notice specifying the time, place and circumstances of the injury, and that the action was not commenced until more than three months had elapsed from the alleged happening of said injury.This demurrer was sustained, and on an election of plaintiff to stand on his petition without further pleading, judgment was rendered for the defendant, and plaintiff appeals.</p>

<p>1 Conspiracy: preventing witnesses from attending trial. A conspiracy to prevent witnesses from attending a trial, by inducing and escorting them to another State and maintaining them there, was an i'ndictable offense at the common law, and is punishable under the statute defining the crime of conspiracy.</p> <p>2 Same: indictment: proof: variance. The allegation in an indictment for conspiracy to prevent witnesses from attending the trial that they were legally subpoenaed was not material, and was only by way of inducement .to the substance of the charge; and any mere variance between the allegation and proof, that a copy of the subpoena had been placed in the hands of each witness and that each understood he was to attend court at the time and place stated therein, was immaterial; as the offense consisted in inducing the witnesses to disregard the order of court of which they were advised.</p> <p>3 Same: malicious intent. Where as in this case the conspiracy to prevent witnesses from attending the trial must have been formed with a malicious intent, an instruction that it must appear that in forming the plan defendants intended to obstruct the administration of justice was sufficient, though the jury were not expressly told that such intent must have been malicious.</p> <p>4 Evidence: privilege of witness: remarks of court and counsel: prejudice. It is no part of the duty of counsel for an accused to advise a witness for the State of his privilege; and where an attempt’ was made to apprise a witness' when called to the stand that the testimony he might give might be used to convict him of a crime, the remarks of the county attorney that he would take care of the witness, and of the court that the privilege was that of the witness and not of counsel, were not prejudicial.</p>

— Hon. N. W. Macy, Judge. Action to enforce specific performance of a contract to convey a tract of land. There was a decree for plaintiff, from which defendant appeals.

<p>Appeal from Polk District Court. — How. W. H. McHenry, Judge.</p> <p>Indictment for larceny from a building. Verdict of guilty. Judgment of imprisonment not to exceed the term of five years. Defendant appeals.</p>

<p>Appeal from Scott District Court. — Hon. J. W. Bollinger, Judge.</p> <p>Action for damages resulted in a verdict and judgment for plaintiff. The defendant appeals.</p>

Original proceedings instituted in this court to review the acts of the respondent, as judge of the district court, in finding the complainants .guilty of a contempt and assessing a penalty therefor. The two cases are presented in a single record, and depend upon altogether similar facts. Both will be disposed of in a single opinion.

— Hon. Byron W. Preston, Judge. Action to recover damages for refusal of defendant to deliver certain forty tons of hay purchased by plaintiff from defendant at auction. There was a denial, and also a counterclaim against plaintiff for damages for breach of the same sale. There was a verdict in favor of defendant on his counterclaim, and from judgment on such verdict plaintiff appeals.

<p>Appeal from Wapello District Court. — Hon. C. W. Vermillion, Judge.</p> <p>Action to recover the amount due on a promissory note alleged to have been executed by said Ann Ennis and her husband, John B. Ennis. There was a denial under oath of the signature to the note and mortgage by the defendant Ann Ennis. Her husband made default. The court, after hearing the evidence, entered a decree as prayed, and the defendant Ann Ennis appeals.</p>

<p>1 Shelley’s case: application of rule: wills: life estates. The rule in Shelley’s case was a rule of property in this State, until repealed, governing the courts in construing the rights of parties under conveyances, but is not to be applied to the construction of a devise for life, with the remainder over to the heirs of the devisee, where from the language of the will it fairly appears that it was the intention of the testator to give the devisee only a life estate; and any attempt by the devisee to convey the fee during his lifetime is ineffective as against the remaindermen.</p> <p>2 Wills:, life estates. A devise of property to a son to hold during his natural life, with the rents and profits for such time, and providing that he should have no power to convey for a period longer than his life, and that at his death the property should descend to his heirs, creates a life estate with a contingent remainder over to his heirs, vesting only at the death of the devisee.</p> <p>3 Life estates: contingent remainders: conveyance of fee by devisee. A devise for life with the remainder over to the heirs of the devisee, the enjoyment depending upon a contingency which must happen, as the death of the devisee, creates a valid contingent remainder, and any attempted conveyance of the fee by the devisee during his lifetime is ineffective as against the interests of the remaindermen.</p> <p>4 Life estates: recovery of remainder: limitations. Upon the devise of a life estate with the remainder over to the heirs of the devisee, and during his lifetime the devisee attempted to convey the fee to another, the statute of limitations did not commence to run against the interest of the heirs in the land until the death of the devisee, their interest not having vested until that time.</p> <p>5 Same: estoppel. Where remaindermen have no interest in the land devised until the death of the devisee, their failure to assert an interest therein prior to his death and while his grantees in possession under an attempted conveyance of the fee are improving the same, will not estop them from thereafter recovering the land.</p>

— Hon. H. R. Gaynor, Judge. Suit to recover a part of the mulct liquor tax collected for the plaintiff’s use by the defendant’s treasurer. There was a judgment for the plaintiff, from which the defendant appeals.

— Hon. H. 3L Evans, Judge. Action to recover for a loss under a fire insurance policy held by plaintiff in defendant company. The defense was that plaintiff had violated the condition of his policy against other insurance. There was a trial to -the court without a jury, and on the evidence offered the court made its findings of fact, resulting in a Judgment for defendant. Plaintiff appeals.

<p>Appeal from- Adams District Court. — Hon. H. M. Towner, Judge.</p> <p>Action for damages resulted in judgment as prayed. The defendant appeals.</p>

— Hon. J. H. Richard, Judge. Action at law for the value of a hog alleged to have been injured while in the possession of the defendant as a common carrier. Judgment for plaintiff, and defendant appeals.

<p>Appeal from, Buchanan District Court. — Hon. Franklin C. Platt, Judge.</p> <p>Action in equity to quiet title to land. Decree dismissing bill, and plaintiffs appeal.</p>

— Hon. C. B. Bradshaw, Judge. Action for damages for breach of warranty in the sale of cows. Verdict and judgment for the plaintiff. Defendants appeal.

<p>1 Criminal law: grand jurors: selection: statutes. The Act of the Thirty-Second General Assembly providing, that whenever it . has been found or determined by the district court of any county that a legally constituted grand jury cannot be obtained from the list of names returned, the court may order the board of supervisors to prepare new lists, should be so construed as to carry out the intent of the legislature in endeavoring to meet existing conditions, and a technical meaning should not therefore be given the words “found and determined.” And if it appears that no valid objection exists to the new jury which returned the indictment except that the first jury was erroneously discharged, no substantial right of defendant was violated, for he had no legal right to have his case investigated by any particular jury.</p> <p>2 Grand juries: selection: nonprejudicial irregularities. Mere irregularity in drawing a grand jury will not invalidate an indictment unless some prejudice to defendant results therefrom; as where the lists of grand and petit juries and talesman were not separately certified as provided by statute, until after they were returned to the auditor and recorded.</p> <p>3 Trial: examination of exhibits by defendant. The defendant in a criminal action has no right to the examination of exhibits offered by the State at any particular place; and if he is given every opportunity to examine them, he cannot complain that he was not permitted to remove them from the custody of the court.</p> <p>4 Exclusion of evidence: prejudice. Although the answers of a witness if permitted might have some bearing on his interest in the prosecution, still if his interest was as apparent at the time as it would have been had the questions been answered, there was no prejudice in rejecting them.</p> <p>5 Exclusion of conceded evidence.’ Where a defendant admits that one of the State’s witnesses would give certain testimony if present, and the same is admitted, he can not ask that it b& disregarded because an agreement under which it was admitted had not been complied with, in the absence of proof of the agreement.</p> <p>6 Evidence: conversations. Where it is only material to show that a conversation on a certain subject took place, an exclusion of the details of the conversation is not erroneous.</p>

<p>1 Railroads: contributory negligence. Where in response to a special interrogatory the jury found that plaintiff could have seen the approaching train by which he was injured had he looked, or could have heard it had he listened, he was negligent in stepping from the depot platform onto the track; and as his act-in so doing was the controlling circumstance in the case he could not recover.</p> <p>2 Special interrogatories. Where an interrogatory submitted to the jury was in the alternative, as, whether plaintiff could have seen the approaching train had he looked, or could have heard it had he listened, objection that from the form of the interrogatory an affirmative answer might have been intended to apply to only one of the alternatives was not tenable, as an affirmative finding on either alternative was fatal to the plaintiff’s case.</p> <p>3 Railroads: negligence: instruction. Where it appeared that plaintiff walked out of the depot and immediately across the platform onto the track in front of an approaching train, an instruction fixing the time when he should have looked and listened for the train as at the time he stepped from the platform onto the track, was not objectionable as fixing the time with too great exactness.</p>

— Hon. Jno. P. Oliver, Judge. The information, charging Gibson with contempt of court, recited that in an action, entitled “H. H. Sawyer against Sam Gibson,” wherein an injunction was asked enjoining the latter from using described premises as a place for trafficking in intoxicating liquors, or keeping the same for that purpose, was pending in the district court of Woodbury County Hay 31, 1907, and, on hearing, a decree so enjoining defendant was entered of record, a copy…

— Hon. H. K. Evans, Judge. On the evening of February 9, 1907, the plaintiff was arrested on the charge of intoxication, and several days later the defendant, who was editor of a newspaper called the Seymour Leader, in publishing an account of the transaction, headed an article, “The Jug Man Jugged,” and said: “The moral and Social bunch of corruption that comes here from Centerville every week and at times, nearly every day dispensing liquid damnation to some of our…

— Hon. John F. Oliver, Judge. Action for divorce on the ground of desertion. Defendant answered, denying the allegations of plaintiff’s petition, and interposing a counterclaim for divorce from plaintiff on the ground of misconduct' tending to impair defendant’s health. The court sustained a dismissal by plaintiff of his cause of action, and found that there had also been a dismissal by defendant of her counterclaim, and thereupon entered judgment against plaintiff for costs.

— Hon. R. M. Wright, Judge. This is a contest as to the admission to probate of an alleged will. The objections made to the probating of the instrument were that it was executed at a time when the testator was of unsound mind by reason of senile dementia, and that it was the result of undue influence exerted upon her by one Geo. Wolf, the principal beneficiary named therein.

<p>1 False representations:- exchange of -property: valuation :--damages. Where. parties definitely fix upon the value of their, respective properties for sale, one to the other, no legal inquiry concerning actual values is permissible;- But'where the contract 'does no more than recite that the price agreed upon' is a mere ■estimate placed upon the respective properties, not with a View of fixing their actual value but as incidental to the main purpose of making an exchange, then neither party is bound by the values so estimated'; and the measure of damages to be applied in an action for false representations as to the value and character of the land is that of quantum meruit.</p> <p>2 Evidence of value; weight: competency. Where witnesses have shown themselves qualified to testify as to the value of land, an objection that they were not so situated as to be entirely familiar with the value or character of a particular tract, goes to the weight to be given their testimony rather than to the competency of the witnesses, and is to be determined by the court or jury as the case may be.</p> <p>3 Appeal: ground for rehearing. The misstatement of the nature of an action in an opinion cannot affect the result and furnishes no ground for a rehearing.</p> <p>4 Interest: allowance A court of equity may allow interest on damages recovered for fraud in the exchange of properties from the date of the sale, although no claim is made therefor in the pleadings.</p>

<p>Appeal from Polk District Court. — Hon. W. H. McHenry, Judge.</p> <p>The defendant was convicted of the crime of rape, and appeals.</p>

<p>Courts: correction of records. The court has authority to correct 1 its own records on notice to the adverse party and upon proper showing of the error.</p> <p>Contracts: explanation by parol. Where the language of a com-2 mission contract for the sale of land is ambiguous and uncertain as to the amount of the commission, and as to the land for the sale of which the commission is to be paid, oral evidence explaining the contract and rendering it specific in these particulars is competent.</p> <p>Same: pleading: evidence. Where it appears in an action to re-3 cover the proceeds of a sale' of land, in which plaintiff claimed the receipt by defendant of a certain amount which was denied and another sum pleaded by defendant as received by him, the defendant should be permitted to prove the amount he in fact received.</p>

<p>1 Municipal corporations: regulation of charges for gas: reasonableness. A municipality may regulate the price to be paid for gas; and as its power in this regard is derived from the legislature a presumption exists in favor of its proper exercise, and it will only be declared otherwise by the courts, when it appears that the rate fixed by the city is so low that it amounts to a confiscation of property without due process.</p> <p>2 Same. To determine whether an ordinance regulating the price of gas amounts to confiscation of property, it is necessary to ascertain the fair value of the plant at the date of the ordinance; the quantity of gas thus being furnished consumers; and the cost of production at that time.</p> <p>3 Same. The reasonableness of rates charged for gas cannot be determined from the mere addition of the separate- value of the component parts of the enterprise; nor from the cost alone, nor what it might cost to reproduce the plant; but consideration must be given to the original cost of construction, the amount expended in permanent improvements, the amount and value of stocks and bonds, the present as compared with the original cost of construction, the probable earning capacity under the rates prescribed, operating expenses, and possibly other kindred subjects.</p> <p>4 Same. The value of the plant completed and earning a present income is the criterion for determining the reasonableness of rates to be charged for gas; but such income must be computed on the basis of reasonable charges.</p> <p>5 Same. The good will of a corporation holding an exclusive franchise cannot be considered in determining the reasonableness of rates to be charged for gas.</p> <p>6 Same. The fact that a gas company is in the possession and use of land between its lots and the meander line of a river should he taken into consideration in determining the value of its property, although it cannot acquire ownership by adverse possession; as such possession is valuable since only the State can question its right thereto.</p> <p>7 Same. The value of residence property of a gas company, in possession of tenants and not required for the immediate expansion of the business, should not be considered in determining the value of its property with a view to fixing reasonable rates for gas.</p> <p>8 Same. Discarded property forming no part of the plant should not be considered in arriving at the value of the plant; and in determining the value of underground mains and pipes for supplying gas to consumers, their cost, the price at which they are usually sold, in connection with present prices and ordinary decay, should be considered.</p> <p>9 Same. The entire cost of a high pressure pipe used in part to supply residents of the city with gas, but chiefly to convey gas to consumers beyond the city limits, should not be included in an estimate of the value of the company’s property upon which to base rates to be charged.</p> <p>10 Same. Where a gas company laid its mains and pipes in unpaved streets the fact that it would cost more to lay them after the streets were paved should not be considered in arriving at the value of the property.</p> <p>11 Same. In estimating the value of a gas plant with a view to fixing rates to be charged for gas nothing should be allowed for the promotion and organization of the corporation.</p> <p>12 Same. The owners of a gas plant in estimating the value of its property as a basis for gas> rates, are entitled to compensation for risks incurred in engaging in the business, for prudence and foresight in its development, but should not be relieved of the consequences of mistakes and errors in judgment.</p> <p>13 Corporations: adoption of regulations: fixing of rates by ordinance: maximum rates. A corporation supplying gas to consumers may adopt rules and regulations for the transaction of its business, such as requiring security or payment in advance for gas, but in all cases such rules must be reasonable. And for that reason it cannot complain of an ordinance fixing the maximum rates for gas on the ground that it fixes a level price and eliminates a discount for prompt payment, and may therefore have the effect to create additional expense for collecting bills.</p> <p>14 Same: cost of producing gas: items of cost. In computing the cost of the production of gas to be furnished consumers, the gas used at the works in manufacturing the same should be figured at actual cost. And taxes on residence property owned by theN corporation, in the possession of tenants and not required for immediate use in connection with the business, should not be included.</p> <p>15 Same. It is the duty of a public service corporation to keep its plant continuously in repair and to provide means for that purpose; so that at the end of any given term of years the investment will remain the same and it will be in position to render its patrons unimpaired service; and in ascertaining the cost of producing gas for the purpose of regulating rates to be charged ' consumers, an allowance should be made for depreciation in the value of the plant.</p> <p>16 Same: rates: reasonableness: legislative and judicial power: evidence. The fixing of rates to be charged by a public service corporation for supplying gas to consumers is a legislative function, and when it has been found that the rates are not so low as to amount to a confiscation of property, the duty of the court ends j arid the reasonableness of the rates to be charged is a question of fact to be determined from the circumstances of each case. In the instant case the rates governing the price to be charged for gas are not shown to be unreasonably low.</p>

<p>1 Contracts: place of contract: limitation of-actions. - The place where the parties agree upon the terms of a contract or where the same is reduced to writing is not necessarily the place of contract; the intention of the parties in this regard will prevail, and such intention may be found from surrounding circumstances; as when a resident of another State as a result of correspondence regarding a loan of money, executed and forwarded his promissory note therefor to a resident of this State by mail, on receipt of which a draft was returned as agreed, the transaction is held to constitute an Iowa contract, and upon maturity of the note unpaid it may be sued here at any time within the statutory period, although barred by the statute of the foreign State.</p> <p>2 Negotiable instruments: delivery. Ordinarily the deposit of a note in the mails operates as. a delivery at the place of mailing. This rule however is not of universal application, but the question of delivery may depend upon the nature of the transaction and intent of the parties.</p> <p>3 Same: limitation of actions. A cause of action on a promissory note accrues upon maturity of the note and default in payment, but it arises and has its origin in the transaction out of which it grew; the terms “accrues” and “arises” as used in the statute of limitations not being synonymous; so that where a cause of action on the note arose within this State, although fully barred by the statute of another State, the right to prosecute is governed by the exception contained in Code, section 3452, and action thereon may be brought within ten years from maturity.</p> <p>4 Wills: provision against contest: validity: public policy. The provisions of a will that any legatee who shall contest the will . shall forfeit his legacy, and that the same shall then pass to another are not invalid as contrary to public policy, either as respects real or personal property, and irrespective of the ground or cause of contest.</p> <p>5 Same: forfeitures: “contest” defined. The term “contest” as used 5 in the provision of the will above referred to is not to be given any technical meaning but is held to include proceedings by legatees, who were heirs of the testator’s first wife, to' take out from the operation of the will an essential part of the estate, on the theory that it descended to them as heirs of their deceased mother, and that testator acquired title through a forged deed. ’</p> <p>Evans, C. J., dissenting.</p>

— Hon. W. D. Evans, Judge. Appeal from an order and decree of the district court confirming a drainage tax or assessment upon each of fifteen different forty-acre tracts of land belonging to plaintiff situated in Hamilton County, Iowa, and being within what is known as “Farley Drainage District No. 7.”

<p>1 Larceny: value op property stolen : evidence. The general market value of stolen property is to govern in determining its value in cases of larceny; but when the same has no general market value the original cost may be shown, in connection with its condition at the time of the larceny, to prove its value when stolen.</p> <p>2 Same: instruction. An instruction that the jury must find the fair market value of the property at the time it was stolen, and could only consider the original cost for determining such value, was correct as applied to the circumstances of this case; and it will be presumed that the jury followed the instruction.</p>

— Hon. A. P. Barker, Judge. This is an action for partition. There was a demurrer to the petition, which challenged the alleged title of the plaintiffs. The demurrer being sustained, and -the plaintiffs refusing to plead further, the petition was dismissed, and they have appealed.

<p>Fish and game: seining waters of the state: nuisance: damages. The statutes of this State prohibiting the seining of fish from any of its waters, while not applicable to the Mississippi, Missouri and a portion of the Des Moines Rivers, do apply to a non-navigable slough, lying wholly within the boundary of this State, though connected with and supplied in part with water from the Mississippi River; and a seine kept and maintained for the purpose of taking fish therefrom is a nuisance and may be seized by the proper authorities without warrant and destroyed, without liability in damages therefor.</p>

— Hon. W. D. Evans, Judge. Suit in equity to enjoin the collection of a tax upon certain real estate in Wright County, Iowa, upon the ground that the property against which it was levied and assessed was exempt from taxation in the year 1907. ' The petition also asked that the tax be adjudged illegal and yoid, and that the county treasurer be directed to cancel the same.

<p>Appeal from Woodbury District Court. — Hon. David Mould, Judge.</p> <p>Suit for permanent injunction resulted in decree as prayed. The defendant appeals.</p>

— Hons. J. E. Clyde and J. J. Clark, Judges. From an order appointing an administrator of the estate of Mary Ann Acken, deceased, and an order for the examination of one I. Belle Rust, the said Rust appeals.

— Hon. Jesse A. Miller, Judge. This is a prosecution for the alleged violation of an ordinance of the city of Des Moines. From a judgment of conviction, the defendant appeals.

— Hon. Hugh Brennan, Judge. Suit in equity to restrain the defendant from opening and using a part of Thirty-Eighth Street. There was a decree for the defendant, from which the plaintiffs appeal.

<p>Master and Servant: assumption of risk. Where the unsafety of a place in which a servant is at work is known or is as apparent to him as to the master, the servant assumes the risk of accident. As where the servant was assisting in hoisting material by means of a rope and pulley to the upper floor of a building on which he was working, and knew that the guard rail about the shaft was fastened at one end by being dropped into a slot, he assumed the risk incident to the lifting of the rail out of the slot in hoisting the material, thus causing his fall into the shaft.</p>

— Hon. Jesse A. Miller, Judge. Suit on a policy of fire insurance claimed to have been issued by the defendant company. There was a directed verdict for the defendant, and, from a judgment dismissing his action, plainti^ appeals.

<p>1 Corporations: Ultra vires contracts: bankruptcy: power of trustee. Even though the contract of a corporation may be ultra vires, still if it has been fully performed by both parties and the corporation has received and retained the benefits, it will not be permitted to question its own power to make the contract, especially where the agreement is not one clearly prohibited by statute; nor has a trustee in bankruptcy any greater power in this regard, in the absence of a showing of fraud as to- creditors. So where a stockholder purchased his stock under an option to return the same and receive reimbursement within a certain time, and without fraud fairly exercised the option during the solvency of the corporation, a trustee of the corporation in bankruptcy cannot set the rescission aside.</p> <p>2 Same: purchase of its own stock. In the absence of some restriction or prohibition in the statute or articles of incorporation, a corporation may purchase its own stock.</p>

<p>1 Criminal law: uttering forged instrument: burden of proof. The burden is upon the State to show the guilty knowledge and fraudulent intent of one charged with uttering an instrument on which he had forged' the indorsement of the payee firm, where he contended that he was a partner in the payee firm and was authorized to use the firm name, and that he was not criminally liable although he exceeded his authority.</p> <p>2 Same: evidence tending to prove another crime: when admissible. A fact or circumstance closely related to or connected with a crime under investigation is admissible on the question of intent, although tending to prove another crime.</p>

<p>Appeal from Johnson District Court. — Hon. K. P. Howell, Judge.</p> <p>Suit in equity to recover damages for tbe flooding of plaintiff’s land, and to enjoin defendant from discharging water from a tile drain in such a manner as to injure plaintiff’s property. The trial court dismissed the petition,’ and plaintiff appeals.</p>

— Hon. F. R. Gaynor, Judge. This is a suit to caucel and abate certain taxes assessed against plaintiff’s lands, and to remove tbe cloud thereof. There was a decree in the trial court dismissing the petition and plaintiff appeals.

— Hon. C. G. Lee, Judge. Action in- equity to foreclose a real estate mortgage. There was a judgment dismissing the bill, and the plaintiff appeals.

<p>Bankruptcy: preference: recovery by trustee. To constitute a 1 preference within the meaning of the bankruptcy act it is essential that the creditor receiving the benefit shall have had reasonable cause to believe that the debtor intended thereby to give him a preference; it is not sufficient that he have reasonable cause to suspect insolvency. And the burden of establishing an unlawful preference is upon the trustee in bankruptcy seeking to receive the same.</p> <p>Same: burden of proof. It is essential to a preference that the 2 creditor receiving the payment participated in the desire of the debtor to effectuate a preference, but such purpose will be presumed if he knows or has reasonable grounds to believe a preference is intended; and a trustee in bankruptcy seeking to recover a preference has the burden on this issue. '</p> <p>Same: evidence. The debtor’s embarrassing circumstances and the 3 creditor’s consequent anxiety to secure payment are not sufficient to show knowledge, or reasonable ground for believing the debtor insolvent. Evidence held insufficient to show a preference.</p>

<p>Appeal from Sac District Court. — Hon. Z. A. Church, Judge.</p> <p>Suit in equity to set aside conveyance made by Maurice Burrow, deceased, to defendant, Ellen Hicks, because made through undue influence exercised by defendant upon the deceased, and for the reason that the deeds were never delivered. The answer was a general denial, and upon trial to the court a decree was entered dismissing plaintiffs’ petition, and they appeal.</p>

<p>1 Pleadings: amendment to conform to proof: continuance. It is the duty of courts to prevent as far as possible undue and unnecessary litigation, and to see that a trial is not delayed for merely technical reasons not conducive to the promotion of justice. To this end it was proper to allow plaintiff, in an action for conversion against a chattel mortgagee for alleged wrongful foreclosure, to amend his petition by alleging that one of the mortgages had been released, thus conforming the pleading to proof of that fact; and to deny a motion for continuance on account of the amendment, where defendant only claimed to be able to produce one witness who would deny the claim in the amendment, and plaintiff admitted that he would so testify if present.</p> <p>2 Agency: authority to’make settlement: ratification. Where a machine company sent a special agent to close a settlement with a buyer, on terms already tentatively arranged by a general agent, the buyer had the right to assume that the special agent had authority to allow reasonable deductions, claimed by him as a condition for giving more satisfactory security for final payment of the debt: But if this were not so the seller, having accepted the security and collected and retained the proceeds, can not thereafter repudiate the settlement.</p> <p>3 Conversion: recovery: measure of damages. The foreclosure and sale of property under a chattel mortgage, after receiving other security for the debt and agreeing to release the same in consideration therefor, amounts to conversion; and the mortgagor is entitled to recover the reasonable value of the property sold, regardless of the amount received for the same by the mortgagee at the sale.</p> <p>4 Agency: authority to make settlement: application of debt due from agent. Conceding as a general rule that an agent can not pay his own debt by an allowance of a credit on the demand due his principal; yet, where it appears that the amount due from the agent was paid in cash to the debtor and formed a part of the cash payment made by him to the agent for his principal, the rule does not apply.</p>

— Hon. Hugh Brennan, J udge. This is an appeal from an order of the trial court denying an application for temporary injunction.

<p>1 Courts: dismissal of action in federal court: subsequent trial in state court : Res judicata: law of the case. The dismissal without prejudice of an action in the federal court, after appeal , and reversal of a judgment for plaintiff, is not an adjudication which' bars a subsequent action in the state court for the same cause; and while the opinion of the federal court is the law of the case in future proceedings in that tribunal, it has no more force in a subsequent trial in the state court than the opinions of any other court of foreign jurisdiction, to which the litigants were not parties.</p> <p>2 Assignment of cause of action to prevent removal to federal court. An assignee of a claim against a foreign telegraph company, who has paid a valuable consideration therefor, may sue in the state courts; and the objection that the assignment was made to prevent a removal of the cause to the federal court does not obtain, although the objection would be valid if the assignment was without consideration.</p> <p>3 Telegraphs: transmission of fictitious message: damages: notice of claim. The statute- requiring notice prior to suit on a claim against a telegraph company, for the erroneous transmission or negligent delay in delivery of a message, does not apply to a claim for negligence in sending a false, fictitious and forged message, and in such case the notice need not be given.</p> <p>4 Same: election of remedies: laches. An election of remedies occurs only where the plaintiff in fact has two or more remedies; a mere misconception of his right to sue, or to sue by a particular form of action, is not an election. So that where the sendee of a forged telegram, a bank, permitted suit for damages to be brought in the federal court in the name and for the benefit of another, and on appeal the judgment for plaintiff was reversed, the case remanded and then dismussed without prejudice, there was no election giving rise to an estoppel barring the right of the sendee, or its assignee, to sue in the state court: and as the action was at law and brought before it was barred by the general statute of limitations, the doctrine of laches does not apply.</p> <p>5 Same: damages: liability of telephone company. In this case a seller of cattle took the- buyers check for the purchase price but refused to turn over the cattle without a guaranty of the check, and it was agreed that the buyer should have the bank upon which the check was drawn guarantee the same by telegram to the bank at which he desired credit. The buyer delivered a fictitious message to the agent of the telegraph company, who, knowing that it was not genuine, transmitted the same, and it was delivered to the bank and the proceeds paid to the creditor. The cattle were then delivered to the buyer, the check dishonored and the seller was insolvent. Held, that the bank accepting and paying the check had a right of action against the telegraph company for negligently transmitting the message.</p> <p>6 Same. A telegraph company, whether considered in the light of an ordinary individual conveying written information, or as a carrier of information owing a duty to all applying to.it for service, can not be a party to an actionable fraud by transmitting a fictitious message, without incurring liability to all parties interested in the transmission and delivery..</p> <p>7 Same: damages. A telegraph company is not liable for special damages resulting from the sending of a fictitious message, unless It knew, or had reason to believe from the message itself or from extraneous facts, something of its importance, and the likelihood that damages would result to someone from its breach of duty: but it is not necessary that the company know the details of the business to which the message relates, it is enough if the results likely to follow the breach may be gathered in a general way from the sending of the message; nor need the parties have contemplated the amount of actual damages which ought to be allowed.</p> <p>8 Banks and banking: acceptance of check: revocation. A telegram, if authentic, sent from one bank to another stating that it would honor a personal check for a specific amount, constitutes an acceptance from which the honoring bank can not recede, and upon which any one dealing with the check may rely as a part of the transaction.</p> <p>9 Telegraphs: fictitious message: damages: evidence. It is not necessary, in an action against a telegraph company for injury suffered by reason of the sending of a fictitious message honoring a check, for plaintiff to show that the exact damage should have been anticipated; nor is it necessary that the message should have been addressed to plaintiff directly; it is sufficient if he is one of those persons, who had a right to rely thereon, and whom the company ought to have known it was injuring, or might injure, by sending the same.</p> <p>10 Same: direction of verdict: evidence. Where defendant, after the overruling of his motion for a directed verdict, in open court concurs in the view of the court that there were no disputed facts and nothing for the jury to determine, he can not complain of a directed verdict for plaintiff; and the same is justified by the evidence in this case.</p>

<p>1 Municipal corporations: street improvement: jurisdiction: special assessment: waiver of objection. A city council has jurisdiction to order the construction of a street improvement and to assess the cost to property owners; and objection to its jurisdiction arising from mere omission or irregularity in some of the initial steps, or interlocutory matters in the development of the proceedings, may be waived by the party entitled to make objections thereto, and when such waiver has once become effective it can not be withdrawn or neutralized by any act on his part; as where the work was completed and the property owner protested before the council against an assessment because of the quality of the work, but took no appeal from its action, it could not, after the lapse of five years, maintain an action in equity to enjoin the levy and collection of the assessment.</p> <p>2 Same: equitable relief. Save only in cases where the remedy or proceeding sought to be enjoined is absolutely void, a special remedy 'created by statute is exclusive as to all controversies coming within its scope, and a party failing to take advantage of it can not resort to equity for relief. So that where a property owner fails to insist upon an objection to a special assessment for a street improvement, because of the quality of the work, by appealing from the action of the city council as specially provided by statute, he can not, except for fraud, resort to equity to restrain the enforcement of the assessment.</p> <p>3 Same. Although a property owner may have failed to appeal from the action of a city council in overruling his objections to a special assessment, still, if fraud or collusion entered into the making of the assessment, which was not revealed until after opportunity to raise the issue under the statute had passed, equity may afford relief; but mere defects of workmanship in a public improvement, known at the time objection was made before the council, will not authorize such relief.</p>

— Hon. Franklin C. Platt, Judge. Action to recover- damages for the abuse and ill treatment of the plaintiff’s ward, and for the value of her services. Trial to a jury, and verdict and judgment for the plaintiff. The defendant appeals.

' Appeal from Polk District Court. — Hon. James A. Howe, Judge. Action at law to recover damages for the death of William M. Lammey, deceased, due to a fall of slate in defendant’s mine. After a jury was impaneled, and at the conclusion of the testimony, the trial court directed a verdict for defendant, and plaintiff appeals.

— Hon. Robert M. Wright, Judge. This is an action for damages for the burning of certain grain in the stack. The jury rendered a verdict. Whether it was for the plaintiff or defendant is a question in dispute. The trial court’ ordered a new trial.

— Hon. Jesse A. Miller, Judge. Action to recover damages for trespass by defendants’ cattle upon plaintiff’s premises. At the conclusion of the evidence the court directed a verdict for the defendants, and from judgment thereon plaintiff appeals.

— Hon. R. P. Howell, Judge. Plaintiee brought bis action in equity against five defendants. Each defendant filed a motion to strike from tbe petition tbe names of all other defendants on tbe ground of misjoinder of parties and of causes of action. The trial court sustained each motion. The plaintiff appeals.

— Hon. W. H. McHenry, Judge. Action in equity to restrain the enforcement of an alleged judgment rendered by a justice of the peace against the plaintiff in favor of H. S. Chase & Co. Decree for plaintiff, and defendants appeal.

<p>Appeal from Hardin District Court. — Hon. W. D. Evans, Judge.</p> <p>Action for damages resulted in a'verdict for plaintiff and judgment thereon. The defendant appeals.</p>

<p>1 Temporary injunction: purpose of writ: affirmative relief. The purpose of a temporary injunction is to preserve the status quo of the parties; it is. not to obtain affirmative relief in advance of the trial and should not issue for that purpose. Thus where plaintiff sought to establish title to property and the right to continue in lawful possession, a termination of the occupancy in favor of defendant by temporary injunction before a trial of the main case, would be awarding affirmative relief prematurely, not a fair function of such a writ.</p> <p>2 Same: refusal of writ on appeal. Even though the court erred in denying a temporary injunction, if the purpose of the writ has been superseded by a final decree in the lower court, or if sufficient time has elapsed in which the case should have been determined on its merits, the appellate court will not order the issuance of the writ.</p>

— How. II. M. Townee, Judge. Action on contract resulted in a judgment in favor of the defendant Philpott and against the defendant Ayres. The latter appeals.

<p>1 Intoxicating liquors: requests to purchase: compliance with statute. A statement of the purpose for which liquor is purchased' of a pharmacist must be in compliance with the requirements of the statute: Thus, the statute permitting a pharmacist to sell alcohol for specified chemical and mechanical purposes upon request is not complied with by inserting in the blank left in a printed form of request, as his statement of the purpose for which the liquor was procured, the single word “chemical” or the abbreviation “chem.”</p> <p>2 Same: illegal sales: evidence: injunction. The fact that illegal sales of liquor were not made by a pharmacist personally, but through others in his store and without his authority, is not a defense to an action to enjoin the conduct of his business as a nuisance because of illegal sales. In this action the evidence of illegal sales is held sufficient to support an injunction.</p>

<p>Appeal from Wapello District Court. — Hon. C. W. Vermillion, Judge.</p> <p>Action to quiet title. There was a judgment for the defendant, from which the plaintiffs appeal.</p>

<p>Appeal from Black Hawk Distñct Gourt. — Hon. Franklin C. Platt, Judge.</p> <p>Action to recover damages for personal injuries received - by plaintiff while passing along a sidewalk in the defendant city, which by the negligence of defendant was in a dangerous condition. There was a verdict for plaintiff, and from judgment on such verdict defendant appeals.</p>

— Hon. R. M. Wright, Judge. Action in equity to enjoin defendant Ruth from draining his premises or discharging the water therefrom upon plaintiff’s premises in any other manner or place, or in any greater quantity, than in accordance with the natural drainage of the land.

— Hon. C. G. Lee, Judge. Action at law to recover damages for injuries received by plaintiff in a collision with one of defendant’s trains at a street crossing in tbe town of Eldora, due, as is alleged, to defendant’s negligence. Defendant denied any negligence, pleaded plaintiff’s contributory negligence, and a full and complete settlement with him of all claims for damages.

<p>Appeal from Polk District Court. — Hon. Hugh Brennan, Judge.</p> <p>Suit in equity‘upon three certain promissory notes made by defendant to tbe Port Huron Machinery Company, Limited, or order, and by it assigned or indorsed to plaintiff, and to foreclose a certain chattel mortgage made to secure said notes. Defendant pleaded that the notes were delivered without authority, and contrary to an agreement between the parties or their representatives; that the notes were given in consideration of the sale of a shredder by the Port Huron Company to defendant, which shredder was sold with a warranty, knd which warranty was not made good; that the notes and mortgage were and are without any consideration, and are therefore void. It was also alleged that plaintiff -is not a good-faith holder of the notes for value, and that it, in fact, had notice of all defenses thereto. Upon these and perhaps some minor issues the case was tried to the court, resulting in a decree dismissing plaintiff’s petition, and plaintiff appeals.</p>

<p>1 Mortgages: foreclosure: application of proceeds. A debtor has the right to specify upon which of several debts a voluntary payment shall be applied, if promptly done before application by the creditor, but this rule does not apply to the proceeds of mortgaged property; in such cases the creditor may make the application to the mortgage debt. And where the creditor holds a real estate mortgage and several successive chattel mortgages on the same property securing several notes, pledging the property by each mortgage successively to the payment of each successive debt, two of the notes being secured by the real estate mortgage and one of the chattel mortgages, the creditor has the first right to apply the proceeds of the property so as to afford him the security bargained for; and he may realize on the real estate mortgage in satisfaction of the two notes secured . thereby and waive his chattel security therefor in favor of the subsequent chattel mortgages.</p> <p>2 Same: waiver of agreement to make application. The mortgagor and mortgagee in such cases may waive an agreement that the proceeds arising from the first sale shall be applied to the ex-tinguishment of a certain one of the mortgages; and use of the proceeds 'thus arising for another purpose by permission of the .mortgagee amounts to a waiver of such agreement.</p> <p>3 Same: foreclosure and sale: fraud. In the instant case the contention of the mortgagors that the mortgagee was guilty of fraud in the foreclosure and sale of the mortgaged property is not sustained by the record; and it appears that if there was any sacrifice of the property the mortgagors were largely responsible for it.</p> <p>4 Same. The mortgagee herein as surety for the mortgagors on a delivery bond in an action'of replevin,'took possession of the property involved in the replevin action for the purpose of delivery to the plaintiff in discharge of his liability on the bond; and it is held that he is not chargeable in this action for the value of the property so taken, as a payment on the mortgages in suit.</p> <p>5 Marshaling of assets: rights of junior lienholders. The doctrine of marshaling assets operates in favor of the creditor against the debtor, and is not intended to deprive a secured creditor of the benefit of his security, so far as required to' protect his rights': So that, where a mortgagee holds both real and chattel mortgages securing certain debts, and other chattel mortgages securing other debts, junior lienholders, having judgment liens against the mortgaged land, can not compel the mortgagee to first resort to the personal security for satisfaction of the debt secured by both the real and personal security.</p>

— Hon. N. W. Macy, Judge. Suit to recover the value of potatoes alleged to have been sold to the defendant and frozen in a bin before delivery. There was a' trial to a jury and a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. D. F. Coyle, Judge. Action in the nature of quo warranto proceedings against the defendant, who was acting as clerk of the district court for Emmet County, Iowa. The facts are stated in the. opinion.

<p>1 Carriers: injury to property in transit: measure of recovery. Unless property is totally destroyed or converted while in transportation the carrier is not liable for its full value as for conversion, but the remedy is for injury to the property because of a breach of the contract of carriage; and an erroneous instruction authorizing recovery of full value as for conversion instead of damages for injury to the property, as in this case, was not cured by another instruction that, unless the property was wholly worthless for the purpose for which it was intended plaintiff could not recover.</p> <p>2 Same. The measure of recovery for property injured while in transit is the difference between its market value when delivered to the carrier and when it reached its destination. And where the carrier undertakes in good faith to repair property injured in transit, the fact that the same when delivered is in a condition rendering it worthless for the purpose intended, but with a moderate expenditure can be put in such repair as to render it as useful as before the injury, the shipper can not abandon the property and sue for its value, but is confined to an action for damages.</p>