Volume 170 — Iowa Reports

<p>Appeal from Boone District Court-. — Hon. C. G. Lee, Judge.</p> <p>Action in replevin. Judgment for defendant. Plaintiff appeals. The opinion states the material facts.</p>

— Hon. Charles A. Dudley, Judge. Appellants filed labor claims and intervened in a landlord’s attachment suit entitled The Majestic Company vs. Ira D. Davis Company et al. Their claims were denied, and they appeal.

<p>Appeal from Harrison District Court. — Hon. E. B. Woodruff, » Judge.</p> <p>Appeal from the ruling of the district court dismissing defendant’s appeal.</p>

— Hon. Chas. A. Dudley, Judge. Action at law to recover damages for alleged fraud in an exchange of lands. Trial to a jury, verdict and judgment for plaintiff, and the defendant Jones appeals.

<p>1 INDICTMENT AND INFORMATION: Minutes of Magistrate — Irregular Taking — Motion to. Quash. When an indictment is returned on minutes of testimony certified by the committing magistrate, such indictment is not rendered invalid, and the witnesses whose testimony is so certified are not rendered incompetent to testify on the trial by the fact that the shorthand reporter appointed by the magistrate (See. 5227, Code, 1897), in making kis transcript of the testimony, in part used the transcript of a private party, which transcript the reporter compared and found correct, and which was correct as a matter of fact. Such act was irregular but not reversible error.</p> <p>2 LARCENY: Evidence to Sustain Verdict — Sufficiency—Larceny from Person. Evidence reviewed and held sufficient to sustain a verdict of guilt of larceny from the person.</p> <p>3 CRIMINAL LAW: Misconduct of Juryman During Deliberations— Detailing Matters Outside of Evidence. A verdict will not be overthrown by the fact that, during the deliberations of the jury in the trial of a criminal cause, one of the jurors stated that the defendant "looked like” a party who some years prior thereto obtained a small sum of money from him by a sharp scheme.</p>

<p>1 TRIAL: Motion for Directed Verdict — Adverse Ruling — Failure to Renew Motion — Waiver. One who moves for directed verdict before the close of all the evidence, suffers an adverse ruling and fails to renew such motion after the close of all the evidence, thereby waives any error, if any, in such ruling.</p> <p>2 CONTRACTS: Broker’s Commission — Construction of Terms — ‘‘Consummation” of Deal — Jury Question. The use of words and phrases in such connection that reasonable minds may well differ as to the sense in which they are used precludes the court from declaring their meaning as a matter of law. In a ease wherein a real estate broker’s commission was dire ‘ ‘ on the consummation of said deal, ’ ’ held that defendant could not justly complain that the court directed the jury to determine the sense in which the words were used.</p> <p>3 CONTRACTS: Construction — Giving Life to All Facts. A construetion of a contract that gives due effect to all the facts will always be preferred to one which makes a part of the facts idle. In other words, a construction is to be avoided which accomplishes for a thing done no more than would exist without the doing of that thing. So held under conflicting claims as to when a broker’s commission was due under the contract.</p> <p>4 PLEADING: Real Estate Brokers — Allegation—Proof—Variance— Oral Contract — Written Adoption. Proof must correspond to allegation. Rule held not violated by (a) declaring on an oral contract and (b) on the trial reinforcing the claim by showing a subsequent written adoption of such oral contract.</p> <p>PRINCIPLE APPLIED: Plaintiff pleaded that defendant orally employed him to procure a contract for an exchange of defendant’s lands for an agreed commission; that he caused defendant and a third party to enter into a writing stipulating for an exchange, but providing that defendant should not be bound thereby until the defendant had finally approved its terms, after examining the lands belonging to the third party; that defendant did later in writing approve such writing. On the trial, plaintiff was permitted to show in support of his pleading that there was inserted in the writing between defendant and the third party (being the writing which defendant at a later date finally approved) the following clause, to wit: "In the event of the approval of said contract by the said George W. Davenport (defendant), then and in that event he agrees to pay Albert Ball the sum of $350.00 as compensation for his services as his agent in the consummation of said deal.” Held, to constitute neither (a) variance nor (b) failure of proof.</p> <p>5 TRIAL: Instructions — No Evidence Applicable — Who May Complain. An instruction should not be given unless there is evidence in the record to which it can be applied; but if an instruction be given in violation of this rule, a party who is thereby given an unwarranted chance for a verdict cannot complain.</p> <p>PRINCIPLE APPLIED: Plaintiff, a broker, claimed his commission was due when the contract for exchange of land was signed. Defendant claimed the commission was due only when the exchange was actually executed. The court instructed that, if one party understood the agreement as *he claims and the other party as he claims, and neither agreed to what the other understood, then there was no contract. There was no evidence of the failure of the minds to meet. Held error, but as it gave defendant a chance to secure a verdict to which he was not entitléd, he could not complain.</p> <p>ts TBIAL: Broker’s Commission — When Earned — Instructions. Instructions reviewed and held to fully and fairly present the contentions of the parties as to when, if at all, a broker’s commission was earned.</p>

— Hon. M. E. Hutchison, Judge. Action originally commenced before a justice of peace to recover compensation for shelling corn. The justice rendered judgment for plaintiff and defendant appealed to the district court. When the case reached the latter court, plaintiff filed a motion to dismiss the appeal because no sufficient appeal bond was filed. This motion was overruled. The ease' then went to trial, resulting in a judgment for defendant, and plaintiff appeals.

<p>1 JOINT ADVENTURES: Rights, Duties and Responsibility of Participants — Evidence Reviewed. As preliminary to a question of fact, the rights, duties and responsibility of those embarking in joint adventures are stated generally, and thereupon evidence reviewed and held insufficient to show that plaintiff and defendants ever entered into a joint adventure (or partnership) for the promotion and construction of a railway, and consequently there was no occasion for the court to consider' what the duties would have been had such relationship existed.</p>

<p>1 EVIDENCE: Hearsay — General Rule Applied. Hearsay evidence is incompetent to establish any specific fact which is, in its nature, susceptible of being proved by witnesses who speak from their own knowledge.</p> <p>PRINCIPLE APPLIED: The inquiry before the court was whether a wife had consented to the establishment of a highway through her land. A witness was permitted to testify that he had had a talk with the husband, and that the husband had told him that when he, the husband, signed the petition, his wife was present and heard the talk wherein certain promises were made by the one circulating the petition. Held, incompetent.</p> <p>2 HIGHWAYS: Consent Petition — Ownership of Land — Competency of Evidence. Where the record title to lands was in the wife, and it was sought to show that the husband who had signed the petition for a consent highway was in fact the owner, held improper, in the effort to show his ownership, to receive evidence that the husband had given in the land for assessment as the property of the wife, but stated that the real truth was that he was the owner, because (a) incompetent generally, (b) incompetent to show ownership, and (c) the proceeding being certiorari, involving whether the petition bore the signatures of the owners of land as required by statute, the court could not try out the question whether someone other than the record owner was the owner of such land.</p> <p>3 CERTIORARI: Return — Supplementary Testimony — Purpose for Which Admissible — Highways. Certiorari does not act as an appeal wherein cases may be tried de novo, but testimony beyond the return, though not offered before the lower tribunal, may, on 'the hearing, supplement the return, but such testimony must bear on the one narrow question, to wit: Did the lower tribunal act in excess of its jurisdiction or otherwise illegally?</p> <p>4 HIGHWAYS: By Consent — “Written” Consent — What Constitutes. Sec. 1512, Code 1897, provides for the establishment of highways without the appointment of a commissioner “if the written consent of the owners of land to be used for that purpose is first filed in. the auditor’s ofliee.” To meet this statute, the owner’s name must appear upon the petition. In other words, the petition must be so complete that the board of supervisors can determine therefrom that it has the written consent of such owners without resorting to oral evidence.</p> <p>PRINCIPLE APPLIED: One Anna Blum owned the land, part of which would be taken for the proposed highway. When she was asked to sign the petition, her husband was present, and she said, "Let him sign it and it is all right.” She then handed the petition to her husband and in substance said, "You can sign it for me; it will be all right.” Whereupon the husband signed his own name. Held, the written name of the husband was proof of no more than oral consent by the wife and was insufficient.</p>

— Hon. O. D. Wheeler, Judge. Action to enjoin a nuisance. It is brought against the defendant city and the mayor thereof by plaintiffs as property owners who claim to be injured in their property by the alleged nuisance, and this consists in the maintenance of a rack of hitching posts in front of such property.

— Hon. W. H. Fahey, Judge. Application to set aside an order for the allowance of a claim in probate was denied and the applicants appeal. — ■

Certiorari from Pottawdttamie District Court. — Hon. O. D. Wheeler, Judge. This is a certiorari proceeding brought to test the legality of an order of the court of Pottawattamie County in a certain divorce proceeding pending in such court and is in the nature of an appeal from such order.

<p>1 SEDUCTION: Unchastity — What Constitutes. Previous chastity of the female is an all-essential element of seduction. Without it there can be no seduction. To be chaste, such female must be pure in mind and innocent of heart. The crime cannot be committed with a female who barters for an offer of marriage in futuro sexual favors in praesenti, and whose letters and conduct stamp her as impure and lustful in mind and heart.</p>

<p>1 CANCELLATION OF INSTRUMENTS: Fraud — Duress—Undue Influence — Advice of Friends — Threat of Prosecution — Blackmailer. No free mental agency, no deed. A deed may be set aside as for undue influence, fraud and duress when executed by the grantor under the influence and by reason of the urgent advice and solicitation of the grantor’s friends and confidants that he execute the deed and flee the country in order to avoid a prosecution for a crime of which grantor was confessedly guilty, threatened by a blackmailer who, having learned that grantor had committed the crime, was using such knowledge as a leverage to extort money from grantor on a bogus claim. And this is true though the grantor’s friends took no advantage by the deed, and though the grantees took no part in the fraud, duress or undue influence.</p> <p>PRINCIPLE APPLIED: One K forged a note. Later, this was financially adjusted. One L learned of the forgery and fabricated a claim against K and conveyed to K’s friends his intention to prosecute K on the forgery charge unless his claim was paid. K’s friends and confidants, including his own attorney, found K, placed the matter before him, enlarged on the grave danger he was in, advised and urged him to execute a trust deed to his two minor children and flee from the country. K, much agitated and frightened, was kept concealed until late at night, when he was taken to the attorney’s office, the deed was executed, a ticket was purchased for him to a point in a distant state, hats were exchanged, the parties made their way secretly to the train, which the grantor boarded fr'om an alley, and K remained in hiding for some seven months thereafter. Held, the deed should be set aside.</p> <p>2 CANCELLATION OF INSTRUMENTS: Deed — Fraud—Delay in Action to Set Aside — Laches. One must, of course, move with promptness to set aside liis deed on the ground of fraud, but a. delay of some eight months in instant case did not render plaintiff guilty of laches.</p> <p>PRINCIPLE APPLIED: (See under No. 1.)</p>

<p>1 WATERS AND WATERCOURSES: Agreed System of Drainage— Statute of Limitation — Easement. A drainage system between tbe lands of different owners, constructed in tbe. natural course of drainage by one of tbe landowners with tbe consent and acquiescence of tbe other, and continued and maintained for more than ten years to tbe mutual advantage of both of said owners, becomes a finality, an irrevocable easement wbieb nothing will obliterate except an actual abandonment, as distinguished from an intention to abandon.</p> <p>2 WATERS AND WATERCOURSES: Easement in Drainage System— Abandonment — Facts Not Constituting. Evidence reviewed and held insufficient to show an abandonment of an easement in a drainage system.</p> <p>3 WATERS AND WATERCOURSES: Easement in Drainage System— When Revocable — Failure to Repair. An easement in a drainage system granted on a valuable consideration is not revocable at pleasure, even for a failure to repair as per agreement. Tbe remedy for tlie complainant is to repair and demand recompense from tlie one bolding tlie easement.</p> <p>4 WATERS AND WATERCOURSES: Drains — Increased Elowage on Servient Estate. Drainage which brings no material increase in flowage to the servient estate furnishes no ground for complaint.</p>

— Hon. Thos. L. Maxwell, Judge. Action at law to recover damages for personal injury-caused by the alleged negligence of the defendant. Judgment for plaintiff and defendant appeals.

<p>1 DIVORCE: Property Rights — Conveyance by Wife .Before Decree— Effect. A former husband cannot, after his former wife has secured a divorce from him, complain that, while the marriage relation existed, his wife, having received a conveyance of land from a trustee who held the title in trust for her, altered the said deed by erasing her own name as grantee and inserted in lieu thereof the name of a person to whom she sold the land, the decree of divorce being silent as to the property rights of the parties.</p> <p>2 EVIDENCE: Transactions with Deceased — Objections—Waiver. A party objecting to testimony and a witness because incompetent under Sec. 4604, Code, as calling for personal communications on a certain point in issue with a party insane, waives such objection by adopting such testimony “as his own testimony,” even though in such adoption he attempts to preserve his former objections. In other words, such party after making such a record will not be permitted to insist on the probative force of that part of such ‘ ‘ communications ” as is favorable to him on a particular issue, and to deny the probative force of that which militates against him on the same point in issue. He must take all or none.</p> <p>3 TRUSTS: Resulting Trust — Evidence—Sufficiency of. Evidence reviewed and held that plaintiff, seeking to establish a trust in land because of having furnished the money with which to purchase the same, had not met his burden of proof.</p>

<p>PROCESS: Service — Fraud in Securing — Jurisdiction. Service of process secured through the trickery, deceit or fraud of a party or those acting for him, does not give the court jurisdiction. Record.reviewed and held to show that jurisdiction attached— that no fraud had been practiced.</p>

<p>1 HUSBAND AND WIFE: Wrongful Possession of Property — Implied Promise to Return — One Purchasing Claims Against Other. If the husband secures or takes possession of his wife’s property without her knowledge or consent, the law raises the same implied promise to repay to her as it would were she a stranger to him. A wife may take and enforce a claim against her husband the same as she may against a stranger.</p> <p>2 HUSBAND AND WIFE: Payments by One to Other — Good Faith. A wife holding valid, enforceable claims against her husband may take the same good-faith steps to secure payment that she could take were he a stranger.</p> <p>3 HUSBAND AND WIFE: Property of Wife — Husband’s Dominion Over — Estoppel. No estoppel can arise against a wife who has permitted her husband to exercise unrestrained dominion over her property when no creditor of the husband has relied thereon or been injured thereby.</p> <p>PRINCIPLE APPLIED: Action by a creditor to enforce his claim against a wife’s property. The husband had no property of material value, but from time to time, the wife received from relatives $23,000 in money and about $3,400 in bank stock, which stock always stood in her name. She allowed her husband to use her money without restraint. It was generally known that he was handling her money. Failure attended all his ventures. By 1906, he had ten shares of bank stock in his own name and about $1,000 in real estate, and the wife had her said bank- stock — all else had vanished. The wife’s father had died and the wife had taken as part of her share of the estate an unpaid note for $1,864 given to her father by her husband. About this time, the husband secured employment with a foreign mercantile house. The husband made no representations as to the financial condition of himself or wife, except he may have said that he was worth $10,000. The company in making the contract really relied on the statement of a banker that the husband “had a good business record, was responsible for his contracts, and was a stockholder in the bank, ’ ' which latter statement was true. During this employment the husband contracted the debt sought to be enforced in the instant ease. Some two years afterwards, the husband sold his own bank stock in order to pay his debts. He also, without the knowledge of the wife, sold her bank stock for $3,600 and entered upon another business venture. His health soon failed; he sold out and realized about $3,000, which he turned over to his wife to apply on her claim, she learning for the first time that, he had sold her bank stock, and having no knowledge that he was owing plaintiff or any other creditor. Meld, (1) that the wife in any view of the mater was a bona fide creditor of her husband to the extent of $5,400; (2) she had a right in good faith to take the $3,000 and apply on her claim; (3) she was not estopped to set up her claim against her husband's creditors.</p>

— Hon. D. F. Coyle, Judge. Suit in equity to set aside a tax sale and to enjoin a tax deed thereunder and for equitable relief. An equitable demurrer to the petition was sustained and the petition was accordingly dismissed. The plaintiff appeals.

— IIon. E. B. Woodrupp, Judge. The defendant was prosecuted under information charging him with unlawfully killing a deer. The defendant pleaded not guilty and a trial was had in justice court resulting in conviction. From this judgment, an appeal was taken by defendant to the district court. Upon trial had to the court without a jury, the defendant was again convicted and has appealed

— Hon. Frank W. Eichelberger, Judge. Action in equity.to enjoin defendant from interfering with plaintiff’s possession and use of one acre of land, and to establish plaintiff’s title and rights thereto. By cross-petition, defendant claimed to be the owner of the land and asked that his title be quieted. There was a decree for defendant. Plaintiff appeals.

— Hon. John'F. Oliver, Judge. Action for damages for flooding the basement of plaintiff’s business room and the destruction of merchandise by water alleged to have been diverted from Perry Creek by obstructions which were alleged to have been placed therein by the defendants. It was also asked that the nuisance thus maintained be abated. The cause was tried to a jury. At the close of plaintiff’s evidence, the court sustained a motion to direct a verdict for the city.

Certiorari from Sac District Court. — Hon. F. M. Powers, Judge. This is a certiorari proceeding in the nature' of an appeal. It is brought in this court under the provisions of Code Sec. 4468, to obtain a review of the judgment of the district court of Sac County whereby the petitioners herein were found guilty of contempt for an alleged violation of a decree of injunction theretofore issued by this court.

— Hon. T. L. Maxwell, Judge. The appellant, James Saling and Evert Emerson were indicted, charged with the crime of conspiracy to burn certain buildings and contents for the purpose of injuring the insurers. Appellant Madden was tried separately, and from a judgment against him he appeals.

— Hon. F. O. Ellison, Judge. Prosecution for rape. There was a verdict of guilty of assault with intent to commit rape against both defendants. Judgment was entered accordingly and sentence imposed. Both defendants appeal.

— Hon. W. N. Treichler, Judge. Action to recover damages consequent on breaches of a farm lease. A counterclaim was filed and on triál a verdict returned for defendant. From judgment entered thereon plaintiffs appeal.

— Hon. W. S. Ayres, Judge. Action of mandamus brought to compel the defendant as county treasurer to pay over to the' treasurer of the plaintiff corporation the amount of certain taxes collected by the defendant on behalf of the plaintiff. The defendant challenges the legality of the organization of the plaintiff corporation. No other defense is presented. The trial court awarded decree and order as prayed by the plaintiffs and the defendant has appealed.

<p>1 CRIMINAL LAW: Other Offenses — Admissibility—Rape. Evidence of offenses other and different than the specific one charged in the indictment, and each a complete offense in itself, is admissible on the question of quo animo, even though such offenses were not directly committed by the accused, and though subsequent in point of time to the offense charged, when in view of time, place, and circumstances the offense charged and such other offenses are so interwoven that they all constitute one criminal transaction.</p> <p>2 CRIMINAL LAW: Trial — Argument—Misconduct—Inflammatory Appeals — New Trial. The law does not shackle a public prosecutor with a handicap in the way of a hard and fast rule as to just what he may and just what he may not say in argument. But however repulsive the crime may be, however self-evident the guilt of the accused may appear, the publie prosecutor should always remember that to keep within the record and fair and reasonable deductions therefrom is the high ideal of the law and his proudest boast. Aside from this high ideal of the law, he should remember that assertions during argument that he or someone else would have been justified in taking the law into his own hands and killing the accused (or words to that effect) are regarded as highly inflammatory and are very destructive to the stability of a verdict of guilt. In the instant case, a new trial was ordered, because of inflammatory remarks, in spite of the admonition of the trial court to the jury not to consider the same.</p> <p>3 EAPE: Corroboration — On What Phase of Case Necessary. Corroboration is only necessary in so far as it is necessary to connect the defendant with the commission of the offense. The commission of the crime may be proven by the testimony of the prosecuting witness.</p> <p>4 RAPE: Force and Eesistance — Mental and Physical Strength of Parties — Instructions. It was proper, in instant case, to instruct: "You arc instructed that the force necessary, on the one hand, to commit the crime of rape, and the resistance required, on the other hand, to constitute the crime, depend upon the relative mental and physical strength of the parties, and the circumstances surrounding them at the time of the alleged assault," even though there was no record evidence of the physical and mental strength of the parties, both, however, being before the jury.</p> <p>5 CEIMINAL LAW: Flight in Absence of Accusation — Effect of — Instructions. In instant case, the effect of flight, if the jury found any, on the part of accused, was properly left to the jury, even though at the time of leaving accused had not been charged with the offense.</p>

— Hon. Milo P. Smith, Judge. Adelia Coleman died February 5, 1904, seized of 116 acres of land incumbered for $2,000. After her death her surviving husband, N. R. Coleman, with his minor children, continued in occupancy.

— Hion. M. B. Hutchison, Judge. The plaintiffs are owners of capital stock of the First National Bank of the city of Jefferson, and notwithstanding their objections, the several shares of said stock were assessed in 1912 and objections to said assessment were overruled by the board of review. Alleging the foregoing facts, together with grounds for the invalidity of Chapter 63 of the Acts of the 34th General Assembly, they prayed for issuance of a writ of certiorari.

— Hon. A. P. Barker, Judge. Suit to enjoin interference with the plaintiffs’ fences, roadway or embankment. On hearing, the petition was dismissed. Plaintiffs appeal.

— Hon. W. H. Fahey, ■ Judge. Action by an administrator to recover the possession of certain negotiable paper issued and made payable to plaintiff’s intestate, against one who claims to be' the owner by gift, and rests his right to the possession and ownership of the note upon the mere evidence of possession. Judgment for the plaintiff in the court below. Defendant appeals.

— Hon. John F. Talbott, Judge. Indictment charging defendant with maliciously and unlawfully injuring, removing and destroying a street car belonging to an electric railway, to wit, the Oskaloosa Traction & Light Company, of Oskaloosa, Iowa. Defendant was convicted and appeals.

— Hon. David Mould, Judge. Action to recover damages for personal injury resulting in the death of plaintiff’s intestate. Defense, that deceased was a mere volunteer to whom the defendant owed no duty at the time of the injury. Judgment for the plaintiff. Defendant appeals.

<p>1 RAILROADS: Negligence — Rules Governing Employees — Admissibility. The “rules'' of a railroad company, adopted for the government of its employees, are not admissible in an action to recover damages on account of the negligence of the employees in backing a train upon a party at a crossing.</p> <p>2 TRIAL: Instructions — Refusal of Correct Instruction — Duty of Court. The better practice is for the court to formulate its own instructions, even though the ones requested are correct. But if those asked and refused involve questions which ought to be submitted, then the court must give an instruction embodying the thought of the ones asked and refused.</p> <p>3 RAILROADS: Negligence — Right of One to Presuppose Care by Another. The right of the traveler, in approaching a railroad crossing, to assume that the railroad employees will exercise ordinary care in operating cars over the crossing is not a one-sided right. The railroad employees also have the right to assume that the traveler will exercise the same degree of care in approaching and going upon the crossing.</p> <p>4 RAILROADS: Negligence per se — Absence of Plagman. Negligence per se cannot be predicated' on the absence of a flagman at a railroad crossing situated at or near the mouth of an alley one-half block long and closed except at the crossing. Whether such omission is negligence depends on the particular circumstances of each case. In instant ease, held, the question was properly submitted to the jury.</p> <p>5 RAILROADS: Negligence — Care Proportionate to Danger — Sufficiency of Instruction. The thought “that the care required on the part of those operating trains must bear some reasonable proportion to the known peculiar dangerous character of the particular crossing which they are approaching,” is sufficiently embodied in an instruction (1) that it was defendant’s duty not to be negligent, (2) that correctly defined negligence, and (3) directed the jury in determining the question of negligence to consider all the surrounding circumstances.</p> <p>6 EVIDENCE: “No Eyewitness” Rule — Contributory Negligence — ■ Presumption of Care. The full statement of the ‘ ‘ no eyewitness ’ ’ rule is: Where a party is dead and there is no eyewitness (and therefore no obtainable direct evidence) as to the manner in which he conducted himself at and immediately preceding the time of an injury, a presumption arises that he was exercising that care and caution that a man of ordinary prudence, judgment and discretion exercises, under like circumstances, and in relation to'the same matter, unless the facts and circumstances shown upon the trial negative such presumption.</p> <p>PRINCIPLE APPLIED: There were eyewitnesses to the conduct of deceased at the time of the collision.</p> <p>1. An instruction asked read: “You are instructed that in the absence of direct evidence as to whether he exercised proper care . . . the law presumes, etc.” Held, fundamentally erroneous.</p> <p>2. An instruction given read: "You are instructed that where there are no eyewitnesses as to the manner in which plaintiff’s employee, now deceased was conducting himself at the time of the collision and at which time said damages are alleged to have been caused, the law presumed, -etc. ’ ’</p> <p>Reid, erroneous because (1) reasonable minds might differ and speculate as to its proper construction, and (2) it would, from its very terms,' bear a construction entirely neutralizing itself, to wit: (a) There is no presumption that deceased was free from negligence in approaching the crossing, and (b) there is no such presumption at the time of the collision, because there were eyewitnesses at that time.</p>

— Hon. A. N. Hobson, Judge. Appeal from a judgment on a verdict of not guilty in a bastardy proceeding, and from a judgment against complainant for costs._

<p>1 SCHOOLS AND SCHOOL DISTRICTS: Consolidation — Notice of Election — Sufficiency. See. 2746, Code 1897, does not require the posting of five election notices in each of several independent school districts which it is proposed to consolidate.</p> <p>2 SCHOOLS AND SCHOOL DISTRICTS: Attaching Territory to Adjoining District. Sec. 2791, Code 1897, authorizing territory to be attached to a school district under certain conditions, is mandatory, in that any attempted annexation of territory, without the order of the eounty superintendent, is nugatory.</p>

<p>Appeal from Warren District Court. — Hon. J. H. Apple-gate, Judge.</p> <p>Proceedings brought in partition and for the construction of a will.</p>

— Hon. AYm. D. Boies, Judge. Action to set aside a sale of personal property on the grounds that it was made for the purpose of hindering, delaying and defrauding creditors. Decree for the plaintiff. Defendants appeal.

<p>MUNICIPAL CORPORATIONS: Ordinance — Validity—Contravening Policy of State. A municipality is but a creature of tbe state, with, powers always subservient to the powers and policy of the state. It has no power to forbid or punish that which state law or state policy expressly or impliedly permits.</p> <p>PRINCIPLE APPLIED: Eor many years, the policy of the state, as reflected in See. 1571, Sup. Code, 1913, was to prohibit and punish the act of running traction engines over bridges, culverts and crossings without planking; that is, unless planks of certain dimensions were placed under the wheels. Ch. 102, Acts 33 G-. A., repealed this section by providing that until November 1, 1910, no such engine should be run over any such bridge, culvert or crossing without planking the same. Held, this repeal determined the policy of the state in this particular; was, in effect, a declaration that after said date engines might be run over cross-: ings without planking the same; and an ordinance of a town requiring such planking after said date was null and void.</p>

A.ppeal from Scott District Court. — Hon. M. F. Donegan, Judge. This action is on a note in words following: ' “$2,500.00. Feb. 1, 1907. Six months after date we promise to pay to the order of Mueller Lumber Company or bearer Twenty-five hundred & no-100 Dollars at Iowa National Bank of Davenport, Iowa. Value received with interest at the rate of 6% per annum. CONCRETE CONSTRUCTION COMPANY, By Cecil E. Bryan, President. Wm. Weimer, Harry E. Brown, A. W. Weimer.

<p>1 MASTER AND SERVANT: Operating Train — Application of Brakes —Failure to Warn — Rules—Custom—Negligence. Evidence and instructions briefly reviewed and held to present a jury question whether defendant was negligent in the manner in which the brakes were applied to a train, and whether warning of such application was required (a) by rule or (b) by custom.</p> <p>2 MASTER AND SERVANT: Federal Employers’ Liability Act — Interstate Commerce — Use of Track — Submitting Question to Jury. The Federal Employers’ Liability Act authorized an action thereunder only when both carrier and the employee are engaged in interstate commerce. Held, carrier was engaged in such commerce over the track in question, though such track was not fully completed.</p> <p>PRINCIPLE APPLIED: Plaintiff’s duty as trainmaster was to be out upon the road from Oelwein, Iowa, to Chicago, supervising matters in general. At the time of his injury, he was superintending the laying of gravel on the track. The track was newly constructed and not fully completed. It had not been bulletined for use, but on both of the two days preceding the injury, it had .been used to store two interstate trains, at least one of which proceeded ovér the line. The track had been put to no other use except for work trains. Séld, (a) the defendant was using the track for interstate commerce, and (b) it was not improper to permit the jury to say whether the laying of the gravel was being done in the maintenance of a roadbed used in interstate commerce or in the original construction of the track.</p> <p>3 RELEASE: Mental Capacity — Evidence Reviewed — Master and Servant. Evidence reviewed and held to show that one who had signed a release was under no mental disability at the time of signing.</p> <p>4 RELEASE: Consideration — Payment of Lost Wages — Re-Employment. A release of all claim for personal injury, in consideration of being re-employed and paid for lost timé, is supported by a sufficient consideration.</p>

<p>Appeal from Hardin District Court. — Hon. R. M. Wrtght, Judge.</p> <p>Action in equity to foreclose a mortgage. Decree for plaintiff. Defendants appeal.</p>

<p>Appeal from Polk District Court. — Hon. C. S. Bradshaw, Judge.</p> <p>Action at law to recover damages for an injury to a delivery wagon or truck owned by plaintiff, .alleged to have been occasioned by the negligence of defendant’s servants. There was a verdict for plaintiff for $148.69, and from the judgment entered thereon, the. defendant appeals.</p>

<p>1 SALES: Contract Evidenced, by Letter — Duty of Court to Construe. When a buyer is informed by letter of the specific terms on which an article is sold and shipped and the buyer receives the article in accordance therewith, the contract is complete and the construction thereof is solely for the court, irrespective of other subsequent correspondence.</p> <p>2 SALES: Rescission — Unwarranted Dominion Over Property — RescisSion Right Porfeited. An executed contract of sale may be rescinded for breach of an express written warranty. To determine this question of rescission, the purchaser may, in the light of the warranty, fairly test the article purchased. But let the purchaser beware! He must not, in violation of the warranty, assume a forbidden control over such property. Such control may work a forfeiture of his right to rescind. So held in the overloading and altering of an auto truck.</p> <p>PRINCIPLE APPLIED: An auto truck was rate-d at 3,000 pounds capacity. Damages from misuse and neglect, and repairs and alterations outside the vendor’s factory without the vendor’s written consent, were specifically excepted from the written warranty. The purchaser loaded the truck to at least 3,600 pounds. Repeated and expensive repairs and alterations were made on the machine in violation of these terms of the warranty. Held, the purchaser had forfeited his right to rescind the contract.</p>

<p>DIVORCE: Cruel and Inhuman Treatment — Insufficiency of Evidence to Establish. Evidence reviewed and held insufficient to justify a decree of divorce on the grounds of cruel and inhuman treatment.</p>

Certiorari from Lyon District Court. — Hon Wm. Hutchinson, Judge. Certiorari proceedings to the district court of Lyon County, to review the proceedings of that court finding the plaintiff guilty of contempt in violating an injunction against the sale of intoxicating liquors.

<p>1 TRIAL: Directed Verdict — Motion for — When Treated in Alternative. The suggestion is offered that occasions may arise when the court will construe a motion demanding a directed verdict in favor of T>ofh of two defendants, as simply a demand in the alternative, — that is, that one or the other of the defendants be dismissed.</p> <p>PRINCIPLE APPLIED: Plaintiff was clearly the employee of one or the other of two defendants, M and S, from both of whom damages were claimed by reason of alleged negligence. Both defendants appeared by the same counsel, filed harmonious defenses and, at the close of the evidence, joined in the same motion for a directed verdict for each, M asserting that plaintiff was not Ms employee because S was an independent contractor, and S asserting that plaintiff was not Ms employee because he, S, was the mere agent or supervising architect of M. The motion was sustained as ■ to S. The suggestion is offered that this motion should be treated simply as an alternative demand.</p> <p>2 MASTER AND SERVANT: Respondeat Superior — Independent Contractor — Evidence. An independent contractor, generally speaking, is one who, exercising an independent employment, contracts to do a piece of work according to his own methods, and without being subject to the control of his employer, except as to the result of his work. Held, in instant case, an employee was not an independent contractor.</p> <p>PRINCIPLE APPLIED: An architect was employed to prepare plans and supervise construction for a percentage of actual cost. No specifications were prepared. A general plan was agreed on. Changes, generally on the recommendation of the architect, were made from time to time, and always with the consent of the owner. The. owner had full control over all changes. The architect, without assuming any personal liability, entered into many contracts, but always on behalf of the owner by himself as architect. Deliveries under these contracts were to meet the approval of the architect. The recommendations of the architect were never overruled. All items of cost, both for labor and material, were controlled by the owner. All bills were paid for by the owner on approval by the architect. Held, the architect was not an independent contractor.</p> <p>3 MASTER AND SERVANT: Safe Place — Duty to Keep Safe — Surrounding Work of Master. A safe place is not rendered legally unsafe by the negligence of a fellow servant. But the negligence of the master is a different matter. A safe place may be rendered unsafe by the act of the master in carrying on other work near by. The master must furnish a reasonably safe place. He must then keep it reasonably safe.</p> <p>PRINCIPLE APPLIED: A master was erecting a cement structure with outer brick walls. A servant was laying brick on this wall near the bottom thereof. Without more, the place was safe. The master, through his foreman, sent workmen to the . sixth floor, immediately over the bricklayer below, to tear away the wooden forms from the cement columns and beams. In doing this work, chunks of cement were necessarily, in places, torn loose. A piece of this cement fell upon the servant on the wall below, with resulting injury. Held, the master was responsible for the resulting unsafety of the place, even though the workmen on the upper floor were not negligent in their work.</p> <p>4 MASTER AND SERVANT: Safe Place — Duty to Keep Safe — Act of Foreman — Vice-Principal. 'When the time and place of doing certain work in one place vitally affect the safety of another place in which other servants are employed, the act of a foreman in directing such work to be done at a certain time and place is the act of the master.</p> <p>PRINCIPLE APPLIED: (See under No. 3.)</p> <p>5 TRIAL: Inapt Instruction — Assumption of Fact. The assumption of a fact in issue is, of course, erroneous, but an inapt instruction, assuming that a certain fact has been established, may be cured by a subsequent instruction clearly stating the burden of proof as to such fact.</p> <p>6 EVIDENCE: Future Disability — Expert Opinion on Probability— Reasonable Certainty. A physician may testify as to probable future disability, even though the jury, as a finality, must meet the legal formula: “What future disabilities are reasonably certain?”</p>

— Hon. J. H. Applegate, Judge. Action at law brought by the appellant to sever territory from the incorporated town of Yan Meter. A jury was waived and the cause tried to the court. The court dismissed the plaintiff’s petition and the plaintiff appeals.

— Hon. H. K. Evans, Judge. Ti-ie defendant was charged with resorting to a house of ill fame for the purpose of lewdness. He' was convicted by a jury, and judgment pronounced. From this judgment he appeals;

<p>1 APPEAL AND ERROR: Assignment of Error — Failure to Argue— Waiver. Waiver is the penalty for failure to argue an assignment of error.</p> <p>2 INSURANCE: Removal of Property from State — Effect—Mutual Policy. A policy of insurance issued by a mutual insurance company, organized under the laws of Iowa, on property situated in Iowa, is not rendered invalid because, in the ordinary use of the property, it is temporarily removed to another state where loss occurs, no provision to the' contrary appearing in the statutes, by-laws or policy.</p> <p>3 INSURANCE: Location of Property — Removal During Ordinary Use —Loss. Insurance on personal property follows and attaches thereto wherever it goes in the ordinary and usual use of such property, unless the policy otherwise expressly or impliedly restricts the locality of the loss.</p> <p>PRINCIPLE APPLIED: The insured, at all times, resided at Laurens, Pocahontas County, Iowa, and was engaged in excavating drainage ditches wherever he might secure contracts. The policy in question covered twenty horses used in the business, which horses, when the policy was issued, were employed, with the knowledge of the insurer, on a ditch in Buena Vista County, Iowa. .The insurer admitted that he knew the horses were to be used in different parts of Iowa, but denied knowledge of their contemplated use outside of Iowa. The insured took the horses temporarily to Missouri in the prosecution of his regular business, and loss there occurred. The policy did not expressly or impliedly restrict the locality of the loss. Held, the loss was collectible.</p> <p>4 INSURANCE: Location of Property — Policy Issued Under Anticipated Removal — Loss—Estoppel. Notice and knowledge to the insurer at the time of the issuance of a policy of insurance that the property might, in its ordinary use, be removed temporarily to another state, followed by the acceptance of premiums, precludes the insurer from insisting on the invalidity of the policy by reason of such removal.</p> <p>5 INSURANCE: Mortgage Incumbrance — Knowledge of Insurer— Levying Assessments — Estoppel. An insurance company issuing a policy and demanding and receiving assessments thereon, all with knowledge of the existence of a mortgage on the property, will not be permitted to question the validity of the policy by reason of such mortgage.</p> <p>6 INSURANCE: Mortgage on Insured Property — Knowledge of Insurer — New Mortgage for Balance of Same Debt. A policy of insurance issued with knowledge of an existing mortgage on the property is not rendered invalid by tbe subsequent execution of a new mortgage for a remaining balance of tbe same old debt.</p> <p>7 INSURANCE: Increasing Hazard — Act Not Violative of Policy— Burden of Proof. If tbe insured does some act not violative of tbe policy, tbe burden of proof is on the insurer to show that tbe hazard was increased. If tbe insured does something violative of tbe policy, the burden of proof is on him, tbe insured, to show that tbe hazard was not increased.</p> <p>PRINCIPLE APPLIED: A policy contained no provision against removing tbe property from tbe state. In tbe course of its ordinary use, it was so removed and loss there occurred: Beld, tbe insured was under no obligation to show that tbe hazard was not increased.</p>

<p>1 EVIDENCE: Opinion — What Is Not — Whether Two Objects Met. Whether two passing objects hit each other is a statement of fact by a witness in position to see, and not an opinion.</p> <p>PRINCIPLE APPLIED: An automobile passed a team. Plaintiff claimed the automobile hit one of his horses and injured it. A witness in a position to see was refused permission to state whether or not the automobile hit the horse. Held, error; also that if the witness was not in the best position to see, his opinion whether the automobile hit the horse was admissible for what it was worth.</p> <p>2 DAMAGES: Injury to Property — Cost of Repairs — Reasonable Value Thereof. Cost of repairs is not the measure of recovery for a wrongful injury tp property. Such cost must be shown to be the reasonable value of the repairs, especially when there is no evidence as to the nature of the injury to the property.</p> <p>3 HIGHWAYS: Laws of the Road — Instruction Without Support in ■ Evidence. An instruction having no support in the evidence should not be given. So held with reference to a collision on the public highway.</p> <p>PRINCIPLE APPLIED: Plaintiff was overtaken on the public highway and turned his team to the right and entirely outside of the traveled path. Defendant, without leaving the traveled path, drove his automobile past plaintiff’s team and, according to plaintiff’s claim, hit the team, or at least frightened it, and caused it to run away, with resulting damages. The court instructed as to defendant’s liability under the statute (Sec. 1569, Sup. Code, 1913) if, in passing, he turned back into the road within 30 feet of the team and such turning back was the proximate cause of the accident. Held,, error, because having no support in the. evidence.</p> <p>4 APPEAL AND ERROR: Quotient Verdicts — Instructions Against— Discretion of Court. Instructions cautioning the jury against “quotient” verdicts held unobjectionable.</p>

<p>1 NEGLIGENCE: Known. Defect in Street — Attempt to Pass Over— Contributory Negligence. Contributory negligence per se will not be pronounced on the mere act of passing over a Tcnown defect in a public street. The test is: Did the traveler know or ought he to have known that it was imprudent to so pass? Couched in other terms: As a reasonably prudent person, did I believe and have a right to believe that I could pass in safety?</p> <p>PRINCIPLE APPLIED: Glenn avenue, a public street, ran east and west. It was intersected at right angles by the Sergeant Bluff road. An adjoining landowner cut a new road across Glenn avenue, connecting it with the Bluff road. This new road was cut below the level of Glenn avenue, leaving a bank. A barrier was placed across the traveled part of Glenn avenue near the bank. South of the barrier, the Glenn avenue bank was spaded down for a few feet, to furnish access to the new road. Plaintiff used these streets in going to church. She and others had passed that way several times during the progress of the work, and without accident. On the day in question, she avoided the obstruction in the morning by driving around it. She returned at night, going west on Glenn avenue. There were no lights. Near the barrier, she was told, by someone supposed to be connected with the grading, to go to the south 'of the barrier. She did so, the buggy dropped forward into the new road, she was thrown out and injured. Held, not guilty of contributory negligence per se.</p> <p>2 MASTER AND SERVANT: Respondeat Superior — Independent Contractor — Who Is Not. One hired by a landowner to grade a street under the direction of the owner’s engineer, and at a certain . price per yard, is not an independent contractor.</p> <p>3 MUNICIPAL CORPORATIONS: Defective Streets — Notice of Condition. When the work of constructing a new road across a public street bad been in progress during several days in succession, a jury might well find that the city ought to have known of the resulting conditions and remedied the same.</p>

<p>1 APPEAL AND ERROR: Directed Verdict — Motion for — Failure to Renew — Waiver. He who moves for directed verdict before the close of all the evidence in the case, suffers an adverse ruling and fails to renew the motion at the close of all the evidence, waives any possible error in the former ruling.</p> <p>2 FRAUDS, STATUTE OF: Sale of Real Estate — Crypt in Mausoleum —Documentary Evidence. Assuming that the sale of a crypt in a mausoleum is a sale of real estate, held that the documentary writings sufficient to satisfy the statute of frauds were furnished (a) by the written contract, (b) by the written specifications, (e) by the written report of the engineers thereon, (d) by the written correspondence in reference thereto signed by the defendant, followed by the construction of the crypt in accordance with said specifications.</p> <p>3 CONTRACTS: Signing — Conflict of Evidence — Record Not Showing. Where the signing of a certain letter was material to defendant’s liability on his former contract, held that the record presented no conflict as to defendant’s signature, one witness testifying that he saw defendant sign said letter, defendant testifying that the signature looked like his signature, but he had no remembrance of signing it.</p> <p>4 CONTRACTS: Repudiation — Repentance. One who enters into a written contract, subsequently repudiates the same, and still later enters into negotiations with the other party and insists on certain changes, which are granted, and the contract completed in accordance therewith, has no defense to the entire contract price — can no longer insist on his attempted repudiation. So held in regard to the building of a mausoleum.</p>

<p>1 NEGLIGENCE: Defective Sidewalk — Knowledge—Contributory Negligence. Mere knowledge of the existence of a defect in a sidewalk, followed by an attempt to pass thereover, does not charge one with contributory negligence per se. The material inquiry is: Did the injured person know it was imprudent to attempt to pass over the defect or did he believe he could pass in safety? If the former, recovery is denied. If the latter, the question of contributory negligence is for the jury.</p> <p>2 TRIAL: Motion for Directed Verdict — Error in Ruling — Waiver. Error, if any, in overruling a motion for directed verdict made before the close of all the evidence is waived when such motion is not renewed at the close of all the evidence.</p> <p>3 MUNICIPAL CORPORATIONS: Defect in Sidewalk — Notice of— Evidence — Form of Question. In an action for personal injury by reason of a sidewalk being out of repair, a question, “How long would you say generally the sidewalk had been out of repair?” was held to clearly call for the condition of the walk at the place where plaintiff was injured and as not being objectionable as calling for the condition at other or remote points.</p> <p>4 TRIAL: Arguments Based on Complainant’s Evidence — Objection Precluded. A party cannot well complain of an argument based on evidence brought out by the complaining party himself on cross-examination or permitted to remain in the record without objection.</p> <p>5 DAMAGES: Future or Continuing Injury — Right to Recover — Instruction Not Authorizing. Instruction reviewed and held not to • authorize recovery for future or continuing injury.</p> <p>6 APPEAL AND ERROR: Instructions — Failure to Object Before Reading — Waiver. Failure to interpose an objection to an instruction before tbe game is read to the jury works a waiver of the right to object.</p>

— Hon. Wm. H. McHenry, Judge. This is a habeas corpus proceeding to test the validity of certain articles of adoption. The appellee, Edna Seibert, is the mother of Kenneth C. Seibert, Jr. Her husband, executed articles of adoption of the child to his sister, the defendant. Later, a divorce proceeding was instituted, and at the time of the trial of this case, the divorce proceeding had not been determined.

— Hon. Lawrence De Graee, Judge. Certiorari to review certain proceedings had in the district court in a certain action in which W. T. Shaver was plaintiff and the complainant herein was defendant. The facts are stated in the opinion.

— Hon. George Jepson, Judge. Action for damages for false imprisonment. There was a verdict- and judgment for the plaintiff and the defendant appeals.

¥m. Theophilus, Judge. The case here presented is upon a counterclaim by the defendant against the plaintiff for damages for alleged false representations for the sale of corporate stock. There was a verdict for the defendant for the amount claimed in his counterclaim and the plaintiff appeals.

— Hon. Hugh Brennan, Judge. Action to recover damages on account of alleged trespass . upon lands of tbe plaintiff and for injunctive relief. The trial court found for the defendants and dismissed the bill and plaintiff appeals.

— Hon. J. B. Rockaeellow, Judge. Action at law upon a written lease of land for the recovery of rent and for damages for alleged violations of the terms thereof, and for the enforcement of a landlord’s lien. At the close of the testimony, the court sustained the defendant’s motion for a directed verdict in his favor and the plaintiff appeals.

— Hon. P. G. Norris, Judge. Action brought in equity by a lessor to enjoin his lessee from removing or selling crops and other property from the leased premises and for other relief. Decree for plaintiff and defendant appeals.

<p>1 MASTER. AND SERVANT: Safe Place to Work — Sanding Street Car Tracks — Negligence. A master must furnish his servant a reasonably safe place in which to work and must keep it reasonably safe. Held a jury question, in instant case, whether the master had failed to meet its duty in this respect and was negligent by reason of not having sanded its tracks or equipped its cars with sanding devices, and thereby prevented an approaching ear from sliding through a car barn door and injuring the servant working therein.</p> <p>2 APPEAL AND ERROR: Trial — Exclusion of Evidence Otherwise Brought Out. Error cannot be predicated on the exclusion of evidence pertinent to the issues when such evidence was fully brought out in other portions of the witnesses’ testimony.</p> <p>3 WITNESSES: Ancient Rule Against Impeaching One’s Own Witness — Modification Recognized. It is an, ancient rule that one may not impeach his own witness even by showing that the witness has made statements out of court inconsistent with his statements in court. But when a party to an action has been deceived, apparently with deliberation, into calling a witness to the stand under the bona fide belief that he would testify to a certain state of facts and the witness proceeds to testify squarely to the contrary, the party calling such witness is not entirely helpless. In instant case, the reading of the written testimony of the witness (taken on a former occasion) "in order to refresh his memory” and set counsel right with the jury was approved.</p> <p>4 TRIAL: Instructions — Stating Grounds of Negligence — Non-necessity to Repeat. After the court has once clearly stated the grounds of negligence upon which plaintiff’s causé of action is predicated, it is not necessary to continue to repeat them in subsequent .paragraphs.</p> <p>5 TRIAL: Instructions — Stating Affirmative and Negative Proposition — Sufficiency. The reverse of an affirmative proposition need ■ not necessarily be elaborated with the same fulness as was employed in stating the affirmative. Eor instance, the jury was sufficiently guided where it was told that if they found that the defendant street railway company should have sanded its tracks, in the exercise of reasonable care, and did not do so, and that the injury was the proximate result of such failure, and that the injured party was not negligent, then he could recover, "otherwise not.” The two latter words, under the record in ease at bar, and to a juryman of common understanding, clearly suggest and state the reverse of the proposition immediately preceding.</p> <p>6 MASTER AND SERVANT: Concurrent Negligence of Pellow Servant and Master — Statement of Rule — Instructions—Hypercritical Objection. The following instruction is held to sufficiently and correctly state the Concurrent Negligence Rule: "If plaintiff was injured as a result of the negligence of said motorman alone and without any fault or negligence on the part of the defendant company, then plaintiff is not entitled to recover. ... If, however, the motorman was negligent and the defendant was also negligent as alleged, and if plaintiff, without contributory negligence on his part, was injured as the direct and proximate result of the concurrent negligence of said motorman and defendant, then plaintiff is entitled to recover."</p> <p>7 TRIAL: Instructions — Placing Undue Emphasis on Certain Evidence. Instructions should not unduly emphasize certain evidence to the exclusion of other equally relevant evidence, but held, rule not violated.</p> <p>8 TRIAL: Instruction Inartificially Drawn — Test to Apply. An inartifieially or clumsily drawn instruction does not necessarily demand a reversal. Instructions must not be considered abstractly and apart from the record to which they are applied. The subject-matter must always be kept in mind. They are sufficient if, to a man of ordinary intelligence, a correct understanding of the law is given in the charge as a whole. Instruction reviewed, and held not to misdirect the jury as to what negligence would render the defendant liable.</p> <p>Deemer, C. J., and Salinger, J., dissent as. to the construction placed on the instruction in question.</p>

<p>1 NUISANCE: Damages — When Original — When Continuing — Right"' to Elect. When a nuisance is permanent in its construction, and . fixed, determinable and permanent damages at once result from ] the very nature of such construction, the damages are original, that is, all damages, present and prospective, accrue at once. j</p> <p>PRINCIPLE APPLIED: A city, without authority of law, J erected a permanent concrete and iron dam across a creek in order, f to form a lake within its park.y'Plaintiff was an active pro- f moter and instigator of the scheme. The water rose to its new ! level within two or three weeks, overflowing, as had been intended : by all parties, certain lands. About a year thereafter, plaintiff' bought by ordinary warranty deed 80 acres of land, known by him to be in part overflowed on account of said dam. He brought action for the permanent damage to the land, later amended to recover the depreciation in rentals, and asked for an abatement. At trial, he elected to recover the depreciation in rental value. His evidence showed both depreciation in rental value and injury by submergence of gravel beds, live springs, grass lands and timber, thus proceeding on the theory that, though the nuisance and resulting damages may have been permanent, yet he had the right to elect to treat the nuisance as a continuing one and sue, from time to time, for the loss of rental value instead of damages to the land. Held; .</p> <p>1. The nuisance and resulting damages being both permanent, \ the damages were original.</p> <p>2. The damages being original, they belonged, not to plaintiff, but to the former owner from whom plaintiff bought, the warranty deed not carrying the same to plaintiff.</p> <p>3. Plaintiff could not treat the nuisance as a continuing one.</p> <p>4. Plaintiff was estopped to abate the nuisance.</p> <p>2 VENDOR AND PURCHASER: Existing Permanent Nuisance — Damages — Action by Grantee. When damages occasioned to- land by a nuisance are original, an ordinary warranty deed will not carry to the grantee in the deed the right to such damages.</p> <p>3 NUISANCE: Who May Abate — Estoppel. Where plaintiff actively promoted and advised the erection by a city of a permanent dam across a creek in order to form a lake in the city park, intending and knowing that certain lands would be permanently submerged, .and damages, original in their nature, were thereby caused to a landowner by the overflow, he (plaintiff) will not be permitted, after buying said land, to abate said nuisance or to treat the same as a continuing nuisance, except as to damages independent of those proximately following the construction of said dam.</p>

— Hon. W. H. McHenry, Judge. Plaintiff is the executor of the estate of Charles E. King, deceased. He has brought this action against the defendants for alleged conversion of funds belonging to the King estate.

— Hon. R. M. Wright, Judge. Action at law upon, a promissory note for $1,000. The payee of the note was J. Crouch & Son, who endorsed the same to the plaintiff before maturity. The defendant admits the execution of the note, but sets up in defense a breach of warranty and false representations, and failure of consideration, and that the plaintiff is not a good-faith holder in due course. At the close of the evidence, there was a directed verdict for the plaintiff.

— Hon. 'W. H. Fahey, Judge. Action to quiet title to land taken in condemnation proceedings for railway right of way, the plaintiff contending that the defendant had abandoned all right to the condemned land under the provisions of Sec. 2015 of the Code of 1897. Decree for the plaintiff. Defendant appeals.

<p>1 EAILBOADS: Sales — Entire Assets of Grantor — Grantee Assuming Liabilities — Privity of Contract — Fraud on Creditors: The absolute assumption by a grantee of the payment of all the existing liabilities of a grantor, and the agreement by such grantee to indemnify and hold grantor harmless from any such liabilities, in consideration of the transfer to grantee of all the assets of the grantor, creates something more than a mere “contract of indemnity” for grantor. By such assumption, the grantee putt himself, practically, into the shoes of grantor. Such a contract creates a right of action in favor of such creditors against grantee. This is true even though an attempt is made to limit the promise to pay and indemnify by a clause "that nothing in such contract shall be construed as giving any other person than grantee and grantor any right, remedy, or claim," as such latter clause, in so far as contradictory of the former clause, will be rejected as a fraud on grantor’s creditors. So held where one railway company bought all the assets of another railway company.</p> <p>PRINCIPLE APPLIED: Plaintiff, having been negligently injured, had a cause of action against a railway company of which he was an employee. Later, the company sold its entire railway, including all assets, to another railway company. The grantee assumed the payment of all liabilities of the grantor arising out of the operation of the railway and agreed to "indemnify" and save harmless the grantor against any and all such liabilities. This agreement was the very essence of the consideration. A later clause provided that nothing in the contract of sale, expressed or implied, was intended or should be construed to give to any person, other than to the grantor and grantee, any right, remedy, or claim. Held, (a) the latter clause, in so far as in' conflict with the first clause and as nullifying it, must be rejected as fraudulent, (b) the first clause was not a mere indemnity clause, .but a clear assumption of liability, and (e) a privity of contract arose, under the first clause, between plaintiff and the purchasing company, and plaintiff could maintain his action against both companies.</p> <p>2 ACTIONS: Joinder of Causes and Parties — Ex Delicto — Ex Contractu — When Permissible. A creditor, in an action sounding in tort against his debtor, may join one who, by contract, has assumed and agreed to pay the debts of the said debtor. (Sec. 3545, Code 1897.)</p> <p>PRINCIPLE APPLIED: (See No. 1.)</p> <p>3 ACTIONS: Improper Joinder of Parties or Causes — Waiver. Objection to the improper joinder of (a) parties or (b) causes of action must be raised before answer or the objection will be waived. (Secs. 3547, 3548, Code.)</p> <p>4 EVIDENCE: Negligence— Notice of Defects — Other Similar Defects. Evidence of defects, similar to but at other places than the particular defect relied on as constituting negligence, existing at different points throughout a large part of defendant’s railway switching yards, but in the near vicinity of the place of accident, is admissible to show notice to defendant of the existence of the particular defect relied on as constituting negligence, especially where the cause was tried on the theory that evidence of ‘ ‘ notice ’ ’ was necessary.</p> <p>5 EVIDENCE: Negligence — Notice of Defect — How Proven: Notice to defendant of a defect on which negligence is predicated may be shown by plaintiff, both in the form of (1) actual knowledge to defendant of such defect and (2) constructively — that is, from the nature of the defect — defendant not having the legal right to dictate the quantum of proof which plaintiff shall offer in support of a fact in issue.</p> <p>PRINCIPLE APPLIED: Plaintiff, an employee of a railway company, was injured by reason of a "sag” or low place in the railway track, causing the engine to lurch and throw plaintiff off the engine. The defect proven was such as to charge the defendant company with a duty to discover and to know of it. Held, defendant could not properly complain because plaintiff did not choose to rest on "constructive” notice of the defect, but proceeded farther in his evidence and introduced evidence tending to show "actual” notice.</p> <p>6 EVIDENCE: Expert Evidence on Nonexpert Question — Expert Drawing Only Inference Jury Could Draw — Effect. Expert inferences from certain assumed facts, being the only inferences which the jury could draw from such facts, if believed by the jury to be true, are, while erroneously received, nonprejudieial.</p> <p>PRINCIPLE APPLIED: Plaintiff claimed there was a "sag” in the track and that, as the engine passed over the sag it "lurched” and threw him off and injured him. He so testified. Later, as an expert, he was permitted to testify that an engine of that type and going at that speed would not, going over the track, "lurch” without striking a "sag” and that he would not have fallen from the engine had it not "lurched.” Held, while there was nothing in the case calling for expert testimony, yet under above rule the error was nonprejudieial. (The court says: "There was nothing in such opinion as given by the plaintiff that was fairly calculated to corroborate him or to aid his credibility.”)</p> <p>7 MASTER AND SERVANT: Negligence — Personal Injury — Contradictory Statements — Evidence—Sufficiency. Evidence reviewed and held sufficient to support verdict for personal injuries, notwithstanding statements by plaintiff alleged to be wholly incon^ sistent with his testimony on the trial.</p> <p>8 PLEADING: Ambiguity — How Construed. An ambiguous pleading will be construed against the pleader.</p> <p>PRINCIPLE APPLIED: Plaintiff, in a personal injury action, pleaded negligence in that defendant allowed a "sag” to exist in its track, which caused the engine to lurch and throw him off. Defendant pleaded that plaintiff had knowledge of the condition of the yards and track and assumed the risk incident to his employment "in the said yards,” and the "dangers and hazards incident to riding over the tracks in their then condition,” and that if defendant was negligent, the plaintiff was aware of the danger arising from such negligence and assumed the risk of the same. Defendant claimed this constituted a pleading of the assumption of risk “incident to the employment.’’ Held, the pleading, being ambiguous, should be construed as pleading the assumption of risk "incident to the negligence of defendant.”</p> <p>9 MASTER AND SERVANT: Assumption of Risk (a) Incident to Employment and (b) Incident to Negligence — Distinction. "Assumption of risk incident to employment” and "assumption of risk incident to defendant’s negligence” are two vastly different matters; the former is not an "assumption of risk” in its true sense. The latter is. Por a master to say "The servant assumed the risk incident to his employment” is simply another way of saying, "I deny that I was negligent.”</p> <p>10 MASTER AND SERVANT: ‘ ‘Assumption of Risk Act” — Negligence —Risk "Incident to Employment” — Necessity for Instructions. The "assumption of risk” abolished (except under the imminent danger clause) by Chap. 219, Acts 33d G. A. (See. 4999-a3, Sup. Code, 1913), is that risk which is incident to the negligence of the master. The latter clause, viz., "this statute shall not be construed so as to include such risks as are incident to the employment,’’ is precautionary only. In such sense, it is not superfluous, but if said clause was omitted, the above construction would be inevitable. No instruction need be given on the effect of this last clause in the absence of a request therefor.</p> <p>11 DAMAGES: Personal Injury — Instructions Permitting Speculation— Future Pain. Whether an instruction permitting a recovery for such "pain and suffering as plaintiff may endure in the future” escapes the vice of opening the door to mere speculation by the limitations (a) "as shown by the evidence,” (b) "if any he will suffer in the future,” and (e) "all as established by the evidence,” quaere.</p> <p>12 DAMAGES: Personal Injury — Instruction Permitting Speculation— Future Suffering — Hopelessly Permanent Injuries. An instruction, if faulty because opening the door to mere speculation, in that it allowed a recovery for such future suffering as “may” be sustained in the future, is rendered unobjectionable in instant case by the fact that plaintiff’s injuries were hopelessly permanent.</p> <p>13 TRIAL: Instructions — Correct Though Inexplicit — Special Instruction — Necessity for Request — Waiver. If an instruction is correct as given, though not as explicit as desired, request must be made for the more explicit instruction, or waiver will be the penalty.</p> <p>PRINCIPLE APPLIED: In instant ease, the instructions on the measure of damages in a personal injury action were correct as far as they went, but failed to limit the amount of recovery to the present worth. No request was made for a more explicit instruction. Held, error could not be predicated on the lack of specification.</p> <p>14 DAMAGES: Excessive Verdict — Permanent Injuries. A verdict of $22,000 sustained. Plaintiff lost both legs. At the time of the accident he was 26 years old. He had exclusively fitted himself for railroading, and was receiving $111 per month when hurt.</p>

— Hon. R. M. Wright, Judge. Suit in equity to enjoin the defendant city from closing an area or open stairway leading to a barber shop in plaintiff’s building, which building abuts upon a business street in the city of Nevada. The trial court, upon the issues joined, granted the prayer of the petition, and the city appeals.

— Hon. R. M. Wright, Judge. The defendant was accused of assault with intent to murder, and was convicted of an assault with intent to do great bodily injury. He appeals.

<p>Appeal from Mills District Court. — Hon. Thomas Arthur, Judge.</p> <p>The defendant was convicted of murder in the first decree, and appeals.</p>