Volume 150 — Iowa Reports

— IIon. Bobert Bonson, Judge. /Action to recover damages for the death of plaintiff’s intestate. Trial to a jury. Verdict for the defendant directed by-the court, and plaintiff appeals.

— Hon. W. N. Treichler, Judge. Action at law for the recovery of __ attorney’s fees. Trial to a jury. . Verdict and judgment for plaintiff, and defendants appeal.

,Appeal from Linn District Court. — IIon. Milo P. Smith, Judge. Action for damages for alienating affections. At the close of tlie plaintiff’s evidence there was a directed verdict for the defendants. Plaintiff appeals.

— Hon. C. B. Bradshaw, Judge. Action to recover damages for breach of contract to convey land. The defendant pleaded that a portion of the land agreed to be conveyed constituted his homestead and that his wife had not joined in the contract. A demurrer to this answer was sustained. Defendant elected to stand on his answer and judgment was rendered against him, from which he appeals.

— Hon. Bobert Bonson, Judge. Proceeding- to establish a claim against the estate of Nicholas Eck, deceased. At the close of plaintiff’s testimony, the court sustained a motion to direct a verdict for the defendant, and plaintiff appeals.

'Appeal from Linn District Court. — Hon. Milo P. Smith, Judge. Action for malicious prosecution was dismissed as to defendant Griswold during the trial. The verdict was in favor of defendant Crane and against the International Textbook Company, and judgment was entered accordingly: The company and plaintiff appeal; that of the company being first perfected.

— Hon. 1C. O. Matthews, Judge. Action at law to recover damages for the death of John Semmens, caused by his being struck by a train at a highway crossing. The trial court directed a verdict for defendant, and plaintiff appeals.

— TIon. Wm. Hutchinson, Judge. The defendant was indicted under chapter 169, Acts 31st General Assembly, for the offense of unfair commercial discrimination in the sale of a petroleum product, to wit, gasoline, between different communities, to wit, the town of. Alton, in the county of Sioux, and the- town of Boon, in the county of Lyon. A demurrer to this indictment was sustained and the cause dismissed. From this judgment, the state appeals.

— Hon. F. O. Ellison, Judge. Proceedings for condemnation of certain real estate for public uses. Plaintiff appealed from the award of damages returned by the sheriff’s jury, and on trial in the district court the award was materially increased. A new trial being denied, the defendant appeals.

<p>Appeal from Linn District Court. — IIon. M. P. Smith, Judge.</p> <p>Suit by plaintiff for separate maintenance resulted in a decree of divorce being entered on a cross-petition filed by defendant. The plaintiff appeals.</p>

- — TIon. A. N. Hobson, Judge. Action at law for damages for the alleged appropriation of funds upon which the plaintiff had a lien. There was a trial to the court without a jury. Judgment for the defendants for costs. Plaintiff appeals.

— Hon. Robert Bonson, Judge. Action for damages for injuries to person and property. At the close of all the evidence, the court directed a verdict for the defendant and entered judgment against the plaintiff for costs. Plaintiff appeals. — Affirmed.

!Appeal from Cedar District Court. — Hon. Milo P. Smith, Judge. Suit in equity to compel the city to make an assessment of the cost of a certain improvement against abutting property owners, for a. writ of mandamus, and for judgment for the value of the improvement against the city. The case was tried to the court, resulting in a decree dismissing plaintiff’s petition, and plaintiff appeals.

<p>Appeal from pedar Rapids Superior pourt. — Hon. C. B. Bobbins, Judge.</p> <p>Action aided by landlord’s attachment fór rent, consolidated with an action in equity to enjoin the defendant from removing his property from the premises and committing waste. By the answer issue was raised as to plaintiffs right to recover rent, and there was also a counterclaim for ■ an installment of rent paid, for which no consideration was received. There was a judgment for plaintiff in the law action for one monthly installment of rent, and a decree in the action in equity perpetually enjoining defendant from committing waste or removing any part of his property from the leased building. The defendant appeals.</p>

<p>Appeal from Dubuque District Court. — Hon. Robert Bonbon, Judge'.</p> <p>Appeal from an order of the trial court setting aside a previous order made by the same judge at the same term, during the same’ trial.</p>

— Hon. A. D. Bailie, Judge. Action in equity to cancel the assessment of the shares of stock of the plaintiff hank. The relief asked was denied, and the 'plaintiffs appeal.

— Hon. W. H. Treichler, Judge. Action to vacate certain streets and alleys. There was a judgment vacating same, and the city appeals. — Reversed.

<p>Appeal from, O’Brien District Court. — Hon. Wili.iam Hutchinson, Judge.'</p> <p>Suit at law to recover damages for fraud and deceit in the sale of land. Verdict and judgment for the plaintiff. The defendants appeal.</p>

<p>Appeal from Appanoose District Gourt. — Hon. C. W. Vermillion, Judge.</p> <p>Plaintiee presented a claim against the estate of Elizabeth Philby, deceased, for services performed and money loaned, as shown in a verified account, to- the total amount of $6,096. The defendant as executor contested the allowance of said account, and on a trial to a jury there was a verdict for the plaintiff in the sum of $2,500. From judgment on this verdict, the defendant appeals.</p>

<p>Dogs running at' large: liability of owner for injuries. The owner of a dog allowed to run at large without being securely muzzled as required by an ordinance is not liable for injury caused by the dog unless the proximate result of a lack of the muzzle.</p>

— Host. Frank W. Eichelberger, Judge. These actions were separately commenced in the district court of Appanoose County, one being to recover damages for the death of John Pollock, deceased, and the other to recover damages caused by the killing of a team of horses belonging to plaintiff, Thomas. Over defendant’s objections the cases were tried together resulting in a verdict for plaintiff in each case, and defendant appeals.—

<p>Adultery: evidence: sufficiency. Disposition and opportunity alone are not sufficient to authorize conviction for adultery, but there must be circumstances inconsistent with any other reasonable hypothesis.</p> <p>Evidence held insufficient to justify conviction.</p>

<p>Appeal from Woodbury District Court. — Hon. Frank R. Gaynor, Judge.</p> <p>Action for separate maintenance. Decree for plaintiff, and defendant appeals.</p>

— Hon. B. W. Preston, Judge. Action to recover damages on account of injuries to plaintiff’s horse, resulting from an accidental collision while being driven in the nighttime along the street of the defendant town. The alleged negligence of defendant consisted in failure to properly light the. street. A demurrer to plaintiff’s petition was sustained and judgment rendered for defendant, from which plaintiff appeals.

— Hon. J. F. Oliver, Judge. This is a habeas corpus proceeding, brought by appellant in the district court of Woodbury county, wherein he challenged the validity of a certain warrant of extradition •issued by the Governor of Iowa upon requisition of the Governor of Minnesota, and averred that he was illegally restrained thereunder.

— Hon. Lawrence De Grate, Judge. The defendant was charged in the indictment with' the crime of compounding an offense. A demurrer to the indictment was sustained, and a judgment entered discharging the defendant. The state appeals.

<p>1 Contempt: information: sufficiency. The affidavit in support of an information charging the violation of an injunction may be made upon information and belief; especially where the facts required to be stated are of such character that affiant can not have positive knowledge with reference thereto.</p> <p>2 Same. Conceding that the section of the Constitution relating to seizure and search is applicable to contempt proceedings for violation of an injunction restraining the sale of liquor, and which requires a positive showing under oath to authorize issuance of the warrant, still it is held in this action that the affidavit in support of the information is sufficient.</p> <p>3 Same: rights of accused: how enforced. Although the affidavit made on information and belief in contempt proceedings is not sufficient to support an investigation and authorize arrest, still the remedy is not a motion to quash the information, but to set aside the warrant because not issued upon proper information, or by some other suitable proceeding to test the validity of the warrant.</p>

<p>Appeal from Wapello District Court. — Hon. C. W. Vermillion, Judge.</p> <p>The accused was convicted of manslaughter, and appeals.</p>

— Hon. O. W. Vermillion, Judge. Suit to foreclose certain mortgages executed by Ida E. Fogle and her husband. A demurrer to the answer was overruled, and the plaintiff appeals.

<p>Appeal from Lee District Court. — Hon. W. S. Withrow, Judge.</p> <p>Special proceeding to establish lost boundaries under the provisions of sections 4228-4238 of the Code. Com-missioners were appointed by the court, and their report was approved, and the costs were taxed one-half to each party. Plaintiff appeals.</p>

— Hon. M. O. Mathews, Judge. This is an appeal from an award of alimony in a divorce case. The opinion states the case more fully.

— Hon. Wm. Hutchinson, Judge. In an action to recover rent for business premises in Sioux City, occupied by defendants, under a written lease, the defendants interposed a counterclaim for expenses of freeing the basement of the building on the premises. from water, mud, and debris deposited as the result of an exceptional flood caused by a fresbet in a stream flowing through the city in the neighborhood of the premises, and an additional amount for repairs made necessary by…

— Hon. J. D. Gamble, Judge. ' . In an action for separate maintenance, asked on the ground that defendant had ceased to live with plaintiff as his wife and had ceased to contribute anything to' her support, there was an application for support money pending litigation. A demurrer to this application was overruled, and on evidence introduced on each side-the court awarded to plaintiff $50 for attorney’s fees and $25 per month for five months.

<p>i Attorney and client: contract of employment: expenses: cost, The term costs as applied to litigation signifies the legal charges allowed a party to the action for his expenses in conducting the suit. Under this .rule a contract employing attorneys to conduct a suit for a percentage of the amount recovered, not however requiring them to pay any costs, does not authorize them to retain a sum from the amount recovered, exclusive of their pro rata share, to pay the expenses of a third party in looking up the testi- • ■mony.</p> <p>2 Same: implied authority of attorney: parol evidence. Under an ordinary contract of employment an attorney has implied authority to incur reasonable expenses in conducting his client’s case, unless the question of such expense is covered by the contract; and if the contract is silent with reference thereto, parol evidence is admissible to show who is chargeable with the expenses incident ' to the suit.</p> <p>3 Same: special proceeding : review. A motion to require an attorney to pay over money collected for his client is a special proceeding not triable de novo, and a finding substantially supported by the evidence will be sustained on appeal.</p> <p>4 Same: expense of suit: allowance to attorney.. In this proceeding to require an attorney to turn over money to his client withheld by him to pay expenses of the suit, it is held that a showing of inability on the part of the client to look up the testimony for his case, and proof of expenditure reasonably incurred by the attorney in that respect, made a prima facie case for the allowance to the attorney of such expenses.</p>

<p>Appeal from Adams District Court. — Hon. H. M. Towner, Judge.</p> <p>Action for divorce on tbe ground of e,ruel and inhuman treatment. There was a decree for tbe plaintiff. Defendant appeals.</p>

— Hon K. E. Willcjockson, Judge. Action on a certificate of membership of Archibald Carson, the father of plaintiff’s ward, in the defendant association, providing that on the death of such member the benefits named in such certificate should be payable to said ward. There was a demurrer to the petition which the court overruled, and defendant electing to stand on its demurrer, judgment was rendered for plaintiff, from which defendant appeals.

— Hon. John Shortley, Judge. Action on an account to which the defendant pleaded a counterclaim on which judgment was entered. The plaintiff appeals.

<p>Appeal from, Lee District Court. — Hon. Henry Bank, Jr., Judge.</p> <p>Action to recover compensation for work and labor rendered and performed for defendant under an oral contract. On trial to a jury, there was a verdict for plaintiff, and from judgment on this verdict defendant appeals.</p>

<p>Unincorporated associations: actions: parties: appeal. A member of an unincorporated association can not sue the association as a partnership, even though it may be treated as such by third persons who have dpalt with it, without making the individual members parties defendant, in which case it would be proper to name the association as a defendant. And where he makes simply the association a defendant, a notice of appeal served upon the members of the association is unavailing.</p>

— Holy. Edmund Nichols, Judge. These actions were tried1 separately in the district court, and were separately appealed. They are so involved, however, that they will be considered in a single opinion. The facts will bé stated in the body of the opinion.

<p>Municipal corporations: severance of territory: petition: property holders. The term property holders as used in the statute authorizing a severance of territory from a city or town has reference to owners of the real estate; and does not require that the petition for severance be signed by holders of both real and personal property within the territory.</p>

<p>1 Criminal law: disorderly house: coercion of wife: presumption. The presumption that a crime committed by the wife in the presence of her husband was the result of his coercion does not obtain, where they are jointly charged with keeping a disorderly house.</p> <p>2 Same: disorderly house: elements of offence. It is not essential to conviction for keeping a house of ill fame that it be found that persons frequenting the place are of licentious inclinations; it is sufficient if frequented for an immoral purpose.</p> <p>3 Same. Although acts of illicit intercourse only with a woman who is proprietor of the house will not constitute the place a house of ill fame, yet where the husband is proprietor of the house, even though the wife participate in its government, her acts of intercourse therein with other men will constitute the place a house of ill fame, and authorize conviction of the husband for keeping it and of her for aiding him therein.</p> <p>4 Same: evidence. Evidence reviewed and held sufficient to authorize conviction for keeping a house of ill fame.</p>

<p>Appeal from Mahaska District Court. — Hon. |W. G. Clements, Judge.</p> <p>Action to quiet title resulting in decree as prayed. The defendant appeals.</p>

<p>Appeal from Taylor District Court. — Hon. H. K. Evans, Judge.</p> <p>Action for divorce ou the ground of cruel and inhuman treatment. Decree for plaintiff. Defendant appeals.</p>

<p>Appeal from Guthrie District Court. — Hon. Edmund 'Nichols, Judge.</p> <p>The opinion states the material facts.</p>

<p>Appeal from, Marion District Court. — Hon. Edmund Nichols, Judge,</p> <p>Petition for the construction of a will. The opinion states the case.</p>

<p>Appeal from Jasper District Court. — Hon. R. E. Willcockson, Judge.</p> <p>Action at law to recover damages for personal injuries received by plaintiff while a passenger upon one of defendant’s trains. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.</p>

— Hon. Byron W. Preston, Judge. Action at law to recover damages done by a dog claimed to have heen owned by defendant. Trial to jury, verdict and judgment for 'plaintiff, and defendant appeals.

<p>■Appeal from Woodbury District Court. — IIon. W. M. Hutchinson, Judge.</p> <p>Action for alienation of affections. The trial court overruled a demurrer to a part of defendant’s answer and some motions to strike other parts, and, plaintiff electing to stand on the rulings, judgment was entered against him for costs. He appeals.</p>

<p>Appeal from Lee District Court. — Hon W. S. Withrow, Judge.</p> <p>Action on alleged contract resulted in judgment as prayed. Tbe defendant appeals.</p>

— Hon. William; Hutchinson, Judge. Suit to recover damages for a personal injury received on one of tbe defendant’s streets. There was a verdict and judgment for tbe plaintiff, from wbieb tbe defendant appeals.

<p>Appeal from Dubuque District Qourt. — Hon. Robert Bonson, . Judge,</p> <p>Action for damages resulted in a judgment against defendant from wliicb it appeals.</p>

<p>Appeal from Washington District Court. — Hon. W. G. Clements, Judge.</p> <p>The opinion on rehearing states the case.</p>

<p>Appeal from Dallas District Court. — Hon. James D. Gamble, Judge.</p> <p>Action to recover damages for injuries to plaintiff’s buggy and horses resulting from a runaway near a highway crossing over the defendant’s railroad. There was a verdict for tbe plaintiff for $200. Defendant appeals.</p>

<p>Appeal from Taylor District Court. — Hon. H. M. Towner, Judge.</p> <p>Suit to recover rent. Trial to the court and . judgment for the defendant. The plaintiff appeals.</p>

— Hon. W. G. Clements, Judge. Action to foreclose real estate mortgages. Yander Ploeg intervened, claiming a superior lien on the premises. Judgment for tlie plaintiff. The intervener appeals.

— Hon. D. M. Anderson, Judge. Action for injunction and damages for cutting and grading ■ down a street abutting upon plaintiff’s property. There was-a trial to the court and a . decree for plaintiff awarding her damages of $1,200 and a perpetual injunction against the city and its officers. The defendant appeáls.

— Hon. Robert M. Wright, Judge. One Rinehart, temporary guardian of Thos. Walker, who was found to be of unsound mind, filed his final report, and, the ward having died, a special administrator of his estate filed objections to the report of the temporary guardian. The objections were to specific claims filed with the guardian, and upon hearing the objections were sustained and the claims disallowed. . The guardian appeals.

<p>1 Boundaries: finding of commissioners: force and effect. Commissioners appointed by the court to take testimony and report their findings with reference to disputed corners and lines arq officers of the court, whose duty it is to aid in ascertaining the true boundary; and while their recommendation is entitled to consideration by the court it does not have the force and effect of the verdict of a jury, but the court may make a different finding if warranted by the evidence.</p> <p>2 Same: establishment of boundary: pleadings: issues. The sole inquiry in an action to establish a boundary line is to ascertain the line as located by the government unless acquiescence in some other line is pleaded, and therefore the pleadings need not put in issue the location of a government quarter corner. But where acquiescence is pleaded the first inquiry is to determine whether the boundary has been fixed thereby, and if not, then to ascertain where the line was located by the original government survey.</p> <p>3 Same: acquiescence: evidence. In this action the evidence is reviewed and held insufficient to establish a boundary by acquiescence different from that located by the original government survey.</p>

— Hon. H. Bank, Jr., Judge. Action to recover the possession of real property and for damages for the wrongful occupancy thereof. Judgment for the plaintiff, from which defendants appeal.—

— Hon. W. H. McHenry, Judge. Appeal from a sewer assessment in the City of Des Moines. Upon hearing in the District Court, the assessment was reduced. From such order the defendants have appealed.

— Hon. Henry Bank, Jr., Judge. Action on a claim of $50,000 against 'the executor of J. C. Hubinger, deceased. Upon a hearing the claim was denied, and the plaintiff appeals.

'Appeal from Boone District Court. — Hon. Robert M. Wright, Judge. - Action to recover damages for personal injury resulting to plaintiff while a passenger on defendant’s train from being assaulted and beaten by the conductor on said, train through no misbehavior on his part and through the wilful and malicious act of said conductor.

— Hon. C. G. Lee, Judge. Action to recover the value of certain property called for under a duebill which plaintiff had taken by assignment from one Flack.

<p>Appeal from Hamilton District Court. — Hon. Chas. E. Albrooic, Judge.</p> <p>Action to quiet title to forty acres of land resulted in a decree as prayed. The defendant appeals.</p>

<p>Appeal from Webster District Court. — TIon. C. G. Lee, Judge.</p> <p>Action at law to recover damages for personal injuries received by plaintiff while in defendant’s employ as a servant or employee. Trial to a jury. Verdict and judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from, Hamilton District Court. — Hon. C. G. Lee, Judge.</p> <p>Suit to recover a stock assessment. .Judgment for the plaintiff. The defendant appeals.</p>

— Hon. Chas. E. Al-brook, Judge. Appeal from the allowance of damages in a drainage proceeding. The plaintiff appealed to the district court from the allowance made by the Board of Supervisors. Upon trial of the appeal in the district court, he was awarded' an increased sum. Erom such allowance, the defendants have appealed to this court.

<p>1 Evidence: secondary. Oral evidence of the terms and conditions of a will shown to have been executed is secondary and inadmissible.</p> <p>2 Judgments: parties. It is not necessary in all cases that one he a party to an action to be bound by the judgment.</p> <p>3 Judgments: payment: satisfaction of debt. The payment of a judgment upon notes, under a contract by which defendant agreed to assume a co-obligation on the notes, amounts to a satisfaction of the notes.</p> <p>.4 Contracts: who may sue thereon. A contract whereby defendant, as in this case, assumed plaintiff’s co-obligation on certain notes having been made for their benefit, the payees could sue thereon.</p> <p>5 Judgments: conclusiveness: privity. As a general rule one not a party to a suit is not bound thereby; nor can he take advantage thereof. But this rule does not apply in case he is in privity with either of the parties thereto, in which event he is bound by the judgment. Thus, as in this action, a judgment against defendant on notes, which, under a contract with a co-obligor defendant had assumed, precludes subsequent recovery against the co-obligor.</p>

<p>Appeal from Polk District Court. — Hon. W. H. McHenry, Judge.</p> <p>Action to recover from the defendant the sum of $124.20 for goods sold and delivered by plaintiff to defendant. Kurtz, as trustee in bankruptcy of the Cochrane. Plumbing & Heating Company, by a petition of intervention asked judgment against Walker & Co. for the purchase price of the same goods, less any amount of indebtedness existing from Walker & Co. to the Cochrane Plumbing & Heating Company. The case was tried on a stipulation of facts, and judgment was rendered in favor of Kurtz as trustee against Walker & Co. for $58.38, and plaintiff’s petition was dismissed and the costs taxed to it. Plaintiff appeals.</p>

<p>i Municipal corporations: resolution of necessity: publication of notice. The statute requiring twenty days’ notice by publication of the time for hearing objections to a resolution of necessity for the construction of a street improvement, does not require that publication of the notice shall be completed twenty days prior to the hearing, but is satisfied by a single publication twenty days prior thereto; and where it appeared, as in this case, that such notice was so published the council had jurisdiction to proceed with making the improvement.</p> <p>2 Same: street improvement: resolution of necessity. The statute does not require that the resolution of necessity or the notice thereof for a street improvement shall contain specific reference to the expense of making the improvement at street intersections; and where, as in this case, the resolution provided that the .expense of making the improvement should be assessed against the abutting property and the railway companies whose tracks were located upon the street, in accordance with law, there was a sufficient showing of intention to assess the entire cost, including that of intersections, against abutting property.</p> <p>3 Same: erroneous assessment of property: relief. The objection that an assessment exceeds the amount as limited by the statute to twenty-five percent of the actual value of the tract assessed must be made before the city council; and followed up by an appeal to the district court; as that is 'the method provided by law for relief in such cases. And the property owner may not ignore such remedy and bring an independent action in equity for relief from the assessment.</p>

— Hon. C. E. Albrook, Judge. ' Action in equity to foreclose a second mortgage on certain described real property. The defendant Fowler, as county treasurer; was made a party with the allegation that a special assessment on the property for a drainage ditch was invalid, and a part of the relief asked was that said county treasurer be perpetually enjoined from enforcing the collection of said special assessment.

<p>Appeal from Boone District Court. — Hon. R. M. Wright, Judge.</p> <p>Action to recover the value of property burned while in one of the defendant’s cars. Verdict and judgment for the plaintiffs. The defendant appeals.</p>

<p>Appeal from Webster District Court. — Hon. H. M. Wright, Judge.</p> <p>Action at law to recover damages for personal injury. The court directed a verdict for defendant, and from the judgment entered thereon the plaintiff appeals.</p>

<p>Appeal from Johnson District Court. — Hon. R. P. Howell, Judge.</p> <p>The opinion states the case.</p>

— Hon. Chas. E. Albrook, Judge. This is an action to quiet title to a small tract of land. There was a decree for the plaintiff, and the defendant appeals.

<p>Certiorari proceedings. Tbe opinion states tbe case.</p>

— Hon. Erank W. Eichelberger, Judge. Action at law to recover damages due to the erection of a barbed wire fence by the defendant within the city of Ottumwa, contrary to an ordinance thereof, resulting in the death of an animal owned by plaintiff which while frightened ran into the fence and received injuries which necessitated her killing.

— Hon. D. V. Jackson, Judge. Suit to recover damages for a libel. A demurrer to tbe petition was sustained, and the plaintiff appeals.—

— IIon. A. P. Barker, Judge. Action in mandamus to require the defendant Board of. Supervisors of Muscatine County and the Auditor of said county to furnish to plaintiff for publication in its newspaper, which hás been duly selected as an official newspaper for said county, certain matters and proceedings which, as plaintiff contends, are directed by law to be published in said official paper at the expense of the county.

— Hon. R. M. Wright, Judge. Action iu equity for an accounting as to profits and expenses in certain real estate transactions in which plaintiff claims that he was jointly interested as agent with the defendants. The defendants deny the allegations of plaintiff’s bill, and also, by way of cross-bill, claim a share in certain commissions received by plaintiff.

— Hon. Hugh Brennan, Judge. 'Action to recover $350 as the price of a blooded cow purchased from plaintiff by defendant at a public sale. The defendant alleged that by verbal representations the plaintiff warranted the cow to be free from tuberculosis, and that she would stand the tuberculin test; that defendant purchased the cow in reliance on this warranty; and that she was in fact tuberculous at the time of the sale.

— How. Hugh Brennan, Judge. Action for personal injuries. At the close of plaintiff’s evidence, the trial court directed a verdict. Later plaintiff’s motion for a new trial was sustained. From such order granting a new trial, the defendant has appealed.'

<p>Appeal from Linn District Court. — Hon. 3?. Q. Ellison, Judge.</p> <p>Suit to recover damages for a personal injury. Verdict and judgment for plaintiff. The defendant appeals.</p>

<p>1 Trusts: conveyance by beneficiary: compensation and expenses of trustee. A trustee of property is entitled to reasonable compensation and expenses incurred in the execution of his trust; and where, as in this case, the minors upon reaching their majority sold and conveyed their interest in the trust property the purchaser did not take the property divested of a lien for the compensation of the trustee and his expenses.</p> <p>2 Same: compensation and expenses of trustee: review on appeal. Any error of the trial court in allowing to a trustee of property his compensation and expenses will not be considered on appeal, where the abstract contains no testimony bearing upon the reasonableness of the same.</p> <p>3 Same: enforcement of trustee's right to compensation and expenses. Where minors, the beneficiaries of a trust, pending an action for partition of the property by the trustee, having arrived at majority, sold and conveyed their interest, as in this case, so that' the purchaser acquired the entire property, an antecedent order for the sale of the property to effect partition will not be stayed, where it appears on an accounting of the trustee that the beneficiaries are indebted to him; as such indebtedness is a lien on the property and the trustee is entitled to a sale of the same f;o satisfy the lien unless the purchaser pays the amount thereof.</p>

— Hon. James A. Howe, Judge. Action at law to recover damages for personal injuries received by plaintiff while passing along and over a defective sidewalk in the city of Des Moines. Trial to a jury. Verdict and judgment for plaintiff in the sum of $4,567. Defendant appeals.

— Hon. Edmund Nichols, Judge. Action in equity to enjoin defendant from obstructing ' a ditch. There was a decree granting the relief prayed, and defendant appeals. The opinion states the material facts.

<p>1 Railroads: passengers: trespassers: required care. A railway passenger riding upon a pass deceptively obtained and used with knowledge of the deception is a trespasser, to ■ whom the railway company is only required to refrain from wilful or wanton injury.</p> <p>2 Same: gross negligence: evidence. Proof that a trespasser upon a railroad train was injured in a collision caused by a misplaced switch establishes simply ordinary negligence; and not a wilful, wanton or reckless injury for which the railway company was liable.</p>

— Hon. C. G-. Lee, Judge. 'Action at law to recover damages for personal injury. There was a directed verdict and judgment for defendant. Plaintiff appeals.

<p>Appeal from, Mahasha District Court. — Hon. K. E. Willcockson, Judge.</p> <p>Action for damages for alienating affection. -'There was a verdict for plaintiff 'for $20,000. Defendant appeals.</p>

— Hon. B. P. Howell, Judge. Action in equity to set aside a judgment rendered in a proceeeding instituted by the defendant, Edward Raher, to have this plaintiff adjudged to be of unsound mind and to have a guardian appointed for him. In such proceeding there was a judgment in favor of the plaintiff therein, and defendant E. W. Mullin was appointed guardian. The lower court refused to set aside the judgment, and plaintiff appeals.

— Hon. D. M. Ander- • son, Judge. Action at law to recover for medical and surgical aid rendered to an alleged pauper. Judgment for plaintiff, and defendant appeals. The material facts are stated in the opinion.

— Hon. Byron W: Preston, Judge. The board of supervisors of Mahaska County established a drainage district in said county known as drainage district No. 2, and some of the parties whose lands were included in the district appealed to the district court by serving notice upon the county ■ auditor.

'Appeal from Woodbury District Court.- — -Hon. David Mould, Judge. This is an appeal from a judgment of the district court affirming and confirming the action of the board of supervisors of Woodbury County in establishing what is known as the “Wolf Creek Drainage District” in said county. There was an intervention in the district court, and the petition of the interveners was dismissed. The objectors to the establishment of the drainage district and the interveners appeal.

'Appeal from Linn District Court. — Hon. W. N. Treichler, Judge. 'Action to recover damages for the death of plaintiff’s intestate while in the employ of the defendant as locomotive engineer, alleged to have resulted from the negligence of’ the defendant in the use of a defective locomotive. There was a verdict and judgment for defendant. Plaintiff appeals.

— Hon. O. W. Vermillion, Judge. This is an action on quantum meruit for the value of professional services. The defendant admits the services, but avers that they were rendered under an exprss written contract.

— Hon. Zala A. Church, Judge. Action in equity for the recovery of the plaintiff’s distributive share in land owned by her husband. Decree for the dfefendants. The plaintiff appeals.

— Hon. Feanii- ' lin C. Platt, Judge. Suit ou a fire insurance policy, and a judgment thereon for the plaintiffs. The defendant appeals.

— Hon. James .A. Howe, Judge. Action of partition. The parties to the case are the heirs and widow of John N. Lee, deceased and intestate. The controversy in the case arises over the question whether the defendant, Hattie Y. Lee, was the lawful wife of John N. Lee, and whether she may now, as his lawful widow, take any part of his estate. There was a decree in her favor, and the other parties have appealed.

— How. A. J, House, Judge. Action on promissory notes. The plaintiff claimed $2,991 as the amount due thereon. The defendants averred payment, and pleaded a counterclaim. The trial court found a balance due plaintiff for $135. From such finding, the plaintiff has appealed.

— Hon. E. M. Weight, Judge. Action at law to recover damages for the maintenance of an alleged nuisance. Verdict and judgment for plaintiff, and defendant appeals.

<p>l Wills: construction: fee simple title. Power to dispose of property is equivalent to the power to alienate or direct its ownership : So that where, as in this case, the testator gave to his wife a life estate in certain property, not specifically described but easily ascertained, and then provided that the remainder of his estate, which had reference only to that property in which the life estate was created, should be at the absolute disposal of his wife, she took a fee simple title to the property.</p> <p>2 Same: intestacy. Intestacy is an important matter to be considered in the construction of a will.</p>

— Hon. R. P. Howell, Judge. Action in equity, wherein it is prayed that a certain deed be declared a mortgage. The trial court dismissed the petition, and the plaintiffs have appealed.

Certiorari proceedings to review orders of the defendant judge finding relators guilty of a contempt of court in violating certain injunctions issued against them, restraining them from illegally selling or keeping for sale intoxicating liquors.

— Hon. A. J. House, Judge. Action at law on a promissory note. After both parties had offered their evidence and rested plaintiff moved for a directed verdict on the ground that there was a failure of proof of the matters pleaded in defense to the note. This motion was sustained, and a directed verdict returned for plaintiff for the amount of its demand.

<p>Appeal from Mahaska District Court. — Hon. W. G. Clements, Judge.</p> <p>Deeendant was convicted of illegally transporting intoxicating liquors, and from the judgment imposed appeals.</p>

— Hon. L. E. Eellows, Judge. Action upon a policy of insurance against damage by cyclones, windstorms, and tornadoes. Various defenses were interposed, wbicb will be noticed in the body of the opinion. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

&emdash;Hon. W. B. Green, Judge. Action to recover an amount paid by plaintiff upon a promissory note, jointly executed by tbe parties to this suit, which plaintiff alleges defendant assumed and agreed to pay. Defense a. general denial and a counterclaim by defendant for one-half the amount paid by him as com; mission for selling some land jointly owned by the parties.

<p>i Wills: construction : life estate. A will bequeathing the exclusive control of testator’s property to his widow to have and use for herself and the support of his minor children, with power, during widowhood, to sell as she may deem for their best interest, and at her death the remaining property to be equally divided among 'testator’s liying children, with the exception of a designated child who was excluded from participation, and in case of her remarriage she to have one-third of the remaining unconsumed estate, the balance to be so divided among the children, is held to convey a life estate only with power of sale.</p> <p>2 Same: election by widow: evidence. Where, as in this case, there was no evidence that the widow elected to take under -the provisions of the will in lieu of dower, or that a notice requiring her election was served, or any evidence that she knew the provisions of the will, her right to ■ a distributive share in the estate was not barred.</p>

— IIon. 3?. C. Platt, Judge. The county treasurer of Black Hawk County assessed as omitted property certain shares of common and preferred stock in the United States Gypsum Company to each of the twenty-five appellees herein, and an appeal therefrom was taken by each to the district court.

— Hon. F. M. Powers, Judge. This is a suit for commission for the sale- of real estate. At the close of the- evidence the trial court directed a verdict for the plaintiff. The defendant has appealed.

— Hon.' W. R. Green, Judge. Proceeding to establish and enforce a lien upon certain personal property owned by an insolvent corporation. Relief granted as prayed, and the receiver appeals.—

'Appeal from, Diclcmson District Court. — Hon. D. P. Coyle, Judge. The defendant was accused of murder in the second degree, and convicted of assault with intent to commit murder. He appeals.

— Hon. F. M. Powers, Judge. Action to enforce the specific performance of a contract to convey an eighty-acre tract of land. There was a decree for the plaintiff, and defendant appeals.

— Hon, D. F. Coyle, Judge. Action in equity to declare null and void the enlarged Independent School District of Milford; to enjoin the election of directors, and for other equitable relief. The trial cqurt sustained a demurrer to- the petition, and plaintiffs appeal.

<p>1 Landlord and tenant: forfeiture of lease: waiver. A landlord i who accepts rents accruing after a breach of the conditions of the lease in this respect, which would justify forfeiture and reentry, waives the right of forfeiture, although the acceptance of rent accruing prior to the breach would not constitute a waiver.</p> <p>2 Same: notice of forfeiture: construction. A lease, as in this case, stipulating conditions with a penalty of forfeiture at the election of the lessor and providing that upon a breach by the lessee of any of the covenants he will without further notice surrender the premises, can not be terminated by mere notice of the election to forfeit; as such a notice merely indicates a purpose to terminate the lease by forfeiture and the relation of landlord and tenant still continues.</p> <p>3 Same: forfeiture: waiver. Where, as in this case, the lessor in a lease for a term of j;ears beginning February 1st at an annual rental payable July 1st each year, received the rent for that year in September, and subsequently brought suit for possession of the premises because of failure to pay the rent as stipulated, such payment and acceptance of the rent operated as a waiver of the forfeiture.</p> <p>4 Same: pleadings: amendment. The amendment of the petition in this action for possession of leased premises because of the breach of conditions by the lessee, alleging additional grounds of forfeiture but not averring that the same were unknown to the lessor at the time he received rent for a period subsequent to the commencement of the action, were properly stricken.</p> <p>5 Same: evidence: parol variance of written lease. A lease of land for amusement park purposes beginning February 1st for a term of years at a stipulated annual rental payable July 1st, made the rent payable for the year and not merely for the summer amusement season; and evidence that the parties understood the premises would be used only during the summer months, the amusement season closing in September, was inadmissible as varying the terms of the written contract.</p>

— Hon. E. B. Woodruee, Judge. In a proceeding iu probate for tbe settlement of tbe estate of J. T. Bell, deceased, the treasurer of state made application to have a collateral inheritance tax assessed against the estate on account of two hundred and forty acres of land passing by inheritance to collateral heirs.

<p>Appeal from Clay District Court. — Hon. D. 3?. .Coyle, Judge.</p> <p>A proceeding to redeem from au execution salé, and to have a conveyance absolute in form decreed to be a mortgage only. Judgment for the defendants. The plaintiff appeals.</p>

— Hon. A. D. Bailie, Judge. Action for partition of real estate of which Mrs. Mary L. Richey died seised, situated in Buena Vista county. The decedent was at the time of her death a resident of California, and there has been administration on her estate in that state.

'Appeal from Polls District Court. — Hon. James A. Howe, Judge. Appeal from au order overruling a motion by tbe defendants Hall, Akin, and Scbermerhorn' to set aside a judgment entered against them and to set the cause down for a retrial.

<p>1 Telegraphs: failure to deliver: notice of claim. Entire failure to deliver a telegram is neither erroneous transmission nor unreasonable delay in delivery, within the meaning of Code, section 2164; and a claim for damages resulting therefrom need not be presented to the company as a condition precedent to suit, as provided in that section.</p> <p>2 Same: tender of employment: submission of issue. A telegram in the form of an inquiry as to whether plaintiff would accept an appointment to a government position, as in this case, sent under circumstances indicating an intention to appoint plaintiff provided he accepted the offer, authorized a submission of the issue as to whether the sending of the message was equivalent to a tender of the appointment.</p> <p>3 Same: damages: definite employment. Damages for failure to deliver a telegram tendering definite employment are not so remote and speculative as to preclude recovery therefor, where the plaintiff testified that had he received the message he would have accepted the position.</p> <p>4 Same: nominal damages, Where, as in this action, the tender of a government appointment which plaintiff would have accepted, except for defendant’s failure to deliver the message, was for an indefinite time and subject to the pleasure of the government, he was only entitled to recover nominal damages.</p>