Volume 147 — Iowa Reports

— Hon. B. W. Preston and Hon. W. Gf. Clements, Judges. Suit in equity for the partition of four hundred and sixty-four acres of land. There was a decree from which plaintiffs appeal.

<p>Appeal from Mills District Court. — Hon. A. B Thornell, Judge.</p> <p>Action to recover iu damages tbe value of six hundred and twenty-five bushels of corn purchased by defendant from one Richardson, who under contract with plaintiff had raised said corn on plaintiff’s premises. Defendant’s demurrer to plaintiff’s petition was sustained, and the petition was dismissed.. Plaintiff appeals.</p>

— Hon. F. M. Powers, Judge. This action was begun at law to recover upon a bank check drawn by defendant and on which payment had heen refused. The defendant filed answer denying liability and pleading an affirmative defense, with cross-petition asking that the cheek sued upon be held void. On motion the cause was tried as in equity. There was a decree for the plaintiff, and defendant appeals.

— Hon. \F. M. Powers, Judge. The defendant appeals from the ruling of the district court reversing a judgment of dismissal for want of jurisdiction entered by the justice of the peace.

<p>Appeal from Carroll District Court. — Hon. F. M. Powers, Judge.</p> <p>Action at law to recover damages for breach of an alleged implied warranty of a manure spreader. Judgment for plaintiff, and defendant appeals.</p>

<p>1 Cancellation of instruments: trusts: quieting of title: evidence. Where one in whose name title to property is taken furnished all or any definite part of the purchase price as his own and not by reason of an agreement with one claiming an adverse title, he is entitled to retain the same or have a resulting trust declared to the amount of the consideration which he furnished; but if on the other hand the party claiming adversely paid all or any part of the consideration personally, or by an arrangement with the holder of the legal title, he is entitled to have the deed set aside. In the instant case the plaintiff, seeking to cancel the deed in question, was an aged and ignorant man and the defendant, who held the legal title, was a man of affairs, and the evidence is held to show that the land deeded to defendant was paid for by plaintiff personally and by defendant in his behalf, and the plaintiff is entitled to have the deed set aside and title quieted in him.</p> <p>2 Same: evidence. The fact that one claiming to be the owner of property conveyed to another always had the possession of the same following the deed; that he made many payments therefor; paid the taxes and used the property as his own; that never until shortly before action to quiet title did the party holding the legal title claim the property under his deed; and that the parties agreed upon a division line or boundary between the land in question and that unquestionably owned by defendant, were strong circumstances to support plaintiff’s claim of ownership in this action. , ,</p>

— Hon. F. M. Powees, Judge. Action in equity to enjoin the defendants from the illegal sale of intoxicating liquors. The defendants appeal from an order granting a temporary writ.

<p>1 Evidence: communication with a decedent. The statute relating to personal communications with a decedent precludes an heir of decedent from testifying to communications with him tending to sustain a conveyance of property by decedent to such witness.</p> <p>2 Gifts inter vivos: evidence. In this action to establish a gift of land by deed, subsequent to the death of the grantor, the evidence is reviewed and held insufficient to show that the deed was intended to operate as a present delivery or as a consummation of the claimed gift.</p>

<p>} Appeal from Pottawattamie District Court. — Hon. A. B. Thornell, Judge.</p> <p>Action in equity for tbe partition of real estate. The cause was submitted and decided upon the pleadings filed and a statement of agreed facts. Decree for defendants, and plaintiff appeals.</p>

<p>Drainage: assessments for benefits. The fact that it may be necessary to lay more drains to render lands tillable will not release • the land owner from an assessment for the benefits arising from the drains as laid; it not appearing that his assessments are proportionately higher than those of other land owners. In this proceeding to confirm an assessment for drainage purposes the evidence is held to sustain an assessment of plaintiff’s lands for substantial benefits already received.</p>

— Hon. A. B. Tiiornell, Judge. This is. a quo warranto proceeding to test the right of the defendant Parker to hold the office of member of the board of supervisors of Mills County, Iowa. The trial court dismissed the petition, and plaintiff appeals.

— Hon. Jesse A. Miller, Judge. On December 24, 1903, the defendant purchased of plaintiff, through its agent, Hugh Van Pelt, about eight tons of blood meal at the agreed price of $383.52,. The ■action was brought for this sum.

<p>Appeal from Winneshiek District Court. — Hon. L. E. Bellows, Judge.</p> <p>The opinion states the case.</p>

<p>Appeal from Dubuque District Court. — Hon. Robert Bonson, Judge.</p> <p>Action in equity to require defendant to levy an assessment on its members and pay tbe proceeds thereof to plaintiff as beneficiary named in a certificate of insurance. Decree was entered as prayed. The defendant appeals.'</p>

— Hon. M. P. Smith, Judge. This is an action against defendants as stockholders in the Cedar County Lumber & Manufacturing Company, to recover amounts alleged to be due to the plaintiff from said company on a promissory note and on account of an overdraft. The defendants denied their liability as stockholders, and also denied the existence of the indebtedness from the company to the plaintiff.

— Hon. A. B. Thornell, Judge. Action to recover damages to plaintiff’s crops by water thrown upon plaintiff’s land as the result of negligence on the part of defendant’s employees in causing an obstruction of a stream. There was a verdict'for plaintiff, and defendant appeals.

<p>1 Carriers: shipment of property by express : oral contract : evidence. In this action against the defendant express company by the consignee of a horse shipped under an alleged oral agreement with plaintiff,, the fact that the party delivering the animal to the express company signed a contract for its transportation did not prevent plaintiff from proving his oral contract, in the absence of any proof that the party delivering the animal to the company was acting as his agent; the two contracts being entirely distinct and between different parties The evidence in this case is held sufficient to take the question of an oral contract of transportation to the jury.</p> <p>2 Same. Where an express company has contracted to transport property under an oral contract with the consignee, it will not be relieved of the duty of performing such agreement by the fact that it induced the party delivering the property to the company to sign a written contract of transportation, it not being shown that such party acted as the agent of the consignee.</p> <p>3 Same: negligence: evidence. The evidence in this action is held sufficient to take the question of defendant’s negligent care of the property while in transit to the jury. ,</p> <p>4 Appeal: motion for'a new trial: scope of review. Where an appeal is not taken within six months from the rendition of judgment, but within six months from the overruling of the motion for a new trial, only those questions involved in the ruling upon the motion will be reviewed.</p> <p>5 Gifts: transfer of title. Although a gift of property might not have been consummated prior to a delivery of the same to an express company for transportatidn to the consignee, under a contract made with him for shipment, the fact of such delivery for shipment operated to transfer the title.</p>

<p>Appeal from Johnson District Court. — Hon. R. P. Howell, Judge.</p> <p>Action oh an indemnifying bond for damages for the wrongful levy of an attachment. Trial and judgment for the plaintiff. The defendant appeals.</p>

— Hon. K. M. Wright, Judge. - Action to set aside a deed, and to quiet title to real estate. The bill was dismissed, and plaintiff appeals.- — ■

<p>Appeal from, Oarroll District 'Gourt. — ITon. E. M. Powers, Judge.</p> <p>Action to enjoin an alleged liquor nuisance. From a decree for plaintiff, defendants appeal.</p>

<p>i Real property: contract of purchase: rescission: waiver. A purchaser of real property seeking to rescind the contract on the ground of false representations must do so within a reasonable time; and, where, as in this case, plaintiff made payments upon a contract some time after learning of the false representations, and continued to use the property without intimation of dissatisfaction and with full knowledge of the false statements for a period of several months, the right to rescind was waived.</p> <p>2 Municipal corporations: streets: abandonment: estoppel. Where a town was incorporated several years after the construction of a building extending several feet into the street as platted, and for a period of thirty years thereafter made no objections to such occupancy of the street, but improved the street during that time with reference to the building as being located upon the lot line, it will be presumed to have accepted the street as extending only to the building, or to have abandoned the portion occupied, and is estopped from thereafter asserting title to the same.</p> <p>3 Conveyances: covenants: fulfillment. The covenant of a vendor to convey by good and sufficient warranty deed is satisfied by a conveyance of such title, although it may have been acquired by long possession coupled with abandonment by the public.</p> <p>4 Real property: rescission of contract: necessary parties. The town in this case was not a necessary party to the suit to rescind the contract, although the action involves a determination .of "whether the vendor by long possession and abandonment by the town had acquired title to that part of the property conveyed which was originally in the street; as that question is determinable without prejudice to the rights of the town.</p>

<p>1 Estates of decedents: . claims: implied contract for compensation: evidence. In proceedings for the establishment of a claim against an administrator on an implied contract to compensate the claimant, the facts implying the agreement must be so well established as to leave no room for conjecture, and when so established the law implies a promise to pay the reásonable value thereof; and the burden of proving that the claim is unpaid is not upon the claimant. In this case the claimant sought to establish a claim for care, board and lodging of the decedent, and the evidence is held to negative the administrators contention that decedent had merely taken meals at claimant’s house, without contemplation on the part of either that he should pay therefor</p> <p>2 Same: evidence: transactions with a decedent. In an action against an administrator for board, lodging and care furnished decedent, the inquiries of claimant as tc> whether decedent roomed and boarded elsewhere and whether others rendered him similar service during his illness, were not objectionable, under the statute prohibiting a party from testifying to personal transactions with a decedent; but an inquiry as to what amount of board or care decedent required related to a personal transaction with him to which the plaintiff was not competent to testify.</p>

— IIon. L. E. Fellows, Judge. William Blackett died testate October 5, 1879. His will was admitted to probate December 1st of the same year/ It left all his property to his wife during her life, and directed that both real and personal property be converted into money by the executors of his estate, “and divided into three equal parts among my three children, as follows, to wit: One share to my son II.

W. H. Mc- ' Henry, Judge. Suit on an oral contract to recover certain payments alleged to be due as royalties on a patented device to be attached to a potato digger, called an “auxiliary rear conveyor.” Tbe case was tried to tbe court without a jury, and judgment was rendered for the defendant. The plaintiff appeals.

<p>1 Homestead: abandonment: evidence. In this proceeding to sell real property claimed as a homestead to pay the debts of a decedent, the evidence is held to show that decedent, while occupying the property with a married son, left the same for a visit with relatives intending to return, but was prevented from doing so by reason of a personal injury from the effects of which he died, and that there was not an abandonment of the homestead.</p> <p>2 Appeal: questions not within the issues : review. Questions not within the pleadings and not presented and passed upon by the trial court are not subject to review on appeal.</p>

<p>1 Evidence: invasion of province of jury. Interrogatories calling for' the very matters which it is the province of the jury to determine should be denied; .as where the engineer of a train was asked whether he could by any possibility have stopped the train in a shorter distance, and whether it could have been stopped by any human agency in a shorter distance, as this was á vital issue in the case.</p> <p>2 Evidence: admissibility of documentary evidence. Books upon the subject of air brakes, purporting to give the distance at which trains moving at different rates of speed can be stopped by an application of the brakes, are not admissible in evidence to show such facts because not relating to any exact science; and further, because not revealing the conditions under which the tests were made: And aside from such objections the question of admissibility is within the. sound discretion of the court.</p> <p>3 Evidence: hypothetical questions: prejudicial remarks of court. Where the evidence was sufficient to support a hypothetical question it was error for the court to remark in the presence of the jury that the testimony did not show certain facts assumed in the question.</p> <p>4 Railways: crossing accident: signals: negligence: instruction. The statute requiring a sounding of the engine whistle and ringing of the bell on approaching a highway crossing, while not applicable to street crossings within the limits of cities or towns, so far as sounding the whistle is concerned, does apply in both respects when the train is approaching a crossing within an unincorporated village; so that where a crossing accident happens in an unincorporated village, and one of the grounds of negligence alleged is failure to give the statutory signals on approaching the crossing, the jury should be fully instructed with relation to the statutory signals.</p> <p>5 Same: crossing signals: rate of speed: instruction. In an action for the negligent operation of a train over a highway crossing, grounded both upon failure to give statutory signals and excessive rate of speed, an instruction that the speed of the train would not of itself constitute negligence but might be considered in' determining whether reasonable and adequate signals were given, together with the other proven facts bearing on that issue, was insufficient, because presenting but one side of the question; since it eliminated consideration of speed as 'a ground of negligence, except as bearing upon defendant’s negligent failure to give adequate signals.</p> <p>6 Same. Where excessive speed is made a ground of negligence in approaching a highway crossing and the evidence supports the issue, an instruction confining the jury’s consideration to defendant’s alleged negligence in failing to give adequate signals is erroneous.</p> <p>7 Same: contributory negligence. An instruction requiring plaintiff in a personal injury action, as a condition precedent to recovery, to show himself absolutely free from all negligence is erroneous, because requiring too great a degree of care on his part.</p> <p>8 Same: duty to stop, look and listen: degree of care required. The rule requiring one approaching a railway crossing to stop, look and listen for an approaching train exacts of him reasonable care in so doing; and an instruction, that it was plaintiff’s duty to use ordinary care under all the circumstances to stop, look and listen at such reasonable places as would best enable him to discover an approaching train was erroneous, because requiring of him an exercise of the highest degree of care in selecting the best places for observation, instead of ordinary care.</p> <p>And an instruction that if plaintiff could have seen the train in time to have avoided the accident by an exercise of ordinary care, and did not do so, was erroneous; as plaintiff was not necessarily negligent because the danger might have been seen and avoided.</p> <p>9 Same: last clear chance: instruction. It is not essential to an application of the doctrine of the last clear chance that plaintiff’s negligence should have ceased before the accident, in order to recover under that doctrine: So that even though the plaintiff, in a personal injury action, was negligent in putting himself in a place of danger and in remaining there down to the very time of the accident, still, if the defendant knew of plaintiff’s danger in time to have avoided the injury by exercising reasonable care, it would be liable for. failure to exercise such care under the doctrine of the last clear chance. The instruction in this case fails to correctly state the rule.</p> <p>10 Same: evidence. Under the evidence in this action for injury at a iorailway crossing it is held, that the question of whether defendant might not have prevented the accident was for the jury, although plaintiff’s negligence in going upon the crossing continued up to the very time of the accident.</p> <p>11 Railways: crossings: contributory negligence. If a traveler approaching a railway crossing sees a train at such distance that he believes he can safely cross in the exercise of ordinary care, he is not negligent in attempting to cross, although unable to pass over the track before he is struck by the train.</p> <p>12 Same. One who is confronted with a sudden peril is not necessarily negligent in taking the more dangerous of two or more avenues of escape.</p> <p>Evans, C. J., dissenting in part.</p>

— IIon. David Mould, • Judge. The defendant was indicted for the crime of murder in the first degree. Upon trial he was convicted of manslaughter and appeals.

— Hon. D. M. Anderson, Judge. This is au action for personal injuries. There was a verdict and judgment for the plaintiff. Defendant appeals.

— IIon. Henry Bank, Jr., Judge. Action in equity to enjoin the enforcement of a special assessment on the property of plaintiffs for street improvements, and to have cancelled certain certificates issued by the city to the contractor in payment therefor. There was a decree for the plaintiffs, and the defendants appeal.

<p>Appeal from Blackhawlc District Court. — Hon. C. E. Bansier, Judge.</p> <p>Action at law to recover damages for personal injury. Judgment for plaintiff, and defendant appeals.—</p>

— Hon. F. 0; Ellison, Judge. Action to enjoin the defendant city from maintaining a drainage tile across one of its streets, which, as plaintiff alleges, collects and turns upon plaintiff’s property a larger amount of surface water than would naturally flow thereon, and thus causes plaintiff permanent and irreparable injury.

— Hon. W. H. McHenry, Judge. Action in equity to enjoin payment of a claim allowed by the City Council of Des Moines in favor of the Barber Asphalt Paving Company. Decree was entered as prayed, and the paving company appeals.

— Hon. W. H. McHenry, Judge. Action to cancel certain notes given by plaintiffs to defendant bank, and to secure the return of certain securities deposited by them. Defendants filed motions to strike and for more specific statement, which were sustained, and also filed a counterclaim or cross-petition. From the rulings on the motions-, plaintiffs appeal.

- — Hon. James A. Howe, Judge. Plaintiees sue to recover commissions for acting as agents of defendant in procuring the insertion in one hundred newspapers of advertisements of “Diners Digesters/’ a remedy for dyspepsia and indigestion manufactured by defendant, at the agreed commission of $3 for each newspaper in which the insertion of such advertisement was procured, and the additional sum of twenty cents each for electrotypes furnished to the publishers of such papers for…

— IIon. James H. Rothrock, Judge. This is an action for damages for personal injuries. There was a, verdict for the defendants. Upon motion of the plaintiff, the trial court awarded a new tidal. Defendants appeal.

<p>Appeal from Wapello District Court. — IIon. D. M. Anderson, Judge.</p> <p>Suit on an accident insurance policy. There was a directed verdict for the plaintiff. The defendant appeals.</p>

<p>Appeal from Cedar District Court. — Hon. W. N. Tbeiohleb, Judge.</p> <p>Suit in equity for a divorce based upon the ground of cruel and inhuman treatment. The defendant denied the charge and pleaded a cross-petition, which he afterwards dismissed. The trial court granted the prayer of plaintiff’s petition and awarded her alimony and the custody of certain children. Erom the decree granting the divorce, defendant appeals.</p>

<p>Appeal from Linn District Court. — Hon. F. ©. Ellison, Judge.</p> <p>Action in equity for partition of real estate. Decree as prayed, and defendants appeal.</p>

— Host. M. C. Matthews, Judge. Actions at law upon an administrator’s bond. Judgment for defendants in each case, and the plaintiffs in each case appeal. The several actions depend upon substantially the same state of facts, and the appeals will be disposed of in a single opinion. The nature of the controversy will be more fully set forth in the opinion of the court.—

— -Hon. Milo P. Smith, Judge. Action to recover damages for breach of contract. Judgment for plaintiff, and defendant appeals. The facts will be stated in the opinion.

<p>Appeal from Lirm District Oourt. — Hon. Milo P. Smith, Judge.</p> <p>The defendauts contested the probate of the will of Theodore Munier. There was a verdict and judgment for the proponents, and the defendants appeal.</p>

<p>Appeal from Oelwein Superior Court. — IIon. D. M. Porter, Judge.</p> <p>Action at law to recover damages for personal injuries received by plaintiff due to an explosion of gasoline, which gasoline it is charged was delivered and put in a can not marked as required by law; and negligently delivered to plaintiff without informing her of the fact that it was gasoline. Defendants’ answer was in effect a general denial. The case was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $2,500. Defendants appeal.</p>

— Hon. C. B. Bradshaw, Judge. ' This is an action for damages for alienation of affection of plaintiff’s wife. There was a directed verdict for the defendants, and plaintiff appeals.

<p>Appeal from Winneshiek District Court. — Hon. A. N. Hobson, Judge.</p> <p>The opinion states the case.</p>

— Hon. C. B. Brad- ' ~ shaw, Judge. By direction of the court the defendants were acquitted of the crime of keeping a liquor nuisance. The State appeals.

<p>Appeal from IÁnn District Court. — Hon. Milo P. Smith, Judge.</p> <p>This is a prosecution for forgery. There was a verdict of guilty and judgment thereon. Defendant appeals.</p>

— Hon. Robert Bonson, Judge. Action to recover $500 as the amount remaining due and unpaid, under a contract by which plaintiff sold a stock of lumber to defendant, and agreed not to engage in the lumber business in the town of Cascade, in competition with defendant, for the term of two years. On a trial to a jury there was a verdict for plaintiff, and from judgment on such verdict defendant appeals.

— Hon. Milo P. Smith, Judge. Suit in equity to enjoin the enforcement of a city ordinance.- A temporary writ of injunction issued as prayed, which, upon defendants’ motion, was dissolved. Plaintiffs appeal.

<p>Appeal from Jefferson District Court. — IIon. D. M. Anderson, Judge.</p>

<p>i Negotiable instruments: fraud in execution of the same. Where signatures to a contract for the joint purchase of property, and to a joint note given in settlement therefor, were procured in reliance upon the genuineness of the signature of the first signer and his joint interest therein and liability therefor, but who was subsequently released from liability on the note according to a previous arrangement with him, a fraud was committed upon his associates and the note was thus rendered unenforceable in the hands of the original payee.</p> <p>2 Same: rescission: pleading: waiver: appeal. To render fraud in the execution of a note given for the purchase price of property a complete defense to an action thereon, rescission of the contract should be pleaded; but where the action was tried on the theory of rescission and without objection to evidence bearing thereon because rescission was not alleged, and the plaintiff requested an instruction on the theory that rescission was an issue, there was a waiver of the defect in pleading, and the omission can not be urged on appeal as a ground of reversal.</p> <p>3 Evidence: conversation by telephone: identity of person talked with. The identity of a person speaking through a telephone may be established not alone by the sound of his voice, but from other circumstances as well; as, from the fact that he appeared at the telephone in response to a call for a person by his name, admitted that such was his name and was familiar with the transactions inquired about.</p> <p>In the instant case the evidence of identity' is held sufficient - to take that question to the jury and to admit the testimony concerning the conversation over the telephone.</p> <p>4 Sale contract: rescission: waiver. Where one is informed of an election to rescind his contract, but by his own act precludes the ■other party from stating the ground of rescission, there is a waiver of the necessity of stating the reason for rescission, and the party seeking to rescind may urge any tenable cause therefor.</p> <p>5 Same: notice of rescission:' reasonable time. The rescission of a contract for fraud must be within a reasonable time after ascertaining the fraud; and what is a reasonable time depends upon the circumstances of the case.</p> <p>In the instant case the evidence is held sufficient to take the question of notice of rescission within a reasonable time to the jury.</p> <p>6 Evidence: harmless error. The admission of evidence bearing only upon matters concerning which no issue was submitted to the jury was not prejudicial.</p> <p>7 Instructions: statement of issues. Where the jury is plainly told that unless a certain defense is established the verdict should be for plaintilf, it was not error, in stating what was essential to make out such defense, to omit doing so in the alternative form.</p>

— Hon. J. M. Parker, Judge. Action at law to recover a commission for finding a purchaser of defendant’s real estate. Trial to a jury, verdict and' judgment for plaintiff, -and defendant appeals.

<p>1 Contracts: genuineness of signature: alteration: evidence: accounting. In this action for an accounting and judgment for a certain percent'of the profits of business done by defendant under an alleged written contract, in which plaintiff was to work for defendant and recover such profits as part compensation for his services, the evidence is held insufficient to show that the contract relied upon was executed by defendant; and insufficient to show that certain erasures and interlineations in the copy of the claimed contract held by plaintiff and relied upon by him were made by defendant or with his knowledge and consent.</p> <p>2 Same: oral evidence: admissibility. In this action one plaintiff . seeks to recover for services .performed under a claimed written substitute for a prior written' contract voluntarily abandoned by him, but conceded as binding if it had been carried out. Another plaintiff is attempting to recover on a written contract which by material alterations made by- him was rendered invalid, if in fact they were executed so as to be binding. Held, that neither plaintiff can rely upon oral conversations preceding and referring to the attempted execution of the written contract, in the absence of a showing of fraud or imposition on the part of the defendant resulting in the failure to execute a binding written agreement.</p>

<p>Appeal from Marshall District Court. — Hon. J. M. Parker, Judge.</p> <p>Action for damages' resulted in judgment against defendant, from whidh it appeals.</p>

— Hon. James II. Roti-irock, Judge. ■This is an action of foreclosure of a chattel mortgage. The mortgaged property consists of a harp, and the mortgage w.as given to secure the purchase price thereof. There was an affirmative answer and counterclaim setting up a breach of warranty in the sale of such harp. There was a judgment and decree for the plaintiff for the full amount claimed. Defendant appeals.

— Hon. Milo. P. Smith, Judge. A petition in replevin was filed in Linn County September 11, 1908, in which plaintiff prayed for the possession for two span of mules. TJpon approval of the bond, a writ of replevin was issued and the property seized by the sheriff and . delivered to plaintiff’s attorney.

<p>!Appeal from Marshall District Court. — Hon. O. B. Bradshaw, Judge.</p> <p>Action in equity for tbe cancellation of certain promissory notes and rescission of contract. Decree for plaintiff, and defendant appeals.</p>

<p>1 Principal and agent: duty of agent when purchasing principal's property on • his own account : fraud : evidence. Where an agent having authority to sell the property of his principal proposes to become the purchaser on his own account, he must not only do so with his principal’s consent, but he must in the strictest of good faith impart to his principal all the information which he has concerning the property and its value. Where, however, the agency was merely to lease and collect rents and such agent enters into independent negotiations with his principal to purchase the property, no suspicion of fraud arises from that fact alone, and he is under no obligation to assist the principal in obtaining the highest possible price, but the parties are then dealing at arm’s length and it is the right of the agent to obtain the property for tlie least sum possible, without aiding ■ the principal with reference to the sale.</p> <p>In the instant case defendants’ agency was to care for and lease the property in question, never having had any authority to sell; and upon a review of the evidence it is held that no fraud or concealment was practiced by the agents by which their principal was induced to sell the property to them for less than its value; and they are not therefore required to account for profits made on a resale of the property.</p> <p>2 Estates of decedents: legacies: satisfaction. In this action the owner of land in both this and a foreign State conveyed the property in this State to plaintiff and other heirs, subject to the payment, on the grantor’s death, of a legacy to his widow. Subsequently the grantor conveyed the land in the foreign State to plaintiff in trust, subject to a-life estate to the grantor. Held, that upon the grantor’s death there was nothing left in the property in the foreign State for his estate, and that no part of the proceeds arising therefrom should be applied -to the legacy of the widow in satisfaction of the charge against the property' in this State.</p>

— Hon. W. H. McHenry, Judge. Action to recover damages for personal injuries received by plaintiff due to a fall of slate in a roof of defendant’s mine. The case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

<p>Appeal from O’Brien District Court. — How. David Mould, Judge.</p> <p>The opinion states the case.</p>

<p>Appeal from, Woodbury District Court. — Hon. David Mould, Judge.</p> <p>In an action to enjoin defendant Botti, as dealer, and defendants Enright and Meyers, as owners of premises on which the business was conducted, from selling, etc., intoxicating liquors on said premises, and maintaining a nuisance thereon, the court entered a decree for plaintiff, from which defendants appeal.</p>

<p>Appeal from Appanoose •District Court. — Hon. D. M. Anderson, Judge.</p> <p>Action to recover damages for a nuisance. There was a trial to a jury, and a verdict and judgment for the plaintiffs. The defendants appeal.</p>

— Hon. L H. Applegate, Judge. Action to enjoin tbe defendants from closing an undertrack crossing on the plaintiff’s land. Judgment for the plaintiff. The defendants appeal.

’Appeal from Lee District Court. — Hon. H. Bank, Judge. Garnishment proceedings to subject an amount due from Taber Lumber Company to defendant Sammons to the payment of a judgment held by plaintiff against said Sammons. Both defendant and the garnishee claimed that the debt was exempt from execution. The trial court denied the exemption, and the garnishee and the defendant appeal.

<p>'Appeal from Davis District Court. — JIon. M. A. Roberts, Judge.</p> <p>Action for specific performance of an.alleged contract to convey land. There was a decree for the plaintiff, and defendants appeal.</p>

<p>Appeal from Mahaska District Court. — Hon. K. E. Wilcockson, Judge.</p> <p>Action to. compel defendants, who are township trustees, to replace certain money taken .by them out of the township funds; for an injunction to restrain them from making future withdrawals; for a writ of mandamus to compel them to return the funds already taken; and for other equitable relief. Defendants denied the allegations of the petition, and pleaded a counterclaim for damages on an injunction bond. The trial court -found for plaintiff as to one item amounting to $22.50 and denied any other relief. It also dismissed defendants’ counterclaim. Plaintiff appeals.</p>

— Hon. Z. A. Church, Judge. Action to recover damages resulting from the negligence of defendant in failing to transmit and deliver a telegram addressed to plaintiff. Verdict and judgment for plaintiff for $95, from which defendant appeals; the judge or court granting a certificate of appeal on defendants’ request.

— Hon. B. P. ITowell, Judge. Action at law to recover commission for the sale of real estate. There was a directed verdict and judgment for the defendant, and plaintiff appeals.

<p>Appeal from Woodbury District Court. — Hon. F. B. Gaynor, Judge.</p> <p>Ti-ie case is sufficiently stated in the opinion.</p>

W. R. Green, Judge. Suit oh a policy of fire insurance. There was a directed verdict and a judgment thereon for the plaintiffs. The defendant ajjpeals.

- — Hon. Z. A. Church, Judge. Plaintiee alleged his former ownership of lots nine and ten in block three of Carroll, and that on September 15, 1897, the parties hereto entered into an agreement by the terms of which C. D. Boynton and Cora B. Boynton undertook to convey said lots, to Lucy M. Salinger, upon payment of $4,000 in payments as specified; that the first two installments and several sums_ had been paid, and prayed for judgment in the sum of $4,188.33, with interest…

<p>v i Mines and Mining: damages: admission of evidence: harmless error : instruction. In this action to recover damages for the wrongful act of defendant in mining and appropriating coal under plaintiff’s land, and for damage to a building situated thereon, it appeared that plaintiff had sold to defendant’s grantor the coal underlying his farm, reserving the coal under one-fourth of an acre on which the building in question was situated, but that defendant disregarding the reservation mined and removed the coal from the reserved land.</p> <p>Held, that as the court charged the jury not to 'consider as an element of damage the claim that there was no other suitable site on the farm for the building, because of the mining operations, and also limited the jury to a consideration of damages caused in mining the coal from the reserved land, and consequent injury to the building, the permission of evidence of the value of the land after mining the reserved coal, on the theory that there was no other suitable site for the building, was not prejudicial to defendant.</p> <p>'Held also, that evidence of loss of value to the farm because of injury to the building site, and of loss of value to the farm on the theory that after the coal had been mined under' the building site there was no other suitable site for the building on the premises, was inadmissible on the question .of damages.</p> <p>2 Same: measure of damages. The measure of damages for wrongfully mining the coal in the reserved tract was the value of the coal immediately before the taking and removal of the same when considered in the light of its accessability, the result of rightful mining operation under the contract of sale, and not the value of the coal in place regardless of facilities for removing the same afforded by the rightful mining operations, nor its value when brought to the surface and ready for market.</p> <p>3 Same: evidence: trespass: damages: affirmance of ruling by equally divided court. Upon an equal division of the appellate court a ruling of the trial court will stand affirmed by operation of law. Under this rule the determination of the trial court that the allegations of plaintiff’s petition were insufficient to permit evidence of wilful or negligent trespass by defendant in removing the coal from the reserved land, and of its value at the mouth of the mine, is sustained.</p> <p>4 Same: grants: reservation: sufficiency of description. Although the description of land reserved 'from the grant in this case may not have been sufficiently definite to support a conveyance, still, as the reservation had reference to a certain area of coal to be left for a support to a building situated upon the reserved tract the description was sufficiently certain to require the grantee to leave the designated amount of coal unmined, and to authorize recovery for the value of the coal taken therefrom.</p> <p>5 Retaxation of costs: presumption on appeal. The trial court may examine the transcript of evidence for the purpose of determining the cost of making the same; and it will be presumed on appeal that the lower court made a proper ruling on a motion to retax such costs, in the absence of a contrary showing, and the appellate court will not go to the certified transcript to determine the facts for itself.</p>

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

<p>Appeal from Olay District .Court. — Hon. I). F. Coyle, Judge.</p> <p>The defendant was convicted of shipping game birds out of the state, and appeals.</p>

B. W. Preston, Judge. Dependant was indicted, tried, aud convicted of the crime of murder in the first degree, and sentenced to the state penitentiary for life. He appeals.

<p>Appeal from Polk District Court. — Hon. Jesse A. Miller, Judge.</p> <p>The defendant was convicted of murder in the first degree, and appeals.</p>

<p>Appeal from Lucas District Gourt. — How. C. W. Vermillion, Judge.</p> <p>The defendant was convicted of maintaining a liquor nuisance, and appeals.</p>

— Hon. Jesse A. Miller, Judge. The defendant was tried on an indictment charging him with perjury. He appeals from a judgment on a verdict of guilty.

— Hon. Frank W. Eiciielberger, Judge. Action in equity to foreclose a 'mortgage on real estate. Plaintiff is an assignee of the mortgage. Defense is made only by defendants G. W. and Mary G. Vespers, husband and wife. These defendants were not parties to the mortgage, but were subsequent purchasers of the mortgaged property from the mortgagee in alleged good faith and for full value and without notice of plaintiff’s rights.

<p>1 Drainage: obstruction to flow of surface water: pleadings: sufficiency : appeal. A petition in an action for damages caused by obstructing the flow of surface water, which fails to allege interference by defendant or any one else with the flow of the water in any manner, is insufficient; but where no objection to the pleading is interposed on the trial and the same proceeds .with acquiescence of the parties as though the pleading was sufficient in this respect, it will be so treated on appeal.</p> <p>2 Same: street grades: duty of adjoining owner. Where a city has not established a grade line for its streets an abutting property owner is not required to bring his lots to the existing grade to protect the same from overflow by surface water.</p> <p>3 Same: street drains: evidence. In this action for injury to abutting lots by overflow of surface water the questions of whether the damage resulted from unusual rainfall, and whether the tiles provided could reasonably be expected to carry the water across the street, were for the jury.</p> <p>4 Pleadings: assignment of cause of action : admission : evidence. A general denial in answer to a petition setting out a copy of a written assignment of the cause of action is an-admission of the genuineness of the signature to the assignment but nothing more. And to authorize recovery by the assignee a delivery of the assignment must be shown, and this is ordinarily done by in- • troducing the instrument in evidence.</p> <p>5 Assignment of cause of action: evidence. In this action to recover by an assignee of a claim for damages evidence of the assignment of the claim is reviewed and held to present a question for the jury.</p>

— Hon. M. A. Roberts, Judge. The defendant appeals from a conviction of murder in the first degree. So far as is necessary for an understanding of the case, the facts are stated in the opinion.

— Hon. K. E. Wilcockson, Judge. Suit to recover damages for a personal injury. There was a directed verdict for the defendant, and from a judgment thereon the plaintiff appeals.

— Hon. David Mould, Judge. Action to recover damages for negligence in the transportation of a horse* the property of plaintiff, resulting in the death of the animal. At the conclusion of the evidence offered for plaintiff, there was a directed verdict in favor of defendants, and from judgment thereon plaintiff appeals.

— Hon. David Mould, Judge. Action to recover damages for personal injury. There was a directed verdict and judgment for the defendant, and plaintiff appeals.

<p>'Appeal from Lee District Court. — Hon. Henry Bank, Jr., Judge.</p> <p>Ti-ie opinion states the case.</p>

— Hon. R. P. Howell, Judge. Suit in equity to bave a deed declared to be a mortgage, for an accounting, and fixing a period for redemption. The trial court dismissed the petition, and plaintiffs appeal.

— Hon. R. M. Wright, Judge. Action at law upon a promissory note made and executed to plaintiff, by him indorsed to Robert Fullerton, and by Fullerton reindorsed without recourse to plaintiff. Defendant admitted the execution of the note, but pleaded want of consideration therefor. She also pleaded that plaintiff did not own the note and was not the real party in interest.

There was a contempt' proceeding against plaintiff for tbe violation of an alleged liquor injunction. Tbe plaintiff was found guilty, and fine and imprisonment were imposed. He bas sued out a writ of certiorari in tbe nature of an appeal from sucb order.

<p>Public service corporation: rights and duties in supplying gas to consumers. It is the duty of a gas company operating under a franchise to supply all inhabitants of the municipality with gas on the same terms, where the conditions are the same or similar. The company may, however, adopt reasonable rules and regulations fixing the terms upon which it will supply its customers with gas, but the adoption of a formal rule is not essential to that end, where there is a well established and governing custom. It can not, however, enforce an arbitrary or discriminating rule or custom according to its whim or caprice. In this action to compel the gas company to supply plaintiff with gas the evidence is held to show that the service was cut off without just reason for believing plaintiff financially irresponsible.</p>

— Hon. W. H. McHenry, Judge. Suit in equity for the foreclosure of a chattel mortgage upon certain household goods. Defendants pleaded a waiver of the mortgage and an estoppel, based upon an attachment of the goods by the plaintiff in a civil suit against them. Plaintiff by motion challenged these defenses, but his motion was overruled. The case was then tried to the court, resulting in a decree dismissing the petition. Plaintiff appeals.

'Appeal from Woodbury District Court. — Hon. Frank K. Gaynor, Judge. Indictment for rape upon a female child under fifteen years of age. Verdict of,guilty and judgment thereon. Defendant appeals.

— Hon. William Hutchinson, Judge. Action at law to recover damages for breach of contract. Verdict directed in favor of defendant- Judgment accordingly, and plaintiff «appeals.

<p>1 Criminal law: continuance. Where it appears from the record that the time allowed defendant in which to prepare for trial wás adequate for the 'full presentation of his defense, the court’s discretion in refusing a continuance over the term for the purpose of preparing the case will not be disturbed on appeal.</p> <p>2 Rape: examination of prosecutrix: leading questions. Reticence of a prosecutrix for rape in testifying to the details of the offense furnishes sufficient ground for permission to ask her leading questions.</p> <p>3 Evidence: complaint of prosecutrix. Where it was apparent from the examination of prosecutrix that her statements concerning the offense had reference to defendant’s intercourse with her, and none of the details were called for, evidence of such statements was not objectionable because not limited to a complaint. Nor did the mere fact that it was subsequently made to appear that her statements were made in response to questions, rather than otherwise, require the court to exclude the same, in the absence of a motion to that effect.</p> <p>4 Same: lapse of time. The lapse of two months between the time of an alleged rape and the complaint of prosecutrix will not ren- ' der evidence of the complaint inadmissible.</p> <p>5 Same. It is the natural impulse of a female upon whom rape has been committed to make known her wrongs, and her voluntary statements concerning the offense are not deprived of their character as complaints simply by the fact that they were made in response to inquiries, but her statements so made are receivable in evidence in corroboration of her credibility. The evidence of complaint in the instant case is held admissible.</p> <p>6 Same: physical condition of prosecutrix. Evidence of the physical condition of prosecutrix, although the result of an examination made some time after the alleged rape, is admissible.</p> <p>7 Same: corroboration. Evidence that another saw defendant in the room with prosecutrix shortly after the offense, and that prosecutrix was sitting on the bed with her clothing and hair in a disordered condition, together with plaintiff’s admission of his presence, was sufficient corroboration.</p> <p>8 Same: unchastity. The possession by prosecutrix of an unsigned • and unaddressed letter, suggesting sexual intercourse at a time prior to the alleged offense, was inadmissible to show that she was unchaste.</p> <p>9 Evidence: corroboration. Refusal of the court to eliminate by an instruction the admission of defendant that he _was at the house of prosecutrix at the time of the alleged offense and had his boots off, on the ground that it was not corroboration but merely evidence of opportunity, was proper.</p> <p>10 New trial impeachment of verdict: affidavits of jurors. Affidavits -of jurors to the effect that they considered evidence of prosecutrix’ .complaint as tending to identify defendant as the person who committed the rape, in the face of an express instruction of the court not to do so, were properly stricken, for the reason that jurors are not thus permitted to impeach their own verdict, even though they may have misunderstood the instruction.</p> <p>11 Same: misconduct of juror. The mere fact that one of the jurors spoke to prosecutrix during the trial, simply passing the time of day, was not prejudicial to defendant,</p> <p>12. Same: misconduct in argument. A defendant in a criminal action may rely on the presumption of his good character, which always obtains in the absence of evidence to the contrary, and re'main silent on the subject; and where this-is done and defendant offers no evidence of his good character, it is improper for counsel in argument to state that the law gives him the right to show his good character and that they have a right to infer that he would have done so if he could; and where, as in this case, the court overruled an objection to the argument it became especially objectionable.</p> <p>13 Same: amendment to motion or petition : jurisdiction. After entry of judgment and the taking of an appeal the trial court has no jurisdiction to hear either an amendment to a motion or a petition for new trial.</p>

— Hon. H. E. Evans, Judge. Action to recover the death benefit provided for in a certificate of the defendant association. The court sustained a demurrer to the petition, and rendered judgment for defendant, from which plaintiff appeals.

Certiorari proceedings to the defendants to review an order made in a contempt proceeding brought against certain individuals as members of a school board and others as individuals holding evidences of indebtedness against the school district for violation of certain writs of injunction issued by the District Court of Van Burén County, which proceedings resulted in the discharge of the defendants and their complete exoneration.

<p>Appeal from Woodbury District Court. — Hon. F. K,. Gaynor, Judge.</p> <p>Suit in. equity to quiet plaintiff’s title in and to a certain lot in the city of Sioux City. To defendant’s answer and counterclaim plaintiff filed a demurrer, which demurrer was overruled, and plaintiff appeals.</p>

<p>Appeal from Scott District Court. — Host. A. J. House, Judge.</p> <p>Action at law to recover damages for injuries received by plaintiff while in defendant’s employ due to the fall of iron or steel plates upon him while at work at one of defendant’s machines. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.</p>

— Hon. W. G. Clements, Judge. Action in equity to recover tbe amount of certain promissory notes made by the defendant, R. W. Gardner, and to foreclose two chattel mortgages securing the same. There was a decree for a recovery by plaintiff for the amount of the notes sued upon with attorney’s fees, but denying a foreclosure of the mortgages. The plaintiff appeals.

— Hon. Hugh BrenNan, Judge. This is a proceeding in equity to secure a modification of a decree of divorce, rendered ion favor of plaintiff and against defendant, providing for the payment of alimony to plaintiff at the rate of $2.50 per month for five years toward the support of a child, the custody of which was awarded to plaintiff.

<p>1 Conveyances by husband and wife to each other: dower: estoppel. Where the husband and wife join in the execution of deeds to their property, one to the other, for the purpose of making a division thereof, leaving the name of the grantee blank, ‘ but with authority to each to fill in the name of a purchaser and to deliver the same, with the full purpose and intent on the part of both to enable them to dispose of their respective land free from any dower right of the other therein, and without any subsequent action by way of joinder in conveyances thereof, and this mutual understanding had been acted upon and carried out by both parties by completion and delivery of the deeds to purchasers, they are each estopped from thereafter asserting any dower interest in the land conveyed by the other.</p> <p>2 Same: statute. The statute which denies to the husband or wife the power to contract with the other in regard to the dower interest which each has in the others property, does not prevent an estoppel from arising out of the subsequent acts of the parties in carrying out and completing an agreement for a relinquishment by each of a dower interest in the property of the other.</p> <p>3 Same: who may plead estoppel. The completion of a deed executed as above recited by filling in the name of a grantee designated as trustee and delivery of the instrument, the trustee at the same time executing an agreement contemplating a distribution of the property without the necessity of procuring a relinquishment of any contingent interest of the other spouse, and contemplating no compensation to the trustee in carrying out the trust, but obligating him to do so, is supported by a sufficient consideration to authorize the trustee to assert an estoppel of any claim to dower in the property by the other spouse.</p>

<p>1 Officers: prosecuting attorney: removal from office. A prosecuting attorney has some discretion in instituting and conducting criminal prosecutions, and he can not be-removed from office for misconduct in that respect without a showing of abuse of such discretion, or a clear showing of corruption or incompetency.</p> <p>2 Same: official misconduct: evidence. In this proceeding to remove a prosecuting attorney for wilfully neglecting to institute certain prosecutions, the evidence is held insufficient to show official misconduct.</p> <p>3 Same: taxation of costs. Where it appears that parties instituting proceedings to remove an officer for official misconduct were acting in good faith, the costs, upon dismissal of the proceeding because of insufficient evidence, should not be taxed against the plaintiff but should be assessed as in ordinary state cases.</p>

— Hon. M. A. Roberts, Judge. This is an action for personal injuries. There was a trial and a- submission of the case to the jury, which rendered a verdict for the defendant. Plaintiff appeals.

— W. Gr. Clements, Judge. .Proceedings for probate of will. Contest by certain heirs who were dissatisfied with the distribution of the property provided for in said instrument. Verdict and judgment for contestants and proponents appeal.

<p>Appeal from Ida District Gourt. — Hon. F. M. Powers, Judge.</p> <p>Action for damages for breach of contract. There was a verdict for the plaintiff for $133.50. On motion of the plaintiff, the trial court raised the verdict to $749 and entered judgment for such amount on the theory that the plaintiff was entitled to recover such sum or nothing. The defendant moved for a new trial which motion was overruled. The defendant appeals.</p>

— Hon. H. M. Towner, Judge. Suit in equity to enjoin defendant from obstructing a private right of way, and to compel him to remove certain obstructions therefrom. Damages were also claimed because of the alleged obstruction.

— Hon. Chas. E. Ransier, Judge. Action at law to recover damages for injuries received by plaintiff due to his wagon being struck by one of defendant’s trains 'at a street crossing in the city of Waterloo. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.