Volume 164 — Iowa Reports

— Hon. E. B. Woodruff, Judge. Action at law to recover damages for abuse of process. Trial to a jury; verdict and judgment for plaintiff, against both defendants, but in separate amounts, and defendants appeal.

<p>Fixtures: machinery. Where machinery is sold with the understand-1 ing that it will be attached to and become a part of the realty so that it cannot be removed without injury to the property, the vendor thus places it within the power of the vendee to sell or mortgage the same to an innocent purchaser, and must suffer the loss if any occurs thereby.</p> <p>Same: conditional sales: bona pide purchaser: notice. Where 2 machinery is sold, the vendor knowing it is to be attached to the real property of a third person and used for a particular purpose, it is necessary, to charge such third party with notice of a conditional sale reserving title in the vendor until the full purchase price is paid, that he have actual notice of the reserved title; eonstruetive notice effected by recording the contract is not sufficient under such circumstances.</p> <p>Same: sales: recording acts: application op statutes. The 3 purpose of the recording acts is to provide a means by which the owner of property in the possession of a third person, or a lienholder, may protect himself as against the claims of third persons, on the theory that it cannot be known who might acquire title or rights from the party in possession; but the reason of the statute does not apply when, the rights a third party is to acquire in the property are known to the seller of the personalty at the time of the sale.</p> <p>Same: conversion: estoppel: elements op depense: instruction. 4 Where the vendor of machinery sold the same to a city contractor, with knowledge that it was to be permanently installed in the electric light plant of the city and used in connection therewith in such manner as to make it a part of the realty, and the city subsequently purchased the same of the contractor without notice of a provision in the original contract of sale by which the title was reserved to the seller until payment of the purchase price, it was not necessary for the city to show, in addition to the above facts, that it had paid the contractor for the same, as an essential element of its defense of estoppel in a suit by the seller against if for conversion.</p> <p>Same: instructions. Where it appeared from the evidence as in this 5 ease that the fixtures were purchased by the contractor and placed in the city light plant at different times, and the issue as to the time the city received notice of the condition under which they were purchased by the contractor was also raised by the evidence, the court'in submitting the question of plaintiff’s right to assert its claim against the city should have distinguished between the fixtures placed in the plant before the alleged notice and those so placed thereafter.</p> <p>Same: measure op damages: instructions. Where an action for 6 the conversion of fixtures was tried on the theory that the original cost was competent evidence of the value of the same, failure to definitely instruct on the question of the reasonable value of the fixtures was not erroneous, in the absence of a request therefor.</p> <p>Same: evidence. Eefusal to permit the mayor of defendant city to 7 state in this case whether he would not have consented to placing the fixtures in the plant had he known of the reserved title in the seller, or to permit members of the city council to state whether they would have consented tó allowing the contractor for the fixtures had they known of such reserved right, was not reversible error; although the evidence might properly have been admitted as bearing on the question of notice of sueh reserved title, and in support of the city's plea of estoppel.</p> <p>Same: fixtures: conversion: right of recovery. Where the title 8 to property has been changed from personalty to realty with the consent of the seller of the personalty his right of recovery is based upon the reasonable value of the property, rather than the right to recover the property itself.</p>

— Hon. F. D. Lett's, Judge. A. B. Thompson, having made a general assignment for the benefit of all his creditors to one A. L. Luick, the Ft. Dodge Grocery Company filed an application in said proceedings to have a certain mortgage executed to it made a first lien upon certain property in the hands of the assignee claimed to have been covered by and included in its mortgage. The opinion states the facts.

<p>Waters: title to bed of n on-navigable stream. A government sec-1 tion was surveyed as fractional and divided into lots and included also a meandered tract designated as a lake, but which in fact was a slough that in times of high water was overflowed but ordinarily contained little water. Gradually it was filled with sediment deposited by the overflow so that it was tillable except in time of high water. The section was granlod to the state as swamp and overflowed land, but the patent described simply the lots, omitting the slough. Subsequently the state conveyed the entire section to the county. Reid, that the county thus acquired the title to the entire section and that the state had no such interest by reason of its sovereignty that it could prevent the owners of the several lots from exercising a proprietary interest over the bed of the slough.</p> <p>Same: meander lines: riparian rights: accretions. While the 2 meandering of a stream by the government survey is conclusive as to the navigability of the stream so far as the rights of riparian owners are concerned, still the meander line is not in a strict and conclusive sense a boundary line; as the riparian owner has rights in the accretions beyond that line.</p> <p>Same. The owner of land adjoining a navigable stream has a right 3 of accretion, while in ease of a non-navigable stream the adjoining proprietor owns to the center of the stream and is entitled to all that may be added to the land by accretion or otherwise within that limit.</p> <p>Same: action by state to quiet title: estoppel. Where the waters 4 of a slough or bayou receded and it ceased to be a running stream, and as a result of overflow water soil was gradually deposited therein until it became suitable for cultivation, and was so used by the riparian owners for at least ten years, their rights therein were of such character as to justify a denial of relief in an action by the state to quiet title to the slough, on the ground of laehes and estoppel.</p> <p>Same: limitations: laches: estoppel. The statute of limitations 5 cannot be urged against the state, but where it seeks to establish rights by an action to quiet title, relief may be denied on the ground of laches and estoppel.</p>

— Hon. Charles S. Bradshaw, Judge. Indictment for murder in the -first degree. Special defense, insanity. Verdict of manslaughter and .a special finding that the defendant was insane at the time of the commission of the act. Judgment on the general verdict. Defendant appeals. Reversed on the ground that there is an apparent inconsistency between the special finding of the jury and the general verdict.

<p>Contracts of infants: necessities: attorney’s services: settle-1 ment OP suit. Assuming that the eontraot of a minor for legal services is a contract for necessities, within the meaning of the statute, the character of the obligation is not affected by the fact that the attorney also acts as agent in a settlement of the controversy. Thus the settlement of a suit for seduction, whieh was ratified both by the minor and her 'father as next friend, was a contract for necessities by which the minor was bound.</p> <p>Same: attorney’s services : reasonable value. Although a minor, 2 as an abstract proposition, may only be liable for the reasonable value of an attorney’s services, that fact' will not relieve against a contract liability therefor, where the evidence shows that the rea- \ sonable value and the contract amount are the same.</p> <p>Same: attorney’s lien: recovery. Where .attorneys were employed 3 -upon a contingent fee dependent upon the amount collected, and secured a settlement of the claim taking a note and mortgage as security payable to their client, but retained the possession thereof and claimed a lien thereon, a subsequent compromise settlement between the mortgagor and their client.would not affect their right to recover on the security to the extent of their interest.</p> <p>Same: attorney and client: representation of parties with ad-4 verse interests. Plaintiffs were employed to prosecute an action for seduction and obtained a settlement, taking a note and mortgage as security. Subsequently they brought suit to foreclose the mortgage and establish their lien for services, making their - client and the mortgagor defendants. Their client answered pleading her minority at the time of the settlement, and that upon reaching majority she disaffirmed the contract and repudiated the settlement. The mortgagor pleaded the same facts and also fraud in obtaining the settlement, and that a subsequent settlement was made with the seduced girl. Both defenses were made solely in the interest of the mortgagor. Held, that the same attorneys ought not to have represented both the defendants, as their interests were adverse, and under the issues as made the court was powerless to protect the rights of the girl.</p>

<p>Appeal from Humboldt District Court. — Hon. D. F. Coyle, Judge.</p> <p>Action by plaintiff for divorce and $12,000 alimony. Plaintiff charged cruelty. After full trial plaintiff’s petition was dismissed, and she appeals.</p>

Linn District Court. — Hon. Milo P. Smith, Judge. This case was before us upon two former appeals. The opinion in the last appeal will be found in 153 Iowa, 199. Upon such appeal the case was reversed and remanded for a further hearing and accounting, after a finding by us that the allowances made by the district court to appellee were excessive. Such former allowances amounted to a net sum of $24,427. The case being remanded, a further hearing was had in the district court.

— Hon. C. W. Vermilion, Judge. Action at law to abate a nuisance; tbe nuisance consist-. ing in the diversion of surface water. There was a verdict for the plaintiff and a judgment and order of abatement entered thereon. The defendant appeals.

<p>Appeal from Polk District Court. — Hon. Chas. S. Bradshaw, Judge.</p> <p>Action in equity to set aside a certain special assessment on 'real estate in the city of Des Moines, and to enjoin the collection thereof. The defendants’ demurrer to the petition having been sustained, and plaintiff electing to stand on his pleading without amendment, the action was dismissed, at his costs, and he appeals.</p>

<p>Municipal corporations: repair of streets: negligence: instruc1 tion. A city has the right to repair its streets, and in doing so may tear up a defective pavement and obstruct the street, if necessary, without liability in consequential damages resulting therefrom, when the work is performed with ordinary skill and prudence: and persons using a street when undergoing repairs are held to such a degree of care as an ordinarily prudent person would exercise under the same conditions. The requested instruction on the subject should have been given in the instant case.</p> <p>Personal injury: measure of damages. The particular employment 2 and salary received prior to the time of a personal injury may be considered on the question of damages, but the proper measure of damages is impaired ability to earn money generally. An instruction limiting the right of recovery to the loss of earnings from plaintiff’s employment prior to the injury was erroneous.</p>

Appeal f rom Sioux District Court. — Hon. Wm. Hutchinson, Judge. Suit in equity to set aside a conveyance of land, made by Mary Lavelle during her lifetime to the defendant, Patrick Lavelle, on the 8th day of September, 1908, upon the ground of the mental incompetency of the grantor, and by reason of fraud and undue influence. A partition was also asked, and an accounting for the rents and profits. The answer admitted the conveyance, but denied the other allegations.

<p>Appeal from Keokuk District Court. — Hon. Henry Silwold, Judge.</p> <p>Suit for specific performance resulted in a decree as prayed. The defendants appeal.</p>

— Hon. F. M. Hunter, Judge. Action in equity to enjoin an alleged liquor nuisance; to enjoin defendant from distributing or delivering intoxicating liquors, or aiding in the distribution or delivery thereof, contrary to law, from transporting, conveying, and carrying, or distributing liquors, either in cars, wagons, or otherwise, contrary to law, in Wapello county, Iowa, or in the judicial district in which said county is located; for attorney’s fees, etc. The defendant…

— Hon. William Theophilus, Judge. Action to recover damages for personal injury.' Defendant pleads settlement. Plaintiff replies alleging fraud in procuring settlement. Demurrer to reply. Demurrer overruled. Defendant appeals.

— Hon. J. F. Oliver, Judge. Action at law upon promissory notes given for the purchase price of a steam gang plow. Defendants pleaded breach of the warranty made by the plaintiff and a rescission of the contract of purchase. They also set up a counterclaim for damages. There was a verdict for defendants and for a recovery on their counterclaim. Plaintiff appeals.

— Hon. A. P. Barker, Judge. Action for damages for personal injury resulting from negligence. From a verdict and judgment for plaintiff, the defendant appeals.

<p>Assignment of wages; priority. A railway company may require of an employee, as a condition precedent to his employment, that he shall provide himself with a watch of the standard fixed by its chief inspector; and it may provide for an assignment of his wages to be earned in the future with which to pay for the same, if necessary, and such assignment will be valid although not signed by his wife: so that an accepted assignment of that character, though not signed by the wife, will take precedence over subsequent assignments, acknowledged by both the employee and his wife.</p>

— Hon. K. E. Willcockson, Judge. Action to quiet title to a certain piece of land in the village of Janetown, which had formerly been used for road purposes, but which, before the commencement of the action, had been vacated. —

— Hon. Lorin N. Hays, Judge. Action at law to recover for injuries sustained by plaintiff while passing along and over a sidewalk in defendant city, which was covered with ice and snow. In addition to a general denial, defendant pleaded that the action was not brought in time, and that plaintiff gave no preliminary notice, as by statute provided.

— Hon. W. H. Fahey, Judge. Proceeding to have set apart to the widow one-third in value of the real estate, to include the homestead, free from claim for purchase-money indebtedness. From a decree in favor of plaintiff, the defendants appeal.

— Hon. K. E. Willcockson, Judge. Appeal by defendant from judgment granting mandatory injunction requiring the defendant to remove obstructions to the flow of surface water from plaintiff’s lot.

<p>Certiorari: notice op hearing. Where no stay of proceedings in the 1 lower court was demanded under a writ of certiorari, service of notice of hearing upon the court below was not a condition precedent' to the issuance of the writ.</p> <p>Evidence: production op books and papers: sufficiency op appli2 cation. The application for an order requiring the production of books and papers for the inspection by the opposite party must disclose the fact that the desired evidence is material to some issue in the case; but this requirement may be satisfied by a detailed statement of what is expected to be proved, although there is no direct averment of materiality.</p> <p>Slander and libel: production op evidence: materiality. The books 3 of a newspaper office, showing the circulation of the paper in which an alleged libel was published, are material on the question of the extent of the injury sustained, and an order for their production should be granted.</p> <p>Same: certiorari: application op writ. Where the court had 4 jurisdiction of the subject matter and the parties in a suit for libel, an order for the production of defendant’s books showing the circulation of the paper in which the alleged libel was published is not reviewable by certiorari; as there is a complete remedy in such cases by appeal. It is only where the court has acted illegally that certiorari is available.</p> <p>Same: production op evidence: discretion. Although the answer 5 in an action for libel, and the objections to an application for the production of defendant’s books showing the circulation of the alleged libel, admitted, the extent of the circulation of the newspaper as broadly as charged in the petition, it was still within the proper discretion of the court to require the production of the books.</p> <p>Same: constitutional law: unreasonable search and seizure. 6 An order for the production of books and papers is not a violation of the constitution prohibiting an unreasonable search and seizure.</p> <p>Evidence: production op books and papers: discretion. The right 7 to a rule requiring the production of books and papers is not to be used as a means of acquiring knowledge of a competitor’s business, which will afford an unjust advantage; but in granting the rule it will be presumed that the court in the exercise of its discretion will permit no examination or discovery not required for the purposes of the case, and that the rights of both litigants will be safeguarded.</p>

<p>Contracts in restraint of trade: invalidity. The by-law of a co-operative company making it the duty of the company to pay its members the highest market price for farm products, but in case of sale to a competitor for a higher price such member shall pay a certain percentage of the price to the co-operative company is in restraint of competition and therefore illegal, and cannot be relied upon as the basis for affirmative relief.</p>

— Hon. M. F. Donegan, Judge. Action upon a benefit certificate in the defendant association. The defendant denied liability upon grounds which will be referred to in the body of the opinion. The case was tried to the court without a jury, resulting in a judgment for plaintiff for the amount of the certificate, with interest, and defendant appeals. —

— Hon. Lorin N. Hays, Judge. Appeal from an order of the district court denying the application of one Olive Debrot for an order on the Board of Supervisors of defendant county for the support of her three minor children.

— Hon. W. H. Fahey, Judge. Action for damages resulting from negligence in operating train. From a verdict and judgment for plaintiff, tbe defendant appeals.

— Hon. W. H. Fahey, Judge. This is a controversy over the amount to be taxed as a paving assessment against property belonging to Madison county, used and operated as a courthouse. The county appealed to the district court from the assessment made by the city council, and the district court reduced the assessment from $12,599.73 to $8,908.29, and the city appealed to this court. The plaintiff also filed a cross-appeal, but the city will be called the “appellant.”

— Hon. J. H. Applegate, Judge. Action to set aside a certain conveyance of real estate, made by the plaintiff to the United States Live Stock Company, on the ground of fraud.

— Hon. John F. Oliver, Judge. Action to recover damages for assault and battery. Verdict and judgment for the plaintiff. Defendant appeals.

— Hon. John F. Talbott, Judge. Action to recover one-half the commission earned by plaintiff and defendant as real estate brokers. The defendant filed a general denial, and on issues tendered the ease was tried to a jury, resulting in a verdict and judgment for defendant, and plaintiff appeals.

— Hon. B. M. Wright, Judge. Will contested on the ground that the same was procured by undue influence, and that the testator, at the time of making the will, did not have testamentary capacity. Verdict for proponents. Contestants appeal.

— Hon. John F. Talbott, Judge. Action to recover a sum of money which it is claimed defendant, as plaintiffs’ agent, retained from them under a claim that it was due him under his agency contract. Defendant pleaded that he was entitled to the money as compensation for his services, while plaintiffs assert that he had been fully paid and was wrongfully detaining the sum of $4,124.13.

— Hon. J. H. Applegate, Judge. Proceeding for appointment of a guardian for a person alleged to be of unsound mind. Trial to a jury and from its finding, with appointment of guardian based thereon, the defendant appeals. —

— Hon. R. M. Wright, Judge. Action in equity to enjoin defendant from trespassing upon and interfering with plaintiff’s possession of certain lots in Webster City, Iowa. There was a decree as prayed in the district court, and defendant appeals.

— Hon. R. P. Howell, Judge. Action for partition of real estate. The defendants contested plaintiff’s title to any part or share in the property. Petition dismissed and plaintiff appeals.

— Hon. Lawrence De Grape, Judge. Both of the above-entitled actions involve the same questions. Both cases will therefore be disposed of by one opinion. Each is an action on the official bond of a justice of the peace; the principal defendants being Zell G. Roe and F. A. Cope, respectively. In each case there was a demurrer to the petition; the principal ground of the demurrer being that the action was barred by the statute of limitations.

— Hon. R. P. Howell, Judge. The controversy involved in this case arises upon exceptions to the final report of executors. There was trial to the court sitting in probate. After hearing, the exceptions were overruled, and the report approved. The objector, I. W. Baker, has appealed.

— Hons. Frank W. Eichelberger and Francis M. Hunter, Judges, Action for commission alleged to have been earned in finding a purchaser for land. From judgment as prayed, the defendant appeals.

— Hon. James P. Hewitt, Judge. Action for damages for personal injuries received in an accident upon one of the streets of tbe defendant, and caused, as alleged, by reason of an obstruction negligently permitted by the defendant. The obstruction consisted of a ditch and an embankment. There was a verdict for the plaintiff, and a judgment entered thereon. The defendant appeals.

— Hon. Milo P. Smith, Judge. Suit in equity to enjoin a liquor nuisance. There was a decree dismissing the petition, and the plaintiff appeals.

<p>Appeal from, Black Hawk District Court. — Hon. Charles E. Eansier, Judge.</p> <p>Action for personal injuries resulting from alleged defects in one of the streets of the defendant city. There was a verdict and judgment for the plaintiff, and the defendant appeals.</p>

— Hon. Franklin C. Platt, Judge. Action at law to recover the contract price of certain labor and material. The case was tried to the court without a jury, and a judgment rendered for the plaintiff. The defendant appeals.

— Hon. C. G. Lee, Judge. Action for damages for negligent delay in the delivery of a telegraphic message. There was a verdict for the defendant. Upon motion of the plaintiff, a new trial was granted. The defendant appeals.

— Hon. Charles E. Ransier, Judge. Action for damages received from a fall on a sidewalk, caused by stepping into a bole in tbe walk. Trial to a jury; verdict and judgment for plaintiff for $500. Defendant appeals.

<p>Pleadings: amendment: motion to strike. Where plaintiff in a 1 substituted petition repleaded the same matters contained in the original petition, and in addition thereto the necessary averments to comply with the ruling upon a demurrer to the original pleading, a motion to strike the substituted petition on the ground that it alleged the same matters was properly overruled.</p> <p>Contracts: parol evidence. Where an agreement of the parties is 2 clearly embodied in a writing, mere contemporaneous parol agreements are not provable. Thus the written agreement for the sale of a physician’s practice for a stated sum, to be paid by the application of a certain per cent of the purchaser’s earnings, constituted a contract complete in itself; and was not rendered uncertain by the provision for payment when his earnings reached a stated sum.</p> <p>Same: limitation op actions. Where a written contract was complete 3 and definite in its terms, without the aid of oral evidence, the statute of limitations which bars actions upon oral contracts in five years has no application.'</p> <p>Exclusion of evidence: review of ruling. A ruling excluding eviI denee will not be review on appeal, where there is nothing in the record disclosing the nature of the excluded evidence.</p> <p>Same: parol evidence: variance. In this action upon a written 5 contract to pay a stated sum for a physician’s practice by payment of a certain percentage of defendant’s earnings, an offer in evidence of an allegation of defendant’s answer, as an admission that he had earned a certain sum, did not open the door to defendant for the admission of oral evidence tending to vary the writing.</p> <p>New trial: remarks of court: review. There was no impropriety 6 in the court’s remark to counsel, in ruling upon objections to evidence, that prior or contemporaneous agreements were not admissible to vary the writing sued upon, and if the writing did not express the agreement of the parties it could be reformed by a proper proceeding, but not in a law action. Besides no exception was taken to the remarks and the alleged error was not therefore reviewable.</p>

<p>Quieting title: disclaimer: taxation op attorney’s pees. The 1 statute providing that a defendant, in an action to quiet title, refusing to execute and deliver a quit claim deed after tender of the expense of the same, cannot avoid the ordinary costs and attorney’s fees by filing a disclaimer, does not apply to cases where the defendant in good faith submits his adverse claim for determination by the court. Thus in an action for partition, to which defendants filed a cross bill ashing to have their title quieted, they could .not upon rendition of judgment in their favor, claim an attorney’s fee, although having complied with the statute.</p> <p>Same: discretion op court. The statute authorizing the taxation of 2 attorney’s fees upon the filing of a disclaimer in quieting title actions makes the same a matter of discretion with the trial court; and the appellate court will hesitate to interfere with an order refusing the taxation of such fees, in the absence of a showing of an abuse of such discretion.</p>

<p>Statutes: foreign laws: proof: presumption. To render a printed 1 copy of the statutes of another state admissible in evidence to prove the law of that state, the same must of itself purport to be published under the authority of the foreign state, or there must be other competent proof that the book was commonly admitted as o evidence of the statute law by the courts of that state, as required by the statute of this state; and in the absence of competent proof of the law of a foreign state it will be presumed to be the same as that of this state.</p> <p>Judgments: record evidence. The entries required to be kept by the 2 clerk of courts in a book called the combination docket are not sufficient to establish the rendition of a judgment; the record of the judgment itself is the best evidence and is alone admissible to prove the judgment, in the absence of any ground for the introduction of secondary evidence.</p>

— Hon. F. C. Platt, Judge. Action at law upon an oral agreement by defendants to sign three promissory notes for $50 each, to be given to and accepted by plaintiff in payment for a binder, and that defendant Hand should become responsible therefor. It is alleged that plaintiff relied solely upon the agreement of Hand and let Davis have the machine. A further statement of facts appears in the opinion.

— Hon. C. G. Lee, Judge. Action in equity to recover amount alleged to be due on a building contract, and to foreclose a mechanic’s lien. Decree for plaintiff, and defendant appeals.

— Hon. W. H. McHenry, Judge. Action in equity to enforce forfeiture of contract, for the purchase of real estate: Counterclaim by defendant against plaintiff to establish and quiet her title to a part of the same lands. On trial to the court plaintiff's. bill was dismissed in part and decree entered as prayed by defendant. Plaintiff appeals.

<p>Appeal: verdict upon conflicting evidence. The verdict of a jury 1 rendered upon conflicting evidence is conclusive of the issue on appeal.</p> <p>Same: rejected evidence: necessity for offer of eroof. Error 2 for the rejection of evidence cannot be urged on appeal, in the absence of anything in the record to show what the testimony of the witness would have been if received.</p> <p>Negotiable instruments: intoxication as a defense: submission of 3 issue. Where defendant pleaded in defense to a suit on his note that he did not intend to execute the same, that it was procured by fraud and at a time when he was under the influence of liquor, evidence that he had been drinking heavily on the day the note was executed was sufficient to take the issue tendered by the answer to the jury.</p>

— Hon. Robert Bonson, Judge. Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.

<p>Estates of decedents: conveyance oe real property by executors. 1 Where the testator’s will authorized the executors when dully qualified to convey real property, and after probate of the will and qualification they made a deed to the property and received the consideration therefor, the title thus conveyed was not affeeted by an unauthorized, void or voidable contract to convey the property to the same grantee, made before their appointment; especially where there was no objection made by one having a right to complain and no suggestion of fraud or that the land was not sold at its- fair value.</p> <p>Real property: quieting title: pleading: proof: variance. In 2 actions to quiet title the plaintiff need only allege that defendant claims some adverse interest; so that a petition alleging that defendant claimed under a judgment against one of the heirs to an estate, while the evidence showed that the claim was through another heir, did not constitute a failure of proof.</p>

<p>Charitable gifts: validity. Gifts to charitable purposes will be upheld 1 when consistent with law; and to this end the rules of law will be liberally applied, thus often sustaining a charitable bequest where a private trust would fail.</p> <p>Same: indefiniteness. A charitable gift is not void for indefinite-2 ness, where those benefited are designated in a general way, but leaving the application of the gift to be made by the trustee.</p> <p>Same: establishment of schools. Gifts for the establishment of 3 schools for the mental or moral improvement of the people, especially for the poor, are lawful public charities.</p> <p>Same: definiteness. A gift for the establishment of an industrial 4 training school for children and a library building to be used by the people of a certain town, naming trustees to administer the gift until a corporation was organized for that purpose, and providing for the construction of a school building and that the school should be open to all persons fitted for the training offered, regardless of sex, race or color, was not invalid on the ground of indefiniteness; as it is sufficient if the general nature and purpose of the gift is expressed, or reasonably ascertainable from the instrument, leaving the practical working out of the objeet sought to the trustees.'</p> <p>Same: perpetuities: application of statute: charities. Gifts 5 to charitable uses are not prohibited by the statute against perpetuities; and a gift for the establishment of a training school for children and for a public library is for a charitable purpose and is not in violation of the statute, although not limited to the use of the poor and needy; as the term charity includes any scheme for the betterment of society, and includes any gift consistent with law tending to promote science, education or enlightenment or the public convenience.</p> <p>Same: perpetuities: statute. A bequest of bank stock for a ehari6 table purpose, subject to the payment of dividends thereon to relatives of the testator during their natural lives, and upon their death the stock to be turned over to the charity, was not invalid as against the statute of perpetuities on the ground that it was a gift over after the lapse of another gift.</p> <p>Same: perpetuities: statute. Where a testator hound the trustees 7 of a charitable bequest by contract to organize a corporation within a year after his death to take over the bequest, and he reaffirmed the same in his will, the gift was not in violation of the statute against perpetuities in that it failed to limit the time for organization of the corporation.</p> <p>Same. Where the testator secured the erection of a building for school 8 purposes during his lifetime, and by his will created a fund for its support, which was not available until after the death of relatives to whom he gave the ineome for life, those appointed to manage the trust were not chargeable with negligence or laches, because failing to anticipate the receipt of the fund and to attempt to conduct the school without means.</p> <p>Charitable trusts. Where the charitable character of a trust has been 9 made apparent all doubts will be resolved in its favor.</p> <p>Same: validity. A charitable trust will not be held invalid simply 10 because it cannot take effect as fully as the donor intended; but it will be given effect by the court as far as possible. Nor will it be held void because contemplating gifts from others which may never be made; and in the absence of any evidence as to the necessities of the case a gift of $30,000 for the purpose of founding a training school and public library will not be held so inadequate as to invalidate the bequest for that purpose.</p> <p>Same: necessity therefor. A bequest for the establishment of a 11 training sehool will not be held invalid on the ground that the necessity for sueh charity has been removed by provision therefor in the publie schools. It is not open either to the parties or the court to enter upon such an inquiry.</p>

This is an original certiorari proceeding in this court, wherein a writ has issued to the district court directing it to certify up its record in a certain contempt proceeding against .the plaintiff herein, wherein the plaintiff was adjudged guilty. The proceeding here is in the nature of an appeal from the order complained of, and casts upon us the duty to review such order and the proceedings leading up thereto.

— Hon. Lawrence De Graee, Judge. Action upon a contract of guaranty. There was a general denial and certain affirmative defenses. From a judgment for plaintiff, the defendant has appealed.

— Hon. R. P. Howell, Judge. Suit in equity to set aside a deed on the ground of mental incapacity of the grantor, and on the ground of fraud, undue influence, and duress. There was a decree for the defendants, and the plaintiff and interveners appeal.

— IIon. W. H. McHenry, Judge. The defendant was prosecuted under an indictment for murder in the first degree. There was a verdict of guilty as charged, and a judgment thereon fixing the penalty at life imprisonment. The defendant appeals.

<p>Partition: prior settlement: evidence. In this action to partition 1 estate lands the evidence is reviewed and held insufficient to show that a family settlement either related to or affected the title to the real property.</p> <p>Co-tenancy: adverse possession. The possession of one co-tenant will 2 be presumed to be for the benefit of all, in the absence of a contrary-statute; and will be regarded as the possession of all until by some act or declaration the interests of the others are repudiated.</p> <p>Same. To warrant the presumption of disseisin by a co-tenant the 3 adverse holding must be by some act, or series of acts, for such length of time and under such circumstances as will indicate a purpose to occupy the premises to the exclusion and denial of the rights of the other co-tenants, who must have been aware of such intent and have acquiesced therein.</p> <p>Same. Entry and possession by one co-tenant inures to the benefit of 4 the others, not only as between themselves but as to strangers also. In the instant ease the evidence is held insufficient to show adverse .possession by one co-tenant.</p> <p>Same: improvements: estoppel. The making of improvements by a 5 co-tenant in possession without advising with the other tenants is not necessarily inconsistent with occupancy as a eo-tenant; and failure of the other tenants to make objection to the improvements will not as a matter of law estop them from asserting that they were not made under an adverse claim.</p> <p>Same: laches. Co-tenants may rely on the good faith of the one in 6 possession, and that his acts are not hostile to their interests: and they will not be guilty of laches in so doing, which will bar their rights in the property, unless the delay equals the period of limitations.</p> <p>Same: improvements: compensation.' It is only in exceptional cases 7 that a co-tenant may voluntarily burden the property with improvements to the expense of the other tenants; and especially when the rents and profits were ample to meet such expenses</p> <p>Same: rents and profits: accounting. A co-tenant in possession, 8 not having leased the premises or distinctly asserted ownership of the entire estate, cannot be required to account for rents and profits, but after ouster must account therefor.</p>

<p>Appeal from Polk District Court. — Hon. Hugh Brennan, Judge.</p> <p>This is a garnishment proceeding, which resulted in a judgment discharging the garnishees, and plaintiff appeals.</p>

<p>Receivers: compensation: discretion. The compensation to be allowed a receiver appointed by the court is largely a matter of discretion, and the allowance will not be disturbed on appeal unless an abuse of such discretion is shown. In the instant ease an allowance of $50.00 per month ig approved; it appearing that the receiver was to slight actual expense and gave the business but little personal attention.</p>

— Hon. J. H. Applegate, Judge. Action for specific performance. Petition of intérvention filed. Petition of intervention dismissed, on the ground that the matters therein set out are not germane to any controversy between the plaintiff and the defendant. Interveners appeal. —

— Hon. Lawrence De Grape, Judge. Action to construe a trust instrument.

— Hon. C. H. Kelly, Judge. Proceeding to establish rights in an estate under a common-law marriage with decedent. From judgment in favor of the defendant, finding that she is the widow, the plaintiffs appeal.

— Hon. Hugh Brennan, Judge. Proceeding to establish, liens of subcontractors for material furnished in the construction of a dwelling. From a decree in favor of plaintiff and cross-petitioner, the defendants George F. White and Caroline J. White appeal.

— Hon. J. H. Applegate, Judge. This case involves the sufficiency of the service of notice of appeal from the action of the sheriff’s jury in assessing damages to plaintiff’s property, in a proceeding instituted by the defendant in which it condemned a right of way over plaintiff’s land for railway purposes. Defendant’s motion to dismiss the appeal' made in the district court for want of sufficient notice of appeal having been overruled, defendant appealed.

Appeal'from Sioux District Court. — Hon. William Hutchinson, Judge. Action for partnership accounting. From a decree and judgment in favor of plaintiff, the defendant appeals.

— Hon. A. N. Hobson, Judge. Action upon a promissory note. An attachment was sued out and levied upon certain money and some securities, and the Darrow Trust & Savings Bank and one Condon were garnished. Defendants gave bond, and the attachments were released. Later they filed an answer, and also a counterclaim for the wrongful suing out of the attachment.

— Hon. A. D. Bailie, Judge. This is a controversy over the final report of Will D. McEwen, as administrator of the estate of Hiram W. Bissell, deceased. From a finding sustaining the objections to the report and charging the administrator with the sum of $4,731.65, which he was ordered to turn over to the Clerk of the- District Court forthwith, the administrator appeals.

— Hon.- M. F. Edwards, Judge. Action to recover damages for injury resulting from the explosion of gas in a pit adjacent to and a part of a pumping plant of the defendant. From a verdict and judgment for plaintiff, the defendant appeals.

<p>Appeal from Mahaska District Court. — Hon. Henry Silwold, Judge.</p> <p>Action to recover commission for the sale of real estate.</p>

— Hon. John F. Talbott, Judge. Action by a parent for the expenses and loss of services of a minor son, killed, as is alleged, by the negligent act of the defendant. From judgment against it, the defendant appeals.

— Hon. J. F. Clyde, Judge. Action for specific performance of a contract to quitclaim interest in certain real estate. From a decree for plaintiff, the defendant appeals.

<p>Certiorari proceedings to the District Court of Polk County to review an order setting aside a decree of divorce granted to the plaintiff.</p>

— Hon. K. E. Willcockson, Judge. Action brought under section 2358 of the Code of 1897 to recover the value of a fence, erected by the plaintiff, on a partition line between plaintiff’s and defendant’s land, on the ground that the portion so erected by the plaintiff was ordered, by the fence viewers, to be erected by the defendant, and that the defendant failed to comply with the order.

— Hon. Hugh Brennan, i Judge. Action to recover for services rendered by the plaintiff to the defendant.’ Defense, that the plaintiff was, at the time the services were rendered, a member of defendant's family, residing therein with his wife and children, and receiving support from the defendant as a member of his family; and that there was no express promise to pay, and no circumstances shown which would negative the conclusion, from the relationship, that the services were…

— Hon. A. D. Bailie, Judge. Proceeding for divorce upon the grounds of cruel and inhuman treatment and adultery. Decree was entered in favor of plaintiff, and appeal is taken by the defendant.

— Hon. D. F. Coyle, Judge. Action to recover a sum of money paid by plaintiffs to defendant on a real' estate transaction through an alleged oversight and mutual mistake. The defendant denied the alleged mistake, and pleaded a counterclaim. The trial court awarded to plaintiffs the amount claimed, and one item of’ defendant’s counterclaim, and, from the decree, defendant appeals. —

— Hon. A. N. Hobson, Judge. Proceeding in equity for injunction to restrain defendants other than Fayette County from obstructing a highway. From a decree in favor of plaintiffs, and Fayette County on its cross-petition, the other defendants appeal.

— Hon. C. H. Kelley, Judge. > Action to recover damages for injuries received by-plaintiff’s intestate while working about a planer or straightener in defendant’s shops. Trial to a jury, verdict and judgment for defendant, and plaintiff appeals. —

— Hon. C. A. Dudley, Judge, Action for damages resulting in death, based upon alleged negligence of the defendant. From a directed verdict for defendant, the plaintiff appeals.

— Hon. Thomas Arthur, Judge. Action in equity to enjoin the obstruction of a private way and for the recovery of damages. Petition dismissed, and plaintiff appeals.

— Hon. E. B. Wood-ruff, Judge. Action for damages for negligent delay in transmitting a telegram from Dunlap, Iowa, to Streeter, N. D., resulting in loss to the plaintiff of an offer of sale of cattle which the plaintiff desired to purchase. There was a verdict for the plaintiff and the defendant appeals.

— Hon. M. E. Hutchinson, Judge. Action of mandamus against the members of the board of supervisors of Carroll county acting as canvassers of election returns. The prayer of the petition is that the defendants be ordered to declare the plaintiff duly elected, at the general election of 1912, as a member of the board of supervisors of Carroll county for the term beginning January 1, 1914. Upon trial had, plaintiff’s petition was dismissed, and he appeals.

<p>Telegraphs and telephones: delivery: negligence: evidence. Evi1 denee held to require submission of defendant’s negligent delay in delivering a death message, addressed to the post office of the sendee and in eare of the mail carrier on a certain rural route on which the addressee lived.</p> <p>Same: measure op damages. The measure of damages for negligent 2 delay in the delivery of a telegram in this state, forwarded from another state, is governed by the law of the forum and not that of the foreign state.</p> <p>Same: negligent delay: right op. action. An action either, upon 3 contract or tort can be maintained for negligent delay in the delivery of a telegram.</p>

— Hon. O. D. Wheeler, Judge. Application by the ward, Walter Rummels, and J. M. Halbert for the removal of the guardian.' The trial court, after hearing the evidence, refused the order prayed for, and the said Rummels and Halbert appeal.

— Hon. E. B. Woodruff, Judge. Action for damages resulting from an accident upon defendant’s street. Negligence is charged against the defendant in failing to maintain such street in safe condition for travel. There was a verdict for plaintiff, and the defendant appeals.

— Hon. A. B. Thornell, Judge. This action was begun in tbe mayor’s court by information against tbe defendant for violation of a city ordinance regulating tbe use of motor vehicles upon the streets. Prom a judgment of conviction, the defendant appealed to the district court. The district court dismissed the information, and the plaintiff city has appealed.

— Hon. M. E. Hutchinson, Judge. Action at law upon a promissory note against two defendants as signers thereof, and against the executrix of a third signer. The case was tried to the court without a jury. There was a judgment for plaintiff against all the defendants.

— Hon. S. B. Snyder, Judge. Suit in equity to remove cloud on tbe title to plaintiff’s homestead; such cloud arising because of the apparent lien thereon of a judgment held by the defendants against the plaintiff. There was a decree for the plaintiff, and the defendants appeal.

— Hon. Thomas Arthur, Judge. Action upon a promissory note for $1,100, executed by the defendant to John Blumer, as payee, and transferred by the payee to the plaintiff. An affirmative defense of mistake and failure of consideration was pleaded. There was a directed verdict for the plaintiff, and the defendant appeals.

— Hon. F. O. Blusón, Judge. Action in equity to enjoin the defendants from easting surface water upon plaintiff’s land. The defendants pleaded that they had the right to do so, under the law, and, under the issues joined, the case was tried to the court, resulting in a decree for plaintiff, and defendants appeal.

— Hon. Milo P. Smith, Judge. Action for malicious prosecution. Trial to a jury. Verdict and judgment for plaintiff in the sum of $2,800, and defendants appeal.

— Hon. F. O. Ellison, Judge. Suit in equity by certain township trustees to enjoin the defendant from maintaining a dam. in a ditch on the south side of a highway adjoining defendant’s land, thereby easting the water upon the highway and into ditches alongside thereof, making the said highway muddy, sticky, and at times impassable. Judgment for damages was also asked, and a mandatory writ was demanded for the removal of the obstruction.

— Hon. A. B. Thornell, Judge. Action to recover damages for delay in shipment and delivery of perishable freight. Judgment for the plaintiff. Defendant appeals.

<p>Sales: liability por purchase price: evidence. In this action to 1 recover the purchase price of a team of horses the evidence is held to require submission of the question whether defendants bought the team direetly from plaintiff, or whether they merely guaranteed payment therefor by another.</p> <p>Same: evidence. Where plaintiff claimed that defendants were di2 reetly responsible to him for the price of a team, of horses whieh he delivered to another, evidence that he knew the other party to be a man who did not meet his obligations was admissible to show why he did not deal direetly with such party rather than with defendants.</p> <p>Same: statute op prauds: oral evidence. Where the purchasers of 3 a team under an oral contract directed its delivery to another, the delivery to such party took the contract out of the statute of frauds; and evidence of the sale was admissible although there was no written memorandum.</p> <p>Statute of frauds. A promise resting upon a new consideration be' 4 tween the parties, thus giving to the promisor some new advantage, is an original undertaking and is not within the statute of frauds; although the promise is to discharge the debt of another.</p> <p>Sales: evidence: instruction. Where" it was claimed by plaintiff 5 that he sold a team direct to defendants, and by defendants that the sale was to another, they simply guaranteeing payment therefor to the extent to which they should become indebted to such claimed purchaser, an instruction that the only issue in the case was whether defendants were the purchasers was not erroneous as being an undue restriction of the issues; as that was the only fact question in the case, hnd proof that defendants simply guaranteed payment of the debt "would defeat recovery against them.</p>

<p>Assault and battery: evidence. In this action for damages for assault 1 and battery the evidence is held to present a ease for the jury.</p> <p>Same. A witness who visited plaintiff the day following an alleged 2 assault and battery was competent to testify that she said she was not feeling well; as there was nothing in the statement tending to give a reason for her condition, or to explain the alleged assault.</p> <p>Same: self-defense: instruction. When one- has been assaulted 3 he may use such force in repelling the attack as then appears reasonably necessary to protect himself from imminent injury; the instruction in the instant case restricting defendant to the use of necessary force, rather than such as appeared to be reasonably necessary, was erroneous.</p> <p>Same. The right of self-defense arises when one has been assaulted; 4 and when such defense is in the ease the court should properly instruct thereon, even though no request was made, a failure to do which constitutes error.</p> <p>Same: conflicting instructions. Where the court instructed that 5 the burden was on plaintiff to show that she was assaulted when upon the public highway and in the peace of the state, the further instruction that the undisputed evidence showed that plaintiff was trespassing upon defendant’s premises, and illegally carrying a revolver on the Sabbath, and which permitted recovery without proof of the facts required in the former instruction, was conflicting and erroneous.</p>

<p>Criminal law: adultery: commencement of prosecution. Where 1 the information charging a husband with adultery was signed and sworn to by the wife the prosecution was commenced on'her complaint. Evidence held to support a finding that the wife knowingly signed the information in the instant case.</p> <p>Same: evidence. Evidence held sufficient to connect defendant with 2 commission of the crime of adultery and to take the issue to the jury-</p>

— Hon. C. B. Bobbins, Judge. Appeal by Frank S. Skinner from a judgment holding him liable on a contract of guaranty; and appeal by the Merchants ’ National Bank of Cedar Bapids, from a judgment finding C. A. Bosemond not liable, as guarantor.

<p>Appeal from Des Homes District Court. — Hon. W. S. With-row, Judge.</p> <p>Contest over the probating of a will.</p>

<p>Estates of decedents: claims: allowance: evidence. In this pro-1 ceeding to establish a claim against an estate the evidence while in conflict, is held to be sufficient to support the order of the trial court allowing the same.</p> <p>Same: evidence: transactions with a decedent. Where it ap2 peared that decedent came into possession of funds belonging to claimant in his absence and through another, the testimony of claimant as to the amount received by decedent was not objectionable under section 4604 Code.</p> <p>Same: claims: interest. A claim once allowed with the approval 3 of the administrator should draw legal interest from that date, even though the allowance was set aside at the instance of an interested party and afterward re-established.</p>

— Hon. Lorin N. Hays, Judge. Thi¿ action, as here presented, is on defendants’ cross-petition, in which they seek to recover, from the plaintiff, certain moneys belonging to the estate of Carl Aschan, claimed to have been wrongfully obtained by the plaintiff from, the defendants under an order of court, procured through the fraud of the plaintiff in representing himself to be one of the heirs of the estate. Decree dismissing defendants’ cross-petition. Defendants appeal.