Volume 158 — Iowa Reports

— Hon. J. H. Applegate, Judge. Action to recover upon policy of insurance against loss or damage by lightning -to certain live stock. There was a judgment for plaintiff, and defendant appeals.

— Hon. A. D. Bailie, Judge. Action iu equity to enforce specific performance of an alleged contract to convey land, with the additional prayer that if specific performance is impracticable plaintiff have relief against defendants by way of damages. There was a decree for defendants, from which plaintiff appeals.—

— Hon. E. B. Woodruee, Judge. Trie parties agreed upon the amount owing on the account sued on, but from judgment awarding recovery on the counterclaim the plaintiff appeals.

— Hon. E. P. Howell, Judge. Action in equity to enjoin the defendants from obstructing certain stairways and access to a hall oh their premises in the use of which, it is claimed by plaintiff, he has an easement. There was a decree for plaintiff, and the defendants appeal. —

— Hon. E. B. Woodruff, Judge. Action to recover damages for personal injuries received by plaintiff while in the employment of defendant. There was a verdict and judgment for plaintiff, from which defendant appeals.

— Hon. O. D. Wheeler, Judge. In a proper proceeding before the board of review of assessments for taxation in the town of Dunlap, the plaintiff’s objections to the assessment to him for taxation for the year 1911, as moneys and credits, of a certain lease made by him to one IColl bearing date of October 10, 1908, were overruled. Plaintiff appealed to the district court, where his objections were again overruled, and he now appeals to this court.

— Hon. Z. A. Church, Judge This is a habeas corpus proceeding. The petition was filed and the writ obtained in October, 1907. It was brought against the defendant as sheriff, who held the plaintiff under arrest for violation of the provisions of chapter 112, Laws 32d General Assembly. The plaintiff challenged the validity of such legislative enactment, and therefore the validity of his arrest. Upon issues properly joined the trial was had.

<p>Wills: probate: effect: action to set will aside. The admission of a will to probate without contest is a preliminary order which affects a prima facie establishment of the instrument, but does not cut off the right to contest its validity by an original action brought within the statutory five year period.</p>

<p>Appeal from Wright District Court. — Hon. Chas. E. Albrook, Judge.</p> <p>The opinion states tbe nature of the ease and the material facts.</p>

— Hon. A. B. Thornell, Judge. Action for the partition of certain real estate. Defendants Yager and Yager claimed to be the owners of the land through mesne conveyances from James H. House, now deceased, from whom all parties trace their title. Various other issues were tendered, and upon trial to the court a decree was rendered dismissing plaintiff’s petition, and quieting the title to the land in defendants Yager and Yager. Plaintiff’s appeal.

— Hon. E. B. Woodruff, Judge. Action to recover for merchandise sold and delivered. Defendant admitted the receipt of part of the goods, but denied that he received other items charged against him. He also pleaded a settlement and counterclaim. On the issues- joined the case was tried to a jury, resulting in a verdict for the defendant in the sum of $114.32. Plaintiff appeals.

<p>Appeal from, Pottawattamie District Court. — Hon. O. D. Wheeler, Judge.</p> <p>The facts are stated in the opinion.</p>

— Hon. James A. Howe, Judge. Action for construction, of will. Both, parties appeal, but the appeal of the defendants being first perfected they alone will be denominated appellants.

<p>1 Contracts: personal services: .recovery on quantum meruit: evi-'dence. One basing an action for services entirely upon an express contract cannot recover upon quantum meruit; but direct evidence of tlie contract is not required to authorize recovery if the facts and circumstances fairly show such agreement. The fact that plaintiff performed services for deceased when taken in connection with the character of the service, absence of relationship, and all the surrounding circumstances, are held sufficient to raise a presumption that plaintiff entered the service under an express agreement.</p> <p>2 Same: limitations. Where the evidence showed that the service was continuous for a series of years, with the exception of two or three brief absences or visits, that part of the claim accruing more than five years prior to commencement of the action was not barred.</p> <p>3 Same: suspension op statute. The running of the statute of limitations against a cause of action for the breach of a marriage contract is not suspended by tjie death of the pron}isgr.</p> <p>4 Same: instruction. An instruction authorizing recovery for -services regardless of the express agreement relied upon by plaintiff was erroneous.</p> <p>5 Same: instruction: amount of recovery: reversible error. An instruction authorizing recovery on one count for personal services of more that the amount claimed in the petition was reversible error; it being impossible to determine on appeal how much was allowed on each count.</p> <p>6 Appeal: notice: sufficiency. A notice of appeal need not be signed by the appellant in person; it is sufficient if signed by his attorney.</p> <p>7 Same: abstract: cost of printing. Where the appellee failed to number the lines or to index his amendment to the abstract the cost of printing the same was taxed to him, but the abstract was not, stricken.</p>

<p>1 Sales: approval on-trial: rejection. Under a contract to pay cash for-a ditching machine on the trial of the same, the purchaser was not bound to accept the machine if, it would not do the work for which it was purchased; but as the sale was conditional simply on the ability of the machine to do the work no right of rejection by the purchaser existed on the mere ground of dissatisfaction.</p> <p>2 Same: pleadings: evidence: prejudice. Where plaintiff in an action for the price of a machine pleaded a specific contract and also the reasonable value; but on the trial the rights of the parties were made to turn solely on the question of whether there had been an acceptance, admission of evidence of the reasonable value, though erroneous, was not prejudicial.</p> <p>3 Same: admission oe evidence. The rejection of evidence concerning a matter not in dispute was proper.</p> <p>4 Same: counterclaim: evidence. Where the jury found that there had been an acceptance of the machine by the purchaser, refusal to permit him to show the amount of freight paid under his counterclaim to an action for the price was not prejudicial.</p> <p>5 Same: action.eor price: evidence. Where there was an, acceptance of a machine by the purchaser, exclusion of evidence that the authorized agent of the seller stated at the time of acceptance that if it did not do the work he need not keep it, -was immaterial and. without prejudice.</p> <p>6 Same: test: acceptance: presumption. Where machinery is purchased subject to test the purchaser is entitled to a reasonable time in which to make the test before he can be required to accept, but he is bound to make the test within such time; and if he fails to do so the law will presume an acceptance.</p>

— Hon. F. M. Powers, Judge. Action for balance on account for goods and merchandise sold and delivered. Defendants Denison Clothing Com'pany and Julius Sonbsen filed separate answers, denying, any- indebtedness to plaintiff and pleading payment and- set-; tlement. They also -filed equitable answers and counterclaims,-■ which will be referred to in the body of the opinion.

— Hon F. M. Powers, Judge. Action upon account for goods and merchandise sold and delivered. Defendant Sonksen filed an answer and counterclaim, and upon the issues joined the trial court dismissed plaintiff’s petition and rendered judgment for the defendant. Plaintiff appeals.

— Hon. F. M. Powers, Judge. The plaintiff is a school district. The defendant was its treasurer. This action was brought on his official bond. The defense was that the funds of the plaintiff were lost without fault of the defendant, through the failure of a bank in which they were properly deposited by the defendant in a separate and distinct account.

— Hons. B. W. Preston, K’ E. Wilcockson, W. Gr. Clements and John F. Talbott, Judges. Suit in equity for tbe partition of lands. The case was before us upon a former appeal. Bice v. Bice, 147 Iowa, 1. Upon that appeal the case was remanded for further proceedings. Such further proceedings being had in the district court and a final decree entered, the plaintiff again appeals therefrom.

— Hon. O. D. Wheeler, Judge. Condemnation proceeding instituted to obtain right of way for defendant’s railroad over the land of plaintiff. From the assessment of damages, defendant appeals.

<p>1 Absolute deed as a mortgage: amount secured: evidence. In this action to bave a deed declared a mortgage securing a certain sum and no more, tbe evidence is reviewed and it is held; that the defendant bank held the deed to the land as security for the payment by it of certain judgments against plaintiff, as well as other indebtedness evidenced by certain notes, and that the bank had not been reimbursed, although the judgments were apparently discharged of record; the discharge having been for the purpose of allowing plaintiff to make a loan on the land, and not as evidencG of payment in fact.</p> <p>2 Negotiable instruments: . consideration. Where notes were given for a debt then due, an agreement that they should also cover a prior and distinct indebtedness was invalid, because without consideration.</p>

— Hon. O. D. Wheeler, Judge. This is a claim against the- estate of a decedent for labor and service under an alleged agreement for compensation, “to consist of not less than forty acres of land in Harrison county.”. At the close of plaintiff’s evidence the trial court directed a verdict for the defendant. Plaintiff appeals.—

<p>Appeal from Page District Court. — Hon. A. B. Thornell, Judge.</p> <p>In an action for partition of certain real property between the widow and heirs of W. S. Baker, deceased, who was alleged to have died seised of such property, the court was asked to decree that defendants Leander W. Calhoon and his wife, Polly Calhoon, had no interest in said property. By way of resistance to the relief thus asked, Leander W. Calhoon alleged that as the father of one Hattie Calhoon, deceased, who.died seised of an interest in the property as coheir by adoption with W. S. Baker of David P. Baker, father of said W. S. Baker, he acquired title to one-half of such interest in the property of David P. Baker. The court held that Leander W. Calhoon acquired no interest in the property through his daughter, Hattie Calhoon, by reason of her adoption by David P. Baker, and from such decree, Leander "W. Calhoon and his wife, Polly Calhoon, appeal.</p>

<p>Appeal from Harrison District Court. — Hon. O. D. Wheeler, Judge.</p> <p>Action to recover excess interest upon a loan which, plaintiff was compelled to pay; defendant agreeing to pay all over 5 per cent, that plaintiff was compelled to pay. Defendant denied the allegations of the petition, pleaded the statute of limitations, and also, in substance, that plaintiff was not compelled to pay the amount of interest which he did, and that if he, plaintiff, had notified defendant, he, defendant, could have procured a loan for a much lower rate.- On these issues the case was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.</p>

— Hon. C. W. Vermillion, Judge. Defendant was indicted and convicted for murder of the second degree for killing one Davenport, and was sentenced to the penitentiary for a term of twelve years. The defendant appeals.

— Hon. C. B. Bradshaw, Judge. Action for tlie specific performance of an alleged agreement on the part of defendants to convey certain real estate. Plaintiff claims to have entered into a contract for the purchase of the land through one Hall, who, he asserts was defendants’ agent for the sale of the land.

<p>1 Criminal law: conspiracy: evidence op co-conspirator. Where parties conspire to commit a larceny evidence of the acts and declarations of one in promotion of the conspiracy are admissible against the other. In the instant ease the evidence is reviewed and held to justify a finding of conspiracy by defendant to commit a larceny and to render the declarations of the co-conspirator admissible.</p> <p>2 Same: hearsay evidence: prejudice. On this prosecution for larceny, in which the state relied upon a conspiracy to commit the crime, there was evidence simply of the finding in a certain room of a collar of the size worn by defendant, and of a satchel previously seen in the possession of the co-conspirator: Held, that this was not sufficient proof of their occupancy of the room to render admissible and non-prejudieial the statement of officers, who located the stolen goods and arrested the parties, that they had previously heard that accused and a third person were occupying the room.</p> <p>3 Same: instructions. Where the court instructed that the defendant should be acquitted unless it was found that the larceny was committed on the date alleged, refusal to further charge that he could not be found guilty of any aet done after that date was not erroneous.</p> <p>4 Same: larceny: recent possession op stolen property: evidence: instruction. On this prosecution for larceny, in which the state relied upon a conspiracy between the defendant and a third person to commit the crime, the evidence showed that the stolen goods were found in a certain room and in a satchel previously seen in the possession of the third person. The only evidence that defendant occupied the room was the finding of a collar therein of the size worn by him. Held, that the evidence was not sufficient to support an instruction on the unexplained possession of recently stolen property, and that the instruction given, to the effect that the finding of the stolen property in the room was presumptive evidence of defendant's guilt, was erroneous, because failing to require a finding that defendant and such third person acted in concert in the commission of the crime.</p>

— Hon W. N. Treichler, Judge. This is a controversy over a partition fence, and the construction of the statute in regard to such fences! There was a judgment against defendant, and he appeals.

<p>1 Malicious mischief: evidence: malice. On a prosecution for malicious injury to any building or fixtures attached thereto, the property of another, it may be shown that at the time defendant did the things complained of he used abusive and profane language, as bearing upon the question of malice; and as so limited by the court in this instance the evidence was properly received.</p> <p>2 Same: evidence: flight. Where defendant, in a prosecution for malicious injury committed while intoxicated, was first convicted of drunkenness and ordered t'o work out his fine, but fled and was subsequently arrested on the graver charge, evidence of his flight was properly received; it being for the jury to determine whether he fled to escape his sentence for drunkenness, or through fear of prosecution for the graver offense.</p> <p>Same: malice toward owner of property. Malice toward the owner</p> <p>3 of property maliciously injured must be established, but it is not necessary that defendant should have known at the time of doing the act who the owner was. If at the time of doing the act he was bent on mischief, prompted by an evil mind to maliciously destroy or injurs the property without regard to its ownership, that is sufficient malice toward the owner to meet the requirements of the .law.</p> <p>Same: excessive sentence. A sentence to the state reformatory of</p> <p>4 one who, in an intoxicated condition, entered a building, used abusive and profane language, tore loose a machine fastened to the floor by screws and broke and tore down an electric fixture, was excessive, and is reduced to six months in the county jail with credit for time already served.</p>

— Hon. Clarence Nichols, Judge. Suit in equity to establish a resulting trust in certain lands, the legal title to which is in defendant William K. Foust. The trial court rendered a decree for plaintiffs, and defendant appeals — Modified and Affirmed.

<p>1 Intoxicating liquors: single boom. The keeping of a large refrigerator with an ice chest and adjoining storage room for beer, within a single room in which the retail liquor business was conducted, having a street opening for ice and a door from the ice chamber to the storage room, but which was nailed up, was not a violation of the statute requiring that a saloon shall be conducted in a single room with but one entrance.</p> <p>2 Same: employees: listing of names. Draymen and carriers engaged in hauling liquors from a railway station or car and putting the same in a refrigerator in a saloon room are not persons employed about a saloon, who are required by statute to be listed with the county auditor, but are engaged in a separate employment having no connection with the saloon business.</p> <p>3 Same: intoxicated person: evidence. The evidence in this action is held insufficient to show that. defendant allowed an intoxicated person in his saloon, when in that condition; or to establish the charge that defendant failed to list an employee before he began work.</p>

<p>1 Soldiers’relief: disbursement op funds : commission. The statutes providing a fund for the burial of indigent soldiers, and its distribution through a soldiers’ relief commission consisting of three persons, two of whom shall be honorably discharged Union soldiers, sailors or marines, contemplate the appointment of veterans of the Civil War between the states, in preference to veterans of the Spanish War.</p> <p>2 Certiorari: who mat maintain same. Certiorari is not a remedy available to an individual who has no direct interest in the matter to be reviewed, and who does not show that he will suffer special injury beyond that which will affect him in common with the general public, or others similarly situated; especially where there is another available remedy.</p> <p>3 Soldiers’ relief commission: appointment: quo warranto. Quo Warranto is the proper remedy for testing the act of county supervisors, where it is claimed that they have improperly appointed a veteran of the Spanish War as a member of the soldiers’ relief commission, when the statute gives a preference to veterans of the Civil War.</p>

— Hon. Mi to P. Smith, Judge. Action in the nature of specific performance for the enforcement of an agreement of settlement entered into between plaintiff and defendant Johnson, guaranteed by defendant Byerly. The trial court granted the relief asked, and defendants appeal.

— Hon. W. N. Treichleb, Judge. Action by plaintiff as a judgment creditor to set aside an alleged fraudulent conveyance. There was a trial on the merits and a decree dismissing the petition. Plaintiff appeals.—

— Hon. M. C. Matthews, Judge. Action to recover damages claimed to have been sustained by a fall on a sidewalk. Trial to a jury. Verdict for defendant. Motion for new trial. Motion sustained, and defendant appeals.

— Hon. James D. Smyth, Judge. Plaintiff brought this action to enjoin an alleged liquor nuisance. After trial, plaintiff’s petition was dismissed on the merits, and the costs taxed to plaintiff. The plaintiff appeals.

— Hon. Robert Bonson, Judge. Action for the reformation of a deed made by William W. Haller, widower, during his lifetime to the plaintiff, and to quiet her title to the property, the description of which she asked to have inserted in the deed.

<p>1 Railways: transportation or live stock: negligence: pleadings: evidence. Where the plaintiff in an action for negligence in the transportation of live stock made no general allegations concerning the condition of the stock when delivered to the defendant, and when received at its destination, but specifically alleged particular acts of negligence, his recovery is dependent upon proof of the particular acts. In this action it was alleged that by switching the car in a negligent manner the' horses were thrown down and one was so injured as to cause its death. Held,- that the evidence of the negligence charged was sufficient to take the issue to the jury.</p> <p>2 Same: negligence: evidence. The fact that a shipper of stock accompanies the same and undertakes to look after it in a limited way does not relieve the carrier of the duty- to use due care in handling the ear. In this aetion the question -of defendant’s negligence in handling the ear was for the jury.</p> <p>3 Same: Evidence of experts that one of the horses was incurably sick at the time of the injury was not conclusive that its death was ;not caused by the negligent handling of the car, where there was also evidence that the animal. was well before the accident, and that after being thrown down and trampled upon by other horses it was thereafter sick until it died; but the question of the cause of its death was for the jury.</p> <p>4 Same: instructions. Tlie mere fact that a veterinary surgeon might have had another and better chance of saving an animal injured while en route would not of itself render the carrier liable for its death; and refusal of an instruction to that effect, of which there was no evidence, was proper, even though correct in the abstract.</p> <p>5 New trial; misconduct in argument. The improper remark of plaintiff's counsel in his closing argument, that defendant had brought a large number of unnecessary witnesses and that the costs would amount to several hundred dollars, and for that reason a verdict should be returned for plaintiff, did not require a reversal, where, upon objection counsel withdrew the remark, though still insisting that large costs had been needlessly incurred, and the court immediately directed the jury not to consider anything that had been said about costs.</p>

— Hon. Milo P. Smith, Judge. This is a contest over the final report of Thos. L. Wolfe, temporary guardian of one Thos. J. Deck. Certain heirs of the ward, now deceased, filed objections to the report, but these objections were each and all overruled, and objectors appeal.

<p>Appeal from Dallas District Court. — Hon. J. H. Apple-gate, Judge.</p> <p>Action at law to recover damages for personal injury. There was a verdict and judgment for defendant, and plaintiff appeals.</p>

— Hon. A. B. Thornell, Judge. Action against George Whitmore, as sheriff, and the sureties on his official bond resulted in a directed verdict for him and judgment thereon. The plaintiff appeals.

<p>Appeal from Wayne District Court. — -Hon. H. K. Evans, Judge.</p> <p>Action for damages resulted in a judgment against defendants, from which they appealed</p>

— Hon. John W. Kintzingker, Judge. Action by the holders of a claim against the estate of N. W. Kimball, deceased, to set aside an order approving the final report of the executor and ordering his discharge. Defendant demurred to the petition and his demurrer was sustained. Claimant appeals.

<p>Appeal from. Polk District Court. — Hon. Jas. A. Hewitt, Judge.</p> <p>Action for damages resulted in a directed verdict for defendant, and judgment thereon. The plaintiff appeals.—</p>

<p>1 raise representations: sale of land: deficiency in acreage: evidence. In this action for false representations as to the number of acres contained in the farm sold plaintiff, the evidence is reviewed and held to entitle plaintiff to recover, because of the fraud practiced both by defendant and his agent, regardless of whether the land was sold by the acre.</p> <p>2 Same: false representations of agent: ratification. By accepting the benefits of the sale the owner of land ratifies the fraudulent representations of his authorized agent and is bound thereby; especially where he knew, as in this case, what the representations were.</p>

— Hon. M. A. Roberts, Judge. The claim of plaintiff was allowed against the estate of George Black, deceased, in the sum of $2,500. The administrator appeals.

<p>1 Jurisdiction: non-resident: service by publication. The statutes conferring jurisdiction to render a judgment against a non-resident defendant served by publication only must be strictly and literally complied with, or the judgment and all subsequent proceedings will be void.</p> <p>2 Same:' affidavit for publication of notice. The affidavit that pérsonal service of the original notice cannot be had on defendant in this state must be filed before publication- of the notice.</p> <p>3 Commencement of actions: service by publication: proof of publication. The publication of an original notice for the commencement of an action must be for four consecutive weeks, either before or after filing the petition; and where the proof of publication showed on its face that it was not so published, and failed to show that it was made by the publisher of the paper or by his foreman, as required by the statute, it was fatally defective, and could not be cured by parol evidence.</p> <p>4 Execution sale: action to cancel: estoppel. An attempted redi demption of land sold on execution, not shown to have been prejudieial to the execution creditor, will not estop him from maintaining an action to set aside the sale.</p>

<p>Appeal from Harrison District Court. — Hon. W. R. Green, Judge.</p> <p>Action to foreclose a mortgage and to redeem from those claiming title under the foreclosure of a prior mortgage resulted in a decree as prayed. Several of the defendants appeal.</p>

O. D. Wheeler, Judge. The Plaintiff is a manufacturer of vanilla extract, residing at Iowa City. The defendant is a manufacturer and wholesale dealer in ice cream, residing at Council Bluffs. In October, 1909, the defendant gave a written order to plaintiff for the purchase of 52 gallons of special vanilla extract at $3.50 per gallon, payable June 1, 1910. The order purported to be signed by the defendant and by W. C. Burge, a traveling salesman of the plaintiff.

— Hon. O. D. Wheeler, Judge. Plaintiff's lands were included in a drainage district established by defendant county, and he filed a claim for damages which was disallowed. Subsequently his lands were assessed for benefits to the extent of $800 or $900, and he appealed to the district court from such assessment.

<p>1 Taxation: omitted property: settlement: repudiation by county. Tax ferrets Rave authority to settle with a taxpayer for the amount he should have paid on omitted property, and in doing so could take into consideration the amount he had been regularly assessed, although not authorized to deal with taxes regularly assessed and unquestioned; and the county cannot repudiate -a settlement thus made without tendering back the amount received under the settlement.</p> <p>2 Same: treasurer’s receipt: parol evidence. A treasurer’s receipt for the payment of taxes is not conclusive on the subject, but is subject to explanation by parol.</p> <p>3 Same: decree op court: ambiguity: explanation. An ambiguity in a court decree may be explained by parol evidence.</p> <p>Same: previous settlement op taxes: evidence. In this action to 4 enjoin the sale of land for taxes of a certain year, the evidence is held to show that a settlement of taxes on omitted property included taxes previously assessed, as shown by a decree entered upon a stipulation of the parties.</p> <p>5 Same: mutual mistake: estoppel. Where a county retained the money paid as taxes under a settlement between tax ferrets and the taxpayers it was bound by the settlement, although the same ' was paid under a mutual mistake.</p>

<p>Partnership: evidence: accounting. In this action for an accounting between partners, the evidence is reviewed and held to show that plaintiif had an interest in the profits on a sale of horses; and to support a finding that there was a partnership relation entitling him to an accounting.</p>

, Appeal from Polk District Court. — Hon. Hugh Brennan, Judge. Action at law to recover damages alleged to have been sustained by the plaintiffs because of a change made by the city in the street grade fronting a certain lot and building occupied by the plaintiffs as tenants for years of the fee owner. There was a verdict and judgment for plaintiffs, and defendant appeals.

— Hon. A. D. Bailie, Judge. Action on promissory notes resulted in verdict being directed against defendant Halvorson and judgment entered thereon. He appeals.

<p>Appeal from Linn District Court. — I-Ion. Milo P. Smith, Judge.</p> <p>Action on a policy of accident insurance. The insured died by' suicide. At the close of the evidence there was a directed verdict for the defendant. Plaintiff appeals.- — -</p>

<p>Appeal from Crawford District Court. — Hon. F. M. Powers, 'Judge.</p> <p>Appellants, "W. A. Theobald, Yelie Sowles, and J. L. McLeod, as plaintiffs, brought five injunction suits against Pat Flinn, Catherine Flinn, and Nora Kinney, as defendants, in one case, Martin Saggau, T. C. McCarty, John Klinker, William Keopke, and John Saggau, defendants in the others, alleging that defendants were maintaining nuisances in the sale of intoxicating liquor contrary to law. The cases were tried in the court below on an agreed statement of facts, and by agreement the eases are tried together in this court. The injunctions were denied. The plaintiffs appeal.</p>

— Hon. M. A. Boberts, Judge. Action brought by plaintiff to obtain possession of nine acres of land. The ease was commenced before a justice of the peace. Defendants filed an equitable answer, and the cause was transferred to the district court.

— Hon. W. S. With-row, Judge. Action brought by the plaintiff as trustee to determine, the beneficiaries of a certain trust deed. A controversy is presented by the claims of the parties as to their respective interests in certain real estate described in the trust deed. It is the claim of appellant Derby that she has two-thirds interest in such real estate.

<p>1 Agency: commission contract: pleading: recovery. Where an agent seeks to recover compensation for negotiating an exchange of property, and alleges an express contract to pay a stipulated price for his services, he cannot recover on quantum meruit.</p> <p>2 Same: middleman: right to commissions. An agent, in acting as a middle man, simply undertakes to get the parties together, and not to negotiate for either of them; and when understandingly employed he may receive a commission from both, with or without the consent of the other.</p> <p>3 Same: instruction. Where the pleadings, in an action to recover commissions for the exchange of property, are drawn wholly upon the theory that defendant knew plaintiff was to receive compensation from the other party, and not that plaintiff was simply aeting as a middleman for the sole purpose of bringing the parties together, there was no necessity for an instruction defining middleman, in the absence of a request.</p> <p>4 Same: right to commissions: instructions. If an agent is employed simply to get the parties together, with no power to negotiate for either, the law implies notice to the principal that he may receive a commission from both; but if he is employed to find a purchaser or make a sale, he cannot receive compensation from both without the consent of each; and where the case was tried on the theory of actual knowledge by defendant that plaintiff was to receive compensation also from the other party, and the court submitted the ease on that theory, plaintiff could not complain that the court did not instruct on the theory of implied notice.</p> <p>5 Same: middleman. An agent employed by both parties to make an . exchange of properties, and who actually participates in the negotiations, is not a middleman.</p> <p>6 Same: pleadings: burden of proof. Where the plaintiff alleged an express contract for the payment of commissions, and in reply to the defense that he had received compensation from the other party, he alleged that defendant knew that he was expecting the same, the burden was upon him to show that defendant had such knowledge when he promised to pay plaintiff a commission.</p>

<p>Municipal corporations: police courts: jurisdiction: statutes. Police courts, in cities having no superior courts, have jurisdiction of a civil action to recover a tax which has not been paid, in violation of an ordinance requiring certain citizens to perform labor upon the streets, or to pay a stated sum in lieu thereof.</p>

— Hon. H. K. Evans, Judge. Suit in equity to’ quiet title and for injunction. There was a trial to the court, and a decree for plaintiff. Defendant appeals.

<p>Municipal corporations: streets: repair: assessment oe cost. A city has no authority to ássess the cost of merely repairing a street against abutting property; but to 'bring the city within the statute and authorize an assessment for the cost, it must appear that the work proposed constitutes a reconstruction of the street improvement, as distinguished from a repair of the original construction. In the instant case the contemplated street improvement was a work of reconstruction, rather than of repair, and the city was authorized to assess the cost against the abutting property.</p>

<p>Appeal from Louisa District Court. — Hon. James D. Smvth. Judge.</p> <p>This is a controversy over the street line at the east end of lots, 1, 2, 3, 4 and 5, in block 22, Springer’s addition to the town of Grand View, in Louisa county. These lots front on Market street, and occupy about one-half the block, lying between Vermont and Monroe streets in said town. Defendants had served, notice upon plaintiffs to tear up and remove a sidewalk and fence along the front of these lots within twenty days from the giving of the notice; and plaintiffs brought this action to restrain the said defendants from interfering with the walk or the fences, or from changing the line between Market street and the lots before mentioned. Defendants claimed that the improvements were in the street and constituted a nuisance and an obstruction, which they were in duty bound to remove. On the issues joined the case was tried to the court, resulting in a decree granting plaintiffs part of the relief claimed, but fixing the line at a point intermediate between the lines claimed by the respective parties. .Defendants alone appeal.</p>

<p>Sales: breach: remedies: action for price: condition precedent. Where the purchaser of goods has repudiated his completed contract the seller may select either of three remedies; he may hold the property for the vendee and sue for the price, or he may keep it as his own and sue for the difference between the market, value and the contract price, or he may sell the property for the highest price he can obtain and sue for the balance of the purchase price. Where he elects to rely upon the contract and sue for the purchase price he must fully perform, on his part, and failure to set apart the goods for the purchaser, or to deliver or tender the same, will defeat recovery; and the necessity of performance in this respect is not obviated by a notice from the purchaser that he would not accept the goods, and that shipment would be at' the seller’s risk.</p>

— Hon. B. W. Preston, Judge. This is an action for divorce on ground of cruel and inhuman treatment. There was a judgment dismissing the petition, and the plaintiff appeals.

<p>1 Intoxicating liquors: illegal distribution: place: punishment. A corporation, though organized for a lawful purpose, which maintained a place in a public street walled off by canvas and used as a place for entertaining its guests, and there received and distributed intoxicating liquor to its members and guests, was guilty of violating the statute prohibiting the keeping or maintaining of a elubroom or other place in which liquors are received or kept for use, gift or sale; as the statute not only refers to a elubroom, but includes any place maintained for disbursing liquor; and a violation of the statute in such manner is punishable under the provisions of the Code relating to illegal sales, and the abatement of nuisances.</p> <p>2 Same: The dispensing or distribution of intoxicating liquors among the members of an organization constitutes an illegal sale, within the meaning of Code section 2382, as amended, regardless of whether the same is done in any place.</p> <p>3 Same: keeping op liquor. An organization which receives and immediately distributes intoxicating liquor among its guests is guilty of violating the statute. It is not necessary that there should be any permanent keeping.</p> <p>4 Same: good paith distribution. Where an organization actually received and disbursed intoxicating liquors to its members and guests, it did the acts prohibited by the statute, and the question of its good faith or that of its guests is immaterial. It was also immaterial that there was no profit in the transaction, or that it was incidental to . the main purpose of the organization.</p> <p>5 Same: injunction: abatement op nuisance! Where a corporation unlawfully distributed liquor among its members and guests, and its officers claimed the right and expressed the intention to - continue to do so, the evidence authorized an injunction restraining the further illegal acts of the corporation and its members actually participating therein.</p>

<p>Appeal from Union District Court. — Hon. H. K. Evans and T. L. Maxwell, Judges.</p> <p>Action to recover rent. Defendant pleaded a set-off, and, on the issues joined, the jury returned a verdict for plaintiff allowing defendant a part, if not all, of his set-off. Defendant appeals.</p>

<p>Appeal from Monona District Court. — Hon. David Mould, Judge.</p> <p>Suit in equity to enjoin the defendant from levying an execution upon certain real estate of the plaintiff, on the ground that such property is exempt from the execution. There was a decree for the plaintiff and a permanent injunction, and the defendants appeal.:</p>

— IIon John F. Talbott, Judge. Suit in equity to set aside a listing and assessment by the defendant ■ county treasurer of $24,900 on moneys and credits belonging to plaintiff for the year 1910. The defendant admitted making the assessment, but pleaded that it was valid, because made on property omitted from taxation for that year. The trial court dismissed plaintiff’s petition, and he appeals.

— Hon. Frank W. Eichelberger, Judge. The defendants were indicted by tbe grand jury of Lucas county for the burglary of a bank, under the provisions of section 4799a of Code Supplement. Upon a plea of not guilty, a trial was had. There was a verdict and judgr ment of conviction, and the defendants appeal.

<p>1 Malicious prosecution: evidence: Where the plaintiff, in an action for malicious prosecution, was arrested and placed in jail, he may testify that he felt humiliated, mortified and disgraced by the accusation, arrest and prosecution for a crime of which he was not guilty.</p> <p>2 Same: probable cause: instructions. An honest belief that plaintiff was guilty of the crime charged, based upon a knowledge of such facts and circumstances tending to show guilt as would lead a reasonably prudent man to believe plaintiff guilty of the crime charged, will authorize a finding of probable cause for the prosecution ; | and where the instructions construed as a whole announced the above rule, a single paragraph on the subject stating that probable cause means such a state of facts and circumstances as would lead a careful and conscientious man to believe that plaintiff was guilty of the crime charged, was not prejudicial, as casting upon defendant a higher degree of care than should be imposed.</p>

— Hon. David Mould, Judge. Action for malpractice. Defense a general denial. Verdict for plaintiff in the sum of $1,000 upon which judgment was rendered, and defendant appeals.

— Hon. F. W. Eicheubergbr, Judge. Five grounds of the demurrer to plaintiff’s petiton were sustained, and one ground thereof overruled. The parties elected to stand on the rulings, and the petition was dismissed. Both parties appeal; that of plaintiff being first perfected.—

— Hon. C. B. Robbins, Judge. This action is to recover the possession of land sold under contract, on the ground that the contract has been forfeited by failure to perform its conditions.

— Hon. W. H. Fahey, Judge. Action of partition of real estate. All the parties are beneficiaries, or alleged beneficiaries, of the will of J. F. Langfitt, deceased. The only controversy in the case is whether the defendant J. ~W. Langfitt takes any interest in the *real estate under such will. This question involves a construction of the will and codicil thereto. The finding of the trial court was adverse to the claim of J. W. Langfitt in that regard, and he has appealed.

<p>Appeal from Sioux District Court. — Hon. David Mould, Judge.</p> <p>From judgment on a directed verdict, the plaintiff appeals.</p>

— Hon. F. M. Hunter, Judge. Appeal by the executor of the will of A. W. Rankin, from an order allowing the widow of the testator the sum of $500 for a year’s support.

— Hon. K. E. 'Wilcockson, Judge. Action to recover compensation for work and labor performed by plaintiff about the foundation of a building belonging to defendant Spaulding Manufacturing Company, a co-partnership. Defendants admit that plaintiff performed some work for them in preparing the ground for the foundation of a building, but pleaded payment and an accord and satisfaction.

— Hon. F. M. Hunter, Judge. This is a prosecution, upon information, for assault and battery. It was heard in the district court on appeal from a justice court. From a verdict and judgment of conviction in this district court, the defendant has appealed.

— Hon. A. B. Thornelu, Judge. Action in equity to set aside and cancel certain conveyances and to quiet title to land. There was a decree in the district court in favor of plaintiff, and the defendants Armagast appeal.

— Hon. Robert Bonson, Judge. This is an action at law for weeHy indemnity for an alleged accident by a member against the defendant as an accident insurance association. There was a trial to a jury and verdict, and judgment for the plaintiff. Defendant appeals.

<p>1 Insurance: mutual benefit societies: officers: appointment: tenure. Where the by-laws of a mutual benefit society provided for the appointment of supreme instructors by the supreme officer of the society, the appointments to be approved by a board of supreme managers, and that all officers and committees should be elected for the term of three years, the appointment and approval of supreme instructors in conformity therewith constituted such persons officers, who were entitled to hold their offices for the term of three years.</p> <p>2 Same: contract of employment: breach: action therefor. Where an insurance society refused to perform its contract of employment with ah officer and agent, to pay a stated salary per month and expenses in advance, the agent was entitled to treat the refusal as a breaeh of the contract and to sue therefor at once.</p> <p>3 Same: discharge of agent: evidence. Where the plaintiff as the agent of the defendant society accepted compensation for her services for a time, as requested by the supreme officer, after the board of managers had recommended her discharge, but prior to the expiration of her term of office, the bill and voucher for such service was admissible, in an action for salary for the balance of the term; as bearing on the defense of acquiescence in the disapproval of the board to her continuing the service for the term.</p> <p>4 Same: compensation: evidence. Where an agent of the society was discharged from one position and given another, a witness who had held the second position was competent to state the amount that might be earned in such employment by the exercise of reasonable diligence.</p> <p>5 Same: recovery of compensation: tender of services: evidence. Where the evidence was such as to indicate that a tender of plaintiff’s services for the balance of the term would have been unavailing, the questions of whether it was necessary for plaintiff to have tendered performance in order to recover, or whether she acquiesced in her claimed discharge, were for the jury.</p> <p>6 Same: Where the by-laws of an insurance society provided that the supreme officer and board of managers should determine the salary one employed as instructor should receive, evidence that at a meeting of the board at which the supreme officer was present and participated in a resolution was adopted that no person employed as instructor' should receive any salary except such as local lodges might pay, was admissible in an action for breach of the contract of employment, based on refusal of the society to pay the salary.</p> <p>7 Same: measobe otp damases. In an action by a servant to recover. compensation for the balance of the term of employment, after an alleged improper discharge, the measure of damages is the difference between the amount she would have earned under the contract and the amount actually earned, or which might have been earned, in similar employment during that time.</p>

— Hon. K. E. Willcockso'n, Judge. Plaintiff brings this action for a divorce and alimony, and charges cruel and inhuman treatment. Decree for plaintiff, and defendant appeals.

<p>1 Dismissal of issues: instructions. Where one count of a petition is dismissed during the trial the court may properly ignore the same in its instruction to the jury.</p> <p>2 Slander and libel: words actionable per se: innuendo. Words which are slanderous in themselves do not require the allegation of an innuendo to explain their meaning; and even if not necessarily slanderous per se, still if used in a connection clearly rendering them such no i/nnuendo need be alleged. Besides, the objection that no innuendo was pleaded cannot be first raised on appeal.</p> <p>3 Same: mitigation: instructions. Matters relied upon in mitigation of an alleged slanderous charge must be distinctly pleaded in a separate division of the answer; and in the absence of such a plea the instruction that if the words were spoken in the defamatory sense charged anger would be no defense, nor serve to mitigate the offense, was proper.</p> <p>4 Same, damages: evidence. The defendants pecuniary condition may be shown in an action for slander. In the instant case a judgment for $500 was not excessive.</p>

— Hon. F. C. Platt, Judge. Action at la.w upon a policy of fire insurance. There was judgment for plaintiff, and defendant appeals. The material facts are stated in the opinion.

<p>1 Agency: action for commission: evidence. In this action for commissions for finding a purchaser for coal lands of defendant, the evidence is held to require submission of the question of whether plaintiff found a purchaser for the land, under the alleged agreement with defendant to do so for a compensation.</p> <p>2 Instructions: duty of jury. It is the duty of the jury to follow an instruction of the court whether right or wrong.</p> <p>3 Instructions: conformity with issues. Where the petition alleged no agreement as to the amount of commissions to be paid for finding a purchaser for land, and there was no evidence that the reasonable value of the service was a certain percentage, but the evidence showed that a less percentage had been paid in such cases, an instruction that the measure of plaintiff’s recovery was a certain specified percentage of the purchase price was erroneous.</p> <p>4 Agency: action for commission: instruction. In an action for commissions for the sale of land, in which it was admitted that the price of the land was not fixed and that plaintiff did not have the exclusive right of sale, an instruction that the fact that defendant did not know that the purchasers had been communicating with plaintiff about the land was not controlling, and that plaintiff had but simply to find a purchaser able, ready and willing to buy to be entitled to his commission, was erroneous.</p> <p>5 Same: procuring cause: instruction. It is the duty of the court when it attempts to instruct upon a matter which the parties have raised by the evidence to give a proper instruction. Thus where there was evidence tending to show that at the time when the owner and the purchaser of land, claimed to have been produced by plaintiff, met to consider the matter, the owner was not aware that plaintiff had been corresponding with the purchaser or was instrumental in calling his attention to the lands, and the purchaser was not aware that the lands were those concerning which he and plaintiff had corresponded, the court should have instructed that if the jury so found then plaintiff could not be said to have brought the parties together, and was not the procuring cause of the sale.</p> <p>6 Same: agency contract: implied promise to pay. Mere knowledge by the owner of lands that one in his employ is performing a particular service in procuring a customer, with the expectation of receiving extra compensation, is not sufficient to raise an implied promise of the employer to pay an additional sum; the employee must go further and prove an agreement for extra compensation.</p> <p>7 Same: estoppel: ratification: pleading. A contract by ratifieation, or perhaps estoppel, may be proved under a general allegation that such a contract was made, although as a rule estoppel must be pleaded; as the question then becomes one of evidence to prove the contract rather than one of estoppel.</p> <p>8 Evidence: declarations against interest: admissions. Declarations or admissions of the adverse party may always be shown, whether written or made orally; and if in writing the other party may introduce all the correspondence on the subject. But generally self-serving declarations in whatever form are inadmissible; and the mere fact that a letter remains unanswered will not constitute an admission of the statements therein. In this action letters written by plaintiff to defendant after the sale, which were self-serving, were inadmissible; and unanswered letters written some time after he quit defendants employ, and which were merely descriptive of past transactions, w.ere not admissible to support a claim against defendant for salary and commissions.</p> <p>9 Same: incompetent evidence: waiver of objection. By introducing letters written to plaintiff, in response to letters, from him improperly received in evidence, defendant did not waive its right to object to the ineompetency of plaintiff’s letters; since it was entitled to meet its case as best it could after introduction of the incompetent evidence.</p> <p>10 Judgments: counterclaim. Where the trial court properly directed the jury to credit the amount found due defendant on its two items of counterclaim against the sum found due plaintiff, it was . not entitled to separate judgments on such items.</p>

— Hon. Hugh Brennan, Judge. Action at law upon a certificate of membership in the defendant association issued to Leo 0. Vernon; plaintiff being the beneficiary named in said certificate. Upon issues joined, the ease was tried to a jury, resulting in a verdict and judgment for plaintiff, and defendant appeals.

— Hon. James P. Hewitt, ■ Judge. This is a contest over what purports to be the last will and testament of Andrew Law, deceased. The will was exe-' euted in April of tbe year 1903, and a duly executed codicil was attached some time1 in the year 1909. Contestants claimed that testator was unsound of mind at the time both will and codicil were executed, and also that the execution thereof was brought about by undue influence.

— Hon. J. F. Clyde, Judge. Indictment for rape under the provisions of section 4758 of the Code. There was a verdict of guilty and judgment entered thereon. Defendant appeals.

— Hon. Robert Bonson, Judge. Action to enjoin the enforcement of certain ordinances of the city of Dubuque in relation to wharfage charges and in relation to the use of the ice harbor by certain river craft. There was a trial to the court. The plaintiff’s petition was dismissed, and he appeals.

<p>1 Criminal law: murder: instruction. Merely consenting to the commission of an offense is not under all circumstances punishable as a crime; but where defendant admitted that he struck deceased at the time and place in question, the instruction that if defendant, alone, or with his co-defendant, or either of them, the other being present, aiding, abetting or consenting thereto, did kill the deceased, defendant would be guilty, was not erroneous as advising the jury that defendant might be convicted if standing idly by and took no part in the affray.</p> <p>2 Same: withdrawal from an aeeray: instruction. Where one in good faith withdraws from a combat he ceases to be a wrongdoer, if his adversary has reasonable ground to believe that he has so withdrawn, even though such withdrawal is not clearly evinced. But where it appeared that the defendant was an aggressor at all times during the affray, and never at anytime indicated his withdrawal, or that he intended to withdraw, he was not prejudiced by an instruction to the effect that his withdrawal from the combat must be clearly signified.</p> <p>3 Instructions: refusal of requests. Refusal of a. requested instruction fully covered by those given by the court is not reversible error.</p> <p>4 Criminal law: verdict: reversal. Where the jury and court who saw and heard all the witnesses believed those for the state, the verdict will not be' set aside because of the character of the state's witnesses.</p>

— Hon. E. B. Woodruff, Judge. Defendant was indicted, tried, and convicted of the crime of breaking and entering in the daytime the passenger depot of the Chicago, Burlington & Quincy Railroad Company at the town of Hamburg, and appeals.

— Hon. O. D. Wheeler, Judge. Dependants were indicted.for burglary, under the provisions of section 4791 of the Code. Hpon a plea of “not guilty,” there was a trial to a jury. A verdict of “guilty” was rendered, and judgment entered thereon. The defendants appeal.

<p>Appeal from Pottawattamie District Court. — Hon. E. B. Woodruff, Judge.</p> <p>Defendant was indicted, tried, and convicted of the crime of seduction and appeals.</p>

— Hon. A. B. Thornedl, Judge. In June, 1908, plaintiff entered into a contract with F. T. True for the purchase of lots seventeen and eighteen in block nine of Benson’s addition to Council Buffs for the sura of $300, of which $25 was to be paid January 1, 1909, and the remainder later.

— Hon. A. B. Thornell, Judge. Action in mandamus to compel defendants to install and operate gates at a street intersection. Judgment for plaintiff. Defendants appeal.

— Hon. O. D. Wheeler, Judge. Action to recover damages for breach of written contract. By answer the defendant put in issue the allegations as to breach. There was a verdict and judgment for plaintiff, and - the defendant appeals.

<p>Appeal from Page District Court. — Hon. O. D. 'Wheeler, Judge.</p> <p>The defendant was convicted upon a charge of seduction, and appeals.</p>

— Hon. Milo P. Smith, Judge. Suit in equity to cancel tbe levy of an execution upon certain real estate belonging to plaintiff, to enjoin a sale under said execution, and for other equitable relief. To an answer filed by defendants, plaintiff demurred; and from a ruling sustaining the demurrer defendants appeal. On rehearing.

— Hon. L. E. Fellows, Judge. Suit in equity to foreclose a mortgage on real estate. The original mortgagor was one Steele. Steele conveyed the real estate to Coifeen, who assumed the mortgage. Coffeen conveyed to Mullaney, who also assumed the mortgage. Mullaney conveyed with full covenants of warranty to one Loomis. Loomis conveyed by special warranty deed “by, through, or under” him to Jensen, who is the present owner of the property. Loomis and Steele are not parties.

<p>1 Evidence: materiality: motion to strike. A motion to strike the entire answer of a witness because of immateriality, where a portion of the samé was material, and no specific objection was made to the immaterial part, should be overruled.</p> <p>2 Same. In the absence of any preliminary showing that a witness had any knowledge of the occupation and character of the party inquired. about, objection to the inquiry as to what the witness knew about such persons being a bootlegger' was properly sustained as immaterial.</p> <p>3 Intoxicating liquors: in jury by intoxicated person : damages: extent OP proop. Under the statute providing that any child injured in his means of support by an intoxicated person has a right of action against the person who, by selling or giving away liquor, caused the intoxication, it is sufficient to show that the injury was by an intoxicated person regardless of whether it would have been committed by him if sober.</p> <p>4 Same: instructions. In an action of this character, an instruction requiring plaintiff to prove that his injury in the means of his support was in consequence of such intoxication, while casting upon plaintiff a greater burden than the law requires, was not prejudicial to defendant.</p> <p>5 Same: loss op support: damages: evidence. Evidence of the habits of plaintiff’s father as to the use of liquor, and that he was a drunkard, while not a defense to an action by a child for loss of means of support by the sale or giving of liquor to him, is competent in determining plaintiff’s loss.</p>

<p>Appeal from Page District Court. — Hon. A. B. Thornell, Judge.</p> <p>The facts are stated in the opinion.</p>

<p>Appeal from, Polk District Court. — PIon. W. H. McHenry, Judge.</p> <p>Action to quiet title. There was a judgment for the plaintiffs, and the defendant appeals.</p>

— Hon. M. E. Hutchinson, Judge. Appeal by the executors of the estate of James D. Kelley, deceased, from assessments for drainage improvements resulted in the approval of such assessments as made by the board of supervisors. The executor appeals.

<p>1 Municipal corporations: special assessments: limitation oe amount: estoppel. Where a city council refused the offer of petitioners for a street improvement to wáive the statutory limitation’ of the amount of a special assessment, and proceeded to make the improvement on its own motion and regardless of the- petition or consent of the property owners, the rejected offer could not be relied on as an estoppel against the property owners, to insist on the statutory limitation of the amount of the assessment.</p> <p>2 Same: parol evidence: impeachment op record. A city council cannot impeach its own record that a street improvement was ordered by the council on its own motion, without reference to any consent or petition of property owners, by parol evidence that the improvement was petitioned for and the petition was considered, but that it was customary, where three-fourths of the council were in favor of the improvement, to make,the record show that the resolution was passed on the council’s own motion for the purpose of avoiding possible defects in the petition. .</p> <p>3 Same: special assessments: estoppel. The fact that the owner of property subject to special assessment was the city attorney and approved the form of contract for the improvement, would not estop his executrix from objecting to the assessment of his property on the ground that it exceeded the statutory limitation.</p> <p>4 Same: excessive assessment: burden of proof. Where a city attempts to assess property for a street improvement in excess of the statutory limitation, it has the burden of showing some ground upon which the limitation can be avoided; and a property owner is not chargeable with bad faith in resisting the excessive assessment.</p> <p>5 Same: paving: statute: - construction. The term paving as used in the statute authorizing a city to improve a street by curbing, guttering, paving, etc., contemplates that the work shall all be done as one improvement, where the street-has not already been curbed and guttered; and it cannot treat the work as separate and independent items, making them the subject of contract and assessment to the extent of twenty-five per cent of the value of the abutting property in each instance.</p>