Volume 162 — Iowa Reports

— Hon. C. G. Lee, Judge. In the district court, this was au appeal by the plaintiff from an assessment of benefits against his land in a drainage proceeding. After trial upon the merits, the district court reduced the assessment. From such order of reduction, the defendants have appealed.

<p>1 Submission of issues: theory of cause. Where the defendants in replevin based their right to possession of the property solely on the strength of an attachment, and made no pretense of holding under a mortgage, refusal to submit the question of possession under the mortgage was proper.</p> <p>2 Chattel mortgages: payment. The holder of a chattel mortgage is entitled to unconditional payment; and a purchaser of the property cannot condition his payment upon the discharge of an attachment held by the mortgagee.</p> <p>3 Replevin: instructions: consistency. In this action for the replevin of property held under an attachment against another party, an instruction that if the property was owned by the plaintiff at the time of the levy, and if he bought it in good faith and for a valuable consideration, he was entitled to a verdict, was not inconsistent with another instruction as to the necessity of change of possession or the recording of a bill of sale, merely supplementing the former charge.</p> <p>4 Same: change op possession: instructions. Where the evidence in an action for replevin of a hay bailer, claimed by plaintiff as a bona fide purchaser, disclosed that it was bulky and was operated and moved by an engine, and usually left where it was last used until needed elsewhere, an instruction that the change of possession must have been such as would apprise third parties that there had been a change of ownership was sufficient; and refusal to instruct that the question of possession depends on the nature of the property, that when the owner exercises the control of a thing in the manner and extent usual in cases of like property, according to the usual manner of using and handling such things, the property is to be regarded as in his legal possession, was not prejudicial.</p>

<p>Appeal from Wapello District Court. — Hon. D. M. Anderson, Judge.</p> <p>Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.</p>

<p>1 Real property: liability of vendor for taxes. A vendor of land who retains the legal title until after the close of the year wlien the tax falls due is liable for the accruing tax, in the absence of a different provision in his contract of sale; and even though he had deposited a warranty deed in escrow to be delivered at a future date upon performance by the purchaser.</p> <p>2 Same: escrow: when conveyance effective. The deposit in escrow of a warranty deed pursuant to a contract of sale, to be delivered at a future date upon payment of the balance of the purchase price, does not operate to pass the title until performance by the purchaser.' This rule, however, does not apply to quitclaim deeds.</p> <p>3 Same. A deed deposited in escrow is some times by fiction of law treated as delivered when deposited, but this is never done where injustice results; and in the absence of proof showing a change of possession the title will not pass under a deed in escrow, so as to affect the duty of the vendor to pay taxes.</p> <p>4 Same: payment of tax by purchaser: recovery from vendor. Where the vendor, who remained in possession after deposit of a warranty deed in escrow, to be delivered at a subsequent date, failed to pay the taxes accruing prior to delivery of the deed, and the purchaser paid the same to protect the land from sale, he was entitled to recover from the vendor, not upon the covenants of warranty in the deed, but upon an implied or quasi contract. Evans, J., dissenting.</p>

— Hon. C. G. Lee, Judge. Action to recover school money paid by the treasurer of the county to the defendant by mistake; the plaintiff alleging that the money so paid to the defendant was the proceeds of taxes levied upon property in the plaintiff district.

<p>Appeal from, Webster District Court. — Hon, Charles E. Albrook, Judge.</p> <p>Dependant appeals from a ruling setting aside a directed verdict and granting a new trial.</p>

— Hon. F. M. Hunter, Judge. Action in replevin to recover the possession of two steers and damages on account of the detention thereof. Plaintiff claimed that he was the owner of the animals and that defendant wrongfully detained the same from him. Defendant denied plaintiff’s ownership, pleaded that he was the owner and entitled to the possession thereof.

<p>Appeal from Wayne District Court. — Hon. H. K. Evans, Judge.</p> <p>This is an action in equity to enjoin the alleged obstruction of a highway. There was a decree for the plaintiff, and the defendant appeals.</p>

— Hon. C. W. Vermilion, Judge. Proceeding in equity for injunction to restrain the removal of sand from a sand bar in the Des Moines river, and to restrain the defendants from using or permitting to be used the right of way of defendant railway company as a wagon road over which to transport sand for shipment on -the railway. From a decree denying relief, the plaintiff appeals.

— Hon. L. E. Fellows, Judge. Suit in equity to foreclose an instrument in the nature of a mortgage, made by defendants, husband and wife, to Nicholas Meyer, and by him indorsed to plaintiffs. Defendants filed separate answers. Gustaf Ressel denied any indebtedness to plaintiff, and denied that the instrument sued on contained any promise to pay; averred that it was made to secure a written instrument containing a promise to pay; and that this indebtedness had been fully paid.

<p>1 Intoxicating liquors: consent petition: poll lists. The poll lists from which to determine the sufficiency of a petition of consent to the sale of intoxicating liquor are those of the last election held in the city, whether a regular city election or a general election; those of a school election or for the issuance of bonds of the school district are not contemplated by the statutes, even though the boundaries of the school district may be the same as those of the city.</p> <p>2 Same: consent op council. Even though a mulct petition of consent has been canvassed and found sufficient, no individual has a right to sell, or keep for sale, intoxicating liquors within the city until the city council has given its consent by proper resolution.</p>

— Hon. C. G. Lee, Judge. Action on a promissory note. Defense, Statute of Limitations. Reply, Defendant had been out of the state and a non-resident so as to avoid the running of the statute.

— Hon. Robert M. Wright, Judge. Suit in equity to enjoin defendants from constructing a drainage ditch over plaintiff’s land and for other equitable relief. On the issues joined the case was tried to the court resulting in a decree dismissing plaintiff’s petition, and he appeals.

— Hon. C. G. Lee, Judge. Action to recover a commission for finding a person who would buy or trade for lands listed with or owned by the defendant. It is alleged that defendant agreed to pay plaintiff $1 per acre for any such purchaser; that he found and procured one with whom defendant made an exchange of lands ; and that he is entitled to the sum of $1 per acre, or $320, as his commission.

— Hon. C. GL Lee, Judge. Action by a real estate broker to recover a commission for sale of real estate. From a judgment in favor of plaintiff the defendants appeal.

<p>1 Real property: specific performance: oral contract: evidence. In this action fox specific pexfoxmanee of an oxal contract for the parchase and sale of land, the evidence is reviewed and held insufficient to show by clear and satisfactory proof that the minds of the parties met in the alleged agreement.</p> <p>2 Same: part payment: statute op frauds: evidence. To eonstitute a cheek part payment on an oral contract for the purchase of land, so as to take the contract out of the statute of frauds, it must have been exclusively referable to the contract between the parties. Where there was no definite agreement in the first instance, and the giving of the check was conditional, there must have been a subsequent agreement and ratification of the acceptance of the check based thereon to take the transaction out of the statute. The evidence in this case fails to - show such subsequent agreement.</p>

— Hon. R. P. Howell, , Judge. Action to recover damages for an alleged assault and battery committed by a conductor in charge of one of defendant’s trains. From a verdict and judgment for defendant, plaintiff appeals.

<p>1 Pleadings: legal conclusions. Allegations pleading merely legal conclusions should be stricken on motion.</p> <p>2 Same: amendment: change from equity to law. Where the defendant always denied plaintiff’s right to specific performance of his contract, and he was not induced to change his position relative to the subject matter of the suit by the commencement of an action for performance, plaintiff was entitled to change his action to one for breach of the contract, by the filing of a substituted petition.</p> <p>3 Eeal property: contracts: statute of frauds: payment: evidence. Damages may be recovered for the breach of an oral contract to convey land, where the contract had become enforceable by payment of part of the purchase price. And the payment may be of any thing of value given and accepted as part of the price; as a personal cheek. In the present case the evidence is held to support a finding that plaintiff’s check was given and received with the understanding that it constituted a payment on the price of the land in controversy.</p> <p>4 Payment by check; custom: judicial notice. Courts will take judicial notice that it is the usual and ordinary custom to use personal checks in the transaction of business of any magnitude. And while ordinarily a check is only conditional payment of the obligation for which the same is given, it may by agreement of the parties constitute absolute payment; and this agreement need not be in express words or writing, but it may be shown by the circumstances and conduct of the parties.</p> <p>5 Breach of land contract: measure of damages. The measure of damages for defendant’s breach of contract to purchase land for plaintiff by purchasing it in his own name, is the difference between the price paid by defendant and its value when the contract was breached and suit brought.</p>

<p>1 Railroads: crossing accident: negligence: evidence. In this action for the death of one killed at a railway crossing by a passing train, the evidence of defendant’s negligence in operating the train at an unlawful rate of speed, in failing to give warning signals, and in not having the headlight of the engine burning, was sufficient to take the ease to the jury, although plaintiff’s evidence in the two latter respects was negative in character and there was positive testimony to the contrary.</p> <p>2 Same: evidence: habits and custom of decedent. Where there were no eyewitnesses to a railway crossing accident resulting in death, evidence of■ decedent’s habits and custom in exercising care . and caution at such crossings is admissible, in support of the presumption of self-preservation.</p> <p>3 Same:: death: instinct of self-preservation. Where there were eyewitnesses to an accident resulting in death the presumption of care arising from the instinct of self-preservation does not apply; nor will it obtain if the physical facts and uncontradicted circumstances show that deceased could not have exercised the care required of him at the time of the accident.</p> <p>4 Same. Where permissible the law indulges the inference that the instinct of self-preservation and love of life prompted a decedent to exercise ordinary care for his safety, but this presumption is not conclusive, and is to be considered in connection with all the evidence in the case.</p> <p>5 Same. Where by reason of darkness or distance from the scene of accident, or for any other reason, the witnesses were unable to observe the aets and conduct of decedent with respect to his own safety, the jury may consider the instinct of self-preservation in connection with the other evidence in determining whether he exercised ordinary care.</p> <p>6 Evidence: credibility. The jury is not bound to accept as true the testimony of a witness though uneontradieted by other witnesses; but it may consider the means and opportunity of the witness to know the facts testified to, the consistency of his testimony with itself and the other proven facts and circumstances, and apply to it the test of credibility.</p> <p>7 Railroads: crossing accident: instinct of self-preservation. The evidence in this case is reviewed and it is held that the question of whether the deceased was observed by the witnesses during all of the time he was within the zone of danger was for the jury, and that the court rightly instructed that if such was not the fact they might consider the instinct of self-preservation in determining whether he exercised ordinary care.</p> <p>8 Same: contributory negligence. A traveler approaching a railway crossing is not bound as a matter of law to look and listen for an approaching train at any particular place; nor is he thus required to look, especially where his view is obstructed. He has the right to rely upon the operation of trains according to law and the ordinances of a city, the burning of a headlight, the ringing of the bell, and at crossings exceptionally dangerous he may rely upon the giving of other warning signals; and if he does so and exercises the ordinary precautions of sight and hearing he is not guilty of contributory negligence as a matter of law.</p>

<p>1 Appeal: assignment op error. Assignments of error so general in terms that the appellate court cannot discern the particular errors relied upon will not be considered.</p> <p>2 Mutual insurance: contract: by-laws. By applying for and accepting a certificate of insurance in a mutual benefit association the member becomes bound by its provisions and the by-laws which are made a part of the contract; and this will include a by-law providing that the certificate shall be void in ease the member becomes intemperate in the use of liquor, drugs or narcotics, or if death result directly or indirectly from such use.</p> <p>3 Same: action upon certificate: intoxication as a defense: evidence. The evidence in the instant case is reviewed and held to show that insured came to his death from the intemperate use of intoxicating liquor, within the meaning of a by-law rendering the certificate void for intoxication; and the court should have so found as a matter of law and directed a verdict for defendant.</p> <p>4 Same: evidence: cause of death: coroner’s verdict. A coroner’s verdict is admissible in an action upon a certificate of insurance, as prima facie evidence that death resulted from the cause found by the coroner’s jury.</p>

— Hon. Chas. E. Albrook, Judge. Suit in equity to set aside a tax sale of plaintiff’s property for a “mulct tax” levied thereon by reason of the illegal sale of liquors therein by plaintiff’s father. The trial court dismissed the petition, and plaintiff appeals.

— Hon. F. M. Htjntee, Judge. Suit in equity to quiet plaintiff’s title to certain real estate in Jefferson county, Iowa. There are two counts in the petition, in one of which plaintiff claimed to be the absolute owner of the property, and another, in which he asserted that he was the owner of an undivided part thereof, and in which he asked to be allowed for improvements placed upon the property.

<p>1 Drainage: assessment of benefits: evidence: appeal. The assessment of benefits in drainage proceedings are largely matters of approximation; and in view of the better opportunity of the trial court, because seeing and hearing the witnesses, to obtain knowledge of the character of the land, and to apportion the cost of the improvement, its finding based upon conflicting evidence will not generally be .disturbed on appeal. The action of the court in reducing the assessment in this action is sustained by the evidence.</p> <p>2 Same: notice of appeal: sufficiency. Notice of appeal from the assessment of benefits, which stated the total amount of the several assessments appealed from, is sufficient; even though there were two appellants and they owned several tracts which were separately assessed, where they had filed proper objections before the board against each assessment and the board had made the assessments separately but in one order.</p>

<p>Appeal from, Wright District Court. — Hon. C. G. Lee, Judge.-</p> <p>Originally this was an action to quiet title. Something like a year after it was commenced, plaintiff Hambleton alone filed an amended and substituted petition, whereby he converted it into one for the specific performance of a contract for the sale of real estate entered into between one F. M. Rice, party of the first part, and plaintiff Hambleton and one W. R. Howerton (now a defendant), parties of the second part. When the petition was filed, defendant Jameson was in possession of the land, claiming to be the owner thereof, and relief was asked against him. It was alleged that Howerton had assigned all his interest in the contract to the plaintiff, and plaintiff alleged readiness and ability to perform the contract on his part. Afterwards Howerton filed an answer, admitting the allegation of the petition and joined with plaintiff in the relief asked. Rice answered the petition, admitting the .allegations thereof, and asking in the event specific performance was awarded that he have a money judgment; part of his answer being a cross-bill. Bggert filed an answer in which he admitted having made a contract, for the sale of a part of the land, with Rice which was assigned to Jameson; alleged that he sold to Jameson without any knowledge of plaintiff’s claim, taking a mortgage back for $10,000 which he asked to have protected. He further pleaded that Jameson paid for the land according to his agreement, and he asked that Jame-son be protected. Jameson answered by a general denial and further pleaded a purchase of the lands in good faith and for value. He also averred that he had made valuable improvements upon the land in good faith, amounting to more than $6,000, and had executed a mortgage upon a part thereof, and that plaintiff and Howerton had never offered to reimburse him therefor, or to do anything to protect him. He also averred that Rice, with whom plaintiff and Howerton made their contract, never had acquired any interest in the lands which he could convey, because plaintiff and Howerton failed, neglected and refused to perform their contract with Rice, and further pleaded that they had abandoned, waived, and repudiated their contract with Rice and refused to perform the same. He further averred that Rice had no title to any of the lands when he made his contract with plaintiff and Howerton, and that he had nothing to sell and convey to them, which fact they well knew at the time they entered into their contract with him; and, finally, averred that there was no mutuality of contract between plaintiff and Howerton and Rice and that plaintiff cannot for this reason specifically enforce it. Plaintiff filed replies to these several answers, which, so far as material, will be referred to during the course of this opinion. The pleadings are very voluminous and, with their exhibits, cover more than thirty-six closely printed pages of the abstract. Upon the issues joined, the case was tried to the court, resulting in a decree dismissing the plaintiff’s petition, and the cross-petitions of Rice and Howerton, and they each and all appeal.</p>

— Hon. R. P. Howell, Judge. Appeal from ruling refusing to strike answer and counterclaim of the Giifey Bottling Company, which voluntarily appeared as a party defendant.

— Hon. Robert Bonson, Judge. Action to recover damages for injuries received by plaintiff while unloading rails from a car. The facts are more fully stated in the opinion. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals.

— Hon. J. H. Applegate, Judge. Action against defendants on a promissory note of $2,247 signed “Hendrickson & Carper.” Judgment by default was entered against Hendrickson. Carper answered by denying that Hendrickson & Carper ever executed the note and alleging that Hendrickson was without1 authority to attach the firm name thereto and denied that he was indebted thereon.

— Hon. James P. Hewitt, Judge. On the 7th day of October, 1909, F. M. Gagle entered into a written contract with A. P. Besser, by the terms of which he purchased eighty-seven acres of land, paying $1,000 down and promising to pay the remainder of the purchase price on March 1st following, at which time the purchaser was to have title and possession. At the date stipulated the remainder of the purchase price was paid, and a deed executed by Besser and wife to Cora B. Gagle.

— Hon. D. F. Coyle, Judge. The defendant wás charged in the indictment with the crime of embezzlement, and on trial a verdict of not guilty was returned by direction of the court, and judgment entered thereon. The state appeals.

— Hon. A. N. Hobson, Judge. The proponents presented a paper dated June 19, 1907, purporting to be the will of William Thorman, deceased, for probate. Objections were interposed by a son and the surviving widow, averring that another will was made about two years later and subsequently lost. Trial without jury resulted in the admission of the will first mentioned to probate. Contestants appeal.

Certiorari from Polk District Court. Plaintiff was found guilty of contempt of court by the sale of intoxicating liquor, and a fine of $200 was imposed. He brings the case here by certiorari. The writ is dismissed, and the judgment

— Hon. Lawrence De Grape, Judge. This is an action upon an account brought by plaintiff, as assignee of the Des Moines Department Store Company, to recover the value of certain secondhand plumbing goods alleged to have been sold and delivered to defendant by plaintiff’s assignor, to which defendant answered, denying generally plaintiff’s petition, except he admitted receiving a small amount of goods, and also set up a counterclaim, based upon the breach of the contract for…

— Hon. W. H. McHenry, Judge. This is a habeas corpus proceeding. It was brought by the plaintiff against officers including the members of the Board of Control to test the legality of her detention at the Industrial School for Girls at Mitehellville. The writ was sued out on March 21, 1912. After hearing upon the merits the writ was sustained and an order entered directing the release of the plaintiff. The defendants appeal.

— Hon. Lawrence De Grape, Judge. Suit in equity to rescind a contract or purchase and sale on the ground of various breaches thereof. At a previous trial a decree was entered as against the defendant F. H. Mackaman. Upon the trial now under review a decree was entered by stipulation against the other defendant, Margaret S. Mackaman. Both defendants appeal.

— Hon. Lorin W. Hays, Judge. Suit'in equity to enjoin the defendant school district and its officers from issuing certain bonds on the ground of alleged illegality in the organization of defendant sehool district. Subsequent to the institution of this suit, a certiorari proceeding was instituted by tbe same plaintiff against tbe same defendants for the purpose of testing the legality of the same proceedings.

— Hon. A. N. Hob- ’ son, Judge. Action upon a promissory note. The defendant pleaded the statute of limitations as a defense. There was a trial +o the court without a jury. There ivas a judgment for the defendant, and the plaintiff appeals.

— Hon. Lawrence De Grape, Judge. This is an action for damages for breach of an alleged oral contract, by the terms of which defendant agreed to employ plaintiff for one year, at $45 per month, and in which contract it was further agreed that, as a part of the services to be performed by plaintiff, he should buy from defendant a motorcycle for $200, to be paid for in eight monthly installments of $25 each, and to use the same in making deliveries for defendant.

— Hon. Lawrence De Graef, Judge. Action for deceit in tbe sale of property resulted in a verdict for plaintiff. From an order granting a new trial, tbe plaintiff appeals.

<p>Appeal from Polk District Court. — Hon. Lawrence De Graff, Judge.</p> <p>Appeal from an order overruling a motion to tax an attorney’s fee.</p>

— Hon. Lawrence De Graff, Judge. Action for damages for personal injuries. There was a directed verdict for the defendant. Upon motion for new trial such verdict was set aside. The defendant appeals from the order setting aside the directed verdict in its favor.—

— Hon. K. E. Wilcockson, Judge. This is an action on four promissory notes. It is brought on behalf of the Kansas City University against the administrator of John W. Murphy, deceased, the maker of the notes. The administrator answered with a general denial and set up also three affirmative defenses. One of the affirmative defenses was that the notes were without consideration. To the affirmative defenses a reply was pleaded by the plaintiff.

— Hon. A. D. Bailie, Judge. An action to recover the purchase price of land sold by plaintiff to defendant by written contract. The defendant admitted the execution of the contract but denied timely performance by the plaintiff. By way of counterclaim he pleaded: (1) That the contract was obtained by false representations; and (2) that the plaintiff defaulted in performance on the date fixed by the contract and that by reason thereof the defendant rescinded the contract.

— Hon. H. K. Evans, Judge. Action to remove the defendant from the office of mayor of the city of Harlan resulted in the dismissal of the petition. The state appeals.

Appeal fro'm Louisa Thorman, widow of William Thorman, deceased, filed her petition asking to have one-third of the real estate and personal property of deceased set off to her. The prayer of the petition also asks that the exempt property be set off to her. Appellees answer, setting lip an antenuptial contract between plaintiff and her deceased husband by which they claim the widow had waived her rights as widow.

— Hon. W. H. McHenry, Judge. Proceeding to establish, the boundary line between lot 10, owned by defendant, and lot 11, owned by plaintiff, and to establish lost corners. Plaintiff alleged acquiescence in a boundary line for a period of more than ten years, and that the said line was marked by a fence.

— Hon. Charles S. Bradshaw,- Judge. Appellant’s automobile was levied upon by tbe sheriff. He sought to enjoin the sheriff from selling it on the ground that it was exempt. A temporary injunction was issued, and later the case was tried on an agreed statement of facts. The court dismissed the petition and dissolved the injunction. Plaintiff appeals.

— Hon. D. F. Coyle, Judge. The defendant was indicted for the crime of adultery. The case was tried to a jury, and at the close of the evidence for the State the court directed a verdict for defendant. The State appeals.

— Hon. Hugh Brennan, ' Judge. Defendant was indicted, tried, and convicted of the ~ crime of obtaining money by false pretenses. He appeals.

— Hon. Lorin N. Hays, Judge. ' Suit in equity to quiet title and for possession' of real estate. The defendants filed a cross-bill to set aside a deed executed by them to plaintiff as having been obtained by false representations. There was a decree below for defendants, and plaintiff appeals.

<p>Appeal from, Cedar Rapids Superior Court. — Hon. C. B. Robbins, Judge.</p> <p>Action in replevin to recover possession of a piano. Trial to the court without a jury. Judgment for plaintiff. Defendant appeals.</p>

— Hon. L. J. Horan, Judge. Plaintiffs, .appellees here, appealed to tbe district court from an order of the boards of supervisors of Muscatine and Louisa counties establishing drainage district No. 13, including a pumping station and the maintenance thereof. The two apeals were tried together in the district court. There was a decree in favor of plaintiffs, and the order of the joint board establishing the district was annulled. Defendants appeal.—

<p>Appeal from Van Burén District Court. — Hon. Francis M. Hunter, Judge.</p> <p>Action at law ou account for merchandise. Trial to jury. Verdict and judgment in favor of plaintiff. Defendant appeals.</p>

— Hon. R. P. Howell, Judge. This is an action for damages for breach of covenant in warranty deed. The case was tried to the court without a jury upon an agreed statement of facts. There was a judgment for the defendant, and plaintiff appeals.

— Hon. F. R. Gaynor, Judge. Action for damages for personal injuries sustained by-plaintiff while in the employ of defendant. Verdict and judgment for plaintiff from which defendant appeals.—

<p>Appeal from Webster District Court. — Hon. R. M. Wright, Judge.</p> <p>The facts are stated in the opinion.</p>

— Hon. J. W. Kintzinger, Judge. Action to recover damages resulting from, a collision between plaintiff’s automobile and a, train owned and operated by defendant.

— Hon. H. K. Evans, Judge. The defendant was jointly indicted with four others for the murder of Bertha Zornes on December 7, 1910. The other defendants indicted were Clarence Teale, Thomas Young, Ed Young, and Boy Young. Prior to the trial of this defendant Clarence Teale, had been convicted under such indictment of murder in the second degree, and Thomas Young of manslaughter, and such convictions were affirmed here.

— Hon. A. B. Thornell, - Judge. Action to recover damages for death, alleged to have re-suited from the negligence of the defendant. From a verdict and judgment in favor of plaintiff, defendant appeals.

— Hon. Wm. Hutchinson, Judge, Action in equity to enjoin the defendant county, its board of supervisors and an engineer in charge of the work in a drainage district, from maintaining a solid embankment along the south side of a highway adjoining plaintiff’s land, and for a mandatory injunction compelling the defendants, or allowing plaintiff, to put in a culvert across the highway and through the embankment in order to re-establish what is claimed to be a natural water…

— Hon. L. N. Hayes, Judge. Suit in equity to cancel a mining lease because of the alleged abandonment thereof, and to quiet title. Decree for plaintiffs. Defendant the Beaver Creek Coal Company appeals.

— Hon. Thomas Arthur, Judge. Proceeding in equity for'the specific performance of a parol agreement to execute a mortgage, or for alternative relief of establishing a vendor’s lien.

— Hon. M. E. Hutchinson, Judge. Action for damages based upon fright to a horse driven by plaintiff, occasioned by the presence of an alleged nuisance on the street of defendant. From a verdict and judgment for plaintiff, the defendant appeals.

— Hon. R, P. Howell, Judge. Action to recover attorney’s fees for services rendered defendant as a corporation, at the question and instance of its president, without any showing on the part of the plaintiff of authority from the corporation to employ him, or any fact from which such authority might be inferred.

— Hon. C. G. Lee, Judge. Action to recover double damages for stock killed at a point where the defendant company had a right to fence.

— Hon. A. B. Thornell, Judge. Action for damages based on false representations on the sale of land. Defendant, as agent, induced plaintiff to purchase certain land of his principal by falsely representing the character of the land, thereby inducing plaintiff to pay defendant the sum of $600 as part payment on the purchase price.

<p>Appeal from Page District Court. — Hon. E. B. Woodrupp, Judge.</p> <p>Opinion states the facts.</p>

<p>Appeal from Des Moines District Court. — Hon. James D. Smyth, Judge.</p> <p>Action to recover damages for a failure to transmit a telegram.</p>

— Hon. M*. E Hutchison, Judge. Appear from an order overruling defendant’s motion to dismiss an appeal purporting to have been taken by plaintiff from an award of damages made to plaintiff by defendant Board of Supervisors in a drainage proceeding pending before it.

— Hon. O. D. Wheeler, Judge. Action of replevin to recover the possession of an automobile, Plaintiff claimed to be the owner thereof and defendant Sawyer claimed it under and in virtue of a chattel mortgage. The ease was tried to the court without a jury, resulting in a judgment for the defendant Sawyer, and plaintiff appeals.

<p>1 Criminal law: murder: self defense: uncommunicated threats. A defendant charged with murder may show recent uncommunicated threats of decedent to take his life, in support of a plea of self-defense, where the same are so related in point of time as to show a continuous state of mind.</p> <p>2 Same: evidence: impeachment. A criminal defendant is not bound by the statement of witnesses for the state on cross examination that they were not prejudiced; but he may show the bias of sueh witnesses by substantive proof, unless too remote and collateral to the inquiry.</p> <p>3 Same: evidence: admissibility. Where defendant claimed that he suspected decedent of having imprope'r relations with his minor daughter, and that he was not seeking to do him personal violence but to satisfy himself on that point, evidence that shortly before the fatal affray a witness had told defendant that he had seen deceased in company with his daughter unattended and that he had given her a present was admissible.</p> <p>4 Instructions: incompleteness. Mere incompleteness of an instruetion when standing alone, which is correct as far as it goes and the subject matter is fully covered by other instructions, is not ground for condemning it; unless so erroneous in itself or in such conflict with some of the others that both cannot stand as correct statements of the law.</p> <p>5 Same: murder: provocation: instruction. The instruction in this case that if defendant without provocation, that is without malice, shot deeedent with intention of inflicting some serious bodily injury, but the act went beyond his intention and caused death, he was guilty of murder in the second degree was objectionable, as leading the jury to believe that if the killing was without provocation, though not intended, the accused was still guilty of murder in the second degree; as a killing under such circumstances, even if not excusable, is only presumptively malicious.</p>

<p>Appeal from PottawaMamie District Court. — Hon. O. D. Wheeler, Judge.</p> <p>A Drainage district having been established affecting plaintiff’s land, he filed claim for damages. The Board allowed the claim in the sum of $85, and from this award he appealed to the District Court. There was trial to a jury, and the damages were assessed at $700. The defendant appeals.</p>

<p>Appeal from Black Hawk District Court. — F. C. Platt, Judge.</p> <p>The opinion states the case.</p>

— Hon. A. N. Hobson, Judge. Action at law on a certificate of accident insurance. The defendant first appeared and moved for change of place of trial to Marshall county, Iowa. It also demurred to the petition. The motion was overruled on April 1, 1910, and plaintiff given thirty days in which to amend petition. The amended petition was filed May 2, 1910. The next term of court convened August 29, 1910.

<p>1 Wills: construction. The law favors the vesting of estates at the earliest possible period, in the absence of a clear manifestation of the testator’s intention to the contrary; and in cases of doubt the law favors the fee rather than the lesser estate.</p> <p>2 Same: vesting of estates. Under a will bequeathing one half of testator’s income to his wife for life, together with the occupancy of residences, and to his legal heirs the remainder of the income during the life of the wife, with the reversion and ownership in them after her death, and with direction to his exeeutor to sell such property as might be required to pay his debts, the legal heirs took the fee title to the real estate at once with enjoyment deferred until his wife’s death.</p> <p>3 Same: sale of interest by devisee: estoppel. Upon a sale and receipt of the consideration of all their interest in testator’s real estate devised to them, the devisees and their grantors were estopped from claiming any further interest in the property.</p> <p>4 Same: widow’s election: evidence. While a widow’s election to accept the provisions of her husband’s will in lieu of a distributive share could be made a matter of record as required by the former statute in different ways, proof of an unrecorded referee’s report filed in a foreign state, showing that the widow' as trustee rented lands in this state, and that she o'ccupied property of the estate and acted as executrix was not sufficient to show such an election.</p> <p>5 Keal property: quieting title: color op title: adverse possession. Where the widow, having a life interest in the income from testator’s property, and his legal heir holding the fee, conveyed their interests in the real estate, and a deeree quieting the title was entered in favor of the grantee, in a suit to which they were all parties, one holding under such grantee with occupancy for fifteen years held color of title, and was entitled to a decree quieting the title in him as against the heirs of the testator.</p>

— Hon.' William N. Treichler, Judge. Plaintiff, as executrix of the estate of Minnie D. Ash-brook, brought this action to recover damages in the sum of $1,999 for the alleged negligence of defendant causing death of deceased. Trial to jury, and verdict for plaintiff in the sum of $400. Plaintiff moved for a new trial upon two grounds only: First, that the verdict was contrary to the evidence; second, that the amount assessed by the jury was inadequate.

— Hon. W. N. Treichler, Judge. Suit brought in the name of the State, at the relation of seven qualified ele'etors, for the removal of defendant Roth as Mayor of the City of Cedar Rapids, and Garl, as Marshal, or Chief of Police, of that city. The trial court refused to remove them, and the State appeals.

— Hon. Hugh Brennan, Judge. Suit for divorce on the ground of cruelty. There was a decree of divorce, and judgment against defendant for $1,000 alimony and $600 additional attorney’s fees. Defendant appeals.

<p>Appeal from Shelby District Court. — Hon. A. B. Thornell, Judge.</p> <p>Petition for a new trial on the ground of newly discovered evidence.</p>

<p>1 Highways: establishment: statute. The order of a board of supervisors establishing a highway, in the instant ease, was not in violation of the statute prohibiting its establishment through ornamental grounds contiguous to a dwelling; as the house in question was not a dwelling and the ground adjacent was not ornamental as contemplated by the statute.</p> <p>2 Same: validity or order. While a board of supervisors in some of its functions acts in a quasi judicial character, still it is not held to a great degree of formality of procedure. In the instant case the fact that after submission of the 'matter establishing a highway, and before final decision, the board visited the location of the proposed highway and interviewed parties concerning its location, did not invalidate the proceedings, though done without notice to or in the presence of the landowner.</p> <p>3 Same. The fact that the county attorney appeared before the board in behalf of the petitioners for the location, of a highway, and later defended the county in a proceeding to annul the order establishing the same, did not invalidate the order or affect the jurisdiction of the board to act upon the petition.</p> <p>4 Same: discretion op board: power op court. The court cannot control the discretion of a board of supervisors in the establishment of a highway; it will only inquire into the legality of its action.</p>

— Hon. M. E. Hutchinson, Judge. Action at law to recover possession of an accident insurance policy. From a verdict and judgment in favor of plaintiff, this appeal is taken.

— Hon. M. E. Hutchinson, Judge. Action to recover part of the cost of tile drainage, alleged to have been laid under an agreement with defendant to pay his proportionate amount. Prom a judgment and decree in favor of plaintiff, the defendant appeals.

<p>1 Schools: action to recover tuition: evidence. In this action to recover tuition for pupils paid by one contiguous school district to another, the evidence is reviewed and held to require submission of the question whether defendant had received tuition from pupils in a portion of defendant district, and that it was error to direct a verdict for defendant.</p> <p>2 Same: evidence: conclusions. Evidence in the nature of a eonelusion, when tending to show an ultimate fact known to the witness and material to the issue, is competent. Thus evidence as to the exact residence, of certain persons with respect to the boundaries of an incorporated town was admissible.</p> <p>3 Same: recovery oe tuition: mutual mistake. Where one school district paid tuition to another district in the mutual belief that the pupils for whom it was paid resided in the former district, it is recoverable on the around of mutual mistake.</p>

<p>' Appeal from Boone District Court. — Hon. C. G-. Lee, Judge.</p> <p>The opinion states tbe case.</p>

— Hon. Thomas Arthur, Judge. Action at law to recover damages for injuries received by plaintiff and for damages done to an automobile resulting from a collision with one'of defendant’s passenger trains at a highway crossing in tbe northeastern part of tbe town of Coin, in Page County', Iowa. Tbe defendant denied all negligence and pleaded contributory negligence on tbe part of the plaintiff.

— Hon. F. M. Powers, Judge. Action to recover the possession of a horse, buggy, harness, and lap robes from the defendants, who are the sheriff and deputy sheriff of Carroll county, and one Anderson, who was a judgment creditor of the plaintiff. Plaintiff alleged that the property was exempt from execution.

— Hon. O. D. Wheeler, Judge. Action to recover damages for injury resulting from a fall on an icy sidewalk. The trial court directed a verdict for the defendant, and plaintiff appeals.

— Hon. Clarence Nichols, Judge. Action for damages for personal injury alleged to have been caused by the negligence of the defendant in failing to maintain its streets in a reasonably safe condition. There was a verdict for the plaintiff. Upon motion of the defendant, a new trial was granted. From such order the plaintiff has appealed.

— Hon. J. H. Applegate, Judge. Action by citizens of Van Burén and Wapello Counties to enjoin the executive council of the state from purchasing certain real estate and from issuing interest-bearing certificates in payment thereof as authorized by chapter fourteen of the Acts of the Thirty-Fifth General Assembly. Decree was entered enjoining the issuance of certificates in payment of said property; otherwise the relief prayed was denied.