Volume 168 — Iowa Reports

— Hon. W. H. McHenry, Judge. Two informations were filed by a state food and dairy commissioner before a justice of the peace in the two cases, one against the Hutchinson Ice Cream Company and C. J. Hutchinson, Manager, and the other against Sanders Ice Cream Company and L. E. Sanders, President.

— Hon. O. D. Wheeler, Judge. Proceeding for specific performance of a contract to adopt a minor, and to establish the right of the child alleged to have been adopted to share in the property of the parent, who is deceased. Decree was entered for the plaintiff, and defendants appeal.

<p>Appeal from Pottawattamie District Court. — IIon. Thomas Arthur, Judge.</p> <p>Action for the possession of real property, under proceedings in forcible entry and detainer. The trial court awarded possession to the plaintiff, and the defendants appeal.</p>

<p>MASTER AND SERVANT: Negligence Per Se — Violation of Statu1 tory Duty. The violation of a statute imposing a duty is negligence per se.</p> <p>PRINCIPLE APPLIED: One injured by unguarded or insufficiently guarded machinery, under Sec. 4999-a2, Supplement to the Code, 1913, shows prima-faeie right to recovery, to escape which defendant has the burden to show that no guard was practical which was reasonably calculated to prevent accidents.</p> <p>MASTER AND SERVANT: Negligence — Violating Statutory Duty 2 —Custom as Defense. Custom will not justify a departure from the command of a statute.</p> <p>PRINCIPLE APPLIED: Plaintiff was injured in operating an unguarded machine. Defendant sought to show what other like factories did and the custom among them as to guarding like machinery, and as to whether certain additional guards were on the market. Held, incompetent under our Factory Aet, Sec. 4999-a2, Supplement to the Code, 1913, requiring machinery to be guarded.</p> <p>MASTER AND SERVANT: Factory Act — Rights and Duties under— 3 Instructions Law of Case. Instruction, defining rights and duty under Factory Act, Sec. 4999-a2, Supplement to the Code, not excepted to, declared law of the ease.</p> <p>RELEASE: Right to Rescind — Mutual Mistake. A written release 4 of a valuable right or subsisting cause of action may be repudiated on the ground of mutual mistake.</p> <p>PRINCIPLE APPLIED: Plaintiff, having been injured, for a consideration of $30 released defendant, in writing, from all liability, both parties at the time mutually believing that the injuries were only temporary. The injuries proved to be permanent. The release was not really intended as compensation for personal injuries, but for loss of time, but the broad language of the release in fact led the parties into an apparent agreement not intended.</p> <p>RELEASE: Mutual Mistake — Avoidance at Law. The avoidance of 5 a release on the ground of mutual mistake may be had in an action at law.</p> <p>RELEASE: Avoidance — Mutual Mistake — Extent of Proof to Show. 6 Whether instructions in instant case on extent of proof to establish right to avoid required excess of proof from plaintiff, query.</p> <p>RELEASE: Avoidance, Terms of — Return of Consideration Received 7 —When Not Necessary. A release may be avoided for mutual mistake without returning the consideration received for the release, when it appears that the consideration was given to the injured party for known and acknowledged injuries and for nothing else.</p> <p>EVIDENCE: Release — Avoidance—Intention—Consideration. On the 8 question of the right to avoid a release, the consideration therefor may be inquired into as bearing on the intentions of the parties.</p> <p>RELEASE: Avoidance — Mistake as to Injuries — Plaintiff’s Knowl9 edge. On the question of the right to avoid a release for mutual mistake as to the extent of plaintiff’s injuries, he may testify as to what knowledge he had of his injuries and what his physician said to him in relation thereto.</p>

— IIon. Byron W. Preston, Judge. Action in equity to quiet title to real estate by an illegitimate child against the collateral heirs of a decedent. — Reversed.

— Hon. E. B. Woodruff, Judge. Action at law for an alleged slander. Yerdiet and judgment for plaintiff in the sum of $2,500.00, and defendant appeals.

<p>STATUTES: Construction. — Character of Statute — Belated Sections— 1 Implied Meaning Part of Statute. The intent of a statute is the law. In arriving at that intent, the ‘ ‘ character ” of the statute must be kept in view; for instance, whether regulatory 'or prohibitory. With the real character in mind, that which is necessarily implied or assumed in related clauses or sections is as much a part of the law as that which is expressed.</p> <p>PRINCIPLE APPLIED: Chap. 72, Acts 34 G. A., provides, in effect, that every owner of an automobile shall register his vehicle with and pay to the secretary of state an annual fee, and that such officer shall assign to said vehicle a number, and furnish to the owner a certificate to that effect, and “two number plates.” Sections 12 and 22 provide that it shall be a criminal offense to operate said vehicle unless said plates are attached thereto. Held, that the character of the statute was purely regulatory and should be so construed that the owner’s right to operate his vehicle is not impaired by the inability of the secretary of state to furnish the plates — should be so construed that the duty to attach the plates, the owner being free from default, is held in abeyance until the secretary of state is able to, and does, furnish the same, said Section 12 manifestly implying and assuming that the secretary of state has already performed his duty.</p> <p>STATUTES: Construction — Absurdity—Legislative Intent. If the 2 literal construction of a statute leads to absurdity, the court will seek a construction consistent with reason, if possible, and presume such to have been the legislative intent.</p> <p>CONSTITUTIONAL LAW: Moot Case. The constitutionality of a 3 section of law not involved in the case at bar will not be considered.</p> <p>INDICTMENT: Allegation of Time — Variance. The precise time of 4. the commission of an offense need not, ordinarily, be proven as alleged, but the record may be such that the state must stand or fall on the precise date alleged.</p> <p>PRINCIPLE APPLIED: Defendant was accused of having operated an automobile in a certain county, on a certain date, without number plates,thereon. Evidence failed to show he had ever operated his vehicle in the county except on the date alleged. Held, if he was not guilty of committing an offense on the day alleged, he was not guilty of any offense in said county.</p> <p>EVIDENCE: Operating Automobile Without Plates — Non-Default. 5 In order to show that one charged with operating an automobile without number plates .was not in default, the certification of registration of the secretary of state, required by See. 1571-m5, Code Supp., 1913, and the cancelled draft in payment of the fee therefor, are admissible.</p>

<p>APPEAL AND ERROR: Jurisdiction — Finding of Pact — When Con-1 elusive. The findings of fact by the lower court that the person on whom an original notice was served in an action against a corporation was the agent' of such corporation will not be disturbed unless the record shows an entire absence of evidence on which such findings may be reasonably based.</p> <p>RAILROADS — Action Against — Process—Service on Agent — Evidence 2 of Agency. Jurisdiction of a railroad company is secured by service of the original notice on any “agent or person transacting the business’’ of such company, in the county where suit is brought, within the meaning of Section 3529, Sup. Code, 1913.</p> <p>PRINCIPLE APPLIED: For years one Tennis had held himself out and advertised himself in the county where suit was brought, as the agent of the “Erie Railroad Co.” and the “Erie Despatch,” displaying the names of said concerns in his oflich window, and having his name as such agent in the city directory, all of which was known to those who were admittedly the agents of the Erie Railroad Co. The “Erie Despatch” proved to be nothing but a “name” — a means of securing business for “The Erie Railroad Co.,” and allied lines. Held, sufficient to show that Tennis was such agent of the “Erie Railroad Co.,” that jurisdiction of such company would be obtained by service of original notice on such agent under Section 3529, Code Sup., 1913.</p>

— Hon. E. M. Wright, Judge. Action at law to recover damages for tbe death of Eugene Bettinger, who is alleged to have lost his life by the defendant’s negligence. Verdict and judgment for plaintiff and defendants appeal.

— Hon. A. D. Bailie, Judge. This action is a controversy between adjoining landowners over the location of a partition fence. The defendants pleaded acquiescence in a line and adverse possession for more than ten years. There was a decree for the defendants. Plaintiff appeals.

<p>Appeal from Linn District Court. — Hon. Milo P. Smith, . Judge.</p> <p>Action for goods sold resulted in allowing damages on a counterclaim as prayed. Tlie plaintiff appeals.</p>

— Hon. W. H. McHenry, Judge. Action in mandamus to require appellee to canvass and certify an alleged petition purporting to be signed by more than twenty-five per cent of the voters of the city of Des Moines, requesting the passage of an ordinance as provided by Sec. 1056-a37 of the Supplement to the Code.

— Hon. R. M. Wright, Judge. Action at law upon an alleged contract whereby defendant undertook to pay part of the expense of constructing an outlet for drainage of land. The material facts are stated in the petition. There was a verdict and judgment for plaintiff and defendant appeals.

Certiorari from Plymouth District Court. — Hon. ¥m. Hutchinson, Judge. This is a certiorari proceeding in this court to review the action of the defendant as judge of the district court of Plymouth county in certain proceedings pending in such court. The defendant has moved to dismiss the writ and the proceeding.

— Hon. N. J. Lee, Judge. Action to recover $110.00 for corn sold to defendant by David Hegarty, a son of plaintiff, and who had been a tenant on plaintiff’s farm during a part of the year 1911. At the close of the testimony the court sustained defendant’s motion for a directed verdict; judgment was rendered against plaintiff for costs, and he appeals.

- — Hon. F. M. Powers, Judge. Action for damages for indecent assault. A demurrer to the petition was sustained. The plaintiff appeals.

— Hon. C. B. Bobbins, Judge. Action to recover commission for sale of real estate. Demurrer to the petition was sustained. The plaintiff appeals.

— Hon. Milo P. Smith, Judge. Action in equity to recover the sum of $30.00 per month from December 28, 1911, in consideration of a certain bill of sale. There was a trial to the court, and a judgment for $480.00, with the right to sue for future installments if not paid by the defendant. The defendant appeals.

— IIon. F. M. Powers, Judge. Action for damages for personal injuries resulting from an alleged assault and battery. The answer was a general denial and a plea of self-defense. There was a verdict for the plaintiff for. $1. Plaintiff filed a motion for new trial on various grounds. This motion was overruled and the plaintiff appeals.

<p>SALES: For Particular Purpose — Implied Warranty. A warranty is 1 "implied” when the known circumstances surrounding the parties at the time of the sale, or the nature of the thing sold, are such that the law assumes that the parties intended that the buyer should be protected, in addition to the contract of sale, by a farther implied contract.</p> <p>- PRINCIPLE APPLIED: Defendant, operating a moving picture show and having no knowledge of electric light plants, was purchasing light. Plaintiff, assuming expert knowledge, on which defendant relied, sold to defendant under written order an electric light plant under assurance that it would be fully sufficient to meet defendant’s needs, of which plaintiff had full knowledge. Held, a warranty would be "implied” that the plant so furnished would be reasonably adequate and fit to meet the needs for which it was purchased, though the written order warranted that the plant "was of good material and would do good work when properly operated.”</p> <p>APPEAL AND ERROR: Law of Case — Re-trial—Second Appeal. 2 The opinion delivered on a former appeal is the "law of the case.”</p> <p>PRINCIPLE APPLIED: On a former appeal the court held that evidence of an implied warranty was erroneously excluded. On an appeal from a re-trial, held, the only question left open is whether the evidence in the record is sufficient to establish the said warranty.</p> <p>SALES: Delivery and Acceptance — Intention. Whether there has 3 been a “delivery” or “acceptance” which will operate to pass title is ordinarily a question of intention.</p> <p>PRINCIPLE APPLIED: Defendant purchased an eleetric light plant, under such circumstances, as claimed by him, that an implied warranty of adequacy to meet certain purposes would be implied. The plant was set up in defendant’s place of business on a foundation prepared for that purpose. Both parties carried on a long line of efforts to make the plant work. A new engine was substituted for the one first furnished. Defendant finally ordered plaintiff to remove the plant. There was evidence that at or before the.time the plant was set up, plaintiff told defendant that if the plant did not do the work, defendant need not pay. Meld, not to constitute delivery by plaintiff or acceptance by defendant, though the plant had been put into the manual possession of defendant.</p>

— Hon. P. G. Norris, Judge. An automobile owned and driven by tbe defendant, and another owned and driven by the plaintiff came into collision upon a public street in the city of Grinnell with more or less resulting injury to the car last mentioned. Plaintiff, claiming the collision and injury to his car were occasioned by the defendant’s negligence without fault on his own part, brought this action at law for the recovery of damages.

— Hon. Geo. W. Dunham, Judge. Appeal from a judgment of the district court declaring the statement of consent to the sale of intoxicating liquors in the city of Waterloo insufficient, thereby affirming a like finding of the board of supervisors of Black Hawk County. The appeal is by both parties, that of those presenting the statement being first perfected.

<p>APPEAL AND ERROR: Abandonment of Appeal. The defendant 1 who takes an appeal after the plaintiff has perfected his appeal, but argues on appeal solely for an affirmance of the judgment of the lower court, in effect abandons his appeal.</p> <p>EVIDENCE: Transactions with Deceased — Competent and Incom2 petent on Same Issue. Prejudicial error cannot be predicated on the reception of evidence of personal transactions with a deceased person, within the meaning of See. 4604, Code, when the matter in issue was fully established by other competent evidence. (Equity ease.)</p> <p>WITNESS: Competency — Personal Transaction with Decedent— 3 Burden of Proof. The court will not presume that certain testimony constitutes or is a part of a personal transaction with a deceased person within Sec. 4604, Code. Such faet must appear from the circumstances, or the objecting party must show it.</p> <p>PRINCIPLE APPLIED: Plaintiff claimed that he and his mother had entered into a certain written contract 15 years prior to her death, the loss of which contract was sufficiently shown. He testified: “Boyd (probably a scrivener) was at mother’s farm in 1903 in her lifetime. I saw a paper in his possession that day which he had drawn. The signatures of Margaret N. Scott and S. W. Seott were attached to it. I knew her handwriting. That signature was in her handwriting. The signature of S. W. Seott was in my handwriting. Boyd put the paper into an envelope and took it away with him. Across the face of the envelope ,1 saw the signatures of Margaret N. Seott and S. W. Scott in their handwriting. I read that instrument.” Plaintiff then testified to the contents of the instrument. Held, the testimony was not inadmissible under See. 4604, it not appearing that what plaintiff testified to was knowledge acquired at the time of the execution of the contract or that the mother was present. (The question here decided is conceded to be close to the border line.)</p> <p>HOMESTEAD: Descent — Incumbrance by Widow — Right of Heirs. 4 See. 2985, Code, providing that the homestead, in case there is no surviving parent, descends to the children of such parent exempt from any antecedent debts of tbe parent, does not prevent the parent, during his or her lifetime, from charging the homestead with his or her debt by proper contract.</p>

<p>CRIMINAL LAW: Demonstrative Evidence — Guns, etc. Whenever 1 an object, cognizable by the senses, has such relation to the senses, and such relation to the fact in dispute as to afford reasonable grounds of belief respecting it, such object may go to the jury.</p> <p>PRINCIPLE APPLIED: Burglary. Two men, both armed with revolvers, with faces hidden by handkerchiefs, one red, one blue, were found in the building and, being discovered, took flight. No one saw their faces. One, with a red handkerchief, cap and revolver in his pocket and wearing a hat, was captured and implicated defendant. Defendant-was arrested next morning and was informed by the one first captured, in the presence of the officers, that he had told the officers ‘ ‘ that we were there. ’ ’ Defendant said: “All right, we were there.” Defendant admitted to officers that he had met the one first arrested and that they had entered the building from the front entrance. The police found a blue handkerchief at front entrance of building. Held, all the said articles found in the possession of the one first arrested and the handkerchief found at the entrance of building were properly received in evidence.</p> <p>BURGLARY: Corpus Delicti Established — Verdict—Sufficiency of 2 Evidence to Support. The corpus delicti being established, any admission by defendant of a fact tending to implicate him in the crime may be sufficient to sustain a conviction.</p> <p>CRIMINAL LAW: Alibi — Evidence Justifying Rejection. Evidence 3 of an alibi, locating defendant in the immediate neighborhood of the scene of the crime charged at and near the time thereof, held, to be such as to justify its rejection by the jury.</p> <p>CRIMINAL LAW: Crime — Commission Through Conspiracy — Instruc4 tions. It is always proper, when the evidence tends to show the commission of crime by two or more persons, to instruct that if such crime was committed by said persons as the result of any combination or conspiracy to commit it, then each is liable for the act of the other, even though the specific crime of conspiracy is not charged in the indictment.</p>

— IIon. B. F. Cummings, Judge. The defendant was convicted and sentenced to pay a fine of $100.00 and to be imprisoned in tbe county jail for one year for the crime of entering a dwelling-house in the nighttime with intent to commit a public defense, to wit, adultery. From such judgment, he appeals.

— Hon. K. P. Howell, Judge. The defendant was indicted for murder in tbe first degree and convicted of manslaughter. He appeals.

<p>CRIMINAL LAW: Evidence — Declarations Not Part Res Gestae. 1 Declarations, not part of the res gestae, must be met by proper objection.</p> <p>PRINCIPLE APPLIED: Assault with intent to rape. A witness was permitted, without objection, to testify that prosecutrix pointed out to him the person who committed the assault upon her. He was then asked: "Who was it?" and over objection that hearsay testimony was called for, answered: "It was the defendant in this ease," naming him. Held, not error.</p> <p>CRIMINAL LAW: Instructions — Degree of Intoxication Requiring. 2 The mere fact that defendant, prior to committing the offense, had drunk and at the time of committing it, did drink intoxicating liquors, without some substantial evidence of its effect upon him, does not necessitate an instruction on the effect, in law, of intoxication.</p> <p>CRIMINAL LAW: Instructions — Stating Punishment. It is not 3 necessary for instructions to state the punishment for assault with intent to rape or simple assault.</p> <p>INDICTMENT AND INFORMATION: Instructions — Submitting In-4 eluded Offenses — Test to Determine. An indictment being a pleading, no issue should be submitted not specifically or, from the nature of the offense charged, necessarily included therein.</p>

<p>EVIDENCE: Transaction with Deceased — Competent and Incompe1 tent Evidence on Same Issue — Equity Case. Prejudicial error cannot be predicated on the reception of evidence, in an equity case, of personal transactions between the witness and a deceased in violation of See. 4604, Code, when the matter in issue was fully established by other competent evidence.</p> <p>MECHANIC’S LIEN: Statute of Limitation. An action to enforce 2 a mechanic’s lien by a principal contractor is barred in two years and ninety days from the date on which the last of the materials was furnished, whether the lien was filed within ninety days after the last material was furnished or not.</p> <p>DOWER: Mechanic’s Lien — Liability. Dower attaches under Sec. 3 3366, Code, upon the concurrence of seizin of the husband and eoveture of the' wife, continues thereafter as an incumbrance upon the land, and becomes fully vested upon the death of the husband, freed from liability for his debts.</p> <p>PRINCIPLE APPLIED: Eive months before his death the husband, owner of the land, purchased materials for an improvement on the land. More than ninety days after the last item of material was furnished and before any claim for a mechanic’s lien was filed, the dower of the wife was actually set off to her. JBeld, the dower lands were not subject to a mechanic’s lien for the materials furnished.</p> <p>MECHANIC’S LIEN: Filing After Ninety Days — Claims in Pro-4 bate — Precedence Over. Third-class claims in probate (those filed within six months after notice of administration is given) are not "incumbrances” within the meaning of See. 3092, Code, which provides that a failure of.the principal contractor to file a claim for mechanic’s lien within ninety days after the last of the material was furnished shall not defeat the lien except against "* * * incumbrances in good faith, without notice, whose rights accrued after the * * * ninety days and before any claim for the lien was filed.” This is true, though the said' third-class claims were filed, allowed, and an order of the court entered for the sale of the land in order to pay them, more than ninety days after the last item of material was furnished by the contractor.</p> <p>MECHANIC’S LIEN: Death of Owner — Right of Contractor to Per-5 feet Lien. The death of the owner of land upon which an improvement has been erected does not deprive the contractor of the right to perfect and enforce a mechanic’s lien on the land, within the time and under the conditions provided in Sec. 3092, Code.</p>

— Hon. D. F. Coyle, Judge. Action to re-form a lease and recover rent. There was a cross-bill by the defendant asking specific performance of a certain written contract between the parties entered into prior to the execution of the lease whereby the plaintiff agreed to sell to the defendant the premises described in the lease sued on. Answering the cross-bill the plaintiff averred that such previous contract had been forfeited by the defendant and abandoned.

— Hon. C. B. Bradshaw, Judge. Plaintiff filed his claim against the executors in the sum of $3,435. There was a trial to a jury, which resulted in a verdict, and allowance of the claim in the sum of $3,335. Defendants filed a counterclaim for precisely the same amount for room rent and board alleged to have been furnished plain tiff by deceased, but the counterclaim was withdrawn. . Defendants appeal.

<p>Appeal from Linn District Court. — Hon. F. 0. Ellison, Judge.</p> <p>Suit for partition of real estate.</p> <p>The plaintiffs claimed an interest in about four hundred acres of land in Linn County. The defendants answered that as to three hundred twenty acres of land the plaintiffs had no interest and as to the remaining,lands the suit was premature.</p> <p>There was a decree dismissing the petition.</p> <p>The plaintiffs appeal.</p>

<p>MASTER AND SERVANT: Negligence — Safe Place to Work— 1 Servant Making Own Place. The master cannot be said to be negligent when he furnishes suitable and sufficient materials and therefrom the servant himself makes, or through his fellow servant makes, his own place in which to work in his own manner and at such times and places as become necessary. In such case the negligence of the fellow servant will be imputed to plaintiff.</p> <p>PRINCIPLE APPLIED: Several months before plaintiff was injured, cinders were placed in defendant’s repair yards to act as a foundation on which to work. They were soft, loose, easily .scraped aside, somewhat uneven, there being depressions from 5 to 6 inehes, sloping toward the track on which the bad order car stood. They were firm enough to sustain the ladders used, and were some 6 inehes higher than the rail. Plaintiff and his co-employee knew all this. Plaintiff was a car repairer and it was no part of his business to level off the surface of the cinders or ground. Defendant furnished three oak ladders, 8 ft. high, bolted at the top, and spread apart at bottom, on which I6-ft. plank, 2x12 in., were placed for scaffold. The men used their own judgment as to how and where to place the ladders. To set them up was one man’s business as much as the other, each knowing that it was sometimes necessary to scrape aside the cinders and block up in order to make the ladders level. At time in question, the co-employee scraped the cinders down level and blocked up two legs with a few pieces of small inch boards, carefully placing the blocks so they would not slip or be disarranged when the ladders were placed thereon. Plaintiff did not notice what had been done about blocking but when he went upon it, it seemed secure. He started to work, the ladder tipped toward car and he was thrown off and injured. It was not claimed that it was impossible to place the ladders on the ground so they would be secure and firm, or that the surface offered any serious impediment to so doing. Why ladder tipped is not shown. It was not claimed that anything more should have been furnished along with the ladders for added security.</p> <p>Reld, defendant was not shown to be negligent, the negligence, if any, being the negligence of the plaintiff’s fellow servant, which would be imputed to plaintiff.</p>

— TIon. Lorin N. Hays, Judge. Action to recover tuition for defendants’ children while attending plaintiff’s high school resulted in judgment as prayed. The defendants appeal.

— Hon. Gr. W. Dunham, Judge. Action in equity by tbe holder of a judgment obtained prior to bankruptcy of debtors, who were husband and wife, to have the judgment decreed to be a lien upon the homestead, also upon the eighty acres outside the homestead. From a decree for the defendants, plaintiff appeals.

<p>QUIETING TITLE: Fraud — Mistake—Sufficiency of Pleading. A 1 pleading alleging that a deed conveyed to plaintiff a lesser estate than plaintiff “was informed and believed” was conveyed, wholly fails to make such showing of fraud and mistake as to justify a prayer for quieting of title.</p> <p>HUSBAND AND WIFE: Homestead — Waiver—Antenuptial Con-2 tract. The homestead right is a favorite of the law. Its surrender or waiver will not be presumed from words of general and indefinite meaning.</p> <p>PRINCIPLE APPLIED: An antenuptial contract provided that the parties thereto agreed "to keep his or her own property the same as it was before marriage”; that "neither of them shall inherit anything from the other”; that "the property of each shall descend to his or her own children”; that "the survivor of them is not to have any right, claim or interest in the property of the deceased one”; that the marriage "shall not in any manner affect the property rights of their own individual property.” Held, not to waive the homestead right of the wife in the husband’s homestead land.</p> <p>HUSBAND AND WIFE: Homestead — Express' Reservation. Espe3 eially will there be no waiver of the homestead right under the general terms of an antenuptial agreement when the parties to such agreement have, subsequently, manifested their understanding of the agreement by an express reservation of homestead right in each, in the very deed to the one seeking to defeat the right under the terms of the antenuptial agreement.</p>

<p>MORTGAGES: Stipulation for Insurance, Compliance -with — Policy 1,3 Payable to Assignee. A policy of insurance on mortgaged premises payable to'one who has "assumed and agreed to pay” a mortgage on said premises, which mortgage requires the mortgagor to keep the buildings insured "for the benefit of the mortgagee,” inures to the benefit of the mortgagee as a matter of equitable right and therefore complies with the condition of the mortgage requiring insurance.</p> <p>MORTGAGES: Right to Foreclose — Special and General Clauses— 2 Harsh Results — Strict Construction to Avoid. The use of special and general clauses in a mortgage in an attempt to fix the rights and liabilities of the parties as to foreclosure, with attendant uncertainty as to the true meaning, renders appropriate the application of the following principles or rules of construction, to wit:</p> <p>(1) Ejusdem generis — the particular governs the general.</p> <p>(2) Expressio unius est exclusio alterius — the express mention of one thing implies the exclusion of another.</p> <p>PRINCIPLE APPLIED: Action to foreclose mortgage because of failure "to keep property insured.” The mortgage contained the following consecutive clauses:</p> <p>1. An express reservation of the right to foreclose for failure "to pay taxes.”</p> <p>2. No mention of the right to foreclose for failure "to keep property insured,” but providing that the holder might insure and hold the mortgage as security for the premiums.</p> <p>3. An express reservation of the right to foreclose for "failure to pay principal or interest.”</p> <p>4. A general clause providing, "a failure to perform or comply with any of the foregoing conditions shall cause the whole sum to become due at once and this mortgage may be foreclosed immediately.”</p> <p>Held, the mortgagee had no right to foreclose for failure "to keep the property insured,” as he had limited his right for such failure to the right to insure the property himself and hold the mortgage as security for the premiums, especially as such construction would avoid harsh and drastic results.</p> <p>MORTGAGES: Stipulation for Insurance — Compliance with — Policy 1,3 Payable to Assignee.</p> <p>MORTGAGES: Stipulation for Insurance — Good Faith Effort to 4 Comply — Foreclosure—Right to Notice. A mortgagor procuring, in good faith, an insurance policy on the mortgaged property in order to comply with a requirement that he keep the property insured, is entitled to notice of the mortgagee’s objection to the policy before starting foreclosure (if such right exists) even though the mortgagor in procuring the policy innocently and without intentional fraud misstated the amount of incumbrance on the property.</p> <p>PRINCIPAL AND AGENT: Apparent Authority of Agent — Right 5 to Rely. One has a right in good faith to rely, within reasonable limits, upon the apparent authority of an agent.</p> <p>PRINCIPLE APPLIED: Negotiations were pending between owner of land and a prospective purchaser, a corporation. The purchaser sent his agent, a mere employee, to the owner “to close the deal.” He carried a mortgage fully executed and acknowledged by the corporation, which mortgage he was to deliver to the owner when the owner delivered his deed to the agent. Owner refused to deliver his deed until a clause, “Insurance policies to be held with mortgage,” was inserted in the mortgage. , The agent inserted the clause. Both the owner and agent acted in good faith. Deed and mortgage were then exchanged. The purchaser kept the deed. Held, the mortgage was valid.</p> <p>PRINCIPAL AND AGENT: Principal Repudiating Unauthorized 6 Acts of Agent — Keeping Benefits. The principal will not be' permitted to repudiate the unauthorized acts of his agent and still retain the benefits of the agent’s acts.</p>

— Hon. K. E. Willcockson, Judge. Action for divorce on the ground of cruel and inhuman treatment. Petition dismissed and judgment for defendant for support money and costs and attorney fees. Plaintiff appeals. The material facts are stated in the opinion.—

— Hon. Chas. S. Bradshaw, Judge. Suit to enjoin tbe maintenance of an alleged liquor nuisance. A motion to dismiss was sustained and from this ruling plaintiff appeals.

<p>APPEAL AND ERROR: Undenied Abstract — Presumption. It will 1 be conclusively presumed oh the final submission of an appeal that'an undenied abstract contains all-the evidence, the decree appealed from not reciting the offer or reception of any evidence.</p> <p>DIVORCE: Modification of Decree — Change in Condition. Modifiea2 tion of decrees of divorce in regard to financial support may be entered when there is proof of a substantial and material change, financial or otherwise, in the condition of the parties. (Code, See. 3180.)</p> <p>PRINCIPLE APPLIED: Modification by doubling the amount formerly allowed for support of children annulled, there being no showing (1) that defendant’s ability to pay had increased, or (2) that plaintiff’s ability to. care for the children had decreased, or (3) that the expense of supporting the children had been mistakenly estimated. Only a very clear showing of a very radical change of condition will authorize a 100 per cent raise.</p> <p>DIVORCE: Modification of Decree — Default in Payments — Pen-3 alty. A modification of a decree requiring payments of $25 per month for support of two young children until they reached their majority to $50. per month, for the same period, the entire amount of $7,800 to fall due on default in any month’s payment, held unreasonable.</p> <p>DIVORCE: Modification of Decree — Form of Application. Modifiea4 ’ tions of decrees of divorce should be by supplemental petition, with full allegation of facts of change in conditions justifying such modification, and not by mere motion.</p> <p>DIVORCE: Custody of Children — Depriving Parent of — Showing 5 Necessary. While in a proper case a parent may be wholly denied association with his or her children, yet such order should only be made upon the clearest proof of a sound reason therefor.</p>

<p>EXECUTORS AND ADMINISTRATORS: Authority to Bind 1 Estate — Contract for Attorney Fees — Ex Parte Order. The authority of an administrator with respect to the estate is defined by statute. He can have no other.</p> <p>PRINCIPLE APPLIED: An administrator contracted with an attorney for the collection of damages for wrongful death of deceased, agreeing to pay a certain compensation therefor. The court made an ex parte order approving the contract. Collection was made and the attorney was paid according to the contract. Held, neither the contract nor the ex parte order of approval was of any validity against the estate.</p> <p>EXECUTORS AND ADMINISTRATORS: Extraordinary Expenses 2 —Allowance—Burden of Proof. Burden of proof rests on the administrator to show that the "allowances” to which he is entitled for extraordinary expenses, under Sec. 3415, Code, are (1) just, (2) reasonable, (3) actual, and (4) necessary and such as pertain specifically to the protection of the estate.</p> <p>PRINCIPLE APPLIED: Allowances asked for attorney fees, "for consultation with administrator on the death of her husband in relation to estate matters,” are properly rejected as indefinite.</p> <p>EXECUTORS AND .ADMINISTRATORS: Extraordinary Expenses 3 —Amount Allowed. In making an allowance to an administrator for extraordinary expenses, the court will wholly ignore the amount which the administrator has paid or agreed to pay for the services, the reasonable value of the services being the sole standard.</p>

— Hon. A. P. Barker, Judge. Action at law to recover damages for injury to a shipment of goods while in the possession of defendant as a common carrier. Verdict and judgment for plaintiff and defendant appeals.

— Hon. C. B. Bobbins, Judge. Action at law to recover damages. Judgment for plaintiff and defendant appeals. The material facts are stated in the opinion.

<p>MASTER AND SERVANT: “Safe Place” — Keeping Place Safe— 1 Duty to Maintain Rules. The duty of the master in relation to his servant is:</p> <p>1. To furnish a reasonably safe place to work;</p> <p>2. To keep and maintain such place reasonably safe.</p> <p>3. And he may fail in this duty by adopting an unsafe method of doing his work.</p> <p>PRINCIPLE APPLIED: Personal injury. Defendant operated cement mill. Rock crusher, 400 feet from quarry, was reached by an inclined track over which ears, operated by electric power, and in connection with a “dolly,” conveyed rock. The “dolly” ran on iron rails and was frequently derailed, in which ease plaintiff and other employees replaced it on the rails, the motive power being by custom and rule turned off until signal to start was given. The men replacing the “dolly” being down in the quarry out of sight of the engineer at the crusher, signal to turn on the power, after the “dolly” was replaced, was first given by those in the quarry to another employee stationed at a higher altitude, who relayed it to the engineer at the crusher. The system or rule for signalling was by motion or gestures of the hand or arm of the man at the “dolly.” At the time of injury the power -was, through the negligence of the relay man or the engineer, mistakenly turned on, and plaintiff was injured. The jury could have found: (1) the system or rule for signalling was liable to be uncertain to the relay man, (2) the duty to relay such signals was not specially entrusted to anyone, (3) no particular care was taken to instruct these relay men, and (4) a system of signals by bells was practical and safer. Held, though the relay man and th'e engineer be considered fellow servants of plaintiff, the evidence justified a finding that defendant had failed to adopt such a system or rules of carrying on the business as would furnish and maintain a reasonably safe place in which to work.</p> <p>MASTER. AND SERVANT: Master’s Methods — Customary Meth2 ods — Competency of Witnesses. On the question whether due care has been exercised by a particular master in carrying on his business, testimony as to the customary method of carrying on such business is competent, and exact duplication of place, business and conditions is not required. It is sufficient if the - witness speaks of such sameness of situation and instrumentalities that it fairly appears that the danger to the employee is substantially the same, and that his safety can be guarded by the same safeguards.</p> <p>PRINCIPLE APPLIED: Defendant adopted a system of hand signalling to govern the operation of a tramway or hoist at its cement plant. Witnesses, who» had never worked in a cement plant but had worked and observed the work in brick plants, clay and gypsum mills, mines and quarries where tramways and hoists were employed, held competent to testify to the customary method of signalling employed in the operation of such agencies.</p> <p>MASTER AND SERVANT: Negligence of Master — Negligence of 3 Fellow Servant — Concurrence of. Though the master is not liable to his servant for the negligence of a fellow servant, yet if the master’s negligence concurs with the negligence of the fellow servant and contributes to the injury, then the negligence of the master becomes proximate. (In instant ease, held, instruction did not permit plaintiff to recover without showing that defendant’s negligence, if any, was proximate.)</p> <p>MASTER AND SERVANT: Master’s Negligent System-Negligent 4 Use of by Fellow Servant — Intervening Cause. A fellow servant’s negligence in using or applying the master’s negligent system of operation, will not absolve the master from liability, at least not as a matter of law.</p>

<p>VENDOR AND PURCHASER: Contract of Sale — Meeting of Minds. 1 Evidence, in the form of correspondence, reviewed and held to wholly fail to show a contract for the sale of lands.</p> <p>FRAUDS, STATUTE OF: Fart Performance. The act of one in 2 making a deposit in a bank can avail nothing when he was authorized to make the deposit only in case of an acceptance of an offer and the evidence showed there was no acceptance.</p>

— Hon. Lawrence De Graff, Judge. Action at law to recover damages for au alleged breach of contract. Yerdict and judgment for plaintiff and defendant appeals.

<p>MUNICIPAL CORPORATIONS:. Street Improvement — 'Validity of 1 —Complying with Ordinance. In the construction of a street improvement, substantial compliance with the ordinance is sufficient.</p> <p>PRINCIPLE APPLIED: An ordinance required the council "to determine the time, not less than one year, during which the contractor shall be required to keep said improvement in good repair." The resolution of necessity proposed and adopted and the call for bids required a "guarantee that the same shall endure without need of repair for one year." The contract for the work "guarantees that the work and materials shall be of such character that the pavement shall endure without need of repairs during a period of one year, etc." A bond exacted faithful compliance with the terms of the contract. Held, ordinance substantially complied with.</p> <p>MUNICIPAL CORPORATIONS: Street Improvements — Remedy for 2-3-4 Non-Jurisdictional Irregularities. A property owner, aggrieved . by non-jurisdictional .errors, irregularities and inequalities in the construction of paving and sewers, has been provided an exclusive remedy. He must file his objections with the council, and avail himself of his right to appeal therefrom. (See. 82f, Code.)</p> <p>PRINCIPLE APPLIED: (1) Slight variations between the completed improvement and the established grade, (2) changes in grades after contract and before commencement of work, and (3) assessing in excess of the 25 per cent limitation, are all' non-jurisdictional matters.</p> <p>MUNICIPAL CORPORATIONS: Street Improvements — Contracts 5 for — Extension—Validity. The time of performance of contracts for paving, sewers, etc., may be reasonably extended without invalidating the contract or the assessments made after completion of the work.</p> <p>PRINCIPLE APPLIED: In instant ease an extension from December 1st to May 1st following, held not unreasonable.</p> <p>MUNICIPAL CORPORATIONS: Street Improvement — Permanency 6 of — Evidence to Overthrow. Evidence that the earth along one side of a pavement had washed out did not, in instant case, warrant the conclusion that pavement of the kind laid was not permanent in character.</p>

<p>EVIDENCE: Conclusion — Law and Fact. A question which permits 1 a witness to marshal his uneommunieated knowledge, both competent and incompetent,, draw conclusions of law and fact therefrom, and present his deduction to the jury must be condemned as calling for a conclusion.</p> <p>PRINCIPLE APPLIED: “You may tell the jury whether advancements that had been made to you would be in excess of your share of your mother’s estate.” Held to call for the conclusion of the witness (1) as to what constituted an “advancement” and the value thereof, and (2) as to the value of the mother’s estate, it not being even shown that he knew or was competent to speak of values.</p> <p>WITNESS: Transaction with Deceased — Removal of Disqualifiea2 tion — Collusion. (1) “No party to any action or proceeding . . . nor (2) any person interested in the event thereof . . . -shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the • commencement of such action deceased . . . against the executor . . . legatee or devisee, etc.” (See. 4604.)</p> <p>PRINCIPLE APPLIED: Will contest. Grounds, undue influence. One Geo. W., a son of testatrix, was a devisee, the will reciting he should receive certain lands worth about $1,800 and that testatrix had obligated herself for him for about $1,000, which amount the executor should determine and all should be treated as an advancement and deducted from his share. Plaintiff made Geo. W. a party defendant. He answered disclaiming any interest in the estate. (He would be the gainer if the will was set aside.) Mistrial. On re-trial plaintiff desired to use Geo. W. to prove a talk he had with testatrix “in regard to the maMng of her will.’’ Plaintiff dismissed as to Geo. W, and called him as witness, and to show lack of interest in the action asked “if the advancements which his mother had made to him would exceed his share in the estate, in absence of a will.” No offer was made to then show the value of the estate or that Geo. W. could speak of values. Held, Geo. W. was not rendered competent because:</p> <p>(1) The question asked was improper as calling for a conclusion and there was no showing when he was offered as a witness, that he was "not interested in the action.”</p> <p>(2) The "dismissal” appeared to be "colorable” — a collusion between plaintiff and Geo. W. to make him a witness in violation of the statute.</p> <p>(3) The "disclaimer” filed by Geo. W. did not necessarily obliterate his "interest in the action,” if it should later appear he had such.</p> <p>WITNESS: Disqualified when Offered — Subsequent Facts Removing 3 Disqualifications — Re-Offer. If a witness appears to be disqualified when offered, and his testimony is thereby excluded, the appearance of facts in the later stages of the trial removing the disqualifications does not render erroneous the original order excluding the testimony. There should be a re-offer of the' excluded witness.</p> <p>WITNESS: Competency — Difficulty to Show. The mere fact that 4 it may be difficult to determine the competency of a witness is no reason or excuse for not doing so.</p> <p>PRINCIPLE APPLIED: So held on question whether a party was "interested in an action” and thereby incompetent to testify to personal transaction with a deceased.</p> <p>WILLS: Declarations of Legatees — Admissibility. Where there are 5, 7 several devisees, whose interests are several and not joint, the declarations of one devisee are not admissible on the question whether the will was executed under undue influence.</p> <p>TRIAL: Form of Questions Indefinite. It is not error to exclude 6 answers to questions indefinite as to the matters called for, and as to the person to whom reference is made.</p> <p>WILLS: Declarations of Legatees — Admissibility. 5,7</p> <p>WILLS: Disinherited Heir — Financial Condition. The financial con-8 dition of the husband of a disinherited heir may be inquired into as bearing on the question whether the heir was provided for.</p> <p>WILLS: Undue Influence — Fraud—Submission of Issues. In a will 9 contest where the plea blended the issue of undue influence and fraud, and there was no fraud except such as related to undue influence, the submission of the question of the latter was all-sufficient.</p>

<p>DEEDS: Genuineness — Rare and Unprecedented State of Evidence. 1 To impeach a deed to real estate on the ground of forgery, the testimony must be clear, satisfactory and convincing, and something more than a bare preponderance in the balancing of probabilities. Under a singularly rare and unprecedented state of evidence, contradictory and irreconcilable, held, there was such evidence of the genuineness of a deed as to support the judgment of the lower court.</p> <p>EVIDENCE: Opinion Evidence — Direct Evidence — Comparative 2 Value. Opinion evidence must yield to positive and direct evidence.</p>

<p>JUSTICES OF THE PEACE: Appeal — Re-trial—Judgment Against 1 Surety. Judgment against surety necessarily follows judgment against the appellant in the re-trial of justice of the peace cases on appeal. (Secs. 4552, 4566, Code.)</p> <p>JUDGMENT: Rendition — Construction of Calendar Entry — Nunc 2 Pro Tunc Entry. Courts possess the inherent authority to enter judgments nunc pro tune, and time will not bar its exercise.</p> <p>PRINCIPLE APPLIED: On trial of an appeal from justice court, the calendar entry was: "Judgment against defendant on note and costs. Clerk assess, including statutory attorney fees.” Both Sec. 4552 and Sec. 4566, Code, provide that judgment in such cases shall be against the appellant and surety. Held, calendar entry, construed in light of said sections, was a rendition of judgment against both appellant and his surety and omission as to surety could be corrected by nunc pro tuna entry, though two terms of court had intervened.</p>

— Hon. A. J. House, Judge. Action by plaintiff as administratrix to recover damages for tbe death of her husband because of the alleged negligence of defendant in employment of one Lemon as crane man. There was a trial to a jury and a verdict for plaintiff. The motion for a new trial by defendant was sustained, and the plaintiff appeals.

<p>CRIMINAL LAW: Murder — Exclusively Circumstantial Cases — In-1 structions — Duty of Court. When the guilt of an accused depends solely on circumstantial evidence the trial court should observe the following imperative rules:</p> <p>1. Distinctly inform the jury that the case rests solely on circumstantial evidence.</p> <p>2. Distinctly inform the jury of the established and approved rules governing eases of exclusive circumstantial evidence,</p> <p>3. Give no direction to the jury in regard to “direct” evidence.</p> <p>PRINCIPLE APPLIED: 1. The following instruction was given in an exclusively circumstantial evidence case:</p> <p>“The facts essential to establish the guilt of a defendant or any of such facts may be shown by evidence, either direct or circumstantial. Direct evidence is the evidence of witnesses to a fact or facts in issue of which they have knowledge by means of their senses. Circumstantial evidence is that which tends to establish a fact or facts in issue by proof of collateral facts, from which it may be reasonably and logically deduced that the ultimate fact' or facts, exist which are thus sought to be established. In order, however, to warrant a conviction upon- circumstantial evidence alone the facts proved must not only be consistent with the guilt of the accused, but they must also be inconsistent with any other rational theory of her innocence.”</p> <p>Reid erroneous because (1) it fails to distinctly inform the jury that the guilt of accused depended exclusively on circumstantial evidence and (2) confuses direct testimony of a mere collateral .fact or circumstance with direct evidence of the guilt of accused.</p> <p>2. It was error to refuse the following:</p> <p>“You are instructed, that where conviction of a crime is sought on circumstantial evidence, each circumstance necessary to reach a conclusion of guilt must be fully and fairly proven, and, if in considering any such necessary circumstances you have a reasonable doubt in your mind as to the evidence being sufficient to prove such 'circumstances, such doubt should be solved in favor of the defendant, and you should return a verdict of not guilty.”</p> <p>HOMICIDE: Evidence — Motive—Marital Relations. Disturbed mar-2 ital relations are relevant upon the question of motive in homicide prosecutions.</p> <p>PRINCIPLE APPLIED: A wife on trial for murder of her husband. Evidence properly received, (1) That men might testify that they had "visited” defendant while her husband was away and had paid her money for something on such occasion, and (2) that several men were seen at different times to enter or leave the house when defendant was there alone.</p> <p>Evidence improperly received: (1) That men had entered the alley, or were seen in the yard, near defendant’s residence without more, and (2) that defendant had been seen in her own yard in her nightdress.</p> <p>HOMICIDE: Evidence — Motive—Other Offenses — Duty to Limit. 3 Evidence tending to show immoral or immodest conduct or offenses other than the one for which accused is on trial (murder), if admissible in a proper case on the question of motive, imposes the duty on the court:</p> <p>1., To specifically confine such evidence to its bearing on motive; and</p> <p>2. To specifically tell the jury that the defendant’s bad character, if such she had, was not evidence of guilt of the offense charged (murder).</p> <p>HOMICIDE: Evidence — Conduct of Persons Other Than Accused. 4 The rule of law is yet unknown that justifies the reception in evidence, against an accused, of the aets, conduct, or appearance of one admittedly innocent of any connection with the crime.</p> <p>HOMICIDE: Evidence — Sufficiency to Support Verdict — Motive. 5 The state must not rest alone on motive. In instant case evidence reviewed and held wholly insufficient to sustain a conviction for murder.</p>

<p>TAXATION: Illegal Taxes — Recovery—Duty of Supervisors. It is 1 the duty of the board of supervisors, whenever taxes have been illegally exacted, to direct the county treasurer to repay the same. (See. 1417, Code.) So held where the county had levied and collected taxes, under an unconstitutional statute, on shares of stock in a national bank.</p> <p>MANDAMUS: Refund of Taxes — Duty of Boards of Supervisors. 2 Mandamus is the proper remedy to enforce the duty imposed by law on boards of supervisors to direct the county treasurer to refund taxes illegally exacted or paid.</p> <p>TAXATION: Illegal Tax — Voluntary Payment — Duty to Repay. The 3 duty of the board of supervisors to order the return of a tax exacted under an unconstitutional statute is none the less a duty because the tax was voluntarily paid. (See. 1417, Code.)</p> <p>TAXATION: Illegal Tax — Payment—Recovery. Though some years 4 may have elapsed before a statute under which taxes had been exacted was declared illegal, yet the exaction was illegal from the beginning. That which was originally void does not by lapse of time become valid.</p> <p>TAXATION: Illegal Tax — Duty to Return — Refinements to Avoid. 5 When the public has exacted money “as taxes” it will not be permitted, when the illegality is declared, to indulge in the quibble that such money was not “taxes,” in order to escape a plain, mandatory duty to return the same. ■ (See. 1417, Code.)</p> <p>TAXATION: Illegal Tax — Duty to Repay — Mistake of Law. The 6 “mistake” of a taxpayer in supposing that the law under which a tax was exacted was legal lessens not the duty of the board of supervisors to return the illegal exaction to him.</p> <p>TAXATION: Listing Property — Illegal Tax — Recovery. The tax-7 payer from whom a tax has been exacted under an invalid law is not estopped to demand the return of the same because he listed the property with the assessor.</p>

— Hon. E. J. O’Conner, Judge. This is a law action brought on the equity side of the calendar. Motion to transfer to the law calendar overruled and defendants appeal.

— Hon. ¥m. Hutchinson, Judge. Appeal from an order subjecting the estate of John Peterson, deceased, to the payment of an inheritance tax. Decedent’s heirs appeal.

— Hon. A. B. Thornell, Judge. Action in equity to re-form a policy of fire insurance and to recover a loss suffered by plaintiff. Trial to the court. Decree and judgment for plaintiff, and defendant appeals.—

<p>LIBEL AND SLANDER: Libels per se — Charge of Crime Unneces1 sary — Presumptions. Libels per se, existing as they may without any charge of crime, carry the presumption of (a) falsity, (b) damages, and (e) if not published on a "privileged occasion,” malice.</p> <p>LIBEL AND SLANDER: Libels per se — What Constitutes. A pub-2 lieation, referring to the conduct of a public officer, tending to impeach his ability, skill or knowledge and conveying the impression that he was unfit to longer continue in office is presumptively libelous per se.</p> <p>LIBEL AND SLANDER: Libel of Official Body — Understanding of 3 Readers. A libel leveled at a board of supervisors as a whole is a libel against each member thereof at the time referred to in the publication. In such case plaintiff, a member of the board, may show by those who read the publication that they understood it to refer to plaintiff.</p> <p>LIBEL AND SLANDER: Libel of Official Body — Application to 4 Members. A libel leveled at a board of supervisors as a whole is a libel of each member thereof except in so far as specific dates thereof show reference to conduct occurring prior to the time a person became a member.</p> <p>LIBEL AND SLANDER: Falsity of Publication — Jury Questions. 5 The question whether the various statements of the publication are false or true was for the jury in the instant case.</p> <p>LIBEL AND SLANDER: Privileged “Occasion” — Abuse of Privi6 lege — Rule of Privilege. It is for the court to say whether the “occasion” on which a libelous publication was made is privileged. It is for the jury to say whether the privilege was abused by defendant — in other words, whether defendant was moved by malice. A public election is a privileged “occasion” and the publication itself is privileged, “if defendant had been informed and believed that the statements were true and published them without malice and in good faith to the electors for the sole purpose of advising them of the real character and qualifications of plaintiff for the office he was seeking.”</p> <p>LIBEL AND SLANDER: Malice — How Determined — Jury Question. 7 Malice is a jury question. It may be found (a) from the publication itself, (b) from defendant’s knowledge of the falsity of the charge, or (e) from other extrinsie circumstances bearing on defendant’s objects, purposes and motives.</p>

<p>Appeal from Black Hawk District Court. — Hon. C. "W. Mullan, Judge.</p> <p>Action to reform a contract. Decree for the defendant. Plaintiff appeals.</p>

— Hon. C. H. Kelley, Judge. Suit by the guardian of Cyrus William Hoy and Thomas Albert Hoy asking that certain mortgagors be instructed to pay the share belonging to each minor to his guardian. Decree was entered as prayed, from which Lucretia Shafer, Ada Della Hoy, and William Thomas Heaver appeal.

<p>Appeal from Pottawattamie District Court. — IIon. O. D. Wheeler, Judge.</p> <p>Action to quiet title. Opinion states the facts. Decree for the plaintiff. Defendant appeals.</p>

— Hon. C. W. Vermilion, Judge. Action to recover on a certificate issued by tbe defendant. Judgment for tbe plaintiff. Defendant appeals. Opinion states tbe facts.

<p>LIMITATION OF ACTIONS: Maturity on Happening of Event. A 1 note maturing'“ only when the homestead where I now reside shall be sold or converted into money,” is not matured by a sale of a portion of the homestead unoccupied by buildings, the note reeiting that the money was for improvements “on the (homestead) buildings. ’ ’</p> <p>EXECUTORS AND ADMINISTRATORS: Claims Against Estate— 2 —Services by Members of Family. Recovery cannot be had for nursing one member of a family by another member of the same family without first overthrowing the presumption of law that such services were gratuitous. The helplessness of the one nursed will not overthrow the presumption.</p> <p>PRINCIPLE APPLIED: Plaintiff, at the time when her mother was 94 years of age and suffering from senile dementia and in a semi-conscious condition, took said mother into her own' home and cared for and nursed her until her death. The mother performed no services in the family, remaining helpless and in a semi-stupor until her death, three months later. During these three months plaintiff collected $125 in money belonging to her mother, $75 of which she applied in payment of her mother’s board, room and washing, and after paying some other small items had a balance of $27, which she turned over to the executor of her mother’s estate after the death of the mother. The expectation of plaintiff -to receive pay for “nursing” her mother was formed after her mother’s death, and arose out of the fact that another heir was enforcing a note against the mother’s estate. Held, plaintiff could not recover.</p> <p>FAMILY RELATIONS: Family — What Constitutes. One who takes 3 her aged and helpless mother into her own home and cares for her thereby constitutes the mother a member of the family.</p>

<p>WORK AND LABOR: Damages — Delay. Evidence reviewed and held to show unreasonable delay in repair of an automobile, the plaintiff having employed 350 hours and prolonged the work from March 19th to September 19th following.</p>

<p>CRIMINAL LAW: Evidence — Motion to Strike — No Grounds Given. 1 No question is raised or preserved by motions to strike testimony unaccompanied by any ground or reason therefor.</p> <p>HOMICIDE: Evidence — Threats of General Nature. Evidence of 2 threats may be admissible though not leveled directly at or directly concerning deceased.</p> <p>PRINCIPLE APPLIED: Charge murder. Conviction for manslaughter. Defendant, a town marshal, in making an arrest beat the prisoner with his "billy” and death immediately ensued. Recently before this, defendant, in reference to another man who had been beaten (but apparently not by defendant) into insensibility in the same place, remarked, "I am going to get some more of them in the same way.” Held, admissible because, though general in its nature, it might have included deceased.</p> <p>CRIMINAL LAW: Instructions — Objections to Before Reading— 3 Waiver. All objections or exceptions to instructions are waived if not made before tbe instructions are read to tbe jury. (See. 3705-a, Sup. Code, 1913.)</p> <p>CRIMINAL LAW: Instructions — Objections to — When Made. Ob-4 jections to instructions, made for the first time on appeal, will not be considered (and see See. 3705-a, Sup. Code, 1913).</p> <p>CRIMINAL LAW: Included Offenses — Submission of — “Manslaughter 5 or Nothing.” No offense below manslaughter need be submitted if the state of the evidence shows that defendant is either guilty of murder or manslaughter or “ not ■ guilty. ”</p> <p>HOMICIDE: Peace Officer — Self-Defense—Retreat—Assistance. A 6 peace officer who is in the discharge of his duty in attempting to make an arrest .and is assaulted is not bound to retreat or call for assistance.</p> <p>PRINCIPLE APPLIED: Defendant was a town marshal. In attempting to make an arrest he hit the deceased and death resulted. The court in substance gave the - following instruction: ‘ ‘ That the defendant in making the arrest had the right to meet force with force, and if the resistance were violent and determined was not bound to make nice calculations as to the degree of force necessary to accomplish the purpose, but might exert such reasonable degree of force as might appear reasonably necessary to make the arrest and prevent escape, though he might not take life nor inflict great bodily harm in order to make the arrest unless he has a reasonable apprehension of peril to his own life or of suffering great bodily harm.” Held to sufficiently advise the jury that the officer was not bound to retreat or call for assistance.</p> <p>CRIMINAL LAW: New Trial — Motion for — Affidavit of Fact — Hear-7 say. A motion for new trial in a criminal case on a ground not appearing of record must be supported by an affidavit of facts, not hearsay.</p> <p>CRIMINAL LAW: Motion for New Trial — When to be Made— 8 Amendment After Judgment. A motion for new trial in criminal cases must be made before judgment. (See. 5425, Code.)</p> <p>PRINCIPLE APPLIED: After sentence had been pronounced defendant filed an amendment to his former motion for new trial. Beld unauthorized, but court says: “If ever permissible, even at tile same term (it) must be supported by a prima-faeie showing of error.”</p>

— Hon. F. M. Hunter, Judge, Appeal from an order of tbe trial court dismissing an appeal attempted to be perfected from a special paving assessment made against tbe defendant county, by tbe council of the city of Fairfield, because of the failure of tbe appellant county to give a bond for tbe appeal.

— Hon. W. S. Hamilton, Judge. Action by plaintiff to recover the amount paid by him as alleged surety for the defendant on a promissory note. The defense pleaded is that tbe note in question was signed by both plaintiff and defendant as an accommodation note for one Collins who was the real debtor.

— Hon. O. D. Wheeler, Judge. This suit was brought , to set aside certain conveyances made by the appellant, conveying to appellees all of her property, except her homestead, for want of consideration, on the ground of fraud and undue influence. The trial court refused to set aside the conveyances, but required defendant, Hans A. Bladt, to convey land received by him to his wife and to account for money intended by plaintiff for the children of Hans and Caroline.

<p>APPEAL AND ERROR: Demurrer Sustained — Appeal—Exception 1 Necessary — Failure to Amend — Judgment—When Exception Necessary. An appeal from an order sustaining demurrer need only show exception to such order. No exception need be entered to the formal judgment entry following failure to amend. (Sec. 3749, Code.)</p> <p>PARTNERSHIP: Specific Performance — Real Estate. Real estate is 2 none the less real estate, in an action to enforce the specific performance thereof under a proper contract, because it belongs to a partnership, even though for many partnership purposes it may be treated as personalty.</p> <p>SPECIFIC PERFORMANCE: Fundamentals Underlying Right to. 3One having a contract for the purchase of real estate (a) certain, (b) fair and (c) equitable is as much entitled to specific performance of the contract as he has right to an action for damages.</p> <p>SPECIFIC PERFORMANCE: Tender — Useless Acts. One seeking 4 specific performance and who has been always ready, able and willing to perform, and demanded performance and was met with a refusal to perform on the part of his adversary need not tender the purchase price prior to commencing action. It is sufficient if he makes a good tender in court when he begins his action, time not being the essence of the contract, and the terms of the contract being strictly mutual.</p> <p>SPECIFIC PERFORMANCE: Certainty as to Subject-Matter. Spe5 cifie performance demands a contract (a) certain, (b) unambiguous and (c) free from reasonable doubt as to the subject matter, time, etc. Evidence reviewed in the instant case and held to meet the rule.</p> <p>CONTRACTS: Certainty — “That Which Can be Made Certain.’’ 6 That is sufficiently certain which can be made certain.</p> <p>PRINCIPLE APPLIED: A contract for the sale of “our electrie light and power plant’’ is sufficiently certain.</p> <p>CONTRACTS: Performance — No Time Fixed — Reasonable Time— 7 Specific Performance. No time being fixed for performance of a contract, and time not being the essence of the contract, the law supplies a reasonable time.</p> <p>PARTNERSHIP: Survivor — Power of — Sale for Other Property— 8 Validity. A surviving partner has no right, in the absence of express authority, to sell the property of a partnership except for purposes connected with or in aid of winding up the affairs of the partnership and then only for cash.</p> <p>PRINCIPLE APPLIED: A partnership firm owned an electric light and power plant, consisting of personal and real property. One partner died. The survivor in the name of the partnership contracted to sell the entire plant and to take in exchange therefor certain corporate stock. Held, the contract was unenforceable.</p>

— Hon. R. M. Wright, Judge. Action to quiet title and for an injunction against the defendants, Stringer and Robbins, who are the mayor and city marshal of the town of Alden, to enjoin them from removing an obstruction by plaintiff in an alleged alley. The trial court dismissed plaintiff’s petition and dissolved a temporary injunction theretofore issued. The plaintiff appeals.

— TIon. Franklin C. Platt, Judge. Application for tbe construction of a trust conveyance. The two daughters, who are the only heirs of the grantor in such conveyance, claim that the writing operated to vest his estate in them. One of the legatees, Cornell College, of Mt. Vernon, claims that it did not, but says that his estate should be distributed as provided by his will.

<p>MASTER AND SERVANT: Servant Employed by Non-Employing 1 Servant — Consent of Master. One who in good faith enters upon the master’s work at the request of a servant in actual charge of the work, and with the express or implied consent of the master, is entitled to the protection ■ due a servant though he may not be entitled to recover wages from the master.</p> <p>PRINCIPLE APPLIED: A marshal was appointed by a town council, and among other duties was to operate the waterworks plant and engine, though the ultimate supervision rested with the council, the members of which visited the plant several times a year. The next day after the marshal was appointed he hired one Winn, whose general work was at an elevator close by, to start and stop the engine at the waterworks at stated intervals, furnished him a key and paid Winn $10 per month out of his own salary. Winn, in good faith, and to the knowledge of people generally, performed this work daily for some months. The mayor and each councilman testified that the marshal had no authority to employ Winn and that they did not know of such employment. A former marshal had handled the work in the same way but not through Winn. On one occasion the machinery was repaired by Winn and the marshal. There was direct evidence that some members of the council knew of Winn’s work. Winn was injured by the alleged negligence of the defendant. Held, question for the jury whether Winn’s employment was with the express or implied authority of the council.</p> <p>MASTER AND SERVANT: Assumption of Risk — When a Defense— 2 Factory Act. Assumption of risk constitutes no defense to a claim for injury occasioned by the failure of an employer to comply with a statute enacted for the protection of employees. (See. 4999-a2 Sup. Code.)</p> <p>PRINCIPLE APPLIED: Deceased-was employed in operating defendant’s engine at its waterworks plant. A set screw on a shaft was unguarded. The clothing of deceased was caught by this set screw and he was killed. Held, defendant under our Factory Act, See. 4999-a2, would not be permitted to plead assumption of risk. (And see Sec. 4999-a3.)</p> <p>MASTER AND SERVANT: Impracticability of Guarding Machinery 3 —Burden of Proof. If it be “impracticable” to guard machinery as required by our Factory Act (Sec. 4999-a2 Sup. Code) defendant must assume the burden to so show.</p> <p>MASTER AND SERVANT: Factory Act — Guarding Machinery — Un4 authorized Change — Effect. If a master so sets up his machinery that it requires no guard, shield or covering under our Factory Act (See. 4999-a2) and if without the master’s knowledge or consent or fault the machinery is changed, the master is not responsible for such change. (“Failure to discover” change not in the ease.)</p> <p>PRINCIPLE APPLIED: A shaft connecting defendant’s engine with a pump had a “clutch” thereon fastened by “setscrews.” Evidence tended to show that when the deceased went to work only “countersunk” set-screws flush with the surface of the shaft were used. Deceased was caught on the shafting and killed. “Head” set-screws, projecting a half inch from the shafting, and on which projections the clothing of deceased had caught, were then found on the shafting. Defendant claimed it never consented to or knew of the use of “head” set-serews upon the shafting until the accident. Evidence tended to show that deceased had prior to the accident purchased “head” set-serews of the same kind as found on the shafting when he was killed. The court instructed on the theory that defendant must show that the deceased substituted "head” set-screws for the "counter-sunk” setscrews. Reid', error — that the burden was on plaintiff at all stages to show defendant’s use of set-serews — that it was immaterial who made the change if without the knowledge, consent or fault of defendant.</p> <p>NEGLIGENCE: Evidence of — Insufficiency. No negligence is shown 5 on the following state of facts: The clothing of deceased was caught by a set-screw on a shaft in an engine room and deceased was killed. Negligence was predicated on the claim that a water pressure gauge which deceased had to read was placed too close to the shaft. It appears probable that the gauge was three feet from the shaft. The letters on the gauge were such that they could be read at a distance of several feet.</p>

<p>BANKS AND BANKING: Principal and Agent — When Relation 1 Exists — Collection of Note. A bank receiving a note for collection and remittance becomes the agent of the sender to perform such acts.</p> <p>BANKS AND BANKING: As Collecting Agent — Notes—Checks in 2 Payment — When Payment Effected. The naked act of accepting a check in payment of a note is presumed in law to be on condition that the cheek is good. If the cheek is dishonored, no payment is effected.</p> <p>PRINCIPLE APPLIED: (See application below.)</p> <p>BANKS AND BANKING: Deposit of Checks — Credit Thereon — Can-3 cellation. The naked act of a bank in entering a credit on its books in favor of one depositing the cheek of a third party is presumed in law to be on condition that the deposited cheek is good. If the cheek is dishonored, the credit can be cancelled.</p> <p>PRINCIPLE APPLIED: (See application below.)</p> <p>BANKS AND BANKING: Remittances Tinder Mistake — Fraud—Re-4 call — Cancellation—Principal and Agent. A remittance in the form of a draft to the holder of a note by one acting as the collecting agent for such holder, such remittance being made under a mistake of fact, induced by fraud, that said note had really been paid, may be recalled and cancelled even though the holder of the note to whom the remittance was sent was not a party to the said fraud, the said holder parting with nothing and losing nothing by reason of the mistake.</p> <p>PRINCIPLE APPLIED: The Western Co. of Sioux City and the Michigan Co. of Kalamazoo, Mich., were both going concerns. April 1st; the Western Co. issued $240,000 of accommodation notes to the Michigan Co., the same being sold at divers places. Plaintiff bought one of these notes, which was payable at defendant's bank August 1st following. Nearly $20,000 of like notes, owned by other parties, fell due at the same time and place. Being accommodation notes, the Michigan Co. assumed to meet them by sending to the Western Co. on July 26-28 four of its own cheeks (all later dishonored) aggregating $30,000 and drawn on Kalamazoo and New York banks. The Western Co., having a checking account with defendant, deposited these four checks with defendant on the afternoon of July 30th and received credit entry on the books. Defendant forwarded the checks at once for payment, the correspondent being ordered to wire notice of dishonor if any such. In due course, the four checks would be presented August 1st. A few days prior, the defendant received plaintiff's note for collection. Defendant had for collection other notes of the same kind aggregating $20,000. Defendant presented all notes for payment on August 1st and received from the Western Co. a check on itself for the aggregate amount and surrendered them all to the maker. Defendant knew nothing of the nature of the notes, or of the relations existing between the Western Co. and the Michigan Co. It believed the four cheeks had been or would be honored. On August 1st at 4:30 P. M., it mailed to plaintiff a draft for the amount of its note. Within an hour, a wire said the Kalamazoo checks were dishonored. On the same day, defendant repossessed itself of all the notes, returned the Western Co. check, stopped payment of th» draft and wired demand on plaintiff for its return when received. The note was protested and returned. The Western Co. and the Michigan Co. both proved to be insolvent. No indorser or security was released. Plaintiff brought suit on the draft.</p> <p>Held, (a) the defendant was the mere agent of the plaintiff to collect the note, (b) the agent was justified in taking the check of the Western Co. on condition in law that if the check proved worthless no payment in fact would be effected, (c) the credit on -the books to the Western Co. induced by the worthless Michigan Co. checks was also conditional, and (d) defendant had the right, on discovery of the mistake to recall the draft and was not liable thereon.</p> <p>ESTOPPEL: Election of Bemedies. One who, while acting as agent 5 in collecting a note, was misled into the belief that the note was paid by reason of a credit extended to the maker of the note by cheeks deposited by him with the agent, and who thereupon remitted a draft to the holder of the note for the proceeds of the supposed collection, and who immediately on learning that the checks were worthless recalled the draft, is not estopped to deny liability on the draft because on the day following he brought suit on the worthless cheeks and later dismissed the same.</p>

— Hon. Thomas L. Maxwell, Judge. Action at law to recover money alleged to have been deposited witb tbe county treasurer. Tbe demurrer of tbe defendant was sustained, and plaintiff appeals.

— Hon. David Mould, Judge. Action to recover tbe purchase price of certain pianos alleged to have been sold and delivered to the defendant. Defendant denied a sale, but pleaded that it held the instruments for sale on commission, or under an arrangement whereby plaintiff assumed the risk, and that all save a certain number which it sold were without its fault destroyed by fire, and that defendant is not responsible save for those sold by it.

<p>Appeal from Van Burén District Court. — Hon. D. M. Anderson, Judge.</p> <p>Action for partition. The parties to the case are all direct heirs of Catherine Donald,' widow of John Donald. The real property involved was owned at the time of his death by John Donald, who died testate. His will devised a life estate to his wife Catherine, and the remainder to his three sons subject to special bequests in favor of the three daughters. The .daughters and their representatives are the plaintiffs. They aver that their mother Catherine died seized of an undivided one-third of the property, the same being her distributive share under the statute. The defendants contend that the mother Catherine accepted the provisions of the will in her behalf and obtained the benefits therein provided for her, and that she did so Intending to take under the will, and that she thereby elected to take under the will and was estopped thereby to claim a distributive share under the statute. The trial court found with the plaintiffs and entered decree accordingly. The defendants have appealed.</p>