Volume 169 — Iowa Reports

<p>Appeal from Woodbury District Court. — Hon. David Mould, Judge.</p> <p>Action by plaintiff to recover for services of his minor sons, and for other items. There was a motion to strike that part of the petition by which plaintiff sought to recover for such services. The motion was sustained, and the plaintiff appeals.</p>

— Hon. R. P. Howell, Judge. .Action in equity. There was a demurrer to the petition, which was overruled, and the defendant elected to stand on his demurrer. Judgment and decree against defendant, and he appeals.

— Hon. F. M. Hunter, Judge. This is a proceeding in probate for an order authorizing the administrator to expend $125.00 for a monument for deceased.

— Hon. Oscar Hale, Judge. Action at law to recover damages for injury to plaintiff’s horse, occasioned by the alleged negligent operation of an automobile driven by defendant. Trial to a jury. Yerdict and judgment for plaintiff for $50.00. Defendant appeals.—

— Hon. Henry Silwold, Judge. Appeal from an order of the district court, sitting in probate. The order complained of struck from the record certain objections made by the appellants to the Final Report of tbe Administrator of the estate of Johanna Miller.

— Hon. John F. Oliver, Judge. Action to recover for services. Defendant claimed he had overpaid plaintiff and, by way of counterclaim, sought to recover back $65.00. There was a trial to a jury and a verdict and judgment for plaintiff. Defendant appeals.

— Hon. F. M. Hunter, Judge. Action of partition. Tbdre was a decree confirming shares and ordering a sale by the referee. After the sale and report of the referee, a controversy arose over the distribution of the proceeds. The appeal is from the order- of distribution and not from the decree confirming shares.

<p>Appeal frmn Webster District Court. — Hon. R. M. Wright, Judge.</p> <p>Action in equity for an accounting and for other relief. Petition dismissed and plaintiff appeals.</p>

<p>1 CONTRACTS: Validity — Lex Loci Contractus — Lex Loci Rei Citse— Nebraska Real Estate Commission Act. A contract void in the state where made and to be performed is void everywhere.</p> <p>PRINCIPLE APPLIED: The Nebraska Real Estate Commission Act declares void all oral contracts for a commission for sale of lands. Plaintiff, a resident of Iowa, was orally promised iii Nebraska a commission if he would furnish a purchaser for defendant ’s Canadian land. Plaintiff produced at Omaha the prospective purchaser who was taken by defendant to Canada and made the purchase. Held, (a) contract invalid and (b) the invalidity was not avoided by the doctrine of lex loci rei sitce.</p> <p>2 BROKERS: Commissions — Statute of Frauds. An agency contract for the sale of land is not one which affects real estate in a legal sense.</p> <p>PRINCIPLE APPLIED: (See No. 1.)</p> <p>3 BROKERS: Commissions — Statutes Requiring Written Contract— Sufficiency of Evidence. Evidence in the form of letters reviewed and held insufficient to establish a written contract for commissions as required by the Nebraska Real Estate Commission Act.</p> <p>4 PLEADINGS: Amendments — Rejection—Discretion of Court. The striking of an amendment at the close of the trial, pleading a written contract instead of the oral one formerly pleaded, because filed too late, is held in instant case to have been within the discretion of the court.</p>

— Hon. M. E. Hutchinson, Judge. Action at law to recover remainder of the agreed consideration for the sale of land by plaintiffs to defendant. There was a judgment for plaintiffs and defendant appeals. The material facts are stated in the opinion.

— Hon. Thomas L. Maxwell, Judge. Action in equity for partition of land. Defendant, Ernest Lewis, filed an answer and cross-petition, alleging that he had been adopted by deceased and was entitled to all the property. He also claimed to be tbe owner of 420 of tbe 460 acres of land by virtue of certain written contracts, which contracts the other parties allege were forgeries. The trial court found against Lewis and dismissed his cross-petition, and he appeals.

<p>Appeal from Harrison District Court. — Hon. A. B. Thornell, Judge.</p> <p>Action upon a written lease to recover rent. By way of affirmative defense the defendants pleaded an accord and satisfaction. There was a verdict for the defendants. The plaintiff appeals.</p>

<p>1 TRIAL: Directed Verdict — When Permissible — Conflicting Evidence. Verdict should not be directed when the evidence is such as to (a) support a verdict for plaintiff in some amount, or (b) support a verdict for plaintiff on a contested issue.</p> <p>PRINCIPLE APPLIED: (a) Plaintiff and defendant dissolved partnership. Plaintiff’s evidence showed that defendant had drawn $135 more than his share of the cash; that there were outstanding accounts to about that amount; that defendant agreed to pay plaintiff this $135 as soon as he could collect it. Record showed some collections had been made but plaintiff’s evidence showed the agreement to pay the $135 was' not conditional on collections being made but was simply an agreement for a reasonable time in which to pay. Held, a directed verdict for defendant was erroneous.</p> <p>PRINCIPLE APPLIED: (b) Plaintiff, the holder of a note, sent the note to a bank for collection. The first bank sent it to a second bank. The second bank turned the note over to its attorneys. The attorneys negotiated with the maker, who claimed insolvency but offered a compromise. The attorneys consulted with the first bank, which bank communicated with plaintiff by phone. Plaintiff testified he refused to authorize a compromise. The bank understood otherwise and authorized the attorney to compromise, which was done. The first bank applied the proceeds on another note due the bank from plaintiff. Plaintiff testified he repudiated this. Held, plaintiff had the right to have the jury pass on the authority of the agents to compromise and a directed verdict for defendant was error.</p> <p>2 PLEADING: Unauthorized Acts of Agent — Ratification—Burden of Proof. He who pleads ratification of the unauthorized aets of an agent must establish the ratification.</p>

— Hon. W. H. Fahey, Judge. Suit in equity to enjoin tbe defendant from maintaining a certain fence across a creek, on the ground that it diverted the flow of water to the damage of the plaintiff. There was a decree for plaintiff substantially as prayed. The defendant appeals.

— HoN. W. N. Treichler, Judge. Action to recover damages for a failure to deliver a telegram. Opinion states the facts. Verdict and judgment for the plaintiff. Defendant appeals.

— Hon. C. W. Vermilion, Judge. Action for damages for negligence resulting in the death of Lynch Hunt. There was a verdict and judgment for the plaintiff of $2,000. The defendant appeals.

— Hon. W. H. McHenry, Judge. This is a proceeding in quo warromto. It is brought against the defendants as purported officers of a school corporation. It challenges the legality of the formation of such school corporation. The defendants filed an answer to the petition. The plaintiff demurred to such answer, and his demurrer was sustained. From such ruling the defendants have appealed.

— Hon. Hugh Brennan, Judge. A demurrer to a petition praying that a nuisance be enjoined was sustained and, as plaintiff failed to plead over, the petition was dismissed. The State appeals.

John F. Talbott, Judge. Dependant was indicted for the crime of murder in the first degree, and upon trial to a jury was convicted of manslaughter; and appeals.

<p>Appeal from, Warren District Court. — Hon. W. H. Fahey, Judge.</p> <p>Both parties assert they are entitled to a decree divorcing them, each charging the other with wilful desertion. The trial court denied all relief to both. The plaintiff, the wife, alone appeals.</p>

<p>Appeal from Louisa District Court. — Hon. James D. Smyth, Judge.</p> <p>An action for damages resulting from a defective bridge. There was a verdict for the defendant and judgment entered thereon. The plaintiff appeals.</p>

— Hon. J. F. Clyde, Judge. Action for divorce on the ground of cruel and inhuman treatment. Decree for the defendant dismissing plaintiff’s petition. Plaintiff appeals.

Appeal 'from Lee District Court. — Hon. H. Bank, Jr., Judge. Suit for partition of real estate. The plaintiff was adjudged to have no interest therein and his petition was dismissed. He appeals.

<p>Appeal from Polk District Court. — Hon. Chas. S. Bradshaw, Judge.</p> <p>Action to cancel certain rights in coal land acquired under an agreement with the owner. Judgment and decree for the plaintiff.</p>

<p>1 TRIAL: Directed Verdict — Test to Determine — Allowable Inferences. When the court is met by motion to direct a verdict it should carry to the aid of the evidence every permissible inference in support of the issues. In instant case, motion improperly sustained.</p> <p>PRINCIPLE APPLIED: Action on note. Plaintiff’s evidence showed in the most positive manner the full, free, intelligent and undoubted execution and delivery of the note. Defendant’s evidence showed that her eyesight was very poor and showed in an equally positive manner that defendant never saw the note, never signed it and never had any talk about signing it; or that if defendant did sign it, she was tricked into so doing through the fraud of her attorney, while signing a petition for divorce. H'eld, (a) the jury might have found that the minds of the parties never met — no contract was ever made; and (b) that she had a right to rely implicitly on what her .attorney told her and was excusable in not asking her sons to read the instrument to her. Held, motion for a directed verdict was improperly sustained.</p>

Pottawattamie District Court. — Hon. A. B. Thornell, Judge. Action at law to recover damages for the death of Willis King, who was struck at a highway crossing on defendant’s line of road by a passing train, and instantly killed. Fuhrman was the engineer on the engine drawing the train, and he was made a party defendant.

— HoN. M. F. Edwaeds, Judge. Suit in equity to enjoin the levy and collection of a tax voted in aid of the electrification and construction of an interurban or trolley line of railway, from Marble Eoek into and through Charles City, and on in a northeasterly direction some nine or ten miles to the county line. The trial court granted the prayer of the petition, and defendants appeal.—

<p>1 HOMICIDE: Manslaughter — Gross Carelessness — Sufficiency of Evidence. Evidence reviewed and held to sustain a conviction' for manslaughter in negligently driving an automobile over a child, both as to the identity of defendant and the acts of negligence.</p> <p>2 HOMICIDE: Manslaughter — Legal Intent Supplied by Recklessness —Instructions. That element of intent necessary to support manslaughter inheres in conduct showing a reckless disregard and indifference to the lives and safety of others, resulting in death. Therefore where the court instructed that such recklessness must be found before conviction could be returned, its further statement that the law presumed an intent to kill from such reckless conduct resulting in death was without any prejudice to defendant.</p> <p>3 CRIMINAL LAW: Trial — Argument Outside Record — Sustaining Objections Thereto — Curing Error. Sustaining objections to improper argument, and admonition to counsel to keep within the record, with due caution to the jury either orally or generally in the instructions, has large curative effect on such error.</p> <p>4 CRIMINAL LAW: Trial — Argument—Allowable Limits — Matters of Record. Counsel, even for the state, will be permitted to enter upon and pursue such vigorous exercise of his vocabulary as may seem to him meet in the promotion of his client’s cause, even though his ventures into the realm of oratory may take the form of strong denunciation, so long as he confines himself to matters of record and reasonable deductions therefrom. Held, counsel’s argument was allowable.</p>

— Hon. O. D. Wheeler, Judge. Action in equity to set aside a deed on the ground that the grantor was mentally incapable of making a valid conveyance, and further, that in procuring the conveyance, the grantee exercised undue influence over the grantor. Decree for defendants.

<p>Appeal from Adams District Court. — Hon. H. K. Adams, Judge.</p> <p>The facts appear in the opinion.</p>

<p>Appeal from Lee District Court. — Hon. Henry Bank, Jr., Judge.</p> <p>Action to recover damages for personal injury. Judgment for plaintiff and defendant appeals.</p>

— Hon. Hugh Brennan, Judge. Suit to redeem certain shares of corporate stock alleged to have been held by defendant as collateral security for a loan; for an accounting and for judgment for the value of the stock in the event it could not be returned to the plaintiff.

— Hon. Charles A. Dudley,- Judge. Action for damages for alleged negligence on the part of the defendant city in permitting an obstruction upon its streets whereby the .plaintiff was injured. At the close of plaintiff’s evidence there was a directed verdict for the defendant. Plaintiff appeals.

<p>Appeal from, Franklin District Court. — Hon. R. M. Wright, Judge.</p> <p>Appeal from a decree confirming a special assessment. — :</p>

— Hon. R. M. Wright, Judge. Action at law to recover damages for injuries received by plaintiff while in defendant’s employ in a stucco plaster mill. Trial to a jury. Verdict and judgment for plaintiff and defendant appeals.

<p>1 NEW TEIAL: Motion Assigning Several Grounds — Sustained Generally — Effect. The granting of a new trial generally under a motion assigning several grounds therefor will not be disturbed if any of the grounds are tenable.</p> <p>2 NEW TEIAL: Granting by Trial Court — Eeluctance to Overturn. It must be a clear ease, indeed, to warrant the appellate court in overturning the action of the trial court in granting a new trial, especially when the reason assigned is that the verdict is contrary to the evidence.</p> <p>3 NEW TEIAL: Instructions Not Submitted to Counsel — When Objection Timely. An objection to an erroneous instruction, not submitted to counsel before being read, as required by Sec. 3705-a, Sup. Code, 1913, is timely if made for the first time in a motion for new trial.</p> <p>4 NEW TRIAL: Inherent Power of Judge to Grant. A "new trial" may be ordered by a trial judge by virtue of his inherent power, even though our statute provides a procedure for the granting of new trial "on the application of the party aggrieved.” (Sec. 3755, Code.)</p> <p>5 RAILROADS: Negligence — Crossing Accident — Guest Relying on Driver — "Look and Listen" Rule. The standard of reasonable care required of a mere guest, in approaching a railroad crossing, and riding in a conveyance on the invitation of another, may be and ordinarily is markedly different than the standard required of the driver over whose actions the guest has no control. The guest may have the right to rely on the driver "to look and listen." Material considerations are (a) the position of the guest in the conveyance, (b) whether the guest participated in the negligence of the driver, and (c) whether the driver was known to be incompetent, etc.</p>

— Hon. R. M. Wright, Judge. Action to recover an alleged balance due under a contract for the construction of a tile drain in a joint drainage district comprising lands in Webster and Calhoun Counties. Trial was had on the equity side of the court. Relief was awarded by the trial court as to one small item but was denied as to the principal question in controversy. Plaintiff appeals.

— Hon. C. G. Lee, Judge. Action for damages for assault and battery. There was a counterclaim for rent due. There was verdict for the defendant for an' amount less than his claim for rent. The plaintiff appeals.

— Hon. F. M. Hunter, Judge. Action in equity to set aside a deed of real estate and for other relief. The material facts are stated in the opinion. The trial court dismissed the bill and plaintiff appeals.—

<p>1 CORPORATIONS: Bankruptcy of Stockholder — Assignee’s Right to Assets — Offsetting Indebtedness. A trustee in bankruptcy acquires no higher or better title to the assets of the bankrupt than the bankrupt had at the time, of the adjudication of bankruptcy unless the Bankruptcy Act so provides.</p> <p>PRINCIPLE APPLIED: The statutory life of a corporation expired Dee. 12, 1907. It at once commenced to close up its affairs, sold its property, paid its debts and had a fund for distribution among its stockholders equal to $40 per share. One Barnes had for years been the treasurer of the corporation and was $2,000 short in his accounts with the corporation on and for more than four months prior to Oct. 25, 1911, on which latter date he was adjudged an involuntary bankrupt. Barnes owned 13Y2 shares in the said corporation. Each share provided that it was not transferable by the stockholder without the consent of the directors if the stockholder was liable to the corporation. Held, whether the corporation had under the provisions of the certificate alone a lien on the fund in its possession to which the holder of the Barnes’ shares were entitled, quaere. Reid, the corporation did have the right against the trustee to deduct from that part of the assets due on the Barnes shares the amount of the shortage.</p> <p>2. BANKRUPTCY: Trustee’s Title — Eight of Set-Off Against Trustee. A corporation, passing through liquidation, has the right, against the trustee in bankruptcy of a bankrupt stockholder of the corporation, to deduct from that part of the assets of the corporation due on the stockholder’s shares, the amount due the corporation from the bankrupt on a defalcation antedating the adjudication of bankruptcy by more than-four months, the stock certificates so providing, and this right is not defeated by the terms of the Bankruptcy Act providing that the trustee "as to all property in the custody or coming into the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and power of a creditor holding a lien by legal or equitable proceedings thereon.” Act July 1, 1898, See. 47a (30 Stat. 557, c. 541) as amended by Act June 25, 1910 (36 Stat. 840, c. 412, See. 8 [TJ..S. Comp. St. 1913, Sec. 9631]).</p> <p>3 BANKRUPTCY: Trustee’s Title to Stock Holdings — Stock Subject to Equities. A trustee in bankruptcy of a bankrupt stockholder of a corporation takes the stock holdings of the bankrupt in the corporation subject to the equities existing between the corporation and its bankrupt stockholder, even though it be conceded that mutual indebtedness did not technically exist between the corporation and the stockholder at the time of the adjudication in bankruptcy.</p> <p>PRINCIPLE APPLIED: (See preceding application.)</p>

_ — ITon. John F. Oliver, Judge. Action for damages for negligence resulting in injury to an employee. At the close of plaintiff’s evidence there was a directed verdict for the defendant.

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

<p>Appeal from Monroe District Court. — Hon. D. M. Anderson, Judge.</p> <p>•The opinion states the case.</p>

— Hon. W. H. McHenry, Judge. Defendant was indicted, tried, and convicted of crime of incest; and from the judgment imposed, appeals.—

<p>1. PARTNERSHIP: Authority of Partner — Private Affairs of Co-Partner. It is very elementary that a partnership relation alone gives one partner no authority to contract with reference to the private contracts of his co-partner.</p> <p>2 PAYMENT: Pleading — Burden of Proof. Payment is an affirmative defense with the burden of proof on him who alleges it.</p> <p>3 EVIDENCE: Opinions — Conclusions—Justifiable Exclusion. The ex-elusion of a question so framed as to strongly suggest a conclusion-answer is especially justified (a) when the party making the inquiry makes no suggestion as to what he expects to prove, and (b) the witness was not thereafter questioned as to any specific facts in reference to the matter.</p> <p>4 NEW TRIAL: Newly Discovered Evidence — Diligence. “Due diligence ’ ’ in the discovery of new matters of evidence is not shown when such new matters might have been readily brought out from the same witness when he was testifying at the trial.</p>

— Hon. R. M. Wright, Judge. Action for damages because of the negligent ^delay of the defendant company in the transmission and delivery of a telegram. There was a trial to a jury and a verdict and judgment for plaintiff. The defendant appeals.

— Hon. J. W. Kintzinger, Judge. Action for damages resulted in a directed verdict for the defendant from which plaintiff appeals.

<p>Appeal from, Hamilton District Court. — IIoN. R. M. Wright, Judge..</p> <p>Aotion by plaintiff as a subcontractor to recover against a public corporation under the provisions of Code Sec. 3102 the value of materials furnished for a public improvement. A general equitable demurrer to the petition was sustained. Plaintiff appeals.</p>

<p>Appeal from Monona District Court. — HoN. J. F. Oliver, Judge.</p> <p>The opinion states the ease. —</p>

— Hon. R. M. Weight, Judge. This was an appeal by the plaintiff to the district court from an assessment of benefits by the board of supervisors in a drainage proceeding. Upon a trial had in the district court the assessment was confirmed.

— Hon. David Mould, Judge. Action at law to recover damages for personal injuries received by plaintiff while in defendant’s employ, due to the fact that defendant furnished plaintiff a defective truck with which, to work Defendant denied the negligence charged, pleaded assumption of risk and contributory negligence, and also the statute of limitations.

— Hon. Thomas Arthur, Judge. Action by the heirs of Eliza and Robert Baker to set aside a conveyance made by them to William Baker, the defendant, on the ground that the same was procured by undue influence and that the grantors were wanting in mental capacity to make the deed. Both parties appealed. —

Certiorari from Polk District Court. — Hon. William McHenry, Judge. Plaintiff was found guilty of the violation of a liquor injunction, and a fine of $200.00 was imposed. He brings the case here by certiorari. The petition is dismissed, and the judgment —

— Hon. Hugh Brennan, Judge. An application was filed, in an original divorce case, by defendant, Charles Blachly, to modify a decree of divorce, asking that the custody of the child of the parties to the original action, which in original decree was awarded to plaintiff, be now awarded to the defendant, Blachly. Plaintiff and the child are nonresidents of Iowa and were at the time notice of such application was given. The notice was by publication.

<p>Appeal from Davis District Court. — Hon. F. W. Eichelberger, Judge.</p> <p>Action at law to establish boundary between tracts of land. The opinion states the case. —</p>

— Hon. R. P. Howell, Judge. Action at law to recover damages for a horse, killed at what plaintiff alleges was a private under-crossing of defendant’s right of way. Trial to a jury; verdict and judgment for plaintiff; and defendant appeals. —

— Hon. James P. Hewitt, Judge. This is an action at law brought by Emelia A. Holmquist, Administratrix of the Estate of John A. Holmquist, deceased, because of the wrongful acts of the defendants. Trial to a jury. At the close of the evidence both defendants moved for a directed verdict. The motion was sustained as to the defendant city and overruled as to the construction company.

— Hon. M. F. Edwards, Judge. Proceedings by way of injunction to restrain defendant from erecting a house in excess of a limitation in height fixed in his deed, the covenant in the deed providing that the first floor of the house shall not be more than four feet above the established grade line of the sidewalk. Decree from the defendant, dismissing plaintiff’s petition.

— Hon. Francis M. Hunter, Judge. Action at law to determine a controversy over a division fence. Trial to the court without a jury. Judgment and decree for plaintiffs. Defendant appeals.

— Hon. W. H. McHenry, Judge. Action to have contract rescinded on grounds of breach of same and fraud, and for damages. Defendants, other than John L. Wright, appear specially and move to quash the return and service of notice on non-resident defendants. The motion was sustained. Plaintiff appeals. —

— Hon. Hugh Brennan, Judge. Action upon two promissory notes. The action is in the form of a claim filed against the estate of decedent, the notes being the basis of the claim. The plaintiff was not the payee of the notes but claims as a holder in due course. A defense was pleaded, good as against the payee. The trial court directed a verdict for the plaintiff on the ground that he was a holder in due course without notice of infirmity in either note.

Motion of plaintiff to compel Grimm & Trewin, Attorneys, to account for money collected. Appeal from Linn District Court. — Hon. W. N. Treichler, Judge. A summary proceeding instituted by motion of the plaintiff against its attorneys in the above entitled case under the provisions of Code Sec. 3826. Upon trial had on the merits, judgment was rendered for the defendants. Plaintiff appeals.

<p>Appeal from Scott District Court. — Hon. M. F. Donegan, Judge.</p> <p>Defendant was convicted of the crime of obtaining money by false pretenses, and appeals. —</p>

<p>Appeal from Folk District Court. — Hon. Lawrence De Graff, Judge.</p> <p>The defendant was convicted of murder in the first degree and appeals. —</p>

Certiorari from Wapello District Court. — Hon. Francis M. Hunter, Judge. Certiorari proceeding brought in this court to test the legality of the action of the district court of Wapello County (the defendant judge presiding) in the case of Goudy v. Timonds pending in such court.

<p>INTOXICATING LIQUORS: Injunction — Serving at Hotel — What Constitutes Selling, Bartering, etc. The proprietor of a hotel neither "sells, barters, gives away or dispenses” intoxicating liquors within the meaning of Sec. 2382, Sup. Code, 1913, (a) by permitting guests to drink such liquors with their meals, which liquors they themselves brought to the hotel, or (b) by permitting the waiters to serve to guests liquors so brought to the hotel by the guests', or (e) by the unauthorized and forbidden act of waiters going out and buying liquors for guests, which guests sometimes paid for in advance and sometimes when the same was delivered, or (d) by the act of a tenant of the hotel going out and buying liquor for such guests, the proprietor keeping no liquors and deriving no advantage from such supplying of liquors, and, therefore, cannot be enjoined.</p>

<p>Appeal from Polk District Court. — Hon. W. S. Ayres, Judge.</p> <p>Action upon a written contract signed by T. F. Flynn. After the action was commenced, Flynn died and his executors were substituted as defendants.</p> <p>An amended petition was. filed, stating grounds for attachment, and the Iowa Loan and Trust Company and Ida</p> <p>May Flynn were made parties defendant. All the defendants demurred to the petitions and their demurrers were sustained. The appeal is from these rulings. —</p>

— Hon. C. B. Bradshaw, Judge. Suit in equity to test the validity of the organization of an independent school district and to restrain the persons claiming to hold office therein from exercising the functions or performing the duties pertaining to such positions. The material facts are stated in the opinion. —

— Hon. A. N. Hobson, Judge. Appeal from an order appointing Anna E. Doolittle as an executrix, with J. E. Doolittle and John H. Jones as executors of the last will and testament of M. B. Doolittle, deceased. —

<p>1 DEED: Construction — Grant of Fee — Rejection of Repugnant Clause —When Rule Inapplicable. That the clear grant of a "fee title” demands the rejection of a subsequent repugnant clause is a rule not applicable when the granting clause itself contains a limitation on the fee.</p> <p>PRINCIPLE APPLIED: A father, conveying his entire fee, provided:</p> <p>1. That his son Francis take "an estate for life or for years,” on certain conditions, a violation of which worked a forfeiture.</p> <p>2. That if Francis did not breach the conditions, he should have a full life estate.</p> <p>3. That if the estate of Francis was ended by breach of conditions or by death, and he was then married, his wife should take an estate as long as she remained his wife or widow, "but' the fee simple title shall pass to and be vested in the issue of Francis if any there be who are living at the time of his death.”</p> <p>4. That ‘ ‘ if Francis shall be without issue, at the termination of his estate, the fee simple title shall vest in (four other named children of grantor) liable to be divested by the birth of children to Francis, after forfeiture and before his death.-”</p> <p>5. Francis, who had no wife or issue, breached the conditions. Held: The four other children did not, on the forfeiture of</p> <p>Francis, take a “fee simple title” as declared, but a “determinable fee” — a fee liable to be terminated by the existence of living children of Francis at the time of his death.</p>

— Hon. W. J. Springer, Judge. Action at lawr to recover damages for assaults committed upon plaintiff and his wife. Defense, general denials and pleas of self-defense. Trial to a jury; verdict for plaintiff against both defendants in the sum of $1,500.00, which was reduced by the court to $750.00; and judgment for the latter amount. Defendants appeal. —

— Hon. George W. Dunham, Judge. Proceeding to establish, a claim for material against a fund alleged to be subject thereto, arising out of a contract to erect a school building. From a decree in favor of the defendants plaintiff appeals. —

<p>Action for services as attorney resulted in a judgment for plaintiff. The defendants appeal. —</p>

— Hon. F. M. Hunter, Judge. From a decree granting a temporary injunction against the unlawful sale of intoxicating liquor this appeal is taken.—

<p>ATTORNEY AND.CLIENT: Lien for Attorney Fees — Attempt to Defeat — “Money Due.” An attorney has a lien upon “any money due Ms client in the hands of the adverse party” and growing out of the action, from the time of giving notice to the adverse party. Such adverse party cannot defeat this lien by satisfying the money demand through a conveyance of real property to the client of the attorney instead of paying the client in “money.” (See. 321, Code.)</p>

<p>Appeal from Polk District Court. — Hon. James P. Hewitt, Judge.</p> <p>Appeal from an order overruling a motion to transfer cause to the equity calendar. —</p>

— Hon. Chas. S. Bradshaw, Judge. A petition of general consent for the sale of intoxicating liquors in Valley Junction, Polk County, Iowa, was canvassed by the board of supervisors of Polk county, and found sufficient. Appeal from such finding was taken to the district court, and the petition again was adjudged sufficient. From the finding of the district court this appeal has been taken. — ■

— Hon. Thomas Arthur, Judge. In proceedings before the fence viewers of Valley Township in Pottawattamie County, the board refused an order for the erection, cost and maintenance of a partition fence between plaintiff, Barton, and defendant, Boie. Plaintiff Barton appealed to the district court and, in a hearing before that tribunal, the action of the board was reversed and the partition fence was established. Defendant appeals. —

— Hon. E. B. Woodruff, Judge. Action to recover damages for the breach of a contract of employment, and for the false and malicious arrest of plaintiff as an insane person. The defense was a general denial, and defendant also pleaded a settlement, accord, and satisfaction of plaintiff’s claims. The ease was tried to a jury, resulting in a verdict for plaintiff on the count for false arrest, but finding for defendant on the claim for damages for breach of contract.

<p>1 ANIMALS: Pedigree or Certificate of Breeding — Fraud in Issuance— Cancellation — Innocent. Party. A ‘ ’ certificate of the breeding ’ ’ of an animal issued by an association engaged in such business is subject to cancellation for fraud in its original issuance, even against one who in good faith purchased such animal in reliance on such certificate and received an assignment of the certificate. Such certificate is a proclamation to all the world that it speaks the truth. If in fact untrue and such certificate is irrevocable, then the fraud would be perpetuated. It is unthinkable that the law would commit a fraud by perpetuating a fraud.</p> <p>2 EQUITY: Jurisdiction Retained for Full Settlement of Controversy. Equity, having obtained jurisdiction of a controversy, will retain it under a general prayer for equitable relief and do full justice and end the litigation, if possible, even though in so doing it may pass on matters ordinarily cognizable at law.</p> <p>PRINCIPLE APPLIED: An association engaged in certifying to the breeding of draft horses, and failing to exercise due care but intending no wrong, was induced by fraud to certify to the breeding of a certain animal. Plaintiff bought the animal and took an assignment of the certificate in good faith reliance thereon. Later, the association secured possession of the certificate and claimed the right to cancel it for the fraud in its issuance. Plaintiff in equity sought to prevent the cancellation. Seld, the defendant had the right to cancel the certificate, but inasmuch as plaintiff had been damaged by the fabricated certificate, the equity court would retain jurisdiction, assess the damages against defendant, and end the litigation.'</p> <p>3 ESTOPPEL: Representations Not Known to be True, Made as of Knowledge — Reliance' Thereon — Damage. Representations made as of one’s own knowledge, which he does not know to be true, and which induces another to part with his money or property, fixes liability. The maker will be estopped to plead that he did not intend to defraud. Emphatically true is this when the representations are made for a consideration and without due care.</p> <p>PRINCIPLE APPLIED: (See No. 2.)</p> <p>é DAMAGES: Remoteness — Infinity of Causes — Animals—Fabricated Pedigree — Foals. Remote damages cannot be recovered. So held in the case of the foals of a mare with a fabricated pedigree.</p> <p>PRINCIPLE APPLIED: An association, engaged in the business of registering horses, was induced, through gross deception, to issue a certificate attesting to the breeding of a certain mare. The certificate was false. Plaintiff purchased the mare in good-faith reliance on the certificate, paying $500, which would have been her value had the certificate been true. As it was, she was worth $200. Plaintiff bred the mare. Damages were claimed for both the lessened value of the mare and her foal. Seld, the lessened value of the mare was proximate, that of the foal too remote for recovery.</p>

— Hon. 0. W. Vermilion, Judgé. Action brought by plaintiff to recover $2,700.00 for liquor alleged by him to have been sold to him by the defendant between June, 1908, and November, 193.0. The action was brought under the provisions of Sec. 2423 of the Code. There was a trial to a jury and a verdict and judgment against de- fendant for $1,500.00, from which he appeals. —

— Hon. E. B. Wood-ruff, Judge.- This is an. action in equity to establish a disputed division line and to quiet title to a strip of land in controversy based upon adverse possession and acquiescence. The controversy is over a division fence.