Volume 159 — Iowa Reports

<p>Appeal from, Polk District Court. — Hon. Wm. McHenry, Judge.</p> <p>Action at law to recover damages for personal injury. There was a directed verdict and judgment for the defendant, and plaintiff appeals.</p>

<p>1 . Landlord and tenant: lease: construction. The plaintiff leased a room from the.owner of the building, then in process of construction, for a drug store, which was to have a front and a side entrance. Subsequently the owner decided to change the plan of the building to one suitable for hotel purposes and procured from plaintiff an extension of the time for completing the room. The revised plans showed a door connecting the store room with the hotel lobby, but when the building was completed this doorway was closed on the hotel side. Held, that plaintiff acquired no right either by the original contract, the extension agreement or the revised plans, to have a door connecting the store with the hotel lobby constructed and kept open.</p> <p>2 Same: easement. It is also held that plaintiff did not acquire an easement of the right of access to and from the lobby of the hotel, either by necessity or implication, as against the owner or his lessee of the balance of the building for hotel purposes.</p>

— I-Ion. Thomas L. Maxwell, Judge. Action to probate a will objected to on the ground of want of testamentary capacity and undue influence. Verdict and judgment for contestant, and proponents appeal.

— Hon. Frank W. Eici-ielberger, Judge. Originally this was a partition suit to determine the interests of the various owners of something like five hundred and twenty-eight acres of land; to allot the same by parcels, or to sell the whole in the event it could not be divided. After a hearing, the court found the land could not be equitably divided, and ordered a sale thereof, fixed the interest of the various parties, and appointed referees and ordered a sale.

<p>Estates of decedents: claims : jurisdiction: injunction. Although probate proceedings are distinguishable from other proceedings they are had in the same court; and where the probate court has acquired jurisdiction to try and determine a claim against an estate its power continues until the matter is finally disposed of, subject only to appellate authority, and the district court will not interfere with its action by injunction; especially where every matter pleaded as grounds for equitable relief may be set up as defenses to the claim in the probate court, which are there subject to the same presumptions and rules of evidence.</p>

<p>1 Agency: findings of fact: conclusiveness: evidence. Findings of the court in a law action have the same force as the verdict of a jury, and if they have substantial support in the testimony will be accepted as conclusive on appeal. In this action to recover an-agent’s commission, the evidence is held to sustain the finding of the lower court that defendant employed plaintiff to find a purchaser for his stock of goods, and that plaintiff found a customer to whom a sale was made.</p> <p>2 Same: production, of purchaser able and willing to buy. The fact that an agent produces a prospective purchaser who is not financially able to buy without assistance, and the sale and transfer was finally made to such party and another who furnished the balance of the capital, will not defeat the agent’s right to his commission, where the facts were known to and discussed with the principal before the sale was made, both by the agent and the purchasers.</p>

— Hon. R. M. Wright, Judge. Action for damages for bodily pain and mental gnguish resulting from humiliation and shock caused by the defendant by the use of angry and threatening language over the telephone. There was a- demurrer to the petition which was sustained. Plaintiff elected to stand upon her petition, and judgment was entered accordingly. Plaintiff appeals.—

— Hon. Hugh Brennan, Judge. Action to recover damages for injury sustained by plaintiff due to a collision with an automobile driven by the defendant Black, and owned by the defendant Means. Trial to a jury. Verdict and judgment for the plaintiff, and defendant Means appeals.

<p>Appeal from Mahaska District Court. — Hon. B. W. Preston, Judge.</p> <p>Suits in equity to enjoin alleged liquor nuisances. Nine eases were brought against as many or more defendants, and, upon appeal, they have been consolidated and submitted as one. In the district court, the petitions were dismissed, and the State appeals.</p>

<p>Appeal from, Jackson District Court. — Hon. F. D. Lett's, Judge.</p> <p>From judgment convicting him of robbery, the defendant appeals.</p>

— Hon. F. M. Hunter, Judge. Action at law to recover upon an aeount for1 goods alleged to have been sold the defendants. There was a verdict and judgment for defendants, and plaintiff appeals.

— Hon. ¥m. Theophilus, Judge. Action to recover from defendants, as officers and stockholders of the Hayward Timber Company, an amount claimed to be due from the said Timber Company to the plaintiff; it appearing that the Hayward Timber Company, a corporation, had made voluntary dissolution and distributed its assets among its stockholders, among which were the defendants herein.

— Hon. Chas. E. Albrook, Judge. This is an action upon a contract, purporting to have been executed by the appellee defendants, in 'which they guaranteed the performance .of a contract made between plaintiff and defendant Lonning, by which he (Lonning) purchased from and agreed to sell for the plaintiffs certain medicines, extracts, spices, stock foods, etc. Lonning, although made a party to the action, was not served with notice, and the case went to trial on issues joined…

.Appeal from Floyd District Court. — Hon. C. H. Kelley, Judge. This is an action for commission on sale of real estate. Upon trial to a jury, there was a verdict and judgment for the defendant. The plaintiff has appealed.

— Hon. James P. Hewitt, Judge. J. P. Elliott, upon examination before the court, was ordered to deliver to tbe administrator of the estate of M. .Elliott, deceased, certain property. Prom this order he appeals.

<p>1 New ferial: waiver by motion for judgment. Where the general verdict against one defendant in the action made no reference to the other defendants, plaintiffs motion for a new trial was not waived by the filing of a motion for judgment on special findings against another defendant, as alternative relief.</p> <p>2 Same: defective verdict. Where a verdict was returned against only one of two defendants, .with no reference to the other, the court was not authorized to enter judgment against the other defendant, but should grant a new trial.</p>

<p>Appeal from Polk District Court — Hon. Hugh Brennan, Judge.</p> <p>Appellee brought this action to recover for loss alleged to have been suffered by her on account of the alleged theft of property covered by a policy of burglary insurance. There was a judgment for plaintiff. Defendant appeals.</p>

<p>Divorce: inhuman treatment: evidence. In this action by the husband for divorce on the ground of desertion, to which the wife filed a cross-bill alleging that she left him because of his cruel and inhuman treatment, and asked a divorce from him on that ground, the evidence is held insufficient to show cruel and inhuman treatment.</p>

— Hon. C. G. Lee, Judge. Action on insurance policy for loss by fire resulted in a judgment against defendant, from which it appeals.—

— Hon. W. H. McHenry, * Judge. Action at law to recover damages from the city due to the alleged negligent filling of a street. The case was tried to a jury resulting in a verdict for defendant. Plaintiffs filed a motion for a new trial based upon thirty or more grounds. This motion was sustained, and defendant city appeals.

<p>Appeal from Polk District Court. — Hon. W. H. McHenry, Judge.</p> <p>The property in question, having been destroyed by fire set out by defendant company’s engine, this action is brought to recover of the defendant the amount of the insurance paid by the plaintiff company on the property.</p>

<p>Appeal from Monroe District Court. — Hon. F. M. Hunter, Judge.</p> <p>Action at law to recover payment of rent as stipulated in a written lease. There was a verdict and judgment for plaintiff, and defendants appeal.</p>

— Hon. Frank W. Eichelberger, Judge. Action to reform written contracts of exchange and to recover a balance claimed by the plaintiff to be due upon the exchange made.

— Hon. Lawrence De Graff, Judge. Suit in equity to impress a trust or establish an equitable lien upon certain funds in the hands of defendant bank, derived from the sale of certain cattle belonging to one Hartzell, upon which it is claimed plaintiff had a chattel mortgage. The trial court dismissed plaintiff’s petition, and plaintiff appeals.

<p>Appeal from Polk District Court. — Hon. "W. H. McHenry, Judge.</p> <p>This is an action for damages for alleged trespassing of stock running at large, and for alleged negligence of defendant in permitting same. There was a general denial by the defendant. There was a trial to a jury and a verdict and judgment for the plaintiff. Defendant has appealed.—</p>

<p>Appeal from Keokuk District Court. — IIon. John P. Talbqtt, Judge.</p> <p>This is a suit in equity to impress a trust upon and establish ownership of a promissory note for $2,200. There was a decree for the plaintiff, and the defendant appeals.—</p>

— I-Ions. Wm. Theophilus and L. J. Horan, Judges. A demurrer to the petition was sustained, and as plaintiff elected to stand on the ruling, the action was dismissed. The plaintiff appeals.

— Hon. C. G-. Lee, Judge. Action by wife against husband for separate maintenance. Appeal by defendant from an order granting plaintiff’s application for temporary alimony. The material facts are stated in the opinion.

<p>1 Specific performance: offer of sale: acceptance: evidence. In, this action for specific performance of an alleged contract of sale, embodied in the correspondence of the parties, the evidence is reviewed and it is held, that the acceptance of the proposition to sell was not unqualified, in that it fixed a specified time for payment of a cash installment, while the offer contemplated simply a reasonable time in which to make the payment, and the acceptance in this respect was a change from the vendors offer.</p> <p>2 Same: abstract of title: place of payment: new conditions. The naked offer to sell real property at a stated price imposes no duty on the seller to furnish an abstract of title; and where no place of payment was stated in the offer the seller is under no obligation to accept payment or furnish a deed at any place other that his residence; and when such requirements are added to a simple offer to sell they amount to new conditions which, unless mere requests a compliance with which is not insisted upon, must be assented to before the contract is complete.</p> <p>3 Same. Where the purchaser, in addition to his acceptance of a simple offer of sale at a stated price, said that "we would like to have you send on the deed and abstract, and when they are found correct your money will be turned over to you;” he thus qualified his acceptance by indicating his intent to make the promise of payment contingent upon the production of deed and abstract at his place of residence which should upon inspection be found satisfactory.</p> <p>4 Same: findings of trial court: conclusiveness. The rule that the appellate court will defer to the findings of the trial court on disputed matters of fact does not apply where the entire controversy is based upon the interpretation of writings, the contents of which is in no manner disputed.</p> <p>5 Same: acceptance: waiver of conditions. Failure of the vendor to reply or object to an acceptance of his offer, which for the first time suggests a day certain for performance, will amount to a waiver of' objection to the time fixed; but where he treats it as a mere proposal and replies demanding an additional price, it does not amount to a waiver.</p>

<p>Appeal from Wright District Court. — Hon. C. G-. Lee, Judge.</p> <p>Action to recover a commission for finding a purchaser, or for selling one hundred and twenty acres of defendant’s land. The agency is denied by defendant, and he also denied that plaintiffs found a purchaser upon the terms agreed, and further pleaded that, before any purchaser was found, he (defendant) had concluded not to sell the land and had revoked plaintiffs’ agency. Upon the issues joined, the case was tried to a jury, resulting in a verdict and judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Webster District Court. — Hon. Charles E. Albrook, Judge.</p> <p>Action to recover damages for personal injuries.—</p>

<p>1 Actions: dismissal: counterclaim: jurisdiction. The plaintiff may dismiss his action at anytime before answer or counterclaim, and the court has no jurisdiction to render judgment on a counterclaim filed thereafter, even though plaintiff may have been .'actuated by fraud in bringing the action and defendant gave verbal notice that a counterclaim would be filed.</p> <p>2 Same: attachment: counterclaim: costs. The amount expended by a non-resident defendant in attending court and defending an attachment suit cannot be taxed as costs incident to a judgment on his counterclaim; it can only be recovered as an item of damage in an action on the attachment bond.</p> <p>3' Certiorari. Certiorari is the proper remedy to review a judgment which is void for want of jurisdiction.</p> <p>4 Same: costs. Costs on certiorari should not be taxed against the defendant judge; but where the judgment below was annulled they should be taxed against the real parties in interest who are in court resisting the writ and seeking to sustain the judgment.</p>

<p>1 Negligence: automobile accident: evidence. In this action for a personal injury caused by the fright of plaintiff’s team at defendant’s automobile, the evidence is held to authorize submission of defendants negligence in assisting plaintiff to pass the automobile with his team and to support the verdict.</p> <p>2 Appeal: verdict: conclusiveness. The credibility of witnesses and the weight to be given their testimony are questions for the jury, and.where from the entire record there is substantial ground for honest minds to differ, the appellate court will not interfere with the verdict.</p> <p>3 Negligence: automobile accident. It is the duty of the operator of -an automobile, when requested, to assist the driver of a team, which exhibits fright at the machine, to pass; and his failure to use reasonable care in so doing is negligence, and if the proximate cause of an injury he is liable therefor.</p>

— Hon. C. G. Lee, Judge. Action to set aside tax deed and to redeem a tract of land from tax sale. Decree as prayed, and the defendant Lizzie Yearous appeals.

— Hon. H. K. Evans, , Judge. Action in equity for foreclosure of a mortgage. Decree as prayed, and defendants appeal. The material facts are stated in the opinion.

<p>1 Sales: breach of contract: measure of damages. The measure of damages for breach of an executory contract to purchase personal property is the difference between the market value of the property at the time it was delivered and the contract price to be paid therefor.</p> <p>2 Same: evidence: burden of proof. In this action for breach of contraet to purchase furniture the written order did not state whether the goods were then in stock or would have to be manufactured, but plaintiff’s agent testified that he told defendant they would have to be manufactured and this was denied by defendant. Plaintiff’s evidence as to the damage was on the theory that the goods were yet to be manufactured and related to the difference between the cost of manufacture and the contract price. Beld, that, conceding the admissibility of plaintiff’s evidence of damage, the burden was on it to establish the claim that the goods were yet to be manufactured, and as this was affirmed simply by plaintiff’s agent and denied by defendant, the finding of the court for defendant, which has the effect of a verdict, is sustained.</p>

<p>Appeal from Polk District Court. — Hon. Lawrence De Graff, Judge.</p> <p>This is an action to redeem real estate from a sale for taxes under the provision of section 1440 of the Code. There was a decree dismissing the petition, and the plaintiffs appealed.</p>

— Hon. R. P. Howell, Judge. Two actions for partition were brought, involving the same property and between the same parties. One of the defendants in the action first filed, who was plaintiff in the second, interposed a plea in abatement. The first action was abated, and plaintiff appeals.

— Hon. C. H. Kelley, Judge. Action at law to recover damages for breach of contract to sell real estate. There was a verdict and judgment for plaintiff, and defendant appeals.

<p>Vendor and vendee: representations op buyer: warranties. Representations concerning tlie location, character and value of land and surrounding improvements, when employed with respect to land subject to inspection by both parties, may amount to nothing more than expressions of opinion; but when the land is at a distance and the buyer relies on the statements of the seller, the same statements may amount to actionable representations and warranties.</p>

<p>Guardian and ward: sale op property: ratification: estoppeu Where a guardian intended to convey the entire interest of his ward in certain real estate, the purchaser also believing that he was acquiring such interest, the order of sale and approval was made on that theory and a like -proportion of the purchase price set aside and invested for the ward, and upon arriving at his majority he settled with his guardian and consented to his discharge, a former trustee of the ward in bankruptcy, upon discovering that his entire interest had not been thus conveyed could not, after the lapse of ten years from the date of sale, have the ownership of the uneonveyed interest adjudged to be in him for the benefit of creditors; as the trustee could have no greater interest than the ward, and he was estopped from claiming any interest by his ratification of the transaction.</p>

— Hon. W. H. McHenry, Judge. This is an application of the plaintiff administrator to sell real estate for the purpose of paying debts. From an order sustaining application, the defendants have appealed.—

— I-Ion. J. H. Applegate, Judge. This is a quo warrauto proceeding instituted by certain private citizens on behalf of the State of Iowa, and thereafter joined in by the County Attorney against the Des Moines City Railway Company to test the right of the defendant company to maintain and operate its street railway upon the streets of the city of Des Moines.

<p>1 Taxation: refund: statutes. The provisions of the Code authorizing a refund of taxes illegally paid, and indemnifying purchasers at tax sales wrongfully made, apply only to actions against the county.</p> <p>2 Same: special assessments: payment: effect. Payment to the county treasurer of special assessments levied for a municipal improvement reduces the liability of the city to the contractor to that extent, and renders the treasurer liable to the holder of certificates to that amount.</p> <p>3 Same: recovery by contractor: intervention by taxpayer. Where special taxes assessed by a municipality for a public improvement have been paid to the county treasurer, thus reducing the obligation of the city to the contractor to cause valid assessments to be made, taxpayers cannot' intervene in an action by the contractor or his assignee against the treasurer and defeat recovery of the amount so paid.</p>

<p>Appeal from Calhoun District Court: — Hon. F. M. Powers, Judge.</p> <p>Action for the value of two horses killed in a collision with defendant’s engine resulted in a directed verdict for the defendant and judgment thereon. The plaintiff appeals.</p>

<p>Appeal from, Linn District Court. — Hon. F. O. Ellison, Judge.</p> <p>Action for damages resulted in a judgment against defendant, from which it appeals.</p>

<p>1 Wills:- construction: REPUGNANCY. A will should be so construed as to carry out the intent of the testator as expressed therein, and if possible give effect to all its provisions; but where a subsequent provision is so repugnant to a prior one creating an unlimited estate that to give it effect would destroy the manifest purpose expressed in the first provision, the latter provision is void; however, a subsequent provision simply limiting the enjoyment or control of the estate previously granted for a limited time is valid. Thus where the testator gave his real property in fee to his children, but later provided that it should be kept intact and the estate unsettled until the youngest child became of age, or in case of his death until a certain date, and gave the executors full charge of the property, with directions to distribute the rents and profits among the children, this latter provision was not a limitation upon the estate granted but was consistent therewith and valid.</p> <p>2 Same: partition. Where a testator devised his real property in fee to his children, but provided that it should not be sold or partitioned before a certain date, an action by part of the children to partition the property before that date cannot be maintained, over the objection of the remaining children.</p>

— Hon. Lawrence De Grape, Judge. This is an action for divorce on the ground of desertion and cruel and inhuman treatment. There was an appearance and resistance by the defendant. Upon trial had.the district court rendered a decree for the plaintiff, and the defendant appeals.

— Hon. David Mould, Judge. This action was brought to cancel a written contract and deed, on the ground that the same were procured by fraudulent representations and failure of title, and on the further ground of an alleged rescission by plaintiff, after discovery by him that defendants did not have title to the property, and after he found that the representations were false. There was a decree for plaintiff. The defendants appeal.

<p>Appeal from Davis District Court. — Hon. C. W. Vermillion, Judge.</p> <p>Defendant was convicted of the crime of seduction, and appeals.</p>

— Hon. Hugh Brennan, Judge. Three actions on account consolidated by agreement. They were brought by the same plaintiff against three sisters for services rendered in regard to an estate in which all were mutually interested. There was a verdict and judgment for the plaintiff in each case, and the defendants appeal.—

<p>Appeal from Polk District Court. — Hon. Hugh Brennan, Judge.</p> <p>This is an action for damages against the defendant as a common carrier for alleged negligence in the transportation of a valuable hog. At the close of the evidence the trial court directed a verdict for the defendant. Plaintiff has appealed.</p>

<p>Appeal from, Hamilton District Court. — Hon. C. Gr. Lee, Judge.</p> <p>Action by attachment against the defendants, J. E. Young and J. C. Young, in which the appellant, J. H. Johnson, was attached as garnishee. Trial to a jury, verdict for plaintiff, upon which judgment was entered against the garnishee for $1,136.40, and costs. The garnishee appeals.—</p>

— Hon. F. M. Powers, Judge. Action to recover a commission for the sale of land. At the conclusion of the evidence for the plaintiff, the court, on defendant’s motion, directed a verdict in his favor, and from judgment on this directed verdict the plaintiff appeals.

— Hon. George H. Castle, Judge. Action in equity to declare and establish a 'trust. The material facts will be found stated in the opinion. The trial court found for the defendants, and from this decree plaintiffs and intervener appeal.

<p>1 Master and servant: contributory negligence: evidence. Where the evidence is conflicting the question of contributory negligence is for the jury. In this' action for injury to a miner by reason of a fall of slate from the roof of the passageway leading to the room in which he worked, the evidence is held to 'require submission of the question of plaintiff’s contributory negligence.</p> <p>2 Same. Where a mine operator had agreed to timber the roof of the mine when notified by a miner that it was necessary to protect any roadway, it was his duty to timber the neck of a miner’s room leading to the entry to the mine, when notified that it was dangerous; and the miner was not guilty of negligence in failing to double-timber the same, under the statute providing that a miner failing to support the roof and entries under his control shall be guilty of a misdemeanor.</p> <p>3 Same: assumption oe risk. Although plaintiff knew that the roof sounded loose and drummy he did not assume the risk of working under it, after he had been assured by the pit boss that from his greater experience he knew that the place was safe, and had ordered him to go to work before the roof was properly supported; especially where there was evidence authorizing the jury to find ’that the operator had promised to provide proper supports as soon as timbers could be secured.</p> <p>4 Instructions: review on appeal. An objection to an instruction suostantially the same as one requested by the complaining party will not be considered on appeal.</p> <p>5 Same: refusal oe instructions. A requested instruction excluding matters which the jury should consider in any view of the case was properly refused.</p>

<p>Appeal from Appanoose District Court. — Hon. C, W- Vermillion, Judge,</p> <p>Action for damages resulted in judgment against defendant, from which it appeals.</p>

— IIon. Wm. Theophilius, Judge. Action at law upon a supersedeas bond. Judgment for plaintiff for a part of the recovery demanded. Both parties, have appealed; but the plaintiff, having first perfected its appeal, will alone be denominated the appellant.

— IIon. C. H. Kelley, Judge. Action to recover damages in the sale of land ;• plaintiff claiming that the defendant was his agent and fraudulently procured him to make a deed to the agent, the agent concealing the fact that he had already procured a purchaser for plaintiff’s land in excess of the amount paid by defendant therefor.

<p>1 Insurance: fraud: evidence. Other fraudulent acts committed by the party charged with the original fraud may be shown to establish intent, or to show a scheme or purpose to defraud; but it must appear that they were done at the instance of the party charged, or with his knowledge, consent or acquiescence, and must tend to show that -in doing the acts he had a purpose and intent to defraud. Thus before it can be shown upon an issue of fraud in procuring a policy of life insurance, that the wife, as beneficiary, and a third person procured additional insurance on the life of deceased, based upon the original application and medical examination, it must appear that they acted with the knowledge or consent, or under the direction of the insured.</p> <p>2 Same. Even though an insured was not at the time a fit subject for insurance, that fact alone would not establish fraud. And where there was nothing to show that the representations of the applicant regarding his health were not made in good faith, and it appeared that after issuance of the policy he underwent a medical examination and then refused to believe that he was a sick man, there was not sufficient evidence of fraud to avoid the policy.</p> <p>3 Same. An insured person can only be charged with such fraud or coneealment of his physical condition as was knowingly committed by him with intent to deceive; he is in no manner responsible for the fraudulent concealment of an examining physician for the insurer.</p>

<p>1 Evidence: cross-examination of affiants. An insurance company has no statutory right to have the parties making proofs of death calle.d for cross-examination regarding matters stated in 1heir affidavits; especially where the company admitted in its answer the allegations regarding proofs of death, and the proofs were introduced in evidence without objection and affiants were called by plaintiff as witnesses in the case and testified to the matters stated in such affidavits, and full opportunity for cross-examination was then given defendant.</p> <p>2 Insurance: assignment. A policy of life insurance is assignable after the death of insured, regardless of any provision of the policy.</p>

— Hon. F. O. Ellison, Judge. Petition to cancel contract of sale was dismissed, and decree of specific performance thereof entered as prayed. The plaintiffs appeal.'

— Hon. M. E. Hutchinson, Judge. Action in equity for an accounting for certain moneys alleged to have been collected and received by the defendant in his official capacity as treasurer of the plaintiff county and for recovery of such sum or sums upon his official bond. The issues were tried to the court and the petition ordered dismissed. Plaintiff appeals.

<p>Appeal from Crawford District Court. — Hon. F. M. Powers, Judge.</p> <p>Action to set aside conveyance of real estate alleged to' have been procured through fraud. Trial. Decree against plaintiffs on their petition, and for defendant on his cross-petition. Plaintiffs appeal.</p>

<p>1 Marriage and divorce: breach of contract: issues. Where the plaintiff in an action for breach of a marriage contract pleaded an unconditional mutual promioe, and the defendant while admitting the engagement pleaded that the promise of marriage was conditional upon the plaintiff’s regaining her health, which she never did, and for that reason defendant renounced the promise, the ease was properly submitted on both issues presented by the petition and answer.</p> <p>2 Same: action for breach: condition precedent. Upon the breach of an unconditional promise of marriage the plaintiff is under no obligation to tender performance as a condition precedent to suit for damages; but if there was in fact’no renunciation, or time fixed for consummation of the contract, a request or offer of performance is necessary.</p> <p>3 Same: ill-health as a dispense. Where defendant knew that plaintiff was in ill-health at the time of his promise of marriage that fact was not a defense to her aetion for breach of the contract.</p> <p>4 Same: evidence. Where the defendant admitted that he. promised to marry plaintiff on condition that she regained her health, and suggested that she consult a certain physician regarding her health, which she did and reported to defendant that he advised her she was practically cured, it was proper for the physician to testify to that fact and that such trouble as she still had would disappear with her marriage.</p> <p>5 Same: evidence op value. The plaintiff in an aetion for breach of marriage promise is competent to testify to her knowledge of the value of defendant’s property.</p> <p>6 Same: damages: mitigation: instruction. Where the defendant, knowing of plaintiff’s ill-health at the time of his promise of marriage, did not plead that fact in mitigation of damages, failure of the court to instruct that the jury might consider that fact in mitigation was not erroneous.</p> <p>7 Same: value op dependant’s property: evidence: instruction. Where the evidence warrants it is proper for the court to instruct the jury to consider the pecuniary advantage to plaintiff which would result from the marriage, and in the instant ease, while the evidence is meager, it is held sufficient to justify the instruction.</p> <p>8 Same: excessive damages. Where it appeared that defendant was about to inherit the sum of $60,000' a verdict for $4,250 was not excessive for his refusal to marry plaintiff.</p>

— Hon. W. N. Treichler, Judge. Action for damages against the defendant for alleged malpractice as a physician and surgeon. There was a trial before a jury and a verdict and judgment for the plaintiff for $800. The defendant appeals.

— Hon. J. J. Clark and Hon. C. H. Kelley, Judges. Suit in the nature of a bill for the review of a decree previously entered and praying to amend the same so as to render it effectual. A demurrer to the petition was overruled, and defendants, electing to stand on the ruling, decree was entered as prayed.

<p>Appeal from Crawford District Court. — Hon. F. M. Powers, Judge.</p> <p>Action to recover for the loss of stock. Loss alleged to have occurred on account of windstorm.</p>

<p>Intoxicating liquors: sale by pharmacist: request: contempt. Before a registered pharmacist is permitted to deliver intoxicating liquor to any person, a written request must be signed by the purchaser, stating the actual purpose for which it is purchased and the person for whom desired; and a sale without such request is a violation of the statute, and will subject a pharmacist who has been enjoined from making illegal sales to punishment for contempt.</p>

<p>Appeal from Jones District Court. — Hon. W. N. Treichder, Judge.</p> <p>Action to establish corners alleged to be lost or in dispute. Decree for defendants, dismissing the petition. Plaintiffs appeal.</p>

- — Hon. F. O. Ellison, Judge. Action at law, to recover damages for the wrongful killing of plaintiff’s dog. Defendant admitted the killing of the dog, but pleaded justification therefor and also filed a counterclaim for sheep killed and injured by the dog. Plaintiff in reply denied the allegations of the counterclaim, and also pleaded an election by plaintiff to recover from the county the damages done his sheep.

— Hon. Francis M. Hunter, Judge. This is an action for liquidated damages for breach of an alleged contract. The only defense which we need to consider is that the instrument set out by the plaintiff was only an order signed by the defendant, and that it was countermanded by the defendant before, acceptance by the plaintiff. At the close of the evidence there was a directed verdict for the defendant. Plaintiff appeals.

— Hon. W. S. Hamilton, Judge. Action for damages resulted in a directed verdict for defendant, on which judgment was entered. The plaintiff appeals.

<p>Appeal from Linn District Court. — ITon. Milo P. Smith, Judge.</p> <p>. Action to set aside a judgment of dismissal on the ground of mistake in entering the same. Defendant appeals.—</p>

Clarence Nichols, Judge. Action for damages for personal injuries. Tbe plaintiff holds his cause of action by assignment from Miles Kelleher, the injured person. Kelleher was an engineer in the employment of the defendant. He was injured on September 29, 1908, while engaged in his duties as engineer, by the breaking of a side rod of the engine. There was a trial to a jury, and verdict and judgment for the plaintiff. Defendant appeals.

— Hon. Geo. H. Castle, Judge. Action on an agreement of indemnity against loss in the purchase of certain certificates of stock. Demurrer to petition overruled. Judgment for plaintiff, and defendant appeals.

<p>1 Telegraphs and telephones: agency: negligence. The agent of a telegraph company, in whose office a telephone is maintained by the company for the purpose of receiving messages for transmission, is the agent of the telegraph company in receiving a message over the telephone; and the telegraph company is liable for the negligence of its agent in receiving the same, in the absence of rules to the contrary known to the sender.</p> <p>2 Same: evidence op custom: prejudice. Since the law imposes liability upon a telegraph company for the negligence of its agent in receiving a message for transmission by telephone, evidence of a custom of thus receiving messages at another place, though erroneously received, was not prejudicial; as such evidence was in support of the law and not to the contrary.</p> <p>3 Same: evidence: admissions. Where the admission of a fact is made of record for the purposes of the case, a different state of facts cannot be shown; but the admission, in an action for negligence in the sending of a telegram, that the message set forth was the telegram sent by plaintiff, when made simply as a matter of identification and to avoid the necessity of preliminary proof, was not a binding concession.</p> <p>4 Judgments: execution sale: abatement of action. The purchaser of a judgment on execution sale can only acquire such interest in the judgment as the plaintiff may have, which is subject to final determination of the ease on appeal. And upon reversal of the judgment on appeal it becomes his duty on a retrial to present his claim of ownership thereof to the court and aslc to be substituted as plaintiff, or move a dismissal of the action; and where he fails to do either, and the defendant fails to ask for a change in the party plaintiff, the defendant cannot plead or prove the alleged change in ownership of the judgment, by way of defense or in abatement of the action.</p> <p>5 Telegraphs and telephones: negligent delay: instructions. In an action against a telegraph company for negligent delay in the delivery of a message, where the court instructed, on the issue as to whether the agent wrongly addressed the message received by telephone for transmission, that if the agent understood the address correctly and so forwarded it the company was not negligent, while if he understood the address correctly and erroneously forwarded it the company was negligent, the further instruction that it was the duty of the company to use ordinary care to deliver a message to the person for whom it was intended, did not mislead the jury into imposing upon the company a greater burden than the law exacts.</p> <p>6 Same: Where a message was correctly received by a telegraph eompany but it was forwarded in an erroneous form, the duty of correctly transmitting and promptly delivering the same continued; and the company was chargeable with the duty of delivering it to the addressee within a reasonable time.</p> <p>7 Same: evidence: conclusion of witness. A witness who has observed the relations of a parent and child may testify to the state of affection existing between them, though in the nature of á conclusion drawn from their acts and manifestations toward each other, which are not always possible of detailed description.'</p> <p>8 Same: damages: excessive verdict. There is no fixed standard by which the damages in an action for negligent delay in the delivery of a telegram are to be estimated, and not being capable of definite proof much is left to the discretion of the jury; and in the absence of some showing indicating passion and prejudice their verdict will not be disturbed.</p>

C. B. Bradshaw, Judge. Action for purchase price of pianos, in which a counterclaim was interposed. Judgment was entered for less than plaintiff prayed, and therefrom it appeals.

<p>1 Survival of causes of action: statutes. The statutes providing for , the survival of actions do not operate to create new causes of action; but abrogate the common law rule that the death of a party entitled to recover terminates the cause of action.</p> <p>2 Same: accrual oe causes oe action. Although a cause of action accrues to one fatally injured through the negligence of another, though not instantly killed, it is also deemed to have accrued to his personal representatives at the same time.</p> <p>3 Executors and administrators: assignment of causes of action. The legal title to a cause of action for the death of a person resulting from the wrongful act of another vests in the administrator, to be held in trust for the surviving spouse, the children and creditors; and he may assign and transfer the cause of action without an order of court, provided it is done in good faith and those interested in the estate are not thereby deprived of their rights. But where the assignment was to the widow, without consideration, and operated to defeat the rights of children in the estate, she could not maintain an action thereon.</p> <p>4 Same: claims: compromise. An administrator may in good faith compromise a claim against the estate, but he cannot in so doing rob those entitled to an interest in the proceeds thereof by giving the same away.</p>

<p>Appeal from Mahaska District Court.- — Hon. B. W. Preston, Judge.</p> <p>Suit to foreclose certain mortgages resulted in decree as prayed. The defendants appeal.</p>

<p>Appeal from Johnson District Court. — Hon. R. P. Howell, Judge.</p> <p>Plaintiff (appellee) appealed to the district court from a judgment and order of a justice of the peace discharging a garnishee. In the district court defendant (appellant) moved to dismiss the appeal, which motion was overruled, and she appeals from such ruling.</p>

— Hon. Thomas Arthur, Judge. .Plaintiff brought suit against defendant to recover damages for breach of a parol contract for the sale of certain sheep. The defendant relied on the statute of frauds, and claimed that plaintiff was not the real party in interest, and' therefore could not maintain a suit, and some other matters which will be noticed in the opinion. Trial to a jury. At the conclusion of plaintiff’s evidence the court directed a verdict for defendant.

— Hon. J. H. Apple-gate, Judge. Action by subcontractors to establish claims for material furnished in the erection of a certain school building under the provisions of section 3102. Cedar Rapids National Bank, Intervener, claiming under an assignment from the principal contractor. Decree and judgment for subcontractors. Intervener bank appeals.

— Hon. F. M. Powers, Judge. This is an action to recover the purchase price of a borse sold at auction. The defendant pleaded a warranty and' breach thereof and a rescission of the contract of purchase on account of such breach of warranty. Upon trial to a jury, there was a verdict and judgment for the plaintiff. The defendant appeals.

<p>Appeal from Cremford District Court. — Hon. F. M. Powers, Judge.</p> <p>Action at law to recover damages for injuries sustained by plaintiff in the fall of a defective bridge maintained by the defendant county. Trial to a jury. Verdict and judgment for plaintiff in the sum of $7,661.29, and defendant appeals.</p>

— Hon. David Mould, Judge. This is an action for personal injuries alleged to have been sustained by the plaintiff while unloading a car of coal on the defendant’s track at Orange City, November 9, 1909; negligence of the defendant being alleged as the cause thereof. There was a verdict and judgment for the plaintiff, and the defendant appeals.

— Hón. E. B. Woodruff, Judge. Plaintiff brought this action to recover possession of four lots, containing about three acres, in East Omaha, in Pottawattamie county. Defendant claimed the title and right of possession by prescription, and that, based on a claim of right, he had been in adverse possession for more than ten years; that therefore the action was barred. At the conclusion of all the evidence, the court directed a verdict for plaintiff. Defendant appeals.

<p>Appeal from Harrison District Court. — Hon. A. B. Thornell, Judge.</p> <p>Suit in equity to quiet plaintiffs’ title to lot. No. 4 in section No.- 7, township' No. 79 north, range No. 45, in Harrison county, Iowa, being a fractional lot in the original government survey. Defendants claim that there is no longer any such lot; that the tract of ground in controversy is a part of section No. 35, in township No. 2, range No. 11, nr Washington county, Neb., being accreted land to said section No. 35 or to some of the lots therein. As originally surveyed, the land in controversy was on the Iowa side of the river; but it is now on the Nebraska side and there is no stream west thereof. The sole question in the case is whether or not said land was left intact; the river having changed its course during one of the humors for which it is noted. The trial court found that, while the river had changed its course, it did so gradually, washing away all the land in controversy and depositing it, or other soil, gradually and imperceptibly to and upon the land on the Nebraska side of the river. Plaintiffs appeal.</p>

— Hon. M. E. Hutchinson, Judge. This is an action for possession of certain town lots in the city of Jefferson; the plaintiff alleging that he was the absolute owner thereof in fee simple and as such entitled to the immediate possession. The defendant averred that he was the equitable owner of the lots and had the possession thereof as such, and that the plaintiff had notice of his equity before purchase.

<p>Appeal from Crawford District Court. — Hon. Z. A. Church, Judge.</p> <p>Action on a certificate of deposit resulted in a dismissal of the petition. Tbe plaintiff appeals.</p>

— Hon. O. D. Wheeler, Judge. Action at law to recover damages for the negligent constrnction and maintenance of a.railway bridge, causing-the water in a drainage district to overflow the levees of the ditch and to injure and destroy plaintiff’s property.

— Hon. M. E. Hutchinson, Judge. Appeal from an assessment of benefits to plaintiff’s land, due to the establishment of a drainage district, which embraced the property. Plaintiff appealed, from the assessment made by' the Board of Supervisors, to the District Court of Sac County, and upon that appeal the assessments were confirmed and approved, and from that finding he appeals to this court.

— ITon. O. D. Wi-ieeler, Judge. Suits to enjoin the collection of an inheritance tax upon the estate of Almiron Culver, deceased. A demurrer to the petition was sustained, and plaintiff electing to stand on her pleading, judgment was rendered against her for costs, and she appeals.

— Hon. W. R. Green, Judge. This is an action for personal injuries resulting to the plaintiff by the starting of a feed Cutter, without •warning to him, while his hand was exposed to danger from the revolving knives. The defense was a general denial and a plea of contributory negligence, and a further plea that if there was any negligence other than that of the plaintiff it was that of a fellow servant. There was a trial to a jury and a verdict for plaintiff.

<p>Appeal from, Scott District Court. — Hon. William Theopolis, Judge.</p> <p>Suit in partition of certain property resulted in the dismissal of the petition. The plaintiffs appeal.</p>

— Hon. George H. Castle, Judge. The action was commenced June 9,1911, aided by writ of attachment by virtue of which C. C. Polly, was served with notice of garnishment. He answered that he had in his possession a piano belonging to defendant. Later, J. C.'Doty filed a petition of intervention, alleging that he had purchased the piano of defendant November 23, 1908, and thereby became the absolute owner thereof, and prayed that the same be returned to him.

— Hon. C. W. Vermillion, Judge. Appeal from an intermediate order transferring a eause to tbe equity side of the calendar, and from a further order overruling plaintiffs’ motion to strike a cross-petition. The plaintiffs appeal from both orders.

— Hon. Hugh Brennan, Judge. Action at law to recover damages. There was a directed verdict for the defendant, and plaintiff appeals. The material facts are stated in the opinion.

— Hon. A. N. Hobson, Judge. Disbarment proceedings. The defendant was found guilty. There was a judgment revoking his license to practice law, and he appeals.

<p>Appeal from Des Moines District Court. — Hon. W. S. Withrow, Judge.</p> <p>From judgment on directed verdict for défendant, tbe plaintiff appeals.</p>

— Hon. A. D; Bailie, Judge. Appellee filed a claim against the administrator for $2,347.07 for the care of deceased at the Hospital for Insane. The only money or property in the hands of the administrator was $1,600, the proceeds of the sale by her guardian of certain real estate alleged to have been her homestead. The trial court allowed the claim, and held that the money was not exempt, and directed that it be applied on appellee’s claim.