Volume 163 — Iowa Reports

— Hon. Hugi-i Brennan, Judge. The defendant was indicted for murder in the first degree and convicted of murder in the second degree. He appeals —

<p>Appeal from Polk District Court. — IIon. William McHenry, Judge.</p> <p>The defendant, Joe Stutches, with Tony Poulik, W. Kaiakaitis, and John Bingva, were jointly indicted for the crime of burglary. Stutches pleaded not guilty but on trial was convicted. He appeals.</p>

<p>Appeal from Linn District Court. — F. O. Ellison, Judge.</p> <p>Action for damages resulted in judgment for the defendant. The plaintiff appeals.</p>

— Hon. F. C. Platt, Judge. Suit in equity to compel an assignee for the benefit of creditors to give preference over general creditors to the claims of sureties for tlie contractor. From a ruling on demurrer denying the right to such preference, plaintiffs in cross-petition appeal.

<p>1 Drainage: appeal: delay in piling petition. Although one appealing from the action, of the board of supervisors fails to file his petition in the district court on the first day of the succeeding term, as provided by statute, such failure will not create an absolute right of dismissal, unless the court determines that he was guilty of such delay as would amount to a waiver of the appeal.</p> <p>2 Same. Where the appellant did not file his petition by the first day of the term, but it appeared that negotiations of settlement were pending until the commencement of the term, and a week later the petition was tendered with objections to the motion to dismiss the appeal, the appellant was entitled to be heard on the merits of the case.</p>

<p>Appeal from Webster District Court. — Hon. C. E. Albrook, Judge.</p> <p>Action on certificate of accident indemnity. From a verdict and judgment for P. F. Nugent, plaintiff and intervener, defendant appeals.</p>

— Hon. Franklin C. Platt, Judge. ' Action at law to recover damage for an assault made upon plaintiff by one of defendant’s employees. A jury was called, and, at the conclusion of all the testimony, the trial court sustained defendant’s motion for a directed verdict, and plaintiff appeals.

— Hon. Hugh Brennan, Judge. Action for damages was tried to jury which, upon the introduction of evidence in chief for plaintiff by direction of court, returned a verdict for defendant. Thereupon plaintiff moved for new trial. The motion was sustained, and' defendant appeals.

<p>1 Sales: novation: consideration. Where one party, in consideration of the transfer of property to him, assumed the obligation of the other and gave the creditor his note therefore, which was accepted and the original debtor released, there was a contract of novation whieh was sufficient consideration for the transfer of the property.</p> <p>2 Same: fraudulent conveyances: parent and child: evidence. While a transaction as between father and son, which operates to defeat creditors, will be closely scrutinized, mere insufficiency of consideration will not render it fraudulent. In this action to foreclose a mortgage given by the father on property claimed to have been purchased by the son the evidence fails to show fraud.</p> <p>3 Same: possession op personalty: ownership: statute. Actual possession of personal property is prima facie notice of ownership and of the rights of the possessor; and where a purchaser is in possession of the property the statute declaring a sale invalid as against existing creditors, unless a written bill of sale was executed and recorded, has no application.</p> <p>4 Same: estoppel. , Where a father and son were engaged in farming on equal shares, the father furnishing the farm and stock and the son doing the work and occupying the farm alone, failure of the son to deny the father’s ownership of the stock, although the son in fact owned one-half of it, did not estop him from asserting his interest as against the mortgagee of the father, where the son was in sole possession of the property and it was not shown that he knew of the father’s statements; and especially where it did not appear that the mortgagee relied upon his conduct.</p>

<p>Appeal from Polk District Court. — Hon. Charles S. Bradshaw, Judge.</p> <p>■ Suit in equity to establish a lien on personal property. A demurrer to the petition was sustained by the district court. The plaintiff appeals.</p>

— Hon. Hugh Brennan, Judge. This is a certiorari proceeding in the nature of an appeal, brought in this court to review the action of the district court, Hon. Hugh Brennan, presiding judge, in certain contempt proceedings therein had against the complainant herein, wherein the complainant herein was adjudged guilty of contempt and was adjudged to pay a fine.

— Hon. James P. Hewitt, Judge. On December 17,1910,1. A. Potwin filed with the auditor of Polk county, Iowa, a statement of general consent to sell intoxicating liquors in the city of Des Moines. Said statement was canvassed by the board of supervisors and by it held sufficient on January 18, 1911. From this finding the plaintiff, W. J. Pilkington, a citizen of Des Moines, appealed to the district court.

<p>Appeal from Lee District Court. — IIon. H. Bank, Jr., Judge.</p> <p>Action to recover damages for injury claimed to business. It appears that plaintiff was a sewing machine agent aud defendant a retail merchant in the same city, and defendant, for the purpose of injuring plaintiff in his business, wrongfully and maliciously advertised to the public it would sell the same machine handled by the plaintiff at half the price for which the plaintiff was offering them for sale; that the sole purpose of the defendant in so doing was to. ruin plaintiff in his^ business. Cause tried to a jury. Yerdict and judgment for the plaintiff. Defendants appeal.</p>

<p>Appeal from Adams District Court. — Hon. H. K. Evans, Judge.</p> <p>Action to set aside the probate of a will, and to confirm the title in the plaintiffs, as heirs at law of the testator, on the ground that the will was void in so far as it bequeathed to certain corporations an amount in excess of the statutory-limitation, and to quiet the title in the plaintiffs. Demurrer to the petition on the ground that the plaintiffs’ action was barred by the statute of limitations. Plaintiffs appeal. Judgment</p>

<p>1 Criminal law: assault with intidnt to rob: evidence. On' this prosecution for assault with, intent to rob the evidence is held sufficient to support a judgment of conviction.</p> <p>2 Evidence: order op introduction: discretion. The order of the introduction of evidence is so largely a matter of discretion that the rulings of the trial court will not be disturbed except for manifest abuse of discretion.</p> <p>3 Criminal law: alibi: order op proop. Where the defendant in a criminal action oifers evidence in support of an alibi the state is entitled to meet the same by evidence in rebuttal, even though there was evidence in chief for the state that defendant was at the place where the crime was committed on the day in question.</p> <p>4 Same: remarks op court: prejudice. It is very natural and often proper for the court, in ruling upon questions arising during the trial, to make some suggestions intended to keep the proceedings within due limits and to prevent obscuration of the real issues by irrelevant matter. In the instant ease the suggestion of the court that a certain immaterial statement by the witness was harmless, and the further suggestion that an inquiry of another witness was hardly a fair question, were not prejudicial.</p> <p>ó Same. The remark of the court that certain immaterial evidence ought to be omitted and that he did not see how it would be helpful, and that too much time should not be taken up with details, did not constitute reversible error.</p> <p>6 Same: exclusion of immaterial evidence. Evidence that another party was suspieioned as guilty of the crime charged to defendant and was shadowed by the officers, as well as what was said by an unidentified person to one of the witnesses shortly after the crime ivas committed, was properly excluded as immaterial.</p> <p>7 Same. Evidence that one, in no manner connected with the proseeution of a crime, had approached certain witnesses and made statements to them adverse to the defendant was hearsay and inadmissible, in the absence of any showing that such witnesses had been corrupted.</p> <p>8 New trial: misconduct in argument. The misstatement of counsel in argument that the evidence of a certain witness stands alone or uncorroborated, though in fact corroborated by other witnesses, is not such misconduct as will authorize a new trial, where the evidence was voluminous and the witnesses many; although if knowingly made it would be unprofessional.</p> <p>9 Same. Criticism in argument of the accused for not having disclosed his defense at the preliminary hearing, and contending that it was an 'afterthought, was not misconduct requiring a new trial.</p> <p>10 Same. The fact that counsel in argument sought to discredit one of defendant’s witnesses in a manner calculated to reflect on defendant, although there was no evidence to justify it and the remarks were therefore improper, was not prejudicial; since there was unimpeaehed evidence to the same effect.</p> <p>11 Trial: judicial unfairness: evidence. Where defendant was given unusual latitude in summoning and examining witnesses, the fact that the court at times made suggestions looking toward the elimination of inquiry into collateral and irrelevant matters, with a view of hastening the termination of the trial, ivas not sufficient to sustain a charge of unfairness.</p> <p>12 Criminal law: alibi: instruction. Where the court instructed that if upon a fair consideration of all the evidence, including that pertaining to the defense of alibi, there was a reasonable doubt of defendant’s guilt he should be acquitted, the statement in the same connection that “to be entitled to weight the evidence of alibi must be such as to show that defendant at the time of the crime was so far away that he could not have been present,” was not misleading or erroneous.</p> <p>13 Same-: instructions : prejudice oe community. The instruction that the jury should not be influenced “by any feeling of excitement or prejudice in the community, which has less reliable knowledge of the facts and less legal and moral responsibility than you have, acting upon your oaths,” was not objectionable as implying the right to consider public feeling and prejudice if believed to be on as reliable knowledge of the facts as the jurors themselves had; the court also instructing that the investigation should be conducted looking only to the evidence produced before the jury, and with the view of doing entire justice under the evidence and the law' as given by the court.</p> <p>14 Same: assault with intent to rob: indictment: waiver oe objection. An indictment for an assault with intent to rob need not allege the ownership of the property it is claimed defendant intended to take; but if the indictment was defective in this respect it was waived by going to trial without first raising the objection.</p> <p>15 Same: new trial: newly discovered evidence. In criminal cases newly discovered evidence is not a recognized ground for new trial, unless possibly -where it has been discovered that material false evidence was produced by the state. But where the claimed newly discovered evidence was not of new evidential facts, but of new' witnesses to the same facts, and so far as tending to impeach testimony already taken it could have been produced at the trial with reasonable diligence, a new trial was properly denied.</p> <p>16 Same: new trial: public prejudice. Publie prejudice is not a ground for new trial where there were no demonstrations of such character as to intimidate the jury, or to indicate that the verdict was anything other than the honest conclusion of the jury.</p> <p>17 Same: new trial: misconduct oe jurors. There was evidence in this case that defendant, charged -with assaulting the cashier of a bank with intent to rob, introduced himself to the cashier as “Gains,” which he denied. During the trial one of the jurors overheard a statement that defendant had taken the part of a character named Gains in a theatrical play, and that he had at some time been suspected of stealing money, but the juror testified that the statements were not addressed to him, that they were given no weight by him, and were not discussed in the jury room. There were also other charges of improper conduct but all were denied or explained. Held, insufficient to require a new trial.</p>

— Hon. Lorin N. Hays, Judge. Action for damages because of breach of promise to marry and the seduction of plaintiff resulted in judgment against defendant, from which he appeals.

<p>1 Fraternal insurance: initiation of member: waiver of ritualistic requirements. Where an application for membership in a fraternal insurance association had been passed upon by the physicians and approved by the proper officers of the association, and it was understood by both the insured and the officers of the association that the insurance should become effective on a certain date, and acting in that belief dues were paid and accepted, it will be presumed that the preliminary ritualistic proceedings were complied with or waived; and the association will not be permitted to show, in defense of an action upon the certificate, that the insured was not properly initiated.</p> <p>2 Same: false representations: intemperance: evidence. The statements of an applicant for fraternal insurance that he had never been intemperate in the use of malt or spirituous liquors, were not shown to be such false representations as constitute a breach of warranty, by evidence that he had been seen in the possession of whiskey, and that several years before his death he drank whiskey with the witness on different occasions; the other evidence showing that his habits were temperate and that he never used whiskey as a beverage.</p> <p>3 Same: warranties: breach: evidence. The warranty in his application for fraternal insurance that insured was in good health should be construed as limited to his knqwledge and belief; so that the statement of deceased that he had never had certain diseases of the heart and lungs was not breached by evidence that applicant died of a blood clot in the heart, and that a post mortem examination showed a congested condition of the lungs, in the absence of any showing that he knew he was afflicted with such diseases.</p>

— Hon. W. H. Fahey, Judge. Suit in equity for an injunction to enjoin the defendant Hochstetler, as Treasurer of Madison County, from levying upon the homestead of the plaintiff for the collection of taxes. There was a demurrer to the petition, which was sustained. The defendant refused to plead over. His petition was dismissed, and he appeals.

— Hon. W. S. Hamilton, Judge. Action to recover possession of real property and for damages. From a judgment in favor of plaintiff, the defendants appeal.

— Hon. F. W. Eiciielberger, Judge. Action at law to recover damages for injuries received by plaintiff while in defendant’s employ in a coal mine in Appanoose county. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.

<p>1 Mines and mining: injury to employee: negligence: evidence. In this action for injury to a mine employee, the question of whether it was the duty of employees to inspect and repair the roof of an entry where plaintiff’s intestate was killed by a fall of slate, or whether such was the duty of the operator of the mine, was for the jury.</p> <p>2 Same: safe place to work: statutes. The statutes requiring coal miners to examine and prop the roof of their working places and of entries under their control, do not require them to inspect and repair the roof of an entry not under their control.</p> <p>3 Same: safe place to work: duty to repair. Whether the roof of a mine entry is to be inspected and repaired by the employer or the miner depends upon which is in control of the place; and if it is found that according to custom and usage this duty devolved upon certain employees who were in charge of the work at the time of an accident, and they failed to exercise ordinary care therein from which injury resulted to another miner, it was negligence chargeable to the employer.</p> <p>4 Same: promise of repair. Under the evidence in the instant case the questions of whether plaintiff’s intestate, who was killed by the fall of -slatd, had been promised that the roof would be repaired and whether he relied thereon, were for the jury.</p> <p>5 Same: submission of issues: waiver. By insisting upon the submission of an issue a party waives the right to thereafter object that the evidence was insufficient for its consideration.</p> <p>6 Same: safe place to work. Until otherwise informed a workman may assume that the place assigned to him is reasonably safe.</p> <p>7 '.Same: contributory negligence: evidence. A servant having knowledge of a danger which the employer has promised to repair is not bound to quit work immediately, unless the danger is so obvious that ordinary prudence would forbid a continuance. Under the evidence the question of the contributory negligence of plaintiff’s intestate in continuing to work with knowledge of the dangerous condition was for the jury.</p> <p>8 Same: evidence. On the question of whether it was the duty of plaintiff’s intestate or that of other- employees to repair the entry to the mine, the agreement between operators and miners of that district, making it the duty of miners to prop the roofs of their rooms, but making no reference to the entries, was admissible as tending to sustain defendant’s claim that it was the duty of miners to repair entries.</p> <p>9 Same: negligence: instructions. Allegations of negligence having no support in the evidence ought not to be referred to in the instructions; but where the several grounds of negligence alleged in the petition were stated, but the jury was told they were not to be considered as separate grounds, and the evidence relating thereto was only to be considered in determining whether plaintiff’s intestate had been furnished a safe place to work, no prejudice resulted.</p> <p>10 Same. The instruction in this ease that plaintiff could not recover if the preponderance of the evidence showed that his intestate was pegligent in'the work of removing one of the pillars of the mine was not prejudicial to defendant, though he would not be required to establish negligence by a preponderance of the evidence, but only by sufficient evidence to meet that of plaintiff.</p>

<p>1 Appeal: Title of cause: statute. The statute providing that a cause shall be docketed on appeal as in the lower court is directory only, and the fact that all parties, except plaintiffs, are designated in the abstract as defendants, while some were defendants in a erosspetition and not the main action, was not ground for dismissal, where the identity of the action and the relation of the defendants thereto was disclosed by the abstract.</p> <p>2 Same-: ^ime for taking appeals. An appeal to the supreme court taken within six months from the entry of judgment is timqly, although more than six months may have elapsed since the filing of the decision with the clerk.</p> <p>3 Mortgages: foreclosure: defenses. The foreclosure of a mortgage cannot be defeated by any defense not available against the note secured thereby.</p> <p>4 Same: bills and notes: construction: negotiability. A note and mortgage executed at the same time and as a part of the same transaction are to be construed together; but this rule does not contemplate that the provisions of the mortgage shall be incorporated into and become a part of the note. Thus the provision in a mortgage that the same shall stand as security for the payment of taxes and insurance, but not containing any promise to pay the same, does not become a condition of the note in such sense as to render the same non-negotiable for uncertainty, as the provision in no manner affects the obligation of the note.</p> <p>5 Same: separate actions: election. Separate actions may be brought on a note and mortgage securing the same, unless prevented by some stipulation contained in one or the other; but if prosecuted in the same county at the same time the plaintiff may be required to elect on which he will rely.</p> <p>6 Same: negotiability of note. The provision of a mortgage requiring the mortgagor to pay taxes thereon in a certain contingency will not afEect the negotiability of the note secured thereby; as the same simply creates the mortgage a lien therefor, and does not entitle the mortgagee to collect such tax as a part of the indebtedness. But a provision of that character in the note itself will render it non-negotiable because of uncertainty in amount.</p> <p>7 Same. The provision of a mortgage giving the mortgagee the right to declare the entire indebtedness due for a default of the mortgagor will not render the note secured thereby non-negotiable because uncertain as to time of payment; but a provision of the mortgage that thé note shall become due and payable at the election of the holder will generally render the note, when construed in connection with the mortgage, non-negotiable.</p> <p>8 Negotiable instruments: bona fide purchaser': notice: evidence. Where the officer of a bank purchasing a note testified that the transaction, was with him and that he had no notice of any' defense thereto, the evidence was sufficient to justify a finding that the bank had no notice, although'the other officers of the bank did not testify on the subject.</p>

— Hon. Milo P. Smith, Judge. Action upon a certificate of accident insurance issued by the defendant upon the life of John T. Carmody in favor of his wife, Mary E. Carmody, as beneficiary. The action is brought by a trustee for the beneficiary. For the purpose of our discussion, the beneficiary will be referred to as the plaintiff. There was a trial to a jury and a verdict and judgment for the plaintiff for the amount of the certificate, with interest. The defendant appeals.

— Hon. F. D. Letts', Judge. Action upon a promissory note, for the sum of $3,000, made by defendants to plaintiff on February 15, 1908, due one year after date, with 8 .per cent, interest from date. Defendants are husband and wife and now residents of the state; and an attachment was sued out against them which was levied upon certain real estate in Franklin county. Defendants each appeared and filed separate answers.

<p>1 Real Property: recovery or purchase money: vendor’s lien. The plaintiff executed a note and mortgage to his father providing that the same should be void upon the death of the father, and he subsequently sold the land subjeet to the mortgage, his grantee assuming the indebtedness and retaining the amount of the same from the purchase price. Subsequently plaintiff’s grantee sold' to another who had notice of the mortgage and also retained the amount of the indebtedness from the purchase price. Held, that 'upon the death of the father, which discharged the mortgage, the plaintiff was entitled to recover the amount of the mortgage from the grantees and was entitled to a vendor’s lien upon the land to seeure the unpaid purchase price.</p> <p>A Mortgages: liability of grantee of premises. One who purchases land subject to a mortgage, simply buying the equity of redemption, does not become personally liable for the mortgage debt; but if he retains the amount of the mortgage from the purchase priee he impliedly assumes its payment, and is personally liable to the mortgagee for the amount, and also to the vendor if he is required to pay it.</p> <p>3 Same. Where a mortgage debt forms part of the consideration for the purchase of land, the purchaser is bound to reimburse the mortgagor if he is required to pay the debt, although he does not expressly agree to pay it; and if he purchases subject to the mortgage he becomes the principal debtor, although he did not assume it, and the land becomes the primary fund.</p> <p>á Same. Where a grantee of mortgaged premises did not retain any part of the priee to protect him against the mortgage, and had no knowledge that his vendor had done so when he purchased, the land could not be charged with a lien in favor of the grantor of his vendor, who had retained a part of the priee to protect him as against the mortgage.</p>

<p>Appeal from Hardin District Court. — Hon. R. M. Wright, Judge.</p> <p>Action at law to recover damages for death occasioned by negligence. From a verdict and judgment for the defendant, the plaintiff appeals.</p>

— Hon. F. M. Hunter, Judge. Action at law to recover a commission for the sale of real estate. Defendant denied the contract pleaded by plaintiff; alleged another agreement and a failure of plaintiff to comply with the terms thereof. Upon the issues joined, the case was tried to a jury, resulting in a directed verdict for plaintiff, and defendant appeals.

— Hon. W. S. Withrow, Judge. Suit in equity against certain landowners-for the purpose of determining whether or not the plaintiff railway company was under obligations to maintain a certain bridge, known as 110, for the accommodation of waters of a stream, known as Whisky creek, and to determine whether it had a right to east upon the land of certain of the defendants the waters of the creek now flowing upon the land of the defendant Michael Lynch.

<p>1 Drainage: damages: evidence. Evidence on appeal to the district court in drainage proceedings that plaintiff’s damage was greater than his claim presented to the board of supervisors was admissible, and the motion to strike the same for that reason was properly overruled.</p> <p>2 Evidence: cross-examination op experts: discretion. The discretion of the trial court in permitting the cross-examination of witnesses concerning an opinion expressed by them is so great that only in exceptional cases will a reversal be ordered for an abuse of such discretion.</p> <p>3 Drainage: damages: evidence: instruction. Where plaintiff in drainage proceedings was required to amend his petition in the district court by setting out the itemized claim filed by him with the supervisors, but this claim was abandoned upon the trial and not offered in evidence, no instruction regarding the same was necessary.</p> <p>á Same: measure op damages: evidence: cross-examination. Where the direet examination of the witnesses in a drainage proceeding concerning the damages consisted of their opinion as to the depreciation in the property, their cross-examination touching the amount and character of the land occupied by the ditch and its waste banks, the manner in which it divided the farm, the existence and appearance of the waste banks as affecting the value of the farm, the cost of leveling the banks and of bridges and fences, was proper for the consideration of the jury in fixing the amount of damages, where the case was tried on the theory that the proper measure of damages was the difference between the value of the farm before and after the construction of the ditch.</p> <p>5 Same: verdict: impeachment. The affidavit of a juror concerning the manner of computing the amount of a verdict by considering an item of damages not within the issues could only tend to impeach the verdict and was not receivable for that purpose.</p>

<p>Appeal from Polk District Court. — Hon. Hugh Brennan, Judge.</p> <p>The défendant, having been indicted for murder in the first degree, was convicted of manslaughter, and he appeals.—</p>

— Hon. Lawrence De Grape, ■ Judge. Action to recover for services rendered the defendant, and the Idaho Land & Orchard Company was garnisheed, and appeals from a judgment rendered against it.

— Hon. Hays, Judge. Lorin N. This action involves a contest of the will of John Rehard, deceased. The contest was instituted in resistance to the probate of the will. At the time of the execution of the will the testator was about eighty-six years of age. The only grounds of contest upon which testimony was offered was the alleged mental incompetency of the testator to make the will.

<p>1 Street railways: negligence: evidence. In this action against a street railway company for negligence on the ground of excessive speed and lack of control of one of its cars, the evidence is held to support a finding that the car was allowed to coast down a sharp grade through the darkness at a high rate of speed and along a public street, and was not under such control that it could be stopped with reasonable quickness upon discovery of the peril of plaintiff, and that this issue of negligence was for the jury.</p> <p>i Same: contributory negligence. One driving upon a public street is bound to exercise such care in crossing the tracks of a street railway as a person of ordinary prudence would exercise under like circumstances; he is not required as a matter of law to stop, look and listen for an approaching ear. Under the evidence in the instant case the issue of contributory negligence was for the jury.</p> <p>3 Same: negligence: evidence. The mere fact that a street car was moving at a high rate of speed is not of itself negligence as a matter of law, but under the circumstance of a particular ease may become such in fact, when moving along a town or city street used in common by the general public: and while it is the duty of a traveler to be watchful for his own safety and to yield the right of way at a crossing to a passing ear, it is also the duty of the mortorman of the ear to be watchful to avoid injuring persons in the lawful use of the street. Evidence held to justify submission of the question of negligence in the rate of speed at which the car in question was being operated.</p> <p>4 Same: operation of cars: negligence. A traveler may rightfully walk or drive upon any part of a public street, and cross the same from side to side at any point; and while the danger of accident is greater at street intersections than at other places there is no such absence of possible danger at any point that the motorman of a street car may relax all diligence, or operate his ear at such a rate of speed that he loses proper and reasonable control thereof. The street car company is charged with the duty of operating its cars at all points along the street with reasonable care and regard for the rights of others using the same highway.</p> <p>5 Same: failure to provide headlights. Where ordinary prudence requires that a street ear company provide its ears with headlights, either as a warning to others rightfully upon the street, or as a means of discovering obstacles upon the track, failure to provide such lights is negligence.</p> <p>6 Same: speed of car: evidence. One having -a knowledge of the movement of street cars may testify to the rate of speed at which a car was moving; and the fact that he was not in a position to accurately judge its speed would affect the weight of his evidence and not its admissibility.</p> <p>7 Same: evidence: plat: admissibility. Where a witness identified a plat of the place of an alleged accident it was admissible in evidence as his version of the affair, although it may have been inaccurate: and the fact that an engineer’s plat of the same place was also introduced would not affect its admissibility.</p> <p>8 Evidence: hypothetical questions. A physician who knows nothing of the history of a personal injury, except what he gains from a present examination, may answer a hypothetical statement of the ease bearing upon the question of the permanency of the injury; while if he had had charge of the case and knew all of the'facts it probably would be otherwise.</p> <p>9 Excessive verdict: passion and prejudice. A verdict' for $500 for personal injuries, resulting in severe and painful bruises and kidney trouble from whieli plaintiff had not recovered at the time of the trial, was not excessive, on the ground that it was the result of passion and prejudice.</p>

<p>Appeal from Jones Distñct Court. — Hon. Milo P. Smith, Judge.</p> <p>The two actions above named were tried in the court below upon the same testimony, and are submitted here upon one record. The first is a proceeding to foreclose a trust deed against the defendant corporation. The second is an action by the corporation for damages and for an accounting against the defendants Schoonover and Chamberlain for alleged fraud and mismanagement of the affairs of the corporation. Both actions were brought and tried on the equity side. There was a decree substantially as prayed, for the plaintiff in the first action and for the defendants in the second. From such decrees, the corporation has appealed in each case.</p>

— Hon. Hugh Brennan, Judge. The defendant was indicted and tried for the crime of keeping a house of ill fame. From a verdict and judgment of conviction, he appeals.

— ITon. Hugh Brennan, Judge. The defendant was indicted and tried far the alleged maintenance of a liquor nuisance. From a verdict and judgment of guilty, she appeals.

<p>Appeal from Dubuque District Court. — Hon. J. W. Kintzinger, Judge.</p> <p>Action for tbe value of a steam engine boiler and accessories alleged to have been converted. The answer was in three divisions: A general denial, a counterclaim for rent or storage, and a plea that defendant was retaining possession because of having been garnisheed. A demurrer to the last division was sustained, and, on the issues raised by the others, a verdict was returned for plaintiff and judgment entered thereon. The defendant appeals.</p>

<p>Sales: fraud: evidence. In this action for the price of a car load of lumber, it appeared that plaintiff’s agent represented that his principal had on hand specified lumber and defendant gave an order for immediate shipment, which was accepted subject to unavoidable delays. There was delay in shipment, but there was no evidence explaining the delay, except difficulty in obtaining cars. Seld, that the seller was not guilty as a matter of law by fraudulently concealing his inability to make prompt shipment.</p>

— Hon. Milo P. Smith, Judge. Suit in equity for specific performance. There was a decree for the plaintiff, and defendant appeals.

— Hon. M. E, Hutchinson, Judge. Cross-appeals from an order made by tbe District Court on an application for an election by an alleged insane widow as to whether she should take under a will of her deceased husband, and from the order of election directed to be made by said District Court.

<p>1 Replevin: fixtures: conditional sale: innocent purchaser: priority of right. Where a vendor sold machinery with the understanding that it was to become attached to and made a part of the realty, and when so attached could not be removed without injury, he thereby placed it in the power of the vendee to so attach it and to sell or mortgage the same; and as against an innocent purchaser without actual notice of the reserved title the vendor must suffer, upon failure of the vendee to pay the purchase price.</p> <p>2 Same: instructions. In an action of replevin against the vendee of machinery which was sold the vendor for installation in an electric light plant, an instruction that the burden was on the vendee to prove each of the several elements of the defense that it was a bona fide purchaser without notice, unless as to any one of such elements there was an entire failure of proof or uncontradieted evidence against defendant’s right, was not objectionable because omitting certain elements of plaintiff’s ease.</p> <p>3 Same: bona fide purchaser: evidence. Where the evidence was in conflict on the question of whether the vendee had notice, at a time when it would be affected by notice of the original owner’s reservation of title to the machinery in question, the issue of notice was for the jury.</p> <p>4 Same: fixtures: use: .intention of seller. The question of whether a stationary engine sold for installation in a lighting plant became a fixture, and was therefore not subject to replevin by the original vendor as against a purchaser from the vendee, was not affected by any undisclosed intention of the original vendor as to the use to which the engine was to be put, where the purchaser’s apparent ownership and control was such as to presumptively fix the title in him.</p> <p>5 Conditional sales: fixtures: bights of subsequent purchaser. Whore the contract of sale of machinery contemplated that it was to be installed in a building upon a foundation to be prepared in accordance with plans furnished by the seller, and it was delivered and installed with no knowledge by a vendee Of the purchaser that the original seller reserved title until full payment of the price, the faet that the original contract of sale called for payment of a certain portion of the price on deliverey did not, as against a subsequent purchaser, make sueh payment a condition precedent to the right to install the machinery.</p> <p>6 Sales: conditions precedent. A provision for the test of machinery as a prerequisite to its acceptance is generally for the benefit of the purchaser; and in the instant ease refusal of an instruction making a test and acceptance of an engine purchased by a city from its contractor a prerequisite to the passing of title was proper.</p> <p>7 Sales: failure to record contract: replevin. Failure to record a contract for the sale of personalty, which reserves title in the seller, will not affect its validity as between the parties thereto; but this rule has no application to the seller’s right to replevin the property from a third person.</p> <p>8 Sales: replevin: question of fact. Where the evidence was conflieting concerning the right of possession of part of the equipment belonging with an engine that issue was for the jury.</p> <p>9 Replevin: evidence. Where plaintiff sold a city contractor a stationary engine to be installed in the city light plant, which he afterwards sold to the city, his bond to the city was immaterial in an action by the seller against the city to replevin the engine, and was properly excluded, where it did not appear that the city had been reimbursed for the value of the property.</p> <p>10 Same. In this action against the defendant city for replevin of an engine sold its contractor and installed in the city light plant, the members of the city council were entitled to testify that they expended the public funds in the purchase of the same from the contractor without knowledge of any claim of superior ownership in plaintiff’s; as tending to negative the fact of notice, and to show reliance upon the contractor’s possession as evidence of his ownership.</p> <p>11 Same: payment: evidence. It was competent in this action to show the expense to the city of completing the contractor’s work after his default, and to show the sum previously paid him in cash, for the purpose of establishing the fact that it had discharged its liability to the contractor under his - contract.</p> <p>12 Conditional sales: knowledge of agent: effect. The uncommunicated knowledge of an engineer employed to make plans and specifications, to supervise the construction of a light plant for the city and to make estimates upon which to base payments for the work, concerning a contract reserving title to property sold the engineer, was not binding upon the city.</p>

<p>1 Real property: contracts of sale: breach: forfeiture. Under a contract for the sale of land containing no forfeiture provision, and neither providing for liquidated damages nor making time of the essence of the contract, a vendor electing to terminate the contract because of the purchaser’s default is not entitled to a forfeiture of the advance payments.</p> <p>2 Same: 'vendor and vendee: rights and remedies. Where a purchaser of land fails to perform his contract of purchase the vendor may elect to pursue either of three remedies, he may keep his tender of performance good, demand the balance of the purchase price and sue for specific performance, or he may terminate the contract, keep his land and sue for damages, or he may rescind the contract in toto. If he eleets to pursue the first remedy he is entitled to retain all payments made; if he eleets to keep the land and sue for the breach he can recover sueh damages as he has sustained, and if his damage exceeds the amount of advance payments he can apply such payments on the damage. If his damage is less than the advance payments the purchaser is entitled to the balance. If he elects to rescind the contract in_ toto the parties are thus restored to their former situation and the purchaser may recover back the advance payment.</p> <p>3 Same: breach of contract: damages: application of advance payments. Under the statutes relating to the forfeiture of a contract for the purchase of land, the vendor in a contract containing no provision for forfeiture, when electing to sue for damages for the vendee’s breach, may apply the advance payments to the satisfaction of his damages.</p> <p>4 Same: contract on sale: performance. Where a contract for the sale of land contains no provision that time is of the essence of the agreement, the duty of performance is ordinarily mutual, and if both parties fail to perform upon the day fixed the contract is still binding upon both; but either party being ready may terminate the delay and put the other in default by a tender of performance on his part.</p> <p>5 Same: tender op performance. Under a contract for the sale of land to be conveyed clear from incumbrance on a certain date, the tender of a warranty deed by the vendor, accompanied by an unrecorded deed from his grantor and an abstract certified only to a prior date, and showing, the title in the former owner, subject to an unrecorded mortgage back to such former owner, was not such a tender of performance as entitled him to recover the contract price.</p> <p>6 Same: tender op title: objection: waiver. The statute providing that the person to whom a tender is made must at the time make any objection he may have to the money, instrument or property tendered, has no application to the tender of an abstract of title; but a purchaser has a reasonable time in which to examine the same and make his objections, and this right is not waived by a request or direction that it be delivered to his attorney for that purpose.</p> <p>7 Same: breach of contract: action for price. Where a contract for the sale of land continued as binding upon both parties until a time when the vendor leased the premises to another, thus putting it out of his power to perform, the refusal of a tender by the purchaser prior to that time was not a breach of the contract authorizing the vendor to sue for the contract price.</p>

— Hon. W. N. Treichler, Judge. Action at law upon a foreign judgment. The defendant set up a counterclaim. The plaintiff filed a demurrer thereto which was sustained. Thereupon the trial court dismissed the counterclaim and entered a judgment for the plaintiff. The defendant appeals.

— Hon. W. N. Treichler, Judge. Action at law upon a promissory note. A writ of attachment was sued out therein. . An independent action was brought by the defendants against the plaintiff upon the attachment bond. These actions were consolidated, and were tried together under title of the first case; the second being treated as a counterclaim in the first. There was a directed verdict for the plaintiff, and the defendants appeal.

<p>Appeal from. Linn District Court. — Hon. Milo P. Smith, judge.</p> <p>Action for damages iu consequence of an alleged libel. A motion for more specific statement was sustained, and in pursuance of the ruling an amendment to the petition overruled. Thereupon defendant moved to strike portions thereof, and the first twelve grounds of the motion sustained; the thirteenth being overruled. To the petition with what remained of the amendment the defendant demurred, and as plaintiff failed to plead over, a dismissal was entered. The plaintiff appeals.</p>

— Hon. J. W. Kintzinger, Judge. Plaintiff brought this suit for separate maintenance, charging desertion. By cross-petition defendant asked for a divorce, also charging desertion. Plaintiff’s petition was dismissed, and a decree of divorce granted to the defendant. The court rendered judgment against defendant for $1,000 alimony and suit money, and for costs; awarded plaintiff the personal property removed by her from the home. The plaintiff appeals.

<p>1 Railroads: passengers: assistance in alighting: care. The obligation of a carrier of passengers is to furnish safe and proper carriage and a safe and convenient means of entering and alighting from the vehicle, but no further personal service or attention is required. But where a brakeman volunteered to assist plaintiff to alight, when she was laboring under no disability, he was bound to exercise the degree of care in so doing which the carrier owed her until she ceased to be a passenger, which continued until she had alighted from the train and left the platform.</p> <p>2 Same: negligent act op employee: liability op carrier. ” From the time of becoming a passenger until the relation ceases a railway company as a common carrier is required to exercise the highest degree of care for his safety and protection consistent with the practical operation of the road; and this duty extends to guarding against injury from strangers and employees. Thus where a brakeman volunteered to assist plaintiff in alighting from the car and ■ negligently pulled her down the steps, causing her to fall while she was exercising due care, and injury resulted, the company was liable for his negligent act.</p> <p>3 Same: instructions. The instructions relative to the negligence of defendant's -brakeman in assisting plaintiff to alight from the car were not objectionable, as proceeding on the theory that he was required to assist plaintiff, but correctly limited defendant's liability to injury received in consequence of his assistance if negligently rendered.</p>

— Hon. Milo P. Smith, Judge. This was a suit by plaintiff for damages for personal injuries alleged to have been caused by defective sidewalk and approach thereto. At the close of all the evidence, the court directed the jury to return a verdict for defendant. The plaintiff appeals.

<p>1 Forcible entry and detainer: amendment of petition on appeal. It is not permissible to amend the petition in an action for forcible entry and detainer, appealed from the judgment of a justice court, and unite therewith an action for conversion in a sum exceeding the jurisdiction of a justice of the peace.</p> <p>2 Landlord and tenant: conflicting evidence: submission of issue. Where a landlord claimed and so testified, in an action for forcible entry and detainer, that the tenant had refused and neglected to divide the crops as provided in the lease, which was denied by the tenant, the conflict was such as to require submission of the issue.</p>

<p>1 Railways: loss op goods in transit: liability op company. The fact that the owner of goods consigned to himself sold the same at a specified price per pound, delivered the bill of lading and directed delivery of the goods to the purchaser before their arrival, did not defeat his right of action for a portion of the goods lost in transit; as the buyer was only liable to him for the goods actually delivered.</p> <p>2 Same: instruction. A party cannot complain of an instruction more favorable to him than the evidence warrants, even if incorrect.</p> <p>3 New trial: misconduct in argument. Where plaintiff’s evidence in support of his claim against defendant railway company for goods lost in transit was of a doubtful character, resting upon his own testimony and that of a co-laborer, the statement of plaintiff’s counsel in argument that he did not know why defendant’s attorney should be unfair, unless because he was connected with a corporation worth millions and engaged in a lawsuit to beat a “poor devil,” was prejudicially erroneous.</p> <p>4 Railways: loss op goods in transit: liability as insurer: instruction. In this action for goods lost in transit, an instruction that defendant’s liability as an insurer ceased when the car reached its destination and was placed upon a side track, unless the consignee gave direction to place the ear at some point for unloading, and that the burden was on defendant to show that the goods were not lost before the car reached its destination, was in effeet a statement that defendant was not liable as an insurer after the car reached its destination, and therefore the defendant had no ground for complaint in this respect.</p> <p>5 Same: instructions: prejudice. Where the shipper as in this case failed to show that he gave direction to place the car on a specified track until several days after its arrival, and no negligence on the part of defendant as warehouseman was shown, and plaintiff sought recovery only on the theory that defendant was a common carrier and insurer, an instruction that defendant would be liable for reasonable eare as warehouseman, though erroneous, was not prejudicial to plaintiff, where the jury must in any event have found for the defendant under other proper instructions and the undisputed evidence.</p>

— Hon. M. E. Hutchinson, Judge. This is a civil action brought hy the incorporated town of Scranton in the district court of Greene county against the defendants to enforce the provisions of an ordinance of the said town, to wit, to collect by a civil suit in the district court certain license fees provided by the said ordinance in case of transient' merchants. There was a demurrer to the petition, which was overruled.

— Hon. Milo P. Smith, Judge. Objections by certain creditors to the final report of the administrators of the estate of John T. Carmody, deceased, were sustained in part, and, from the order so doing, the administrators appeal.

<p>Appeal from Wapello District Court. — Hon. Frank W. Eichelberger, Judge.</p> <p>Action to recover damages for alleged false representations in the sale of land. Jury trial, verdict and judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Appanoose District Court. — Hon. F. M. Hunter, Judge.</p> <p>Action to recover damages for personal injury, alleged to bave been caused by being struck by defendant’s train while walking near its tracks. The court held that the evidence showed that the plaintiff was a trespasser at the time he was hurt, and the court submitted the case to the jury on the doctrine of last clear chance. After the jury had been out fifty hours, they were Called in and instructed by the court and admonished to get together. After being out twenty hours longer, they returned a verdict for the plaintiff.—</p>

Appeal fwm Humboldt District Court. — Hon. A. D. Bailie, Judge. Drainage District No. 4 having been established, the work of ditching and tiling the district was let to the defendant Ward Bros. A bond with surety was executed for faithful performance of the contract. Ward Bros, failed to complete the work. The county took charge of the work and relet it.

<p>1 Parties: waiver op objection. Where plaintiff alleged that defendant was a corporation, or a co-partnership or voluntary association, but the character of the organization was not definitely known to the plaintiff, and notice was served upon it as a corporation, to which it responded and filed answer and proceeded to trial, any right defendant may have had to require a more definite statement of the capacity in which it was sought to be held was waived: and defendant having failed to raise the question at the proper time and in the proper manner plaintiff was not required to offer proof of the capacity in which it was sued.</p> <p>2 Negligence: identity op dependant: evidence. Evidence that plaintiff’s horse was frightened by a caged wild animal, exhibited from a wagon bearing defendant’s name, and placed upon the street by a driver in defendant’s employ, was sufficient to justify a finding that defendant was the owner of the animal and responsible for its exhibition upon the street.</p>

<p>1 Conveyances: estate in fee. Under the statute every conveyance of real estate passes the entire interest of the grantor, unless a contrary intent may be inferred from the terms of the instrument; the term, heirs, or other technical words of inheritance are not necessary to create and convey an estate in foe.</p> <p>2 Same: present interests: edture enjoyment. While estates may be created to commence in the future the conveyance must take effect in presentí, by granting a present interest.</p> <p>3 Same: construction. The intent of a grantor and the nature of the estate granted must be determined from the conveyance itself, and every part of the instrument must be given effect if possible.</p> <p>4 Same. Where an estate of inheritance was created by the granting clause of a deed, at common law the habendum would not be allowed to contradict or defeat it, but might be resorted to for the purpose of explaining the estate granted; but where an estate of inheritance was not definitely created in the granting clause the habendum, tending to enlarge, restrict or impugn the granting clause, would be given effect.</p> <p>5 Same. The purpose of the habendum clause in a deed is to define the estate granted; but where that has already been clearly and definitely expressed, anything in the habendum tending to destroy the purpose or intent of the grantor would of necessity be repugnant and void.</p> <p>6 Same. At common law a conveyance without words of inheritance gave the grantee a life estate by implication, but this might be enlarged by the habendum clause. The rule now generally applied is that a conveyance must be construed as a whole and the grantors intent given effect, unless contrary to law or some established rule of construction.</p> <p>7 Same: estate granted. The granting clause of a deed need not name the heirs of the grantor and grantee; especially where the habendum clause undertakes to pass a remainder. The deed in the instant case recited that the grantor, who was the husband of the grantee, did thereby sell and convey the described premises unto the grantee, which was followed by the usual covenant of warranty. Then followed the provision that “after her death to be equally divided between her and his heirs,” naming them. H'eld, that the fee was not conveyed to the grantee and her heirs, but that she took a life estate with the remainder to the heirs of both.</p> <p>8 Same: form: of conveyance. No particular form of words is necessary to constitute a conveyance, especially where the remainder is disposed of by the habendum clause; but a conveyance is valid if containing words signifying an intent of the grantor to transfer the property or his interest therein.</p> <p>9 Same: remainders: validity. It is not material to the creation of a remainder that it be equally divided among the remaindermen on the death of the life tenant, especially where the remaindermen are specifically named.</p> <p>10. Same: vested remainders. A remainder given to certain parties specifically named in the deed, after the death of the life tenant, is a vested remainder.</p>

<p>1 Fraud in the sale of land: evidence. In this action to recover the purchase price of real estate sold upon contract, the evidence is reviewed and held to show that the sale was induced by the fraud and misrepresentations of the plaintiff concerning the value and character of the land.</p> <p>2 Contracts for sale of land: specific performance. Where time was made of the essence of a contract for the sale of land, the vendor, having failed to furnish the deed and abstract within the stated time, was not entitled to compel payment of the purchase price, even though the time was extended, where it appeared that he did not have the title, and tendered no deed or abstract showing title until after commencement of suit for the price, and after defendants had rescinded their contract.</p>

<p>1 Appeal: direction of verdict: review of evidence. In determining whether a verdict was properly directed the appellate court will not pass upon the credibility of the witnesses or the weight to be given their testimony, but the evidence will be construed and its fullest probative force given in favor of the party against whom the verdict was directed.</p> <p>2 Corporations: sale of stock: tender: waiver. Where defendant contracted to sell plaintiff certain shares of corporate stock at a valuation shown by an inventory, plaintiff to pay interest on such valuation and part of the principal each year, the earnings of the stock if declared as dividends to be applied on the purchase price, a refusal by defendant to disclose the amount of the dividends excused plaintiff from tendering the balance due before bringing suit for damages, because of failure to deliver the stock.</p> <p>3 Same: evidence. Under the provisions of the contract in this ease evidence of dividends declared prior to repudiation of the contract by defendant was admissible.</p>

<p>Appeal from Lucas District Court. — Hon. C. W. Vermillion, Judge.</p> <p>The opinion sufficiently states the nature of the case.—</p>

— Hon. Milo P. Smith, Judge. Plaintiff filed a petition asking the appointment of commissioners to locate lost and disputed comers and bound-. aries. Defendants filed separate demurrers, which wére sustained. Plaintiff elected to stand upon his petition. The court rendered judgment against plaintiff for costs. Plaintiff appeals.

— Hon. P. R. G-aynob, Judge. Suit in equity to reform a contract involving an exchange of real estate and to set aside such contract on the ground of fraud and deceit. There was a decree for the plaintiff, setting aside the contract. The defendants appeal.

— Hon. D. M. Anderson, Judge. Action at law upon a policy of fire insurance. Verdict and judgment for plaintiff, and defendant appeals.

— Hon. George Jepson, Judge. This is an action wherein the plaintiff seeks to recover damages from the defendant city for negligence in failing to have one Matt Carr, a policeman of said city, under bond on the 1st day of May, 1912, when plaintiff was shot and injured by the said police officer. The demurrer to the petition was sustained. Plaintiff appeals.

— Hon. David Mould, Judge. Suit in equity to foreclose a mortgage. There was a decree for the plaintiff, and the defendants appeal.

Certiorari from Wapello District Court. — Hon. D. M. Anderson, Judge. Plaintiee was charged with violating a decree of injunction by being concerned unlawfully in the liquor traffic. He was found guilty of contempt, and brings the case here by certiorari.

— Hon. Wm, Hutchinson, Judge. Action to enjoin the illegal sale of intoxicating liquors upon premises used and occupied by the defendant Naughton. Petition dismissed, and plaintiff appeals.

— Hon. H. K. Evans, Judge. Action at law to recover for services alleged to have been rendered for the plaintiff pursuant to an oral contract. There was a jury trial, and at the close of the evidence the court directed a verdict for the plaintiffs for the amount of their claim. The defendant appeals.

— Hon. David Mould, Judge. This is an action at law by Buena Vista County, Iowa,' against Woodbury County, Iowa, to recover from defendant the sum of $1,199.55, costs and expenses of commitment and maintenance of one Nellie Carsten, an insane patient in one of tbe hospitals for the insane of this state, from the time of her commitment, May 10, 1902, until her death, April 6, 1910. A jury was waived and trial ivas had to the court. The court found for plaintiff.

— Hon. D. M. Anderson, Judge. The indictment against the defendant charged him with assault with intent to commit rape. Upon trial had, a verdict was rendered finding him guilty of assault only. From a judgment imposing a fine, the defendant has appealed.—

— Hon. F. E. Gaynor, Judge. Suit in equity to enjoin a liquor nuisance. There was a decree dismissing the petition, and the plaintiff appeals.—

— Hon. Wjc. Hutchinson, Judge. Action at law to recover damages for personal injury. There was trial to a jury and verdict for defendant. The plaintiff appeals. The material facts are stated in the opinion.

— Hon. Wm. Hutchinson, Judge. Action at law to recover for goods alleged to have been sold to the defendants. On trial to a jury there was a verdict and judgment for plaintiff for $60. On the theory that such recovery is inadequate, the plaintiff appeals.

— Hon. Wm. Hutchinson, Judge. Action at law by an employee against his employer for personal injuries sustained while engaged in his employment. At the close of the evidence for the plaintiff, the trial court directed a verdict for the defendant. The plaintiff appeals.—

Appeal'from, Taylor District Court. — Hon. H. K. Evans, Judge. This is a habeas corpus proceeding brought by the father of a minor child to obtain her custody. There was a judgment dismissing the petition, and the plaintiff appeals.—

— Hon. John F. Oliver, Judge. Action at law to recover the amount of certain commissions received by the defendants in alleged fraud of plaintiff’s assignors. Certain affirmative defenses were pleaded by the defendants. Two of these are presented on this appeal. There was a judgment for the plaintiff for the full amount claimed. The defendants appeal.

— Hon. D. M. Anderson, Judge. Suit in equity to foreclose a real estate mortgage. There was a decree for the plaintiff, and the defendants appeal.—

— Hon. C. B. Bradshaw, Judge. Action at law to recover damages against the estate of S. S. Sweet, deceased, on account of the death of one Walter H. McNulty. Verdict and judgment for plaintiff, and defendants appeal.

— Hon. E. B. Woodruff, Judge. Plaintiff sued to recover $150, damages for breach of warranty of title to land. There was a trial to the court with- ' out a jury. The court found for defendant and dismissed the petition at plaintiff’s costs. Plaintiff appeals.

— Hon. James P. Hewitt, Judge. Actions at law upon policies of accident insurance. There was in each case a trial to the court without a jury and judgment in each for the intervener. The plaintiffs appeal. As the two cases present similar states of fact and the rights of the parties turn upon the construction to be placed on like clauses in the insurance contract, they have been submitted together and will be disposed of in one opinion.

— Hon. Chas. E. Al-brook, Judge. Action to recover on a promissory note given for certain stock in the Stotts Signal Company, an Arizona corporation. Defense — that the note was obtained by fraud. Verdict and judgment for the defendants. Plaintiff appeals.

<p>1 Mutual insurance: non-payment of assessment: evidence. In this action upon assessment life insurance certificates which defendant claimed were not in force because of the default of the assured in the payment of an assessment, the evidence of non-payment is held sufficient to carry that question to the jury.</p> <p>2 Same: notice of assessment: sufficiency. Where the directors of a mutual insurance company were authorized by the by-laws of the society to provide funds in advance for death losses which might occur during the ensuing three months, a notice stating that the assessment was made to provide a fund to meet death losses, was sufficient to meet the requirement of the statute and of a by-law providing that such notice shall state the object for which the fund to be collected was to be used, although it was intended in part to pay anticipated losses.</p> <p>3 Same: non-payment of dues: forfeiture: waiver: personal liability. Waiver of forfeiture of a benefit certificate for nonpayment of an assessment left payment of the assessment optional with the insured, and did not create a personal liability because in violation of a by-law providing that no personal liability would be incurred beyond the payment of guaranty notes by becoming a member.</p> <p>4 Same: application of guaranty deposit. Upon default in payment of an assessment a member of a benefit insurance society cannot require the application of a guaranty deposit to the payment thereof before a forfeiture could be declared.</p>

— Hon. Thomas Arthur, Judge. Suit in equity to enjoin the defendants from erecting or painting a sign on one of the walls of a building which defendants had leased from plaintiff. The trial court granted the relief prayed, and defendants appeal.