Volume 165 — Iowa Reports

— Hon. B. P. Howell, Judge. Action for damages, based upon negligence resulting in death of plaintiff’s decedent. Trial to a jury, resulting in a verdict for plaintiff. Defendant appeals. —

— Hon. R M. Wright, Judge. Action for libel. From ruling and judgment for costs on motion to strike amended and substituted petition, the plaintiff appeals. —

— Hon. W. H. McHenry, Judge. The controversy is over about one mile of railway extending from Sixteenth or Farnham street to Twenty-eighth street in the city of Des Moines. The plaintiff alleged that it was entitled thereto as a part of the property and franchise purchased by it of the Des Moines, Northern & Western Railroad Company, and which the latter conveyed to it about May 1, 1899, and a correction deed several years later.

— Hon. O. D. Wheeler, Judge. Combined action in equity and' proceedings in garnishment seeking to hold defendant, Anderson, as purchaser under a conveyance of real estate claimed to be fraudulent as to creditors. From a decree and judgment against the defendant he appeals. —

— Hon. C. GL Lee, Judge. Action in equity to declare the conveyance of certain lands to be a mortgage, and to permit plaintiff to redeem therefrom. It is also prayed that defendants be required to account for rents and profits of said lands. There was a trial to the court, and decree for the plaintiff, permitting him to redeem, and finding defendants chargeable with certain rents and profits. From the granting of this relief, the defendants Colby have appealed.

— ITon. Thomas Arthur, Judge. Action for damages based upon fraud in tbe sale of real estate. From a directed verdict against plaintiff, he appeals. —

— Hon. Lawrence De Grape, Judge. Action by the maker and guarantor of two promissory notes to cancel the same. Defendants answered, denying the allegations of the petition, and filed counterclaims, in which they asked judgments on the notes. On the issues joined, the case was tried to the court, resulting in a decree dismissing plaintiff’s petition, and giving the bank judgment on its notes, but refusing relief to the bank on the accounting.

— Hon. C. H. Kelley, Judge. Action for damages based upon alleged negligence of the defendant.’ The trial court directed a verdict for the defendant, and plaintiff appeals. —

— Hon. D. M. Anderson, Judge. The trial court found that the petition of general consent to sell intoxicating liquor was insufficient. Defendants appeal. —

<p>Appeal from Greene District Court. — Hon. F. M. Powers, Judge.</p> <p>Appeal from assessment of benefits resulting from tbe establishing of a drainage district. —</p>

— Hon. R. P. Howell, Judge. Action by an administratrix to recover a balance claimed to be due on the sale of the land made by her as administratrix for the purpose of paying the debts of the estate.

— Hon. A. B. Thornell, Judge. Defendant was indicted, tried, and convicted of tbe crime of breaking and entering, and, from the judgment imposed, appeals. —

— Hon. R. P. Howell, Judge. Action by plaintiffs for an agreed share in the profits of a real estate transaction. The executors of the estate who conveyed the land intervened, claiming said profits. Judgment was entered dismissing the petition of intervention, and in favor of plaintiffs for one-third of the profits realized in the transaction. The defendant and interveners appeal. —

— Hon. W. S. Hamilton, Judge. Action at law to recover damages alleged to have been occasioned to plaintiff’s property by fire set out by a locomotive on the defendant’s railway. Judgment for plaintiff, and defendant appeals. —

— Hon. Wm. Hutchinson, Judge. On September 17, 1910, Wilbur F. Knowles and wife executed to plaintiff their promissory note in words following: “$4,500. Sioux City, Iowa, September 17,1910. Five years after date we promise to pay to the order of Mary A. Johns Keene, four thousand five hundred dollars, for value received, negotiable and payable without defalcation or discount and with interest from date at the rate of four per cent, per annum, until paid. Wilbur F. Knowles.

— Hon. D. M. Anderson, Judge. Dependant was indicted, charged with the crime of assault with intent to commit murder, was convicted of assault with intent to inflict a great bodily injury, and appeals.—

— Hon. David Mould, Judge. Action to restrain a copartnership firm, and the individual members thereof, from engaging in the marble and monument business in Sioux City and vicinity, and for damages for alleged violation of contract not to engage in said business entered into by the said copartnership firm and the appellants. There was a trial, at the conclusion of which the petition of plaintiffs was dismissed, and they appeal. —

— Hon. W. S. Hamilton, Judge. Action for damages for alleged wrongful dispossession of the plaintiff Grimsley from certain real estate. At the close of the plaintiff’s evidence, there was a directed verdict for the defendant. The plaintiff appeals. —

— F. O. Ellison, Judge. Action for damages because of deceit alleged to have been practiced by defendants resulted in a judgment against them. They appeal. —

— Hon. Z. A. Church, Judge. This action was begun at law to recover from defendant a large sum of money alleged to have been paid' by plaintiff to defendant for intoxicating liquors sold to him in violation of law. The action was brought in Carroll county, and there tried in 1905, resulting in a verdict for the defendant. This verdict was set aside, and new trial ordered, a ruling which was affirmed on appeal. See 138 Iowa, 138.

<p>Appeal from Madison District Court. — Hon. J. H. Applegate, Judge.</p> <p>Appeal by Mary A. Nolan from judgment against her on promissory notes. —</p>

<p>Eeplevin: damages: prejudice. Where the court in entering judgment limited the verdict for defendant in replevin to the value of the property with interest from the date plaintiff took possession thereof, the fact that the court authorized a recovery of damages for the detention of the. property, rather than legal interest upon its value from the date it was taken was not prejudicial, if erroneous.</p>

- — Hon. John F. Talbott, Judge. Proceeding to vacate an order denying probate to the last will of Larkin E. Zachary. From a judgment against them denying such, the petitioners appeal. —

— Hon. W. H. Fahey, Judge. Action on a promissory note, made by defendant to S. W. Stark, and by the payee assigned to plaintiff. Defense, failure of consideration, and fraud in the inception of the note. Plaintiff in reply alleged that he was a bona fide holder for value and that the note was not subject in his hands, to the defenses pleaded.

— Hon. O. D. Wheeler, Judge. Action against a treasurer on his bond to recover money in his hands, as treasurer, belonging to the county. Held: that the contract on which the warrant was issued was ultra vires; that, before the payment of the money by the treasurer, the contract was rescinded, by resolution' of the board and the treasurer directed not to pay the warrant, and this before the money was paid. Judgment and decree for the plaintiff. —

— Hon. F. D. Letts, Judge. Action for malpractice. Defendant admitted he was a physician and surgeon, and that he treated plaintiff, but denied all allegations of negligence, and pleaded the statute of limitations. The case was tried to a jury, resulting in a directed verdict for defendant, and plaintiff appeals. —

— Hon. J. H. Applegate, Judge. Action for damages based upon negligence. From a verdict directed against him, the plaintiff appeals. —

<p>Appeal from Polk District Court. — Hon. Hugh Brennan, Judge.</p> <p>Action for divorce. Decree for plaintiff, and defendant appeals. —</p>

<p>Real property: contracts: consideration: validity. Following a district court decree giving plaintiff a one-sixth interest in her father’s estate and ordering partition, the plaintiff and defendant entered into a joint agreement to purchase the property, plaintiff to have a one-sixth and defendant a five-sixths interest. Pending an appeal from the deeree of the district court plaintiff transferred her interest in the estate and all rights under the purchase to defendant, and he gave her back a contract in which he agreed to reconvey to her the one-sixth interest upon being reimbursed his expenses. On the appeal, of which defendant had knowledge, the cause was reversed and plaintiff’s one-sixth interest in the property under the deeree terminated. Held, that plaintiff acquired a one-sixth interest by virtue of her contract with defendant and of the purchase at the partition sale, notwithstanding the reversal of the deeree, and that the contract was not void for misrepresentation or failure of consideration, and that upon reimbursing defendant plaintiff was entitled to a reconveyance of the one-sixth interest "under the contract.</p>

<p>1 Payment by mistake: recovery. Where a vendor of land received more than the agreed purchase price, by reason of a failure to deduct from the price a sufficient sum to cover the interest due at the time of settlement upon a mortgage which the purchaser assumed, the purchaser can recover the excess amount thus paid through mistake in an action at law for that purpose; he is not restricted to his remedy upon the deed.</p> <p>2 Conveyances: consideration: parol evidence. The actual consideration for the purchase of property may be inquired into regardless of the recitals in the deed.</p>

— Hon. R. M. Wright, Judge. Action at law to recover on an account for work and labor done for defendant: Verdict and judgment for plaintiff, and defendant appeals. —

— Hon. W. H. McHenry, Judge. Action in equity to construe the will of J. F. Robbins, deceased, and to define and establish the rights of the plaintiff, his widow, under said will and under a certain antenuptial contract made between herself and the testator. From the finding of the district court, the plaintiff appeals. —

<p>1 Sales: performance: delivery through others. Plaintiff, a wholesaler of oils, received orders from defendant and filled the same through another company, which made the shipment direet to defendants, charging the plaintiff with the amounts of the consignments. Held, that the transaction did not amount to an assignment or rejection of the orders by plaintiff but to an acceptance and fulfillment of its obligations through the other parties.</p> <p>2 Same: contract: acceptance of order. An order for goods is not binding upon the parties until it has been accepted by the seller, but such acceptance need not be by express words; it may be shown by the acts of the seller done on the faith of the order, as shipment of the goods.</p> <p>3 Same: pleadings: issues. Where the answer in an action for the price of goods ordered simply alleged that plaintiff did not deliver the goods no issue regarding an acceptance of the order was thus raised.</p> <p>4 Same: performance of contract: delivery. Where an order for goods contains a direction for delivery at the town where the business of the buyer is conducted, with no more definite place designated, it is the general rule that delivery in the general receiving yards in the town and notification to the buyer is sufficient.</p> <p>5 Same: instruction. The instruction that the written orders provided for shipment of two ears, specifying the price, was not objectionable because using the word ‘ ‘ provided; ” as the orders in fact did so provide.</p>

<p>1 Eeal property: contract of sale: fraud: evidence. In this action to eaneel a contract for the sale of land and for other relief, because of alleged misrepresentation in the number of acres and reliance thereon by plaintiff, the evidence is reviewed and held to support plaintiff’s contention.</p> <p>2 Same: rescission: tender. Ordinarily a contract cannot be rescinded without tendering back the consideration; but where the plaintiff only asked rescission in ease defendant could not convey the land he contracted to sell he in effeet placed the title in the hands of the court, subject to whatever finding the court might make under the facts, and there was a sufficient offer to return.</p> <p>3 Same: rescission: judgment. Where the contract in suit was can-celled and judgment entered for plaintiff for the full amount of the consideration, including the amount of an unpaid portion of the purchase price, which plaintiff secured by notes and a mortgage back on the land, the decree should provide for release of the judgment to the amount of the mortgage indebtedness, upon payment of the same by defendant, and surrender'of the notes which plaintiff gave.</p>

— Hon. William Theophilus, Judge. Trial upon an indictment for murder. From a verdict and judgment of conviction of manslaughter, the defendant appeals. —

— Hon. W. S. Withrow, Judge. Action to condemn certain land to the use of Mt. Pleasant, to supply that city with water and fire protection. The city appeals.

<p>1 Master and servant: negligence: safe place and appliances. It is the duty of an employer to furnish his servant a safe place to work, and the same rule applies with respect to appliances which he furnishes for carrying on the work; the test of liability being whether the employer furnished the structure or appliance, or whether it was so incident to and inherent in the work itself as to relieve the employer of such duty and plaee the burden on the servant to make the plaee or appliance safe.</p> <p>2 Same: negligence: vice-principal: liability of master. A plank runway constructed under the direction of the boss carpenter acting for the employer, and used by plaintiff in wheeling brick to the mason was a place or appliance which it was the employer’s duty to make reasonably safe, and he was liable for the negligence of the carpenter in failing to perform this duty.</p> <p>3 Same: instruction: vice-principal. There was some dispute in the evidence regarding the relations of the employer and his servants who constructed the runway, and an instruction authorizing the jury to determine whether it was the employer’s duty to furnish the runway, and if so it was his duty to make the plaee safe, was not objectionable as submitting a question of law.</p> <p>4 Same: contributory negligence. The mere fact that plaintiff testified that he could notice a dangerous condition in a similar appliance used upon the trial as illustrating the one in question was not conclusive on the question of his contributory negligence, as it ignored the faet that when using the runway he was pushing a loaded wheelbarrow, which obscured his view, and that upon other runways used by him there was no similar dangerous conditions.</p> <p>5 Same: assumption of risk: submission of issue. Where the evidenee is such that different conclusions may fairly be drawn regarding an employee’s assumption of risks incident to his employment the issue is for the jury.</p> <p>6 Same: assumption of risk: instruction. The danger which charges a servant with assumption of risk is such as is obvious; but where plaintiff was wheeling brick along a plank runway, in which there was a sudden drop of several inches at the end of one of the planks, an instruction that if plaintiff in the exercise of reasonable care might have seen and appreciated the danger, and such danger was Imminent, he assumed the risk, was not objectionable for using the word imminent.</p> <p>7 Same: contributory negligence: evidence. The plaintiff was properly permitted to state how similar runways had been previously constructed, when limited to the question of contributory negligence.</p> <p>8 Same: negligence: evidence. Where there was no dispute as to the purpose for which the runway in question was constructed, evidence tending to show that it was a mere utility in connection with the construction of the building was immaterial.</p>

<p>1 Mandamus: oppicers: substitution op parties: applicability op pleadings. Where the personnel of the executive council changed pending a suit to compel them as a board of review to reassess and equalize the taxes and to assess public service corporations, only those allegations of the petition whieh were applicable to the newly constituted council were binding upon them; and as the only allegations against the new council were that the old council had elected to stand upon their demurrer to the petition, and that plaintifE would ask judgment, which to be effective would have to run against the new council, there was nothing in the pleading charging the new council with refusal to perform its duty and hence there was no authority to enter judgment against it.</p> <p>2 Same: assessment op property: equalization: duty op executive council. The state board of review is charged simply with equalizing the assessments among the several counties of the state; it has no power of original assessment, except in the assessment of railways and other corporations. The duty of fixing a valuation upon particular pieces of property rests primarily with the assessors.</p> <p>3 Same. The county board of review is charged with the duty of equalizing township and town assessments, but it has no power to raise or lower individual assessments; that duty rests with the township, city or town.</p> <p>4 Same: power op executive council. The power of the Executive Council in the equalization of assessments is not wholly ministerial, but it includes an exercise of judgment and discretion, which will not be interfered with by the courts except for collusion or fraud.</p>

— ITon. Charles S. Bradshaw, Judge. ' Action to recover damages for injuries sustained by plaintiff, Leonard Ashbach, due to the alleged negligence of defendant in operating some of its appliances in a public street in the city of Des Moines without maintaining a guard or giving warning to those who might come in contact therewith.

— Hon. C. H. Kelley, Judge. Action to recover damages for injuries occasioned on a public street, alleged to bave resulted from negligence of the defendant in permitting obstructions to a line of public travel. From a verdict and judgment against plaintiff, he appeals.—

<p>1 Fraud in the purchase of land: negligence: instructions. One about to purchase real property who looks it over manifestly with-a view of ascertaining its value and desirability, is held to the exercise of ordinary care in so doing; and if he fails to exercise that degree of care under all the crcumstances he cannot be heard to complain of his bargain. The instruction in the instant case in effect relieving plaintiff of responsibility for his negligence unless grossly careless was erroneous.</p> <p>2 Same-: measure of damages. The measure of damages for the fraudu-</p> <p>lent representation of the value of land, when amounting to fraud, is the difference between the fair market value of the same as it was in fact, and its value if in all respects as represented. The instruction involved announced the correct rule.</p> <p>3 Same: fraud: conspiracy: instructions. Where conspiracy is charged in connection with an alleged fraud for the purpose of fixing responsibility upon all the defendants, and the court properly submitted this question, further differentiation in the instructions between actions of fraud and conspiracy was not necessary.</p> <p>4 Same: representations of value. Representations regarding the value of property, which are generally expressions of opinion do not as a rule constitute fraud, but they may be made under such circumstances as to amount to fraud.</p>

<p>1 Mortgages: absolute deed: parol evidence: pleadings. Parol evidence is not admissible to establish a trust, mortgage or power in relation to real estate, but it is competent to show by parol that a deed absolute on its face was intended as a mortgage. In this action for an accounting and to redeem from an absolute deed the petition alleged a conveyance by a partnership to seeure a debt, and although pleading a reconveyance to one of the partners, it alleged continued possession of the grantee under the original deed for the purpose of realizing the amount of the debt, and that the partner to whom reconveyed made no conveyance, but that the original grantee conveyed to another. Seld, on demurrer not to show that plaintiff’s rights rested entirely in parol, but rather that the reconveyance never became effective, and as the original grantee and those claiming under him rested upon the original deed, they were bound by the terms and conditions upon which it was accepted.</p> <p>2 Same. The petition also alleged that the original grantee went into possession under an oral agreement to apply the income from the land to the satisfaction of the partnership debt. It also pleaded a subsequent written agreement between the surviving partner and the grantee, reciting the giving of certain notes by the surviving partner in full settlement, discharge and release of all partnership matters; the giving of collateral security for the notes; that the same were given in renewal of the balance due from the partnership; and that the grantee thereafter claimed the land as security for the notes; but this agreement did not expressly release any security or show whether the land was considered in the settlement, or that there was any question concerning an accounting for the income therefrom. Held, that those matters wherein the contract was incomplete or ambiguous were susceptible of explanation, and that it could not be said as a matter of law that the petition did not show a novation of the previous partnership indebtedness, satisfaction and adjustment of all matters between the parties.</p> <p>3 Same: accounting: limitation of actions. If any statute of limitations is applicable to an action for an accounting by a mortgagee in possession'it is the ten year statute, which applies to written contracts; but so long as any part of the debt secured remains unpaid and enforceable the statute does not run against such an action.</p> <p>4 Mortgages: possession by mortgagee: adverse possession. Where the grantee in a deed given as security for a debt was in possession by consent, and the grantor had no knowledge of a subsequent conveyance by the grantee until it was recorded, after which the title was in dispute until the commencement of an action to redeem, the doctrine of adverse possession has no application.</p> <p>5 Equity: laches: how determined. The question of laches is one of mixed law and fact, which cannot be determined upon demurrer, unless reasonably apparent that the delay was without excuse and in some manner prejudicial.</p>

— Hon. C. H. Kellt, Judge. Action to foreclose a mortgage given by Albert A. Brackey upon lands devised to him by one Alf. T. Brackey. A special administrator of the estate of Alf. T. Brackey claimed that a judgment held by him against Albert A. Brackey for money converted by him, although rendered after the execution of the mortgage to plaintiff, was a prior lien. The trial court found that the judgment was entitled to priority, and plaintiff appeals.

— Hon. C. H. Kelly, Judge. Action at law by an employee of defendant company, to recover damage for personal injuries received by Mm in falling into a scale pit wMcb it claimed defendant left open and unbarrieaded about the place where plaintiff was working. Trial to a jury. Verdict and judgment for plaintiff in the sum of $6,000, and defendant appeals. —

<p>1 Express trusts. tTucler the provisions of the statute an express trust must be evidenced in writing.</p> <p>2 Trusts: husband and wins: trustee ex maleficio. Where a wife procured a conveyance of land from her husband upon the promise that she would hold the title until his death and would then pay a specified sum to his children by a former wife, but had no intention at the time of so doing, and she thereafter made a voluntary conveyance of the property to her own children and repudiated the promise, she became a trustee ex maMficio: and her children having paid nothing for the conveyance stood in no better position that she did.</p>

<p>Municipal corporations: street lines: rights op abutting owner. Where the original construction of a sidewalk by an abutting property owner was in compliance with an order of the town council, and for a long series of years it remained in that place without objection on the part of the municipality, and the abutting owner occupied and improved his property up to the walk, before the municipality can dispossess the owner of his property on the claim that he is occupying part of the street, the public right thereto must be established by clear and unequivocal testimony.</p>

— Hon. O. D. Wheeler, Judge. Action for alleged deceit resulted in a directed verdict for defendant and judgment thereon. The plaintiff appeals.

— Hon. A. B. Thornell, Judge. Action at law against the defendant as an alleged co-surety, to recover contribution; the plaintiff, as alleged, having paid the principal's debt. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. —

<p>Landlord and tenant: reformation of lease : sufficiency of evidence. In this action for reformation of a lease for one year with a privilege of renewal, and to terminate the tenancy, the evidence is held insufficient to show that the instrument should have contained a provision making the extension of the term depend upon plaintiff’s satisfaction with defendant as a tenant, but rather that she consented to the extension and later beeame dissatisfied and sought to oust him. Upon the whole case plaintiff was not entitled to reformation, or to double rental; that whatever right she had to object to the extension had been waived, and that defendant must be regarded as holding under the lease, by which the rights and liabilities of the parties must be determined.</p>

<p>1 Mines and mining: negligence: assumption op bisk: evidence. Ordinarily one engaged in completing an entry to a mine assumes the risk of dangers which develop as the work progresses;' but where it appeared that the pit boss was authorized to and did direct the plaintiff how to perform the work, and the evidence showed he was ordered to ‘‘ brush ’ ’ the roof without timbering the same until the brushing was completed, and that in doing so he did omit to timber as directed (though this was in dispute) until the brushing was completed, and that the omission to timber as the work progressed might have been the proximate cause of the fall of slate which injured plaintiff, the question of defendant’s negligence was for the jury.</p> <p>2 Same: contbibutoby negligence. Where a pit boss authorized to direct plaintiff in his work ordered him to “brush” the roof of a mine entry without propping the same until the work of brushing was completed, he had the right to assume that the work might be safely done in the manner directed by his superior, unless obviously dangerous, or as an ordinarily prudent man he must have known better; and it was a question for the jury to say whether acting as an ordinarily cautious person he ought to have proceeded with the work as directed.</p> <p>3 Same. Where plaintiff, an experienced miner, was directed by his superior to “brush” a mine entry without timbering the same until the brushing was completed, the foreman, in directing the work, was not bound to enter into details, but had the right to assume that plaintiff would observe the customary precautions for his own safety, such as testing the roof for loose slate.</p> <p>4 Same: burden of proof. The burden of proving freedom from eontributory negligence was upon the plaintiff, and by not showing that he took the eustomary precaution for testing the roof of the entry for loose slate, which fell, causing his injury, he failed to negative his own negligence as a contributing cause of his injury.</p>

— Hon. Milo P. Smith, Judge. Action to recover damages for injuries sustained by plaintiff’s minor son upon a sidewalk in the defendant city. A demurrer to the petition was sustained, and plaintiff appeals. —

— Hon. Robert Bonson, Judge. Action on a promissory note for the sum of $500, dated March 6, 1891, and due on or before thirty years from date. It is signed by Ann Noyes, and provides that it was for the Conference Endowment fund. The administrator pleaded that the note was without consideration, and the claim was also denied. The ease was tried to the court, and the note was disallowed. Plaintiff appeals. —

— Hon. C. G. Lee, Judge. Action upon a benefit certificate for $1,000 of insurance issued by the defendant as a fraternal beneficiary society. Plaintiff filed a demurrer to the defendant's answer, which was sustained. The defendant refusing to plead over, a judgment for plaintiff was entered as prayed. The defendant appeals. —

<p>1 Wills: probate: contest: attorneys pees. The expense incurred by an executor for attorney’s fees in the probate and contest of a will are not to be treated as debts of the estate, but are ehargable primarily against the executor or other person employing the at torneys.</p> <p>2 Same: exemptions: rights op widow. The exempt personal property of a decedent should be set apart as exempt to his widow; and the expenses of the last sickness and burial of deceased, together with the allowance made by the court for the maintenance of the widow and minor children during the year for administration, should be paid from the remaining personalty.</p> <p>3 Same: contest: expenses: liability op widow’s share. A widow who has no interest in the estate of her deceased husband, except her statutory one-third thereof, has no such interest in his will as to entitle her to contest its validity; and while compensation for legal services incident to a settlement of the estate, aside from the expenses of a contest, should be included in the expenses of administration, the widow’s one-third should not be charged with any part of the expense incurred in contesting the will to which she was not a party and in no manner interested.</p> <p>4 Same: attorney’s pees: liability op executor. Any contract for the payment of attorney’s fees in the probate and contest of a will, made by one simply designated in the will as executor, is to be regarded as his personal obligation, until he has been legally appointed, qualified and the same has been allowed to him upon a judicial settlement of the estate.</p> <p>5 Same: expenses op probate. The necessary expenses in determining whether the property of an estate is to be distributed according to the terms of a paper purporting to be the will of deceased, or according to the statutes of descent, are properly chargeable to the estate; but in ease of a contest between beneficiaries the disposition of the costs is not always governed by the above rule.</p> <p>6 Same: contest: taxation of attorney’s fees. The expense for attorney’s fees in a will contest should be taxed against the paities primarily benefitted, and usually this will result in charging the expense incurred by proponents against the estate where they are successful. But where some of the beneficiaries are greatly benefitted by establishing the will and those contesting are correspondingly injured, the expense for attorney’s fees should not be taxed wholly against the estate.</p> <p>7 Same. Where the guardian of a divisee of most of the estate joined with the executors, who presented the will for probate, and both were represented by the same attorneys in a contest of the will, the expense of such attorney’s services should be taxed against the beneficiaries interest in the estate, as the real party in interest.</p>

— Hon. Lawrence De Grape, Judge. Action to recover damages based upon the charge of conspiracy and unfair trade. From a verdict and judgment against the Standard Oil Company, it appeals. —

— Hon. Thomas Arthur, Judge. Action to recover on a contract in which it is claimed that the defendant agreed to reimburse plaintiff for all losses which plaintiff sustained by reason of the failure of certain seed com purchased by plaintiff, a retailer, from the defendant, to meet defendant’s warranty that it was fit for the purposes for which it was sold. —

- — -Hon. F. M. Powers, Judge. Action to recover from defendant the amount of a judgment rendered against plaintiff, with interest, costs, expenses, and attorney’s fees, in an action brought against plaintiff by one Lee J. Chapman, which judgment, with interest, etc., plaintiffs paid, and they seek indemnity from defendant because of its (defendant’s)' wrong in selling it a barrel of kerosene which was dangerous, in that it contained a large percentage of gasoline.

<p>1 Judgments: conclusiveness. A judgment, whether foreign or domestic, is conclusive upon the parties as to every issue which was or should or might have been raised in the case; except as to a counterclaim whieh might have been interposed .in the main case, or if pleaded was dismissed without prejudice.</p> <p>2 Actions: counterclaim. A pure defense to an action is one denying plaintiff’s right to recover at all, or asserting a discharge of liability; while a counterclaim is a cause of action in favor of defendant and against the plaintiff, whieh may arise out of and be connected with the subject matter of plaintiff’s action, or it may be a distinct cause of action, provided it might have been maintained when suit was brought by plaintiff, or which ivas then held by defendant whether matured or not, if matured when pleaded.</p> <p>3 Same: fraud as a counterclaim. A counterclaim for fraud and deceit in the sale of land may be interposed in an action to foreclose a mortgage on the land given by the purchaser as part of the purchase price.</p> <p>4 Same: limitations: setoff. A counterclaim, though barred as an independent cause of action, may be interposed as a setoff to plaintiff’s claim to the amount of his claim.</p> <p>5 Pleadings: fraud: judgments: conclusiveness. Where an administrator in a suit upon a foreign judgment pleaded that the judgment was for part of the purchase price of land whieh defendant was fraudulently induced to purchase, asked damages and that the amount thereof be setofl! against the amount of the judgment, the fraud thus pleaded was not as a defense to the action but as a setoff, and was not concluded by the original suit.</p> <p>6 Action for fraud: foreign laws: counterclaim. In the absence of proof to the contrary the laws of a foreign state will be presumed to be the same as of this state; and under the law of this state an action for breach of warranty, or for fraud and deceit, may be pleaded in defense of the main suit, by counterclaim, or the defendant may reserve the same for a future action. Thus the recovery of judgment for the purchase price of land will not prevent the buyer from subsequently bringing an action for fraud in the sale, unless he has actually tendered that issue in the main suit.</p>

<p>1 Landlord and tenant: subrender op lease: action por rent: timeliness. A tenant sold part of tlie property which was subject to the landlord’s Hen for rent to defendant,, and afterwards plaintiff took an assignment of the lease and of the landlord’s claim for damages against the defendant for the property sold. After the sale to defendant the tenant absconded leaving his wife in possession, and the landlord then procured the wife’s signature to the lease and a surrender of the premises from her without the husband’s consent. Within six months from the time of expiration of the lease, as provided by the terms of the written instrument, but more than six months after the wife surrendered ■ the premises, the plaintiff brought an action against defendant for damages for the wrongful purchase of the property and defendant set up the fact that the wife’s surrender terminated the lease and the action was not timely. Held, that as between the parties to this suit the wife’s signature to the lease was immaterial: that the surrender by her without the husband’s consent did not cancel the lease: that the action was timely as it was brought within six months after the expiration of the lease as provided by the written terms thereof; that seetion 2993 of the Code, which provides that by commencing the action within the prescribed time the landlord is entitled to an attachment upon the filing of the petition, does not conflict with Seetion 3514, which provides that an aetion is begun by the service of the notice.</p> <p>2 Same: instructions. Where it appeared in an aetion by the assignee of a lease against defendant, who was the purchaser of property which was subject to a landlord's lien for rent, that the assignee also held a chattel mortgage lien on some of the property subject to the landlord's lien, an instruction that the plaintiff might first exhaust the mortgaged property in payment of the mortgage debt, and if the remainder of the property left by the tenant was insufficient to satisfy the demand for the rent an aetion would lie against the defendant for the remainder, to the extent of the value of the property which he obtained from the tenant, even if erroneous, was without prejudice; as the record shows that the jury returned a special finding that all the property taken by the landlord or seized under the writ was insufficient to pay the rent.</p>

— Hon. C. A. Dudley, Judge. Action in mandamus to require defendant, as custodian of the State House to restore plaintiff to a position to which he has been appointed under the Soldier’s Preference Law, and to recover damages for a wrongful discharge. Decree and judgment for the plaintiff. Defendant appeals.—

— Hon. A. N. Hobson, Judge. This is a habeas corpus proceeding. The plaintiff herein is defendant in a criminal case and is in the custody of the defendant herein, as sheriff, under arrest in such criminal case. In this proceeding, the plaintiff challenges the validity of his arrest and of all other proceedings in the criminal case against him on the ground that they are based upon an unconstitutional statute.

<p>1 Fraud in the purchase of land: conflicting evidence: verdict: conclusiveness. Where the plaintiff alleged, and his evidence tended to show, that plaintiff and defendant entered into an agreement to purchase land jointly, and that defendant represented to plaintiff that the actual cost of the land was a certain sum, one half of which he paid, when in fact the price was much less, the issue ,of fraud was for the jury, although plaintiff’s evidence was denied by defendant; and a verdict for plaintiff based thereon will not be set aside, in the absence of a showing of prejudice. Evidence held to support the vérdict ior plaintiff.</p> <p>2 Same: fraud: instruction. . Where the issue in an- action for fraud in the purchase of land ■ was whether plaintiff and defendants purchased it as a joint venture under an agreement to that effect; or whether defendants purchased it and sold plaintiff a half interest, misrepresenting to him the cost price, an instruction calling attention to the partnership agreement, the cost as represented by defendants and plaintiff’s reliance thereon, and the actual cost, and advising that plaintiff must establish all of these facts by a preponderance of the evidence, was sufficient, without instructing upon the law with respect to deceit and false representation; especially in the absence of a request for such instruction.</p> <p>3 Same: false representations: negligence of plaintiff as defense. Where land was purchased under a partnership agreement it was the duty of defendants to disclose to plaintiff the exact truth as to the cost of the property; and that plaintiff was negligent in believing their statements was no defense to an action against them for fraudulently representing the cost.</p> <p>4 Same: false representations: pleadings. Where plaintiff and defendants purchased land under an agreement providing for an equal interest and mutual profit, defendants were bound to account to plaintiff for money received of him in excess of his proportionate share of the actual cost; and in an action to recover such excess it was not necessary for plaintiff to allege in terms that the misrepresentations of defendants as to the cost were false and Known to them to be false.</p>

<p>Appeal from Pottawattamie District Court. — IIon. A. B. Thornell, 'Judge.</p> <p>Action at law to recover an amount of interest alleged to have become due and payable to plaintiff upon certain promissory notes and renewals thereof. There was a trial to a jury, and verdict and judgment for defendant. .Plaintiff appeals. —</p>

<p>1 Evidence: intention: independent occupation: abandonment. Where it is material to prove the intention of a person evidence that such person had expressed an intention relative to the subject at that time is competent on the question of his intention. Thus in an action for the death of a married woman, in which the issue of her independent occupation was involved, evidence that decedent, who had been a professional nurse previous to her marriage, had expressed the intention of still engaging in that occupation if her husband was willing, and that she retained her equipment and wore her nurse’s pin was admissible, on the question of whether she had abandoned that occupation as a separate and independent employment.</p> <p>2 Negligent death of married woman: injury to her estate: right op action. Under the statutes of this state a married woman may engage in a separate business and control her own earnings the same as though unmarried; and in such case her administrator has a cause of action against one negligently causing her death for injury to her estate.</p> <p>3 Same: separate estate: evidence. At common law the services of a housewife or homekeeper belong to her husband, and her administrator could maintain no action for the benefit of her estate because of her negligent death; and such rule governs the instant case, in the absence of a separate and independent occupation. - But the mere fact that at the time of her death she was not actively engaged in a profession that she had followed previous to her marriage, or the possibility that she might never have resumed such occupation, though material on the question of damages for her wrongful death, would not as a matter of law preclude her administrator from maintaining an action for the benefit of her estate. Under the evidence in this ease the question of whether decedent would have resumed her previous occupation as a nurse was for the jury.</p> <p>4 Same: separate occupation: consent op husband. In view of the statutes of this state removing the legal disabilities of married women so as to permit them to engage in an independent business, it is not necessary that consent of the husband to sueh independent business or occupation be shown before the wife’s earning capacity can be considered, at affecting a recovery for her injury and death for the benefit of her estate.</p> <p>5 Same: evidence: photographs: discretion. The admission of photographs in evidence is a matter addressed largely to the sound discretion of the court, and in the absence of an abuse of such discretion the court’s ruling will not be disturbed on appeal. The admission of deceased’s photograph, in which she was dressed as a nurse, an occupation which she followed prior to her marriage, was not reversible error, in an action by her administrator for her negligent death.</p> <p>6 Same. Where the answer denied the allegations of plaintiff’s petition that deceased was a trained nurse the introduction of a photograph showing that she wore the distinctive garb of her profession was proper, as evidence that she was actually engaged in such occupation.</p> <p>7 Damages: excessive verdict. A verdict for $9,500 for the negligent death of a wife having an expectancy of thirty-nine and one-third years, who previous to her marriage was a trained nurse, but who was not then following her profession, and it did not clearly appear that she thus intended to create a separate estate, was excessive and is reduced to $4,000.</p>

— Hon. D. M. Anderson, Juflge. Proceeding to enjoin the collection of taxes for school purposes upon territory alleged to be not within the school district. From a decree in favor of plaintiff, the defendants appeal. —

— Hon. M. E. Hutchinson, Judge. Action at law to recover damages on account of the alleged wrongful acts of the defendants in conspiring to alienate from the plaintiff the affections of his wife. There was a verdict and judgment for the plaintiff, and the defendant O. J. Dutton appeals. The facts, so far as material, are stated in the opinion. —