Volume 153 — Iowa Reports

. 'Appeal from 'Ringgold District Court. — Hon. H. M. Towner, Judge. Action to recover damages for injury to property in course of transportation over defendant’s road. Judgment for plaintiffs, and defendant appeals.

<p>Criminal law: perjury : evidence. The false testimony of one i charged with having given liquor, within the county, to one in the habit of becoming intoxicated, that he had not furnished the party liquor at a particular place is material.</p> <p>Same: motion in arrest of judgment. An objection that the false 1 2 testimony forming the basis of a charge of perjury was immaterial, can not be raised by a motion in arrest of judgment; such a motion will only lie for some demurrable ground, or when upon the whole record no legal judgment can be pronounced.</p> <p>Same: witnesses: capacity of children. The capacity of a child 3 as a witness can not he raised for the first time on appeal: And where a child is shown to have sufficient capacity to understand an oath, the question of age is not controlling.</p> <p>Same: perjury: sufficiency of evidence. The strongly corroborated 4 evidence of one witness testifying to the falsity of accused’s testimony will support a conviction for perjury.</p>

<p>Criminal law: dying declarations. Statements made in the firm 1 conviction of impending death are admissible in evidence as dying declarations; and when so made the length of time elapsing between the declarations and death is immaterial.</p> <p>Same: murder: evidence. One who inflicts a wound from which 2 death ensues is guilty of homicide, although if properly treated it would not have proved fatal; and evidence that it was not necessarily fatal is not admissible.</p> <p>Same: provocation: mitigation of offense. Abusive or insulting 3 language will not justify an assault or constitute sufficient provocation to reduce to manslaughter an offense which would otherwise be murder.</p> <p>Same: new trial: newly discovered evidence. On a prosecution 4 for murder, alleged newly discovered evidence that decedent was intoxicated at a time and place other and prior to the fatal affray, will not support a motion for a new trial: And evidence that decedent was of a quarrelsome disposition was immaterial, unless known to defendant at the time of the trouble, and if known he could so testify himself.</p>

— Hon. E. B. Gaynor, Judge. Action on contract. There was a verdict and judgment for the defendant and the plaintiff appeals.

— Hon. Byron W. Preston, Judge. Action for damages for false representation in the sale of land. There was a verdict and judgment for the plaintiff. The defendant has appealed. Appellee plaintiff challenges the sufficiency of the record for the purpose of an appeal and in an amended abstract denies the preservation of the evidence.

— ITon. E. B. Wood-ruff, Judge. Action to recover damages for the personal injury of the plaintiff and for the loss of the services of three minor children and of the society of his wife, all of whom are alleged to have met their death through the negligence of the defendants. There was a trial to a jury resulting in a verdict and judgment for plaintiff, and defendants appeal.

— Hon. F. E. Gaynor, Judge. A writ of certiorari was issued to the County Treasurer returnable to the District Court which upon hearing was dismissed. The plaintiffs appeal.

— Hon. Lawrence De Graff, Judge'. Defendant with two others, was indicted for the crime of making malicious threats to extort money. Upon trial to a jury he was found guilty and given an indeterminate sentence to the penitentiary. He appeals.

— Hon. O. W. Vermilion, Judge. Action for divorce. From a decree granting the relief prayed, and awarding plaintiff the permanent custody and control of the infant child and alimony for the care, support, and education of such child, the defendant appeals.

— Hon. K. M. Wright, Judge. Action to recover balance due on account. Defendant interposed a counterclaim for services rendered to plaintiff on a contract for an agreed compensation. There was a verdict for defendant, and plaintiff appeals.

— Hon. Chas. E. Albrooic, Judge. Action for replevin. Verdict for plaintiff and judgment on a delivery bond given by the defendants. Defendants appeal.

— Hon. C. E. Albrook, Judge. Action for damages for negligent construction of defendant’s railroad across plaintiff’s land, and for appropriating a part of plaintiff’s land outside of the right of way, and for failure to construct crossings. There was a verdict and judgment for .the plaintiff. Defendant appeals.

<p>Attorney’s liens: notice. An attorney is entitled to a lien for a 1 general balance of compensation upon money due his client in the hands of the adverse party, whether his fight to compensation grows out of a written or oral contract, contingency, quantum meruit or a fixed amount; and notice thereof need not state the details 'of his employment.</p> <p>Same: to what lien attaches. A contract to prosecute an action 2 for personal injury for a portion of the damages recovered is sufficient to authorize a lien upon money paid the client, as a compromise and settlement of the claim.</p> <p>Same: settlement of action: compensation of attorney. Where 3 plaintiff in a personal injury action secretly settled the same with the defendant, the attorney’s agreement.to prosecute the action for a portion of the sum recovered was waived and he thereby became entitled to the agreed compensation as against the plaintiff and also defendants, when served with notice of the lien.</p>

— IIon. C. Gt. Lee, Judge. Action at law to recover damages due to defendants’ failure to furnish plaintiff, who was a transient poor person, proper relief. Defendant Keigley was a member of the board of supervisors of defendant county and overseer of the poor of that county. At the close of plaintiff’s testimony, the trial court directed a verdict for the defendants, and plaintiff appeals.

<p>Carriers: limitation of liability by contract: federal statutes: 1 power of state. The statute of this state which declares invalid any contract with a railway company whereby an attempt, by means of an agreed valuation of property shipped, • is made to limit the liability of the company for negligent transportation, is not superseded by the Acts of Congress relating to interstate commerce; as the statute was in force and had been held valid prior to the action of Congress; and the state is not deprived thereby of its right .to enact such a statute by virtue of its police power.</p> <p>Same: filing of rates with interstate commerce commission: ef2 fect. The filing with the Interstate Commerce Commission of a schedule of rates raises no presumption that the commission agreed to such rates, or to the proposed conditions of shipment, and thus gave its sanction to the class of contracts prohibited by our statute, so that it may be said the power of the state has been superseded by Federal action; especially in view of the Federal statute providing that an initial carrier shall be liable for the negligence of any connecting carrier, notwithstanding any contract or regulation to the contrary.</p> <p>Same: interstate shipments: contract: liability: invalidity: 3 effect. The determination that a contract for an interstate shipment of property, providing that in case of loss the shipper can only recover the agreed value, is invalid, does not operate to give the shipper a rebate, even though a lower rate was charged because of low valuation, but simply affords him an opportunity to recover his actual loss.</p> <p>Same. Filing a schedule of transportation rates with the Interstate 4 Commerce Commission, at a time when the Commission had no power to fix rates, in which one rate was made to shippers in consideration for a stipulated recovery value in case of loss, and another rate where no such stipulation was made, does not determine the validity of the contract but leaves the question to the state courts; and a determination by a state court that the contract is invalid does not result in giving to a shipper by that method a less rate than that required by law.</p>

<p>Appeal from Hancock District Court. — Hon. J. J. Clark, Judge.</p> <p>Action to recover damages for personal injuries received by plaintiff while 'in defendant’s employ as a .sectionman, alleged to have been due to the negligence of the section boss in charge of the operation of a hand car on which plaintiff was riding, resulting in the derailment of the car and injury to plaintiff. The jury returned a verdict for the plaintiff for $6,000. On motion for a new trial, in which various grounds of error were alleged, the court gave the plaintiff the option of accepting a verdict for $4,500, and, on the acquiescence of plaintiff in this reduction, refused to set aside the verdict as thus modified. The defendant appeals.</p>

— Hon. J. F. Clyde, Judge. The plaintiff is the owner of land within the limits of drainage district No. 7, in Worth county. The ditch in question was duly. constructed, and the several tracts of land in the district were classified and assessed for the costs and expenses of the improvement. The plaintiff, owning six forty-acre tracts, objected to the assessment of her land as excessive, and appealed therefrom to the district court.

— Hon. F. C. Platt, Judge. Action at law to recover the selling price of a quantity of post cards. There was trial to a jury, and at the conclusion of the testimony the court upon plaintiff’s motion directed a verdict in their favor. From the judgment entered upon this verdict the defendants have appealed.

<p>Bailment: pleadings : variance. Plaintiff in this action alleged i that he leased certain picture films to defendant with the understanding that they should be returned in good condition, and also alleged negligence in handling the same. Defendant admitted the agreement to return and the case was tried on the issue of negligence. Held, that plaintiff was entitled to recover notwithstanding the plea of special contract.</p> <p>Same: reasonable care: burden of proof. Where property is de2 livered to a bailee in good condition and is returned in a damaged condition the law presumes negligence, and the burden is upon him to show that he exercised the required care.</p> <p>Same: negligence: evidence. In this action for injury to moving 3 picture films by a bailee, the evidence is held sufficient to show that they were negligently handled by defendant and to support a verdict for plaintiff.</p> <p>Same: expert evidence. A witness having had experience in the 4 handling and use of picture films is competent to give an opinion as to what caused the injury to the same.</p>

— Hon. W. N. Treichler, Judge. Suit for damages against judges of election, who refused to receive the plaintiff’s vote at a general election. There was a directed verdict for the defendants. The plaintiff appeals.

— Hon. Chas. E. Al-brook, Judge. This is an action to recover the funds of the hank, alleged to have been misappropriated by defendant Aldrich, its cashier, in conjunction with the other defendants, in bucket shop transactions. Judgments were rendered against defendants in different amounts, and the defendants, other than Aldrich, appeal from the judgments rendered against them respectively.

<p>Appeal: delay in filing abstract. Delay in filing an amendment 1 to an abstract, not the fault of appellee and from which no prejudice results, will not be stricken because of the delay.</p> <p>Same: service of notice:, record evidence. The recital in a judg2 ment that a party appeared to the action by counsel and in person is conclusive that notice of appeal was served upon such party, as against the denial, unsupported by affidavit, that the counsel acknowledging service of notice of appeal was not such counsel.</p> <p>Same: amendment of abstract: waiver of defects* in-record. In 3 filing an amendment to the abstract the appellee does not waive objections to alleged defects in the preservation of the record, but he may amend subject to the ruling on the denial that the evidence was ever filed or properly certified.</p> <p>Same: establishment of the record. The court has authority to 4 establish the record of a cause as it originally existed at any time: Thus where the certificate attached to the shorthand report was inadvertently removed and a substituted certificate, neither entitled, dated nor signed by the reporter was attached, the appellant was entitled to a correction of the certificate in accordance with the original, although more than a year had elapsed since entry of the judgment.</p> <p>Same: sufficiency of record. The evidence on the motion in this 5 case to establish the original certificate attached by the official reporter is held to support a finding that the original certificate was detached by the reporter and inadvertently replaced by a defective one.</p> <p>Fraudulent conveyances: creditors’ suits: relief. It is not nec6 essary in a creditor’s suit against nonresident defendants to set aside a conveyance that the claim be first reduced to judgment, . but demand -for judgment and to subject the land fraudulently conveyed may be made in the same action.</p> <p>Same: fraud: knowledge of grantor’s intent: effect. Although 7 -a creditor may know that his grantor’s conveyance to him was with intent to hinder and delay other creditors, still he may acquire good title if taken in good faith on his part and in satisfaction of a valid indebtedness due him.</p> <p>Same: husband and wife: conveyance of homestead: consent of 8 wife. A wife is not bound to consent to a conveyance of the homestead, but as a condition precedent to her assent she may require that the transfer of property for which it is exchanged be made to her. And while transactions between husband and wife which have the effect of delaying creditors will be carefully scrutinized still she has the same rights as a vigilant creditor of her husband that others have, and if actuated only by a design to collect what is due her she is not subject to criticism.</p> <p>Same: transactions between husband and wife: repayment of 9 loans : reasonable time. A husband may repay money borrowed in good faith from his wife, and where no definite time for repayment is agreed upon his obligation is to pay within a reasonable time. Evidence held to show that the transactions in question were not fraudulent as to the husband’s creditors.</p> <p>Domestic animals: ownership of increase. In the absence of an 10 agreement to the contrary the increase of domestic animals belong to the owners of the dams.</p>

<p>Appeal from Woodbury Distmct Court. — Hon. Frank R. Gaynor, Judge.</p> <p>Action on a policy of fire insurance. On an agreed statement of facts the court rendered judgment for plaintiff, and defendant appeals.</p>

— Hon. D. M. Anderson, Judge. Action for breach of covenant of a deed against incumbrances. Defendant filed a cross-bill asking reformation of the deed so as to except the alleged incumbrances from the covenant. Deformation of the deed was denied, and a decree entered for the plaintiff. Defendant appeals.

— Hon. B. P. IIowele, Judge. Action for specific performance of a contract to convey real estate. There was a decree for the plaintiff, and defendants appeal.

— Hon. A. 13. Thornell, Judge. Action in equity to vacate and declare void a deed of conveyance and to establish plaintiff’s title to an interest in real estate and for partition. Decree dismissing the bill, and plaintiff appeals.

<p>Appeal from Union District Gourt. — Hon. H. K. Evans, Judge.</p> <p>Action for damages to an automobile resulted in a judgment against defendant, from which he appeals</p>

<p>Accounting: appeal: review. The appellate court in a suit for an 1 accounting, involving a large number of items, will not act as a master in chancery and state the account between the parties, where the decree appealed from gives no intimation of the claims allowed and disallowed, but will classify the items, giving its view thereon, and remand the case for the entry of judgment in • conformity therewith.</p> <p>Mortgages: mortgagee in possession: accounting. A mortgagee 2 in possession holds the property in trust for the benefit of the mortgagor after payment of the debt secured thereby, and where action is brought to redeem it becomes the duty of the mortgagee to promptly account for his trust.</p> <p>Same. Where a mortgagee in possession is entitled to wages paid 3 for labor on the mortgaged premises he is also entitled to the cost of boarding the laborers.</p> <p>Same. A mortgagor entitled to redeem from a mortgagee in pos4 session may recover for waste committed to the material injury of the premises.</p> <p>Same: accounting for repairs. A mortgagee in possession may 5 make such repairs as are reasonably necessary to preserve the estate in the condition in which he received it, and is entitled to credit therefor in a settlement with the mortgagor who is seeking to redeem; but generally he may not go beyond necessary repairs and make betterments at the expense of the mortgagor or of the property itself unless .by the mortgagor’s express or implied consent. Under this rule the cost of tiling, the erection of new buildings or reconstruction of old ones should not be allowed the mortgagee.</p> <p>Same: cost of releasing attachment. The amount a mortgagee 6 in possession was compelled to pay to release the property from an attachment, with interest from the date of payment, but not including costs of suit, should be allowed the mortgagee in an accounting upon redemption, especially where it was contemplated by the parties that the mortgage should stand as security therefor.</p> <p>Same: services of mortgagee in possession. A mortgagee in pos7 session should not be allowed for his own services in connection with the mortgaged property voluntarily rendered and for his own benefit and protection.</p> <p>Same: redemption: tender: interest. Where the amount required 8 to redeem from a mortgage is liquidated and no accounting is required, a Sufficient tender will usually arrest the accumulation of interest; but where the mortgagor is in court claiming payment, or a material reduction of the debt because of equitable counterclaims which he insists should be treated as payments, and is asking for an accounting, the rule does not apply. Yet where the mortgagee denies the trust and prolongs the litigation, as in this case, it is proper to compute the interest without annual rests or compounding the same.</p> <p>Evans, J., dissenting.</p>

<p>Appeal: waiver of error. Alleged errors concerning which there 1 is no brief or argument will not be reviewed, on appeal.</p> <p>Criminal law: concealing stolen property : effect of verdict. Con-2 viction for aiding in the concealment of numerous stolen articles, no election as to the particular article having been required by the court, is an implied conviction for aiding the concealment of all articles enumerated in the charge.</p> <p>Same: evidence of absent witness: how proven. The testimony 3 of a witness on the first trial of a criminal case, but who on the second trial is beyond the jurisdiction of court, may be proven in substance by those who heard it, even though it was not taken in short hand.</p> <p>Weaver and Evans, JJ., dissenting.</p> <p>Same: concealment of stolen property: possession. It is not , 4 essential to a conviction for concealing stolen property that the accused should have had actual possession of the same; it is sufficient if he knew it was stolen and aided in its concealment.</p>

<p>Appeal from Linn District Court. — Hon. W. N. Treichlek, Judge.</p> <p>The opinion states the nature of the case and the material facts.</p>

<p>’Appeal from, Hamilton District Court — Hon. B. M. Wright, Judge,</p> <p>Action at law to recover an amount paid to the defendant by Chas. F. W. Buente, an alleged bankrupt, upon a chattel mortgage indebtedness of the said Buente, which chattel mortgage is said to have been received by defendant as a preference under the national bankruptcy law, and therefore void. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Hardin District Court. — Hon. R. M. Wright, Judge.</p>

<p>Landlord and tenant: forfeiture: waiver. Provisions in a lease 1 for reentry, to distrain for rent or to recover possession in case of default in payment of rent, and in a concurrent contract giving the lessee an optional right to purchase and that the option should cease upon a declaration of 'forfeiture of the lease are not self-executing, but sbme_ affirmative action on the part of the landlord is necessary to create a forfeiture; but this right of forfeiture may be waived by subsequent acceptance of rent money and the assertion of a lien for accruing rent, under the rule that one having two inconsistent modes of redress is bound by his deliberate choice of one.</p> <p>Receivers: sale of option contract. An optional contract for the 2 purchase of real estate which is of value may be sold and assigned by order of court for the benefit of the creditors of an insolvent estate, although it may not ordinarily be sold by the party to whom it was originally given': So that in this receivership proceeding the court had power to order the sale of an option to purchase property made in connection with a lease of the same by the insolvent.</p>

<p>Master and servant: assumption of risk. An employee having no 1 knowledge of the defective and dangerous character of a machine with which he is at work, and who is given no warning or instruction as to how to do his work, does not assume the risk of injury incident to a defect in the machine.</p> <p>Same: duty of employee. : contributory negligence. It is the duty 2 of an employee to obey the orders of his master, and in so doing he may assume that he will not be directed to work in an unsafe place; and if injured in consequence of obeying an improper order he will not be guilty of contributory negligence as a matter of law, unless the dangers of the place were so obvious that no prudent person in a like situation would undertake it, even if so ordered. In the instant case plaintiff was injured by the accidental dropping of a defective hammer, and it is held that as his superior was in charge of the operation of the hammer and directed plaintiff to perform the work, the dangers of which he was not aware, he was not negligent as a matter of law.</p>

<p>Street railways: injury to passenger: negligence of motorman: 1 evidence. Ill crossing a railroad track the motorman is bound to exercise the highest degree of care for the safety of his passengers, and he is not relieved of this duty merely because a flagman is stationed at the crossing. In this action for injury by collision with a railway train the evidence of the motorman’s negligence is such as to require submission of that question to the jury.</p> <p>Same. The mere fact that the railway company may also have been 2 negligent will not relieve the street car company from the consequences of its negligence.</p> <p>Examination of witnesses: scope of inquiry. A cause will rarely 3 be reversed because of the admission of competent testimony developed on cross-examination, though not within the scope of the direct examination; as this is largely a matter of discretion, and the complaining party may, if he desires, cross-examine upon the new points.</p> <p>Street railways: crossing accident: negligence: instruction. It 4 is the duty of a street car mortorman upon approaching a steam railway crossing to take the highest precaution for the discovery •of an approaching train, which -doubtless includes the duty of stopping his car for that purpose. But having once brought his car under control and stopped the same on approaching the crossing it was not negligenc.e, as matter of law, for him to obey a flagman’s signal and proceed over the railroad track without again stopping to look for a train. Under such circumstances the question of his negligence is one of fact.</p>

<p>Appeal from Pottawattamie District Court. — Hon. O. D. Wheeler, Judge.</p> <p>The defendant was convicted of tbe crime of larceny, and appeals.</p>

— IIon. Lawrence De Graee, Judge. John E. Pitt, a resident of Polk county, died intestate February é, 1910, leaving a widow and two daughters, one a resident of Des Moines and the other of Washington, D. O. The property left by him consisted of a house and lot situated in Des Moines occupied by deceased as a homestead and thereafter by the widow and unmarried sister, of the value of $3,500, a half interest in certain real estate in the state of Idaho valued at $1,000, a…

— Hon. D. F. Coyle, J udge. Action for damages because of alleged misrepresentation and guaranty of invoice value of goods resulted in a verdict for defendants, and from judgment thereon the plaintiff appeals.

— Hon. W. M. McHenry, Judge. Appeal from an assessment of benefits in a drainage proceeding. Prom the order of the board of supervisors the plaintiff appealed to the district court of Polk county. Hpon motion of the defendants, the appeal was dismissed for1 want of jurisdiction. From the order of dismissal entered by the district court, plaintiff has appealed.

<p>Divorce: adultery: procuring or evidence: connivance. Either a husband or wife, having reason to believe the other guilty of adulterous relations with a stranger, may take measures to secure evidence of that fact without being guilty of either connivance or consent to the wrongful act. In this case the plaintiff’s acts in securing evidence of the adulterous relations of the defendant with another were not such as to bar her right to a divorce on that ground.</p>

— Hon. George H. Castle, Judge. This is a garnishment proceeding under execution. The execution plaintiff sought to reach a fund in the bank to the credit of the defendant, and garnished' the bank. The intervener appeared and claimed a part of the fund. The garnishee paid the money into court. The petition of intervention was struck from the files upon motion of the plaintiff and a judgment entered for plaintiff condemning the fund. .The intervener appeals.:

— Hon. Z. A. Church, Judge. Suit to enjoin defendant from obstructing tbe waters in a watercourse resulted in a decree as prayed. The defendant appeals.

<p>Appeal from, Lucas District Court. — Hon. D. M. Anderson, Judge.</p> <p>The opinion states the case.</p>

— How. H. M. Towner, Judge. The defendant was convicted of the crime of assault with intent to commit rape, and appeals.

— Hon. F. ]\I. Powers, Judge. Action for damages resulting from a fall, caused by a defective sidewalk, in November, 1904. There was a trial in September, 1905, at which the jury, by direction of the court, returned a verdict for defendant. Judgment was entered thereon, and in the month following an appeal to this court was perfected.

— Hon. F. M. Powers, Judge. ■Suit iu equity.' Plaintiff prays that certain proceedings of the board of supervisors in the establishment of a drainage district be held void, and that taxes assessed in pursuance thereof be held illegal, and that a purported tax sale of plaintiff’s lands for the payment of such taxes be held void, and that the tax sale certificates be canceled, and that the defendant treasurer be enjoined from issuing deeds thereunder, and other relief.

<p>Taxation: national bank shares : value: deduction of government bonds. That portion of the capital of a national bank invested in government bonds should be deducted from the bank assets in determining the value of its shares of stock for the purpose of taxation.</p>

— Hon. D. F. Coyle, J udge. Action to recover an inheritance tax. The case was submitted on an agreed statement of facts and plaintiff’s claim was disallowed. Plaintiff appeals.

<p>Wills: revival: republication. A will which has been expressly i revoked may be revived by re-execution or by a codicil legally executed; but when done by codicil an intention to revive the former will must be shown, and this may be by any reference therein which makes such intent obviqus. The codicil need not be attached to the will to make it operative, but there must be such reference to the will as to furnish the means of identification without other evidence, except to show that the document sought to be incorporated is identical with that referred to in the will. In this case an instrument executed at or about the time of the destruction of a second will which contained an express revocation of the former one, addressed to the judge of the district court, and requesting him to appoint a certain person as administrator without bond, was not sufficient to revive the former will, as there was no showing of an intent to do so.</p> <p>Same: presumption as to revival. The mere destruction of a second 2 will expressly revoking a former one raises no presumption that the former will is revived; that question depends upon the testator’s intention, which must -be gathered from all the circumstances in the case.</p> <p>Same: cancellation of wills: statute. The cancellation of a will 3 as provided by the statute may be by an instrument of cancellation, by the execution of another will containing an express clause of revocation, or by the execution of an inconsistent will without such clause; the term cancellation meaning a revocation by a written instrument.</p> <p>Same. The execution of an instrument of cancellation elfects a 4 revocation of the will whether the instrument is probated or not.</p> <p>Same. An implied revocation of a will from the execution of a 5 second inconsistent will does not become effective if the, second will is destroyed or revoked before probate.</p> <p>Same: revivor: evidence. In this case the testator executed a sec- ■ 6 ond will in which she expressly revoked a former one, but subsequently destroyed the second, preserving the first until her death.. Held, that the first will was revoked by the execution of the ■second, but the question of revivor of the first one by the destruction of the second was one of intent to be gathered from the admissible parol evidence. And on this question the declarations of the testator at the time of the revocation are admissible.</p>

— Hon. L. E. Eel-lows, Judge. This is a proceeding on a petition for new trial of an action between the same parties, in which there was a verdict and judgment for the defendants. The petition was supported by affidavits, and on a hearing the lower court dismissed the petition. Plaintiffs appeal.

— Hon. K. M. Wright, Judge. Plaintiff asks a writ of mandamus, requiring the board of supervisors to levy an assessment upon the lands within a certain drainage district for the payment of the cost of the ditch, and for other relief. The trial court denied the relief sought, and plaintiff appeals. The facts, so far as material for the disposition of the appeal, are stated in the opinion

— Hon. Z. A. Oi-iurch, Judge. Action on a guaranty of indebtedness. The defendants relied upon a settlement and release. There was a verdict for defendants, and from judgment thereon plaintiff appeals.

— Hon. Z. A. Oiiurch, Judge. Action to foreclose a mechanic’s lien. There was a decree for the plaintiff, and the defendants appeal.

<p>Appeal from Page District ■ Court. — Hon. W. R. Green, Judge.</p> <p>The defendant appeals from a judgment of conviction entered against him on a charge of burglary-.</p>

— Hon. A. B. Tiiornell, J udge. Action for damages for negligence in obstructing a stream whereby certain premises were flooded with water, and whereby sickness resulted to plaintiff’s assignor, culminating in her death a few months later. There was a verdict and judgment for the plaintiff. Defendant appeals.

— Hon. O. H. Kelly, Judge. Action for damages to horses shipped over the defendant’s line of railway resulted in judgment as prayed. The defendant appeals.

— Hon. A. P. Barker, ■ Judge. Action in equity to quiet title to real estate. There was a decree for the plaintiff, and defendant appeals.—

— Hon. J. F. Clyde, J udge. Suit in equity to recover usurious interest under the provisions of sections 5197 and 5198 of the Revised Statutes of the United States (U. S. Comp. St. 1901, page 3493). There was a judgment for the plaintiff, from which the defendant appeals.

— Hon. Frank R. Gaynor, Judge. Action on a promissory note. An equitable defense was pleaded. The cause was tried on the equity side of the court. There was a decree for the plaintiff for the full amount of the note. Defendants appeal.

— Hon. Hugh Brennan, Judge. Action to recover damages for tlie death of plaintiff’s intestate, Bertram H. Grace, alleged to have been caused by the negligence of the employees of the defendant company in operating its road. There was a verdict for plaintiff, and from judgment on such verdict the defendant appeals.—

— Hon. Lawrence De Graef, Judge. Suit in equity to enjoin an alleged liquor nuisance. Trial to the court upon an agreed stipulation as to the facts. Decree dismissing the petition, and plaintiff appeals.—

— Hon. C. E. Ransier, Judge. Action against a street railway company for personal injuries resulting from collision on tbe street. There was a verdict for the plaintiff. Defendant appeals.

— Hon. Chas. E. Albrooic, Judge. Actions in equity to set aside certain conveyances, made by Taiman Wiltsey in his lifetime, on the ground of want of mental capacity in the grantor, and that the execution of such conveyances was procured by undue influence. The plaintiffs were adjudged entitled to the relief prayed, and the defendants, or some of them, appeal. Other phases of the controversy between these parties have twice before had the attention of’ this court.

— Hon. O. D. Wheeler, Judge. This is an appeal from an' order in probate, directing the administratrix to pay to the state treasurer, ás a collateral inheritance tax, the sum of $614.47.

— Hon. W. 'H. McHenry, Judge. Appeal from an assessment of benefits in a drainage proceeding. Prom the order of the board of supervisors tbe plaintiff appealed to tbe district court of Polk county. Upon motion of tbe defendants, tbe appeal was dismissed for want of jurisdiction. Prom tbe order of dismissal entered by tbe district court, plaintiff bas appealed.—

<p>Appeal from Polk District Gourt. — Hon. W. H. McHenry, - Judge.</p> <p>Action to recover damages for personal injuries received by plaintiff while a passenger on a car of defendant resulting from falling off the platform of said car by reason of the alleged negligence of the conductor in its operation. There was a verdict for plaintiff, and from a judgment in her favor the defendant appeals.</p>

<p>Appeal from, Palo Alto District Court. — Hon. D. E. Coyle, Judge.</p> <p>Action to recover damages for personal injuries due to tbe negligence of the defendant, received by plaintiff while sustaining toward defendant the relation of passenger. There was a verdict for plaintiff, and from judgment in her favor the defendant appeals.</p>

— Hon. Z. A. Church, Judge. Action at law upon three promissory notes. At the close of the evidence, a motion by plaintiff for a directed verdict in its favor was sustained, and defendants appeal. The material facts are stated in the opinion.

— IIon. F. M. Powers. Judge. Action at law to recover a commission for finding a purchaser for certain real estate belonging to defendant. Trial to a jury, verdict and judgment for defendant, and plaintiff appeals.

<p>Appeal from Shenandoah Superior Gourt. — Hon. W. P. Ferguson, Judge.</p> <p>Suit in equity to enjoin the defendants from changing the location and boundaries of a certain alley in the defendant city. Plaintiff claims that the alley should remain where it is, no matter whether according to the plat or not, because of acquiescence in the location and boundaries thereof, of adverse possession of that part which is on defendants’ lots by the city, and by the plaintiff of that part of the alley which it is now claimed belongs to the city, and for the further reason that all the defendants are es-topped from claiming that the alley should be moved so as' to extend over and upon plaintiff’s lot. All these matters are denied by the defendants, and ón these issues the case was tried to the court resulting in a decree dismissing plaintiff’s petition. He appeals.</p>

— Hon. C. G. Lee, Judge. Action to recover damages for breach of contract. There was a verdict and judgment for the plaintiff. The defendant appeals.

— Hon. P. 3VL Powers, Judge. This is a proceeding commenced by petition for a new trial, filed within one year after rendition of judgment against the defendant; the alleged grounds for new trial being that the testimony of plaintiff as a witness was false and untrue to his knowledge, as shown by his subsequent testimony in another case, and the discovery of new evidence which, if produced on the trial, would have tended to contradict the testimony of plaintiff as then given.

— Hon. W. H. McHenry, J udge. Action for damages resulted in a directed verdict for defendant. Judgment was entered thereon. Plaintiff ap- peals.

<p>Appeal from Webster District Court. — Hon. R. M. Wright, Judge.</p> <p>Some time prior to his death, which occurred August 19, 1901, Jeremiah Coleman, Sr., was afflicted with a malady which he was aware would soon prove fatal. He owned two farms in Webster County, one containing one hundred and sixty acres, on which he lived, and another one hundred and twenty acres, across the road, occupied by his son Timothy J. Coleman. Wm. P. Coleman, youngest of ten children, was unmarried, and resided with his parents. The eldest son, Jeremiah Coleman, Jr., and the seven daughters, had long since married and left home. On June 12, 1901, Jeremiah Coleman, Sr., his wife, Elizabeth, joining, conveyed the one hundred and sixty acres subject to an incumbfance of $500 to William and the one hundred and twenty acres subject to incumbrance of $800 to Timothy by separate warranty deeds,. reciting in each the consideration as $1. At the same time, and as a part of the same transaction, an instrument in words following was executed:</p> <p>Agreement of lease, made this day between Timothy J. Coleman and Mary Coleman, nis wife, of the county of Webster, and state of Iowa, of the first part, and Jeremiah Coleman, Sr., and Elizabeth Coleman, of the county of Webster, in the state of Iowa, of the second part, witnesseth: That the said parties of the first part has this day rented to the party of the second part the following described premises, situated in the county of Webster, in the state of Iowa, for the term of twenty years, but to terminate at the death of both of the two second parties: The southeast one-fourth of the northeast one-fourth, and the north one-half of the southeast one-fourth, of section 3, Jackson township, Webster County Iowa. This lease given to secure to second party the payment of two hundred dollars»($200) yearly, which first parties agree to pay to said second parties until the death of both of second parties, these being the conditions upon which second parties have deeded to first parties the property above described. On the following terms and conditions, to wit: Eor the rent of said premises, the said party of the second part hereby agrees to pay to the said party of the first part one and no/100 dollars, said rental to be paid promptly, as follows: [Here followed the terms generally-found in a farm lease and it ended.] In witness whereof, we have hereunto set our hands this 15th day of June, 1901.</p> <p>Timothy Coleman.</p> <p>Mary Coleman,</p> <p>his</p> <p>Jeremiah X Coleman, Sr.</p> <p>mark</p> <p>her</p> <p>Elizabeth X Coleman,</p> <p>mark</p> <p>An instrument exactly like the above, concerning different land, and save that Wm. P. was named and signed as party of first part, instead of Timothy and wife, and the amount of payment was $300 per annum, instead of $200, also was executed.</p> <p>After the death of Jeremiah Coleman, Sr., William, with his mother, continued in occupancy of the one hundred and sixty acres until the spring of 1903, when the land was rented, and they moved to Des Moines. About $500 was realized from the sale of horses and farm implements and $530 was received in advance for a year’s rent, and with this and some borrowed money a lot with three houses.on it in Des Moines was purchased. Two of these houses were rented and the other occupied by them. Out of such rent and William’s earnings as an employee of the street railway company -they lived, she keeping house for him until May, 1905, when he married. The plaintiff continued to make her home with William until some, time after he moved back on the farm in 1908. He sold the Des Moines lot, realizing therefrom $1,650, out of which he paid an indebtedness of about $450 and had used most ' of the remainder. Hp to the time of his marriage the mother performed all the work incident to keeping house for William, and thereafter aided his wife in so doing. During this period she was unusually strong and healthy for one of her years, and all she received from him was money used in meeting the expenses of the family, purchasing clothing, and to pay' her railroad fare when she visited her daughters. ‘ Timothy had given her a pair of shoes and $6, half of which she claims to have returned. On May 13, 1909, she left William, and took up her residence with a daughter, Mrs. Passou. Shortly afterwards payment of the amounts stipulated in the contracts was demanded, and, not being paid, an action was begun against each of defendants. Each defendant pleaded several defenses, and by way of cross-petition prayed that the contracts be reformed so as to include conditions that payment of the sums promised should not be made save when the mother ceased to make her home with one of defendants. The causes were consolidated, and, upon hearing, the contracts were treated as though reformed as prayed, and judgment entered against each for the respective proportions of the annual payments that the time intervening between the departure of plaintiff from William’s home and the bringing of the actions bears to one year. The plaintiff appeals.</p>

<p>Appeal from Tama District Court. — Hon. C.. B. Bradshaw, Judge.</p> <p>T. J. Wilcox died testate in October, 1896. In December following his will was admitted to probate, and Mary E. Wilcox, his surviving spouse, appointed executrix. In her report filed October 18, 1891, she elected to take under the will, which read:</p> <p>(2) After the payment of my debts, and the legal charges against my estate, I hereby give, devise and bequeath to my beloved wife, Mary Elizabeth Wilcox, in lieu of dower, should she survive my decease, all of my property, of every name and nature whether real, personal or mixed, of which I may die seised and possessed, where-ever the same may be situated, for her own individual use and benefit for and during her natural life, with full power and authority to my said wife to expend the whole of my net personal estate and the whole of the net income of said real property after payment of taxes for her support and benefit as she may desire.</p> <p>(3) Subject to the foregoing provisions, and especially subject to the life estate and interest of my said wife in and to my said property all and singular, I hereby give, devise and bequeath the remainder of my estate in fee, real, personal or mixed at the death of my said wife, to my sons, daughters and grandson, Celia Ayrhart, nee Wilcox, Ira Wilcox, A. I. Wilcox, Emma Florence Wilcox and Jesse Wilcox (son of my deceased son Dwight Wilcox) share and share alike to each of them one-fifth of my said residuary estate.</p> <p>Following were directions with reference to certain advancements and other conditions not necessary to be set out. In the above report, the executrix charged herself with the appraised value of the personal property left by deceased, amounting to $3,412.50, and reported the payment of $602.39 of debts and expenses of administration, leaving a balance of $2,810.11. A final report was filed May 17, 1898, from which it appears that executrix had paid a debt and expenses amounting to $1,196.61, leaving $1,-613.50, but which the report computes at $1,000 less, making the net balance $613.50, and states there are some court costs she will pay, and, as the net balance was to be retained by her, prayed that she be discharged. The report was approved May 25th following, and her discharge as executrix entered. Mrs. Wilcox died intestate March 10, 1909, and J. O. Milner was appointed administrator of her estate June 1, 1909, and this action for the possession of a note and other property alleged to have belonged to her, all conceded to have been of the value of $3,200, was begun July 10th of the same year.- That she was in possession of the property in controversy at the time of her death is not questioned. The defense interposed is that all of it belonged to the estate of her deceased husband and passed under the will to the legatees entitled to the remainder after the termination of the life estate. The defendant, F. W. Brokhausen, purchased the interest of the legatees therein except intervener and as heirs of Mrs. Wilcox, and claimed the interest of the intervener, A. I. Wilcox, who joined the administrator in asking that the latter recover, by virtue of an instrument dated November 4, 1897, which recited that in consideration of the conveyance of certain property by defendant, Brokhausen, to him, said Wilcox “does grant and convey, release, and relinquish unto the said party of the second part his heirs and assigns, the following goods and chattels, rights, and interests, to wit: All my rights, claims and interests in and to the personal estae of my father, T. J. Wilcox, late of Tama county, Iowa, deceased, the same being an undivided one-fifth interest in and to said estate as granted to me by my said father’s will, which said will is duly recorded in Will Book 4 on pages 77, 78 and 79 of the Probate Becords of Tama County, Iowa, and I, the said A. I. Wilcox, by these presents do relinquish, grant, release and convey all my rights which I now possess or may hereafter acquire in and to said estate and that said rights and interests are hereby granted and conveyed to the said F. W. Brokhausen, his heirs, executors, or assigns, to have and to hold the same forever.” The evidence disclosed that T. J. Wilcox resided on a farm with his son Ira, that each owned one-half the personalty and was entitled to one-half of the income and increase, and that from the time of his death, without disposing of the property, Mrs. Wilcox continued with this son under the same arrangement until her death. The petition and also the petition of intervention was dismissed. The administrator and intervener appeal.</p>

— IIon. Lawrence De Grade, Judge. This is ail appeal from an order of the trial court dismissing a petition for a writ of habeas corpus.

<p>Exclusion of evidence: harmless error. ' The exclusion of evi1 dence regarding a matter which has been established by the undisputed testimony of other witnesses is not prejudicial error. ,</p> <p>Personal injury: damages : future suffering : instruction. An 2 instruction in a personal injury action that recovery for future pain and suffering must be limited to such as. may be found from the evidence that plaintiff will suffer is proper, and not ob- . jectionable as permitting damages for future suffering not reasonably probable.</p> <p>Trial: verdict: coercion by court. Where the jury reported to 3 the court that it had not yet reached an agreement and that the question on which it was divided was one of fact, it was not improper for the court, in ordering them to again retire for further deliberation, to suggest the desirability of their agreeing upon a verdict, and had no tendency to coerce a verdict not the deliberate judgment of the jury.</p>

<p>Appeal from Linn District Court. — Hon. M. P. Smith, Judge.</p> <p>Summary proceedings by motion to comjiel defendant, wbo is an attorney at law, to pay over to plaintiff certain money received by him. in bis' professional capacity. The trial court sustained the motion, and defendant appeals.</p>

<p>Insurance: provisions of lost policy: evidence. In this action l upon a lost fire insurance policy the evidence is held sufficient to take the question of whether a lightning clause was attached to the policy to the jury.</p> <p>Same: secondary evidence; self-serving declarations. .Where sec-2 ondary evidence is resorted to it must be of the best degree, obtainable. In this action upon a lost policy of insurance plaintiff contended that a lightning clause was attached to the policy and defendant offered in evidence the policy register and entries of the agent in connection therewith, which failed to disclose a lightning clause. A witness testified that the register was in the hand writing of the agent, since deceased, and if there had been a lightning clause it would have been noted on the register. Held, that as the entries were not verified by anyone having a knowledge of the facts recited therein they were self-serving declarations and therefore inadmissible.</p> <p>Same: documentary evidence. Nor were the entries admissible un3 der the Code as having been made in a professional capacity or in the ordinary course of profession’al conduct; as insurance agents are not classed as professional men, nor are their duties in these respects of a professional character, within the contemplation of the Code.</p> <p>Same: loss from lightning: policy exceptions. The provision in 4 a policy of insurance that “if the building or any part thereof fall, except as a result of fire, all insurance by this policy on the building or its contents shall immediately cease” has reference to the falling of the building from causes other than those insured against, and does not operate to relieve liability for damages resulting from a fall of the building as the result of lightning, where the policy covers loss from lightning.</p> <p>Samé: loss from lightning: direct damage. The provision of a 5 policy covering direct loss or damage caused by lightning includes damage to goods from water and debris into which they were thrown by the fall of a building as the result of lightning.</p>

— Hon. Milo P. Smith, Judge. The defendant was convicted of breaking and entering an inhabited dwelling in the nighttime, and appeals.—

— Hon. Clarence Nichols, Judge. This action, instituted by a school corporation which formerly existed and ’still claims legal existence, represented by certain pretended officers and joined in by certain taxpayers residing in the territory of such pretended school corporation, was brought for the purpose of securing an injunction against a pretended school corporation and its alleged officers, preventing them from proceeding further or asserting any authority under an…

<p>Estates of decedents: claims: temporary administration. A temi porary administrator appointed to investigate and report upon a claim of the regular administrator against the estate has no authority to allow more than the amount claimed.</p> <p>Same:, claims: allowance: subsequent correction. The allow-2 anee by the court of a claim against an estate, while not a judgment is attended by the same presumptions, and ordinarily should be attacked in the same manner. But the probate court has a large discretion and control over the settlement of estates, and at any time before the final discharge of an executor or administrator may correct his accounts and settlements for mistake or fraud, including the erroneous account of a special administrator.</p> <p>Same: erroneous allowance of claims: remedy: jurisdiction. 3 Where the heirs of a decedent had no notice of the proceedings for the allowance of a claim in favor of the general administrator, and were not represented and did not appear before the special administrator in resistance of the claim, and its allowance was manifestly erroneous, a motion to set aside the allowance made pending administration was timely, and was a direct attack justifying relief. And the motion was properly supported by affidavits of the heirs.</p> <p>Same: sale of real estate. The application of an administrator to 4 sell real estate should be denied where the decedent’s indebtedness has not been ascertained and there is a prima facie showing of sufficient personal assets.</p>

<p>Appeal from Marshall District Court. — Hon. O. B. Bradshaw, Judge.</p> <p>Action to quiet title. At the appearance term, the' defendant appeared and filed a general denial. At the second term the defendant filed an election to take a part of its testimony .in the form of depositions, and demanded a continuance as a matter of right without any other showing of cause. The trial court refused the continuance. Two days later the trial was had; the defendant appearing at the trial, but offering no evidence. There was a decree for the plaintiff. Defendant appeals.</p>

— ITon. J. IT. Apple-gate, Judge. Proceedings for the establishment of a claim made by plaintiff against the estate of Elizabeth E. Warren. Verdict for plaintiff,. and defendant appeals. The material facts 'will be found sufficiently stated in the opinión.

<p>Appeal from Muscatine District Court. — Hon. L. J. Horan, Judge.</p> <p>Certiorari proceedings in the nature of an appeal. The facts appear in the opinion.</p>

<p>Appeal from Blachhaiulc District Court. — Hon. Eranklin C. Platt, Judge.</p> <p>The opinion states the case.</p>

— Iíon. J. M. Parker, Judge. This is a contest over the will of George Smith, deceased. Plaintiffs, who are contestants, are the daughters and grandchildren of the deceased. Defendant, George Henry Smith, is a grandson and one of the principal beneficiaries under the will, and the other defendants are the executors named in the will. The defendant, George Henry Smith, is a brother of the contesting grandchildren.

— Hon. E. B. Wood-ruff, Judge. Action to recover damages for breach of covenant in a lease, by wbicb it was stipulated that defendant, as tenant, was to use every effort to kill and destroy cockleburs on the land of plaintiff covered by such lease.

<p>Gifts: CONSUMMATION BY DELIVERY: FORMAL TRANSFER. Delivery of 1 certificates of stock to the donee with intent to transfer the right of ownership is sufficient to consummate a gift without a record of the. transfer on the books of the corporation, or a formal assignment or indorsement of the certificates.</p> <p>Same: subsequent writings : effect. Plaintiff’s father in this case 2 gave him corporate stock by delivering the certificates to him subject to the payment of a specified sum to each of two grandchildren after the father’s death. Held, that the execution of instruments by the father thereafter, addressed to the grandchildren, reciting a present division of his property and that he had left his affairs with the plaintiff, and that he had promised to pay plaintiff at his death certain shares of the stock in question, with accumulations thereon, did not negative a present gift of the stock by delivery of the certificates.</p> <p>Same: transfer of title : evidence. Where the uncontradicted evi3 dence shows an absolute delivery of the gift to the donee, subject only to the payment of a specified sum after the donor’s death, and there is no evidence to indicate an attempt on the part of the donor to exercise further control over the gift, a finding that the donor intended a transfer of title only upon his death is erroneous.</p> <p>New trial: newly discovered evidence. In this action to establish 4 a gift of stock certificates the newly discovered evidence of two witnesses who would testify to declarations of the donor, other than those testified to on the trial, to the effect that the donor 'had given the stock to the plaintiff was not cumulative, and required the granting of a new trial, a sufficient showing of diligence having been made.</p> <p>Replevin: necessity of demand. Where there was a consummated 5 gift of corporate stock during the life of the donor and the administrator of his estate obtained possession of the same from the corporation to which it had been sent for a transfer on its books, and without the knowledge or consent of the donee, such possession was wrongful and demand therefor was not necessary to’ maintain replevin of the stock.</p> <p>Election of remedies: dismissal of appeal. Plaintiff in this action 6 claiming certain stock certificates under an alleged gift from his father in his lifetime, brought action against the administrator of the father’s estate to recover possession of the same, and appealed from a judgment for defendant. Pending the appeal he instituted proceedings in probate to recover the value of .the stock from the father’s estate upon the strength of a written instrument in which the father promised to pay the son the amount of certain shares of the stock at his death. Held', that such proceeding did not amount to an election of remedies oían acceptance of the judgment so as to require a dismissal of the appeal.</p>

<p>Brokers: commissions: sale by third person. A broker authorized by the owner to procure a purchaser for real estate is not entitled to a commission unless he was the procuring cause of the sale. In this case the sale was made by a third person who learned that the farm was for sale by a casual conversation with one of the partners of the agency, but he was not aware that his informant was a partner and he made no express agreement to act as a subagent. Held, that as the plaintiffs did not have the exclusive right of sale, and as the sale was effected by the third party acting independently of them, and not as subagent, plaintiffs were not entitled to a commission.</p>

— Hon. J. M. Parker, Judge. Action in equity to enjoin the maintenance of a liq-our nuisance. There was a decree for the plaintiff from which both parties appeal. As the defendants’ appeal was first perfected, the defendants will be designated as appellants.

— Hon. W. S. Withrow, Judge. Proceeding in probate, in which it was asked by plaintiff that letters of guardianship of his two minor children, which had been granted to defendant, should be revoked, and that the care and custody of said children be awarded to him. The court canceled the letters of guardianship as prayed, and ordered that letters be issued to plaintiff. The defendant appeals.

— Hons. David Mould and Lawrence De Graff, Judges. The opinion states the nature of tliis litigation and the material facts to be considered.

— Hon. B. M. Wright, Judge. Action to recover damages for loss of hogs due to heat occurring while the animals were being transported on the defendant railroad. There was a ver diet for the plaint-iif, and from judgment on this verdict the defendant appeals.

— Hon. A. D. Bailie; Judge. The defendant was indicted in Buena Yista county, under the provisions of section 5028-b, Code Supplement, as amended by chapter 222 of Acts 33d General Assembly. Upon motion of the defendant at the close of the State’s evidence, the trial court dismissed the indictment and discharged the defendant. The state has appealed.

— Hon. O. G. Lee, Judge. Action to recover commission for finding purchaser of land resulted in verdict for defendant, on which judgment was entered. The plaintiff- appeals.

• Appeal from Linn District Court. — IJon. Milo P. Smith, Judge. Petition for a new trial under the provisions of section é091 et seq., of the Code. The petitioner is John Albaugh, one of the defendants in the above-entitled original case. His petition was denied by the 'trial court, and he has appealed.

<p>Master and servant: machinery guards: sufficiency: statute. 1 The purpose of the statute requiring machinery to be guarded so as to protect the operators or those- coming in contact therewith contemplates such means of protection as will reasonably accomplish the purpose, without unreasonably interfering with the efficiency of the machine. In this case it is held that the guard placed over a belt operating the machine and. set in cleats in the floor, which could be easily toppled over from the side nearest the machine was not improper, unless from the customary use of the machine it was likely to be toppled over.</p> <p>Same: unguarded machinery: negligence: evidence. In this ac-2 tion the questions of whether the plaintiff operated the machine in the usual and customary manner, or -in a way the master should have anticipated when guarding the same; and whether the guard might have been constructed so that it would not have toppled over when the machine was operated as the plaintiff did operate it, without unreasonably interfering with its usefulness, were for the jury; and the evidence is held to support a finding that the guard was improper.</p> <p>Same: contributory negligence: proximate cause. Even though 3 plaintiff’s negligence in operating the machine may have been the proximate cause of his injury, yet as it was concurrent with that of defendant in failing to properly guard the machine, that fact would not relieve defendant from liability for the injury.</p> <p>Same: contributory negligence: evidence. In this action there 4 was evidence that plaintiff did not know that the belt guard of the machine with which he was at work would turn and allow his foot, with which he operated the power lever, to slip into the • belt, and he was not therefore negligent as a matter of law in thus operating the machine.</p> <p>Same: negligence: instructions. Although the court told the 5 jury generally in one instruction that for plaintiff to recover he must establish by the greater weight of the evidence that defendant was guilty of negligence which caused his injury, failure of the court in that paragraph to limit the negligence to the grounds specified in the petition was not erroneous, where the same were clearly stated in defining the issues, thereafter separately and specifically submitted, and there was no evidence of negligence except as charged.</p> <p>Same. An instruction that if the machine guard was of such char-6 acter that defendant would not be negligent in providing the same, when in the exercise of reasonable care for the safety of his employees, he would not be hable for plaintiff’s injury thereby, being of a negative character, was not prejudicial even if imposing on defendant too high a degree of care.</p> <p>Same: assumption of risk: instructions. Failure of the court ■ ,7 in its instructions on assumption of risk to refer to such risks as are incident to the employment was not erroneous, where the only risks alluded to in the evidence were those charged in the petition and shown to have been known to the defendant but not to the plaintiff.</p>

— Hon. Oliver, Judge. John F. Action to recover a commission for the sale of real estate. Defendant denied that plaintiff was the procuring cause of the sale. On these issues the case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeal's.-