Volume 161 — Iowa Reports

— Hon. C. H. Robbins, Judge. • • Law action to collect rent alleged to be due under a lease, and for the value of improvements which, as a part of the rent consideration, were to be, but were not, made. Equity proceeding for injunction to restrain the lessee from removing his goods from the leased premises until rent should be paid.

- Appeal from Benton District Court. — Hon. Clarence Nichols, Judge. Action on a fire policy to recover for damage to goods, occasioned by being removed from a building to avoid destruction by fire occurring in the neighborhood of the building in which they were located. Trial to a jury. Verdict and judgment for the plaintiff.- Defendant appeals.

<p>1 Drainage: establishment oe district: report oe engineer: bound-Aries. A drainage engineer’s report, plat and profile of a proposed district should be self-explanatory and readily comprehensible so the ordinary non-expert may understand what land is to be included and exactly what is to be done. Where, however, the report clearly described the several tracts to be included, giving the names of the several owners, it was not objectionable on the ground that it did not sufficiently define the boundaries of the district.</p> <p>2 Same: report oe engineer: sueeiciency. Where the report of the engineer, in connection with his plat and profile, discloses the route of the proposed drains, the lands within the district, and other matters required by the statute to be shown, and the board of supervisors has accepted and approved of the report as sufficiently specific in these respects, the court will not interfere on the ground that the report is insufficient.</p> <p>3 Same: description oe drain: sueeiciency. Where the engineer’s re-port showed that the proposed drain started in an open ditch on the lowest part of a certain forty-acre' tract and terminated in ponds on the boundary lines of certain other forty-acre tracts, the description of the drain was sufficiently definite; especially as the plat and profile were made upon a scale from which the location of the drain could be approximately ascertained.</p> <p>4 Same: report oe engineer: elevations. The statute requiring the engineer’s report to state the elevation of lakes, ponds and deep depressions in the district does not necessitate that levels be taken of every minor depression or puddle of water, but only such as' must be taken into account in determining the extent of the drainage system; and the omission in this respect of ponds and depressions so shallow and inextensive as to be immaterial in determining the extent of the system will not render the report materially defective.</p> <p>5 Same; engineer’s report: addition al expense. Failure of the en-gineer in his supplemental > report to state the additional cost of extending the tile at the outlet of the drain was not fatal to the proceedings, where it appeared that the-same was extended in consideration of the withdrawal of-a claim for damages nearly equal to the additional cost; as the same was but a detail in reaching the final result, likely to arise after the filing of the formal report.</p> <p>6 Same: establishment of district: benefits: evidence. Although plaintiff’s land within the drainage district contained a comparatively small amount of swamp land and not a great quantity ordinarily denominated wet, yet as the evidence showed that the district was desirable, and that the cost of the improvement was not seriously disproportionate to his benefits, the action of the supervisors in establishing the district is not disturbed on appeal.</p> <p>7 vSame: assessment of benefits: constitutional law. The fact that the statutes authorize the cost of a drainage improvement to be apportioned according to benefits and assessed against the lands of the district by the supervisors of the entire county, rather than by those of the particular district, does not render such statutes unconstitutional, in that the proceedings thereunder constitute taxation without representation.</p> <p>8 Taxation: what included in the term “tax.” While the power to tax and the power to levy special assessments are both derived from legislative authority, the term tax as used in the constitution and in the statutes does not include special assessments for a local improvement.</p> <p>9 Special assessments: constitutional law: due process. There, is no provision in the state constitution limiting the power of the legislature to delegate the authority to levy special assessments for local improvements, except that it denies the right to take property without due process of. law.</p>

<p>1 Jurors: disqualification: evidence. Where a juror testified upon his examination that he could render an impartial verdict, under the evidence and the instructions of the court, he was not disqualified, even though he had formed a preconceived opinion concerning the guilt or innocence of the defendant from reading the papers and from common rumor.</p> <p>2 New trial: misconduct of bailiff. The fact that a bailiff in. charge of the jury talked with one of them regarding the difficulties of the jury in understanding the instructions of the court, and made the statement that if the jury desired to have the instructions explained it would have to be in open court and in the presence of the attorneys, nothing being said about the merits of the ease, was not such misconduct on the part of the bailiff as to require a new trial.</p> <p>3 Criminal law: rape: corroboration: evidence. Evidence that defendant was seen driving away from the place where the alleged crime of rape was committed; that no one else was present who could have committed the crime; that there were .automobile tracks leading toward the highway from the place where prosecutrix said that defendant stopped his machine; and that defendant had the opportunity, which was of his own making, to commit the crime, was sufficient corroborating evidence to take the case to the jury.</p> <p>4 Same: reasonable doubt: instruction. An instruction that the state is not required to prove defendant’s guilt beyond all doubt; that is absolute certainty is not required. Moral certainty is all the law'demands; such certainty as the jury would act upon in the more important affairs of life, was not prejudicial to defendant, where reasonable doubt was correctly defined in other parts of the instruction.</p>

<p>Appeal from Jasper District Court. — Hon. Byron W. Preston, Judge.</p> <p>The accused was convicted of having committed murder in the first degree, and appeals.</p>

— Hon. K. E. Willcockson, Judge. Action to recover oa a policy of insurance against accident. At conclusion of testimony the court directed a verdict for the defendant; and, judgment being entered on this verdict, plaintiff appeals.

— Hon. K. E. Wilcock- . son, Judge. Dependant, with, three others, was indicted for the crime of robbery. Upon trial to a jury, he was convicted of larceny from the person, and the value of the property taken was fixed at $11. An indeterminate sentence, not exceeding fifteen years, was rendered upon the verdict, and defendant appeals.

<p>1 Verdict: conclusiveness upon appeal. Where there is more than, a scintilla of evidence to support the verdict of a jury their judgment upon the facts is final, in the absence of any showing of passion or prejudice.</p> <p>2 Railroads: crossing accident: negligence: evidence. In this action 2 for injuries caused, by the collision of plaintiff’s automobile with a railway train at a street crossing, the evidence is reviewed and held sufficient to support a finding that the flagman negligently failed to warn plaintiff of the approaching train; that the trainmen failed- to give warning of its approach; and that plaintiff was free from contributory negligence.</p> <p>3 Same: negative and positive evidence: weight. While ordinarily the positive testimony of a witness that he saw an object or heard a sound is more persuasive than the negative evidence of one who testifies to the nonexistence of such facts; still, the probative force of such negative evidence depends largely upon the circumstances and situation of the parties. Thus where plaintiff, who frequently passed over a railway crossing with his automobile and was familiar with the duties and signals of the flagman and those operating trains at the crossing, testified that he looked and listened- for approaching trains and saw no flagman and heard no crossing signals, his evidence though negative in character was of probative force.</p> <p>4 Same: contributory negligence. Failure of one when about to cross the tracks of a railway to stop, look and listen for approaching trains is not a hard and fast rule; and is not under all circumstances such contributory negligence as will defeat recovery for an injury caused by collision with a passing train.</p> <p>5 Same. Where a railway company maintains a flagman at street erossings in a populous city, as required by the ordinances of the city, travelers may assume that when no warning signal is given they may cross the tracks in safety.</p> <p>6 Same: violation of statute: effect. Before the violation of a statute will preclude recovery for an injury some causal relation between the unlawful act and the resulting injury must be shown. Thus the operation of an unregistered automobile in violation of the statute will not defeat recovery for an injury received at a railway crossing.</p>

— Hon. A. N. Hobson, Judge. The executor having filed a report reciting in substance that the estate of ¥m. Adams, deceased, had been settled save the payment of $1,000 to the widow in pursuance of the terms of an antenuptial contract, and that, though he had tendered the same, she had refused to receive it, and demanded her distributive share, prayed that he be directed to turn the same over to the clerk of court for her benefit, and that thereupon he be discharged and his…

<p>Appeal from Pollt District Court.- — Hon. James P. Hewitt, Judge.</p> <p>Action to recover damages for personal injury.—</p>

— ITon, A. N. Hobson, Judge, Proceedings in probate. The decedent was the widow of Fred Burmaster. The petitioners are the children of Bur-master by a previous marriage. The interveners, who joined with the executor, are the children of the decedent by a previous marriage.

— Hon. M. E. Hutchinson, Judge. Action to set aside tbe probate of a will and to bave the same declared null and void because of mental incapacity and undue influence.- At the conclusion of plaintiff’s testimony, defendants moved for a directed verdict. This motion was sustained, and plaintiff appeals.

— Hon. Thomas Arthur, Judge. This is an action brought by several plaintiffs averring ownership of certain city lots in Council Bluffs, and asking to set aside a certain decree of the district court entered upon the petition of A. E. Chase, defendant herein, which purported to quiet the title of all said lots in the said Chase. The decree thus attacked was entered in September, 1906, and a decree supplemental thereto was entered in May, 1907.

— Hon. Hugh Brennan, Judge. Suit to recover certain moneys alleged to be due plaintiff from defendant. There was a trial to a jury, verdict and judgment against defendant. He appeals.

<p>1 Municipal Corporations: public improvement: contract: instructions. Where a sidewalk contract required plaintiff to construct the same according to the specifications of the department of public Construction of the city, and provided that the decision of the department should be conclusive as to the manner of doing the work; that the price for the work, when completed to the satisfaction of the city and defendant, should be paid when the work was accepted; and the undisputed evidence showed that the work had been approved by defendant and the officers of the city: Held, that as the court instructed that the burden was upon plaintiff to show that he had performed the work in substantial compliance with the contz’aet, defendant was not entitled to a further instruction that if he was in good faith dissatisfied with the work plaintiff could not recover.</p> <p>2 Same: approval op improvement: evidence. The evidence in this ease is reviewed and held to show that the sidewalk in question was constructed substantially according to specifications, and of materials of proper proportion; that the defendant knew of the , character of the work and of the materials used as the work progressed, and approved of the work upon its completion.</p> <p>3 New Trial: remarks oe court: prejudice. In view of the improper cross-examination of the plaintiff in the instant case, the remark of the court, in referring to the evidence, that it was very evident plaintiff was not a capitalist, furnished no ground of complaint.</p>

— Hon. W. H. McHenry, Judge. Action on an oral contract for constructing a levee resulted in a verdict and judgment for plaintiff, from which' defendant appeals. Reversed. About six months after the entry of judgment, defendant petitioned for new trial. A motion to strike the grounds therefor alleged in the petition was sustained, and, as defendant elected to stand on the ruling, the petition was dismissed. From this ruling, also, the defendant appeals.

— ITon. Lawrence De Graee, Judge. Suit in equity to enforce a contract or claim against tbe estate of W. F. Gould, deceased. The nature of the claim was stated in an amended and substituted petition, which recited the facts at length, and to this, as. amended, the executor of the estate demurred.

— Hon. L. J. Horan] Judge. Action in equity to rescind tbe sale of stock in defendant corporation. There was a decree for defendant. Plaintiff appeals.

<p>Appeal from Polk District Court. — Hon. William H. McHenry, Judge.</p> <p>Action to recover damages. There was a directed verdict for defendant. Plaintiff appeals.</p>

<p>1 Landlord and Tenant: character of tenancy: evidence: statute op frauds. While one in possession of real property is presumed to be a tenant at will, still he may show by competent evidence that he is a tenant for years. As a, rule, however, evidence of an oral lease for more than a year is within the statute of frauds; and neither taking possession under an oral lease, nor payment of rent will take the contract out of the statute.</p> <p>2 Same: statute of frauds. A written lease must be signed by the parties to be charged; it is not enough that it is signed by a tenant alone to take it out of the statute of frauds. But the rule that the statute was designed to prevent perjury and fraud cannot be used as an instrument to perpetuate fraud; especially where a party was induced to rely upon an oral contract as being valid.</p> <p>3 Same: parol lease: statute of frauds: equitable relief. The mere denial of an oral agreement or refusal to perform the same is not sufficient to show, fraud; but where a landlord promised to lease his premises to a tenant who was occupying other premises, and the tenant surrendered his old lease and moved onto the new premises, making valuable improvements thereon designed for that property alone, and the landlord drew a lease which the tenant signed and under which he paid rent for some time, equity will not permit the owner, who had not signed the lease, to take advantage of the statute of frauds and thereby perpetrate a fraud on -the tenant.</p>

— IIon. C. G-. Lee, Judge. Action at law to recover damages for the death of Earl P. Wilson, deceased, due to his being struck by a train on defendant’s right of way at a highway crossing in Story county, Iowa. Defendant interposed a general denial, and on the issues joined the case went to trial to a jury,- resulting in a verdict and judgment for plaintiff in the sum of $2,000. Defendant appeals.

— Hon. W. H. Fahey, Judge. This is a probate proceeding involving tbe final report of an executor. Objections thereto being filed, the executor filed a motion for continuance for the purpose of taking depositions in support of his report, which motion was overruled. The executor also filed a motion to withdraw his report on tte ground that since filing the same he had been garnished. This motion was overruled.

— Hon. Charles S. Bradshaw, Judge. Suit to set aside an ordinance vacating a street, and to enjoin its use for the storage of city machinery, resulted in a decree dismissing plaintiffs’ petition. The plaintiffs appeal.

— Hon. F. O. Ellison, Judge. Suit in equity, to enjoin tbe defendants, tbe City of Tip-ton, tbe County of Cedar, and the officers of each, including tbe County Attorney, City Solicitor, the County Sheriff, and certain private citizens, from prosecuting, either civilly or criminally, or from interfering in any way with plaintiff, its agents or employés, in removing a certain pavement and gutter and paving and guttering material, laid in the streets of the defendant city by…

— Hon. W. N. Treichler, Judge. Suit on account. Plaintiff’s petition contains three counts, one for labor, another for board of a hired hand, another for the purchase of certain property, and asks to recover on all three counts the sum of $.471.11.

— Hon. F. M. Powers, Judge. Suit by plaintiff against defendant city and its officers to enjoin an alleged nuisance. There was a decree for plaintiff enjoining the nuisance and requiring the removal of hitching posts. Defendants appeal.

— Hon. Lawrence De Graff, Judge. Action to set aside sheriff’s sale and to quiet title in plaintiff to certain property, claimed by plaintiff to be his homestead.

— Hon. F. O. Ellison, Judge. Suit in equity for an accounting against the defendant, as trustee, under power of attorney. It was averred in the petition that the power of attorney had been revoked. The prayer was that the defendant be required to account and to deliver to the plaintiff all property received by him in pursuance of such power of attorney.

Appeal fr'om Plymouth District Gotirt. — Hon. David Mould, Judge. Action at law to recover damages for personal injury. The material facts are stated in the opinion. Judgment for plaintiff, and defendant appeals.

— Hon. R. M. Wright, Judge. Plaintiff brings this action at law to recover upon a check issued to A. M. Ingersoll upon the State Bank of Ells-worth, Iowa, and by said payee indorsed to the plaintiff. The defendant admits issuing the check to Ingersoll, but denies plaintiff’s right to recover thereon because of alleged fraud practiced upon defendant by Ingersoll in procuring the same. He also denies that plaintiff is a good-faith holder of the check.

<p>1 Husband and wife: abandonment: evidence: It is not permissible for a husband, when prosecuted for deserting his wife and leaving her in a destitute condition, to show that he believed her to be unchaste at the time of their first marriage, or at the time of their re-jnarriage after she had obtained a divorce, unless he goes further and shows that, her unchastity resulted in her pregnancy at the time of the second marriage.</p> <p>2 Same: failure to support the wife: evidence. In an action against the husband for leaving his wife in a destitute condition,, evidence that the husband had credit with merchants from whom his wife bought supplies, until he notified them to sell her no more; that he had rented a farm, had some farm implements and money to pay the freight on the same to a distant county; that he had some claim on land in another, state, and that shortly before their marriage he had transferred practically all of his personal property to his sons by another marriage, was sufficient to show that support was not refused because of his inability to furnish the same, and there was no error in refusing to submit that question to the jury.</p> <p>3 Same: secondary evidence. Where it appeared that a witness had lost or mislaid a letter received by him, and was unable to produce the same, his testimony concerning its contents was admissible.</p> <p>4 Same: desertion: burden of proof: instruction. On the prose-cution of a husband for wilfully neglecting to provide for his wife, an instruction that the state has the burden, not only of showing 1 the neglect and that the wife was destitute at the time, but that the state must also show that he had no good cause or excuse for refusing to support her, the term good cause as here used meaning substantial cause, such as would justify an ordinary, self-respecting man in refusing to support his wife, was more favorable to the defendant than he was entitled to and therefore he could not complain of the same.</p> <p>5 Same: duty of husband to support his wife. It is the duty of a husband to support his wife, even though she may have a separate estate, or may have been unchaste before the marriage, and if she •leaves Mm without fault .on her part tMs duty still continues; but if she leaves him through fault of her own, such as would ordinarily entitle him to a divorce, or under a separation agreement absolving him from further support, his duty to support ends. Ordinarily this duty to support contemplates that he shall provide it at Ms 'own home. . .</p> <p>6 Same: desertion: good cause: instruction. Where there was no evidence of good cause justifying the defendant in refusing to support his wife, ■ failure of the court to define good cause in the instructions was not prejudicial to the defendant.</p> <p>7 Same: desertion: burden of proof: evidence: instruction. Under the statute providing that proof of desertion of a .wife in destitute circumstances, or failure to furnish necessary support, shall be prima facie evidence that the desertion was willfull, a husband charged with deserting, his wife has the burden of showing inability to support her; and where there was evidence tending to show that the husband was able to support his wife, an instruction •. that the fact that he neglected without good cause to support her established the wilfullness of his act, was not erroneous because making no reference to his ability to support her.</p>

<p>1 Wills: charitable bequests. It is the duty of courts to uphold a devise for charitable purposes if it can be done without violating any statute or principle of law.</p> <p>2 Same: creation of trust: definiteness. While the general purpose of a charitable bequest must be expressed in such terms as to clearly indicate the desire of the testator, it is not essential to the creation of the trust that all the details be set forth; these matters may be left to a trustee, who must be governed by the general terms of the trust, with the right of ultimate control in the courts.</p> <p>3 Same: establishment of trust: delegation of duty. It is eompetent for a testator to confer upon a trustee authority to establish the trust. Thus where the" devise was to a trustee, with the express desire that he should establish the testator’s farm as a home for poor old people, and in connection therewith gave directions for carrying out his intent, the bequest was not objectionable because the testator did not himself establish the trust, but conferred that duty upon the trustee.</p> <p>4 Same: certainty as to beneficiaries. A charitable bequest is not void because containing no limitation as to the territory from which the beneficiaries are to be chosen.</p> <p>5 Same: appointment of trustee: • succession. A testator in the cre- ation of a trust may not only appoint a trustee, but he may provide for a successor in trust, and invest him with the same power held by the original appointee,</p> <p>6 Same: perpetuities: statute. Charities are established as objects of public, general and lasting benefit, the permanency of which is not interfered with by law; and the statute intended to avoid conditions of entailment has no application to such institutions.</p> <p>7 Same: charitable gifts : corporations : statute. The statute limiting gifts by testators to religious, eleemosynary and other like corporations, has no application to gifts to a trustee for a charitable purpose.</p>

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

— Hon. Milo P. Smith, Judge. Proceeding to enjoin the collection of water rates, the shutting off of service, and to recover alleged excess in payments for city water.

<p>Appeal from Dallas District Court. — Hon. J. H. Applegate, Judge.</p> <p>Appeal from decree confirming, special assessment for street paving.</p>

<p>1 Criminal Law: jurisdiction. The supreme court will not acquire jurisdiction of a cause arising in police court unless the same was in the first instance appealable to the district court. And. the fact that defendant did not appeal from an order of the district court overruling his motion to dismiss would not preclude his raising the question of jurisdiction in the supreme court; as the question of jurisdiction may be raised at any stage of the proceeding.</p> <p>2 Same: judgment for defendant: appeal: jurisdiction. There is no statute authorizing an appeal by the state from a judgment of' a justice of police court in favor of a criminal defendant; and in the absence of a statute authorizing an appeal in such cases, and conferring jurisdiction on the district court, it has no power to review the proceedings.</p>

<p>1 Corporations: negotiable instruments: individual liability: burden of proof. The statute providing for individual liability of incorporators, because of failure to substantially comply with the statutory requirements regarding incorporation, does not apply to parties who, without attempting to incorporate or without assuming any corporate functions, adopt a trade name calling themselves a company; and in a suit upon a note executed in the name of the company the plaintiff: has the burden of proving such facts as will establish an individual liability, to hold the individuals composing the company personably liable. In the instant ease this burden is not sustained.</p> <p>2 Same: voluntary associations: individual liability of members. ' A voluntary, unincorporated association for the purpose of conducting a business, is to some degree a partnership, even though the individual members never understood or believed that they had assumed such relations; and an individual member may be held liable for the contracts made by another member of the association, when made within the proper scope of the business for which they are associated, although he may have given no express consent.</p> <p>3 Partnerships: trading and non-trading partnerships. A trading partnership or association is one doing a business of buying or s°lling for profit, while those doing a business other than buying and selling goods or property are non-trading partnerships.</p> <p>4 Same: non-trading partnerships: individual liability. A non-trading partnership or association has no power to borrow money ■ and issue negotiable paper therefor and render liable the individual members not assenting thereto; and one seeking individual enforcement of liability therefor has the burden of showing, either express authority, or circumstances from which authority can be fairly implied.</p> <p>5 Same: individual liability: estoppel. An unincorporated telephone company organized for the purpose of operating a telephone line for the use and convenience of its members, is a non-trading association, and its members are not individually liable for money loaned to its manager without their knowledge or consent; and where one loaned money to the manager of such an association, with no understanding or belief that he was doing so on the credit of the individual members, and did not know of their connection with the association except in a single instance, and in that case did not know the financial standing of the member or rely upon his credit, the members were not estopped to deny the authority of the manager to charge them with liability.</p>

— Hon. David Mould, Judge. Action to recover damages for flooding the basement of plaintiff’s store, and injury to merchandise therein, alleged to have been caused by the negligence of defendant in the grading of its streets and construction of gutters, by which, it is claimed, the defendant collected and diverted surface water and failed to provide outlets. There was a trial to a jury resulting in a verdict and judgment for plaintiff for $880.99. Defendant appeals.

— Hon. T. A. Arthur, Judge. Action by the plaintiff to establish and foreclose a mechanic’s lien against the principal defendant, the Atlantic Northern & Southern Railway Company, and its receiver, and against other defendants as alleged lienholders. The Chicago Rock Island & Pacific Railway Company appeared as an intervener and filed a petition of intervention, claiming an equitable lien against the principal defendant and claiming priority over all other parties.

<p>1 Practice: evidence: objections: motion to strike. A motion to strike evidence -as a whole, which has been admitted without objection and parts of which are proper, should be overruled; as it is incumbent upon a party to make timely and specific objection to testimony.</p> <p>2 Fraud: parol evidence: admissibility. The rule excluding parol evidence tending to contradict a written instrument does not apply where fraud is the gravamen of the action or defense. Thus where plaintiff suing upon a note was not an innocent purchaser, evidence of false representations concerning a horse for which the note was originally-given, was not inadmissible as contradicting a written bill of sale of the horse.</p> <p>3 Evidence: objections: review on appeal. Where the answer in an action upon a note given for the price of a horse made no reference to a bill of sale for the animal, but alleged false representations and breaeh of warranty, the reply simply denying the allegations of the answer, the question of whether the oral warranty sought to be proven conflicted with the written bill of sale was not reviewable on appeal, where the parol evidence was received without objection, except by a motion to strike, and the question was not again raised, either by motion to direct a verdict, requested instruction or motion for new trial.</p> <p>4 Negotiable Instruments: fraud : instructions. In this action upon a note given for the price of a horse defendant alleged the same statements as constituting fraudulent representations and breaeh of warranty, and the two questions were coupled together throughout the trial and in the courts instructions. The evidence showed that the note was obtained by fraud and warranted a finding that it was negotiated for the purpose of preventing the defense of fraud. The court instructed that if it was obtained by fraud the burden was upon plaintiffs to show that they acquired it in due course, without notice of fraud or breach of warranty, or other circumstances amounting to bad faith, and that to constitute notice the indorsee must have actual knowledge of infirmity in the note or knowledge of such facts that the taking of the instrument amounted to bad faith. Held, that, assuming that a breaeh of the warranty was the only question in the ease, the burden was not on the indorsee to show that he took the note without notice of the breaeh, and the instruction was not erroneous, under the. Negotiable Instruments Act, as there were other questions in the case.</p> <p>5 Same: bona fide holder : burden of proof. By the terms of the Negotiable Instruments Act, the title of one who negotiates an instrument is defective when it is done in breaeh of faith, or under circumstances which amount to fraud, and the burden is upon the indorsee to show that he is a holder in good faith when the title is defective. Thus where the seller of an animal warranted it to be sound when it was not, and shortly before a note taken for the price was due he negotiated it for the purpose of preventing the defense of breaeh of warranty, this in itself was such fraud in the negotiation of the note as to.cast the burden upon the indorsee to show that he was a purchaser in due course.</p> <p>6 Same: bona fide holder: evidence: instruction. "Wler.e a note was purchased by a bank operated by a partnership, the testimony of its president alone, that he had no notice of any infirmity in the instrument, was not conclusive on the subject; as notice to any of the other officers would be notice to the partnership as well; and the courts instruction to this effect was not an assumption that other officers had such notice.</p> <p>7 Instructions: special interrogatories. Refusal to submit a special interrogatory as to a matter concerning which there was no dispute1 in the evidence, or concerning a matter which would be a complete determination of the ease and therefore a request for a special verdict, was proper.</p>

<p>Appeal from Linn District Court, Hon. Milo P. Smith, Judge.</p> <p>Action of replevin for the possession of a team of horses and a wagon and harness. The action is based on a written contract which will be set out in the opinion. There was a trial to a jury and a verdict and judgment for the plaintiffs. The defendant appeals.</p>

— Hon. F. M. Powers, Judge. Action for personal injuries sustained by tbe plaintiff in a runaway accident. The occasion of the accident was that the plaintiff was riding in a buggy with her sister, Mrs. Meyers. The team was nervous and somewhat afraid of automobiles. The horses became frightened at an approaching automobile which was about to meet them and whirled about in the opposite direction, whereby both occupants fell out of the buggy.

— Hon O. D. Wheeler, Judge. Action at law to recover damages for the death of Edward P. Stark, due to defendant’s negligence in running a train against and over him. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

<p>Appeal from Polk District Court. — Hon. Hugh Brennan, Judge.</p> <p>Action to recover the agreed rental on a tract of rice land in Texas and the amount due on two promissory notes for money advanced by plaintiff to defendants. There was a counterclaim for breach of contract on the part of plaintiff in failing to repair a pumping plant on the premises and the retaining walls protecting the same, resulting in damages to the defendants in the loss of a portion of the crop and loss of time, labor, and money in preparing and procuring seed for such crop'. The case was tried to a jury, and a verdict was returned for plaintiff in the sum of $9,704.56, which was substantially the full amount claimed by plaintiff.</p>

<p>1 Evidence: self-serving declarations. The declarations of a vendor of land, made in his own interest and not in the presence of the purchaser, are not admissible on an issue involving an agreement to convey.</p> <p>2 Beal property: oral contract to convey: consideration. A parol agreement to care for the grantors during their natural life is a sufficient consideration for their agreement to transfer the title to certain real and personal property.</p> <p>3 Same: statute of frauds. Where parties orally agreed to transfer certain real and personal property, subject to their life use jointly with the grantees, in consideration of the care of the grantors during their lives, and the grantees took possession of the property to the extent agreed upon, the contract was taken out of the’ statute of frauds.</p> <p>4 Same. Under an oral contract for the transfer of real and personal property in consideration for services to be performed, the performance of the service constituted payment of the purchase price, and therefore took the contract out of the statute of frauds.</p> <p>5 Same: performance: evidence. An oral contract to transfer real and personal property, upon the consideration that the grantees shall care for the grantors during their natural lives, which has been fully performed, may be enforced even as against the homestead. Upon a consideration of the evidence in this case it is held that plaintiffs had performed their contract.</p>

<p>1 Municipal corporations: counties : ‘ liability for injuries : notice. The notice required- by statute to be served upon a county before bringing suit for injuries sustained by reason of defects in a county bridge is not jurisdictional, -but is a condition precedent to the action, and for the purpose of giving the county an opportunity to investigate the matter while the facts are fresh; and where the notice as given served this purpose, and the board, acting upon the notice, investigated and rejected the claim, it was sufficient, 'though addressed-to the county auditor rather than to the county.</p> <p>2 'Same: limitation of action. Where the plaintiff filed his claim against the county for injuries sustained from a defective county bridge within the proper time, but the claim was lost, and he subsequently filed another claim and a supplemental petition in the action, which was commenced in time, his right of action was not barred by limitation.</p>

— Hon. L. N. Hayes, Judge. Suit in two counts to recover back money paid on a contract for the sale of real estate and for damages for fraud and false representations.

<p>1 Contracts: merger. The right to assign certain judgments under an option contract was settled by the making of a new contract conferring the right to purchase property, which the judgment creditor bought at execution sale under one of the judgments.</p> <p>2 Specific performance: evidence. In this action for specific perform-anee the evidence of plaintiff that he had offered to perform his part of the contract if defendant would stop moving buildings off the land in question, and who also testified in a general way that the buildings moved were upon the land in question,, and the evidence of defendant that he owned land adjoining, upon which the buildings moved were located, presented sueh conflict that the court was justified in finding that the buildings were not upon the land in question but upon adjoining land.</p> <p>3 Same: extension op contract: evidence. A letter offered in evidence in this case written by defendant after plaintiff’s time for performance had expired, asking plaintiff to see the adjoining owner about the buildings and stating that he would have the adjoining owner enjoined if he did not stop, and also asking how plaintiff was coming with his deal, but making no reference to the contract in question, did not constitute an extension of the time for plaintiff, to perform.</p> <p>4 Same: performance: tender: good faith. In tlie absence of proof of performance, or offer of performance, by plaintiff of a contract expressly providing that he will pay a stated price for the property within a certain time and that defendant will then convey the land, time being made the essence of the contract, plaintiff is not entitled to specific performance.</p>

— Hon. ¥m. Theophilus, Judge. A motion that the clerk of court be ordered to turn over money received by him from a garnishee to the Western Fruit & Candy Company to the moving party was overruled, and that company appeals.

— Hon. B. W. .Preston, Judge. Separate actions against the Pennsylvania Fire Insurance Company and the Franklin Fire Insurance Company were tried together. Yerdict was directed in favor of the former and against the latter and judgments entered accordingly. The Franklin Fire Insurance Company appeals from judgment against it and plaintiff from that in favor of the Pennsylvania Fire Insurance Company.

■Appeal from Jackson District Court. — Hon. L. J. Horan, Judge. Action on an insurance policy resulted in awarding tbe plaintiffs two-thirds of the indemnity stipulated therein and one-third thereof to the surviving widow of deceased. The plaintiffs appeal.

<p>1 Slander and libel: mitigation: pleadings. In actions for slander and libel proof of mitigating circumstances is not admissible unless pleaded, except such as are shown by the testimony of the adverse party. Under this rule evidence of the good faith of defendant and that the circumstances justified his charge was inadmissible, in the absence of a plea tendering the issues.</p> <p>2 Same: mitigation: evidence. Where the plaintiff in an action for slander fails to prove justification, evidence of mitigating circumstances, including the good faith of defendant, is not admissible to reduce the actual damages plaintiff has suffered, but is only admissible on the question of exemplary damages.</p> <p>3 Same: words actionable per se: good faith as a defense. Where the words used are actionable per se the law implies malice and damages, and they need not be alleged; but if not actionable per se the plaintiff must allege and prove special damages. Defendant’s good faith in the utterance of words actionable per se is no defense to an action for the slander. Nor is the fact that defendant relied in good faith on what others told him, charging plaintiff with a crime, any defense to an action for the slander.</p> <p>4 Same: punitive damages. Where slanderous words are spoken with-out any belief in their truth, and with intent to injure the good name of another, punitive damages should be assessed.</p> <p>5 Same: mitigation of damages. Where the words spoken charge plain-tiff with the commission of a crime the law implies malice without actual proof of the same; but where the implied malice is disproved and it is shown that the words were spoken in good faith and in the belief of their truth this may be considered, not in mitigation of the actual damage suffered, but to reduce the punitive damages which might otherwise be assessed.</p>

<p>Appeal from Monroe District Court. — Hon. Frank W. Eichelberger, Judge.</p> <p>Action to establish a resulting trust in land.</p>

— Hon. Frank W. Eichelberger, Judge. Action to recover of the defendant damages claimed to have been caused by the negligent construction of a sewer—

— Hon. Henry Bank, Judge. Application for an execution on a judgment recovered against Wm. Weisman, deceased; the lien of the judgment having expired before the commencement of this action. Action brought under section 4036 of the Code of 1897.—

— Hon. Mm, Hutchinson, Judge, Action by a landlord for the value of grain purchased from his tenant on which the landlord claimed a lien.—

<p>Appeal from Jasper District Court. — Hon. K. E.‘ Wilcockson, Judge.</p> <p>Motion to dismiss appeal from special assessment of property was overruled. The defendants appeal.</p>

— Hon. B. W. Preston, Judge. Motion to dismiss appeal from an order of the Board of Review, raising plaintiff’s assessment, was overruled. The defendants appeal.

— Hon. C. W. Vermilion, Judge, Action to recover damages for alleged deficiency in quantity of land conveyed. From a verdict and judgment for plaintiffs, the defendants appeal.

— Hon. W. S. Hamilton, Judge. Appeal by plaintiff from an order setting aside default and decree entered in the district court.

— Hon. F. R. Gaynor, Judge. Proceeding in equity for an accounting and for the establishing of a trust in real estate. From a decree dismissing plaintiff’s bill, he appeals.

— Hon. ¥m. Hutchinson, Judge. Action at law on contract. Defense, material alteration after delivery, and counterclaim. From judgment against plaintiff on its claims and in favor of defendant on its counterclaim, plaintiff appeals.

Certiorari from Wapello District Court. Proceeding in certiorari to test the legality of proceedings under which plaintiff was found guilty of violating an injunction restraining the illegal sale or keeping for sale of intoxicating liquors.

Certiorari from, Woodbury District Court. ' To inquire into the legality of an order and judgment of defendant, who, as Judge of the District Conrt of tbe Fourth Judicial District, committed petitioner, Donald DeKay, to the State Industrial School, this writ of certiorari is brought.

— Hon. W. S. Hamilton, Judge. In habeas corpus. From a ruling sustaining demurrer to the petition, and entering judgment against petitioner for costs, appeal is taken.

— Hon. F. M. Hunter, Judge. Partition proceedings to allot the shares of the several parties in a tract of land and for a sale of all of the land in the event it could not equitably be subdivided. The trial court established the shares of the several parties, ordered a sale of the land, but directed that the share of the widow, Ida M. Walther, or the proceeds, be held but secondarily liable for a mortgage upon the entire land. The heirs appeal.—

— Hon. F. M. Hunter, Judge. This appeal involves nothing but a question of costs. The controversy was over an award of the county printing, resulting in a finding in the district court that defendant was entitled thereto and taxing the costs of the contest before the board of supervisors and in the district court to plaintiff. Thereafter plaintiff filed a motion to retax the costs, which motion was sustained, and defendant appeals.

— Hon. Frank R. Gaynor, Judge. Action at law to recover the rent reserved in a lease for a certain building in Sioux City, Iowa. • The lease was for five years from and after November 15, 1906, and at the agreed rental of $2,100 for the first year, and $2,400 for each succeeding one, during the term of the lease.

— Hon. ¥m. Hutchinson, Judge. - Original proceedings in this court to review the action of the district court in passing upon certain objections filed by W. W. Morrow, Treasurer of State, to tbe final report of one Campbell, executor of the estate of Patrick F. Ryan, deceased, and to the discharge of the said executor. The trial court sustained the objections, and time was given to file a bill of exceptions. No bill was filed, and the executor did not appeal.

Action at law to recover double damages for certain live stock killed by tbe defendant either upon its right of way or at a highway crossing in Appanoose county.

— -Hon. Frank R. Gaynor, Judge. Action by plaintiff as an occupying claimant to recover the value of improvements placed upon a tract of land, which was finally awarded to defendant. On issues joined the case was tried to a jury, resulting in a verdict for plaintiff, and judgment was accordingly entered. Defendant appeals.—

— Hon. Henry Bank, Jr., Judge. Action at law to recover a commission for securing a loan wbicb was to be secured by mortgage upon defendant’s land. Directed verdict for defendant at tbe close of plaintiff’s testimony, and plaintiff appeals.

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

<p>1 Conveyances: bona fide purchaser: notice. Where a party acquired property subject to a mortgage, with full knowledge of a mistake in the mortgage which omitted a building that was intended to be included therein, he could not hold the building free of the mortgage because situated on government' land rather than on the land described in the mortgage.</p> <p>2 Same: failure of consideration: cancellation of conveyance. Where a conveyance was made in consideration of services to be1 performed, and the title taken in the name of a third person, upon failure to perform the service the conveyance should be set aside; and all that the grantee could claim was the amount he may have expended on the strength of the transaction.</p>

<p>Appeal from, Woodbury District Court. — Hon. Vi. Hutchinson, Judge.</p> <p>The opinion states tbe material facts'.</p>

— Hon. F. D. Letts, Judge. This is an action for damages for alleged conversion of two car loads of peaches, which had been consigned to the plaintiff, and which had been received by the defendant as a common carrier, to be delivered to the plaintiff at Davenport. There was a verdict and judgment thereon for the plaintiff. The defendant appeals.

— Hon. B. W. Preston, Judge. This is an action for damages for alleged negligence in the operation of an automobile whereby plaintiff’s horse was frightened and whereby injury resulted to the plaintiff. There was a verdict for the defendant. The plaintiff appeals.

<p>Appeal from Scott District Court. — Hon. A. P. Barker, Judge.</p> <p>Action for separate maintenance. Decree for plaintiff. Defendant appeals.</p>

— Iíon. C. W. Yermillion, Judge. ■ Action to quiet title to a strip of land and enjoin defendants from interfering with the hedge on south line of the same and from erecting and maintaining a fence thereon. The petition was dismissed and plaintiffs appeal.

<p>Appeal from Linn District Court. — Hon. Milo P. Smith, Judge.</p> <p>Action at law to recover upón an alleged oral agreement by the defendant to pay plaintiffs for the care and support of his minor son. There was a verdict and judgment for plaintiffs, and defendant appeals.</p>

— Hon. Thomas L. Maxwell, Judge. Suit in equity to compel defendants to restrain and control their chickens, so as to prevent them from trespassing upon plaintiff’s land. The trial court granted the relief prayed, and defendants appeal.

— Hon. Byron W. Preston, Judge. This is an action at law against four defendants for an alleged balance due under a written contract of guaranty. There was a trial to the court without a jury, and a judgment for the defendants. The plaintiff appeals.

<p>Appeal from Woodbury District Court. — Hon. Frank R. G-aynor, Judge.</p> <p>Action for libel. Trial to a jury. Verdict and judgment for defendant, and plaintiff appeals.</p>

<p>Appeal from. Polk District Court. — Hon. Hugh Brennan, Judge.</p> <p>Action at law to recover damages for personal injury alleged to have been occasioned by the negligence of the defendant. There was a verdict and judgment for plaintiff, and defendant appeals.</p>

— Hon.' A. J. House, Judge. Suit to establish mechanic's lien for balance owing for the construction of a- hospital. A counterclaim was filed, and on hearing $800 was allowed thereon, and deducted from the contract price. The plaintiff appeals.

— Hon. J. F. Clyde, Judge. Action to recover for money had and received by defendant to plaintiff’s use growing out of the alleged purchase by plaintiff from defendant of certain forged and altered notes; and of another note, which was genuine, but which, it is claimed, defendant falsely represented as good and signed by a responsible maker.

<p>1 Pleadings: amendment: discretion. "While it is the rule to allow and the exception to refuse amendments to pleadings it is not so absolute as to exclude all discretion in the trial court; but the discretion is a legal one and should be exercised with a view to the furtherance of justice.</p> <p>2 Same: refusal of amendments: discretion. The refusal of an amendment is not erroneous when no substantial prejudice results; and the striking out of an amendment is not reversible error unless an abuse of discretion is shown.</p> <p>3 Same. Where the parties have joined issue by pleadings of long stand-ing and an amendment is offered on the eve of trial, presenting wholly new matter of which the pleader must have been advised at commencement of the aetion, and upon the strength of the new showing demands a change of forum, refusal of the court to allow the same or to strike it from the files, if filed without leave, is not ground for reversal.</p> <p>4 Same: demurrer.: waiver. By replying to defendant’s answer plain-tiff waived the right to a ruling upon his demurrer to a portion of the answer. Moreover in the instant ease the matter demurred to was relevant to the issues, and if objectionable as pleading evidence it was not demurrable.</p> <p>5 Partnership: dissolution: liability op retiring partner: evidence. In an aetion against a retiring partner for the price of horses placed with the firm for sale, in which the retiring partner claimed that upon dissolution of the firm the other partner took over the business, including the contract in question, and that plaintiff had thereafter recognized the continuing partner as the one liable on the contract, evidence that plaintiff and the continuing partner, some two years after dissolution of the partnership,, made another contract in which there was no reference to the former partnership, was admissible in support of the defendant’s claim that he had been releaséd from liability on the contract in suit.</p> <p>6 Sales: contracts: bailment. It is a usual and reasonable rule that where the consignor or owner of property, by the terms of his contract, retains a right to demand a return of the property at any time without default on the part of the consignee, the contract is one of bailment or agency and not of sale; even though the consignee undertakes to become personally liable for all expense incident in the care and sale of the property, and to depend for his own profit upon a sale át more than the price fixed in the contract. And even if the terms buy and sell are used, if the consignee takes the property burdened with conditions inconsistent with the idea of his ownership, it may still be a contract of agency. Nor will the fact that the consignee agreed to advance the price of the property, either in money or notes, be conclusive evidence of a sale rather than a consignment for sale; and he may by the terms of his agreement be the agent of the consignee until the property is sold and then become the principal debtor to the consignor, without changing the character of the transaction from' one of consignment to that of sale.</p> <p>7 Same: contracts: construction. The rule some times applied, that where the party receiving the property is not bound to return the identical property but may account therefore in money or other thing of value constitutes a sale, has no application to bailments or consignments for sale. The contract in the instant case is held to be' one of bailment for sale, constituting the partnership of which defendant was a member the agent of plaintiff for that purpose, and not a contract of absolute sale to the partnership.</p> <p>8 Partnership: agency: termination by dissolution. Dissolution of a partnership, constituted an agent for the sale of property placed in its possession, terminates the agency as a matter of law.</p> <p>9 Same: dissolution: termination oe agency: liability oe part-ners. Where a partnership was appointed to care for and sell property, the agency covering no definite time, and the owner reserved the right to terminate the agency at any time by demanding a return to. him of the property, it was competent for the partnership also to terminate the ageney, upon accounting for sales made up to the time of its termination. And where the agency was terminated by dissolution of the partnership at a time when the partnership was not indebted for any property intrusted to it for sale and the owner notified of the dissolution and though so empowered did not recall the property, but permitted the continuing partner to retain possession thereof, thereafter dealing with him exclusively respecting the property, the retiring partner was relieved from further liability under the contract of agency.</p>

— Hon. F. O. Ellison, Judge. Plaintiff was injured by having his hand and arm caught by the wheel or belt on a threshing engine. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals.