Volume 174 — Iowa Reports

— W. S. Hamilton, Judge. Suit in equity to enjoin an alleged liquor nuisance. The trial court dismissed the petition and taxed the costs to the petitioner, and he appeals.

<p>INTOXICATING LIQUORS: Contempt — 'Unlawful Sales — Real Proprietor. Evidence reviewed on certiorari to review contempt proceedings, and held to establish (a) the unlawful sales of intoxicating liquors, and (b) that defendant was the real proprietor of the place in question.</p>

— F. M. Hunter, Judge. Action in equity to enjoin the defendant railroad company from occupying plaintiff’s land under condemnation proceedings, and to enjoin defendant from building crossing approaches thereon, because, as plaintiffs allege, the statute, as it existed at the time the condemnation proceedings were instituted, did not authorize condemnation for such purpose. A demurrer to the petition was sustained, and plaintiffs appeal.

— W. L. McNamara, Judge. Action to recover compensation for services performed by plaintiff in the management of a store conducted by him for the defendant. On issues tendered, the case was tried to a jury, resulting in a directed vertict for plaintiff, and defendant appeals.

— Henry Bank, Judge. Action at law for damages. There was a judgment for plaintiff, and defendant appeals. The facts are sufficiently stated in the opinion.

- — R. M. Wright, Judge. This is a garnishment proceeding. In the main action, the appellee obtained judgment by default against Chas. Uneaphor. Plaintiff caused a writ of attachment to issue, and appellant, G. F. Dyson, was garnished thereunder as a supposed debtor of the said Uncaphor.

— Seneca Cornell, Judge. Suit in equity for partition in which Crail & Crail intervened, setting up a claim or lien upon the property sought' to be partitioned. There was a decree below ordering the partition as prayed, and dismissing the petition of the interveners, who prosecute this appeal. The material facts are stated in the opinion.

— Thomas Arthur, Judge. This is an action at law, brought by the plaintiff to recover from defendant the difference between the face value of a certificate of insurance for $2,000 and the amount paid her by the defendant, to wit, $1,181. There was a trial to the court, without a jury.

— John L. Kamrar, Judge. Action at law to recover the balance alleged to be due plaintiffs as commission for the sale of a half, section of land belonging to the estate. There was a trial to a jury and verdict for plaintiff for $153.60, and the defendant appeals.—

— David Mould,-Judge. This is au action in equity to enjoin tbe county and its officers from completing the construction of a concrete culvert and from filling in the space under a former trestle bridge at the sides of the culvert and impeding or obstructing the water of a small'stream flowing through plaintiff’s premises, and from destroying or removing an existing bridge so as to interfere with or destroy plaintiff’s runway for stock from his land on either side of the…

<p>Appeal from, Lyon District Court. — William D. Boies, Judge.</p> <p>Action to recover the possession of real estate. Directed verdict for plaintiffs, and defendants appeal.</p>

This is an. action in equity. Plaintiff asks the reformation of an assignment by plaintiff to the defendant of its interest in a lease. It alleges that there was an oversight and mutual mistake of the parties in drawing the assignment, and prays that it be reformed to express the true contract, agreement and intent of the parties.

— C. W. Vermilion, Judge. These are actions involving the same questions and, although not consolidated or submitted together, they will be disposed of in one opinion. Each is an appeal from a special assessment against defendant’s property by the city council, for grading, curbing and paving certain streets upon which the property abutted.

<p>1 WORK AND LABOR: By Member of Family — When Compensation Recoverable. Recovery may be had against the estate of an infant for services and support rendered to the infant by a relative who was under no legal obligation to give them when the services amd support were rendered, under such circumstances as fairly imply am, understanding that the relative was to receive compensation.</p> <p>2 WORK AND LABOR: By Member of Family — Recovery—Evidence. Evidence reviewed, and held to justify the jury in finding that services rendered by a grandmother to her grandchild were rendered under circumstances implying an understanding that she was to be compensated therefor.</p> <p>3 APPEAL AND ERROR: Assignment of Errors — Sufficiency—Omni bus Assignments. Each assignment of error should be sufficient in itself to disclose the particular proposition which appellant desires to present. It follows that omnibus assignments will be disregarded.</p> <p>PRINCIPLE APPLIED: An assignment was: “The court erred in overruling appellant's motion for a new trial." This motion involved nine different grounds, including exceptions (a) to rulings on evidence, (b) to instructions, (e) to the denial of a motion for a directed verdict, and (d) to the amount of the verdict. Held, assignment not sufficiently specific.</p> <p>4 WORK AND LABOR: By Member of Family — Value of Services— Evidence — Sufficiency. Evidence reviewed, and held to be sufficiently definite to enable the jury, in their computation, to differentiate between the value of the time for which plaintiff could recover and the value of the time for which no recovery could be had, under the ruling of the court.</p> <p>5 WITNESSES: Competency — Value of Keep of Child — Opinion Evidence. Men and women having experience in the care and raising of children in the neighborhood in question are competent witnesses to testify to the value of services and support rendered to a child.</p> <p>6 EVIDENCE: Opinion Evidence — Care of Children — Value. Those having experience in the care and raising of children in the neighborhood in question may give their opinion as to the value of services and support rendered to a child.</p> <p>7 INFANTS: Necessaries — Liability—Estate of Infant. The estate of an infant is liable for necessaries furnished the infant, especially where the parent failed to furnish them.</p> <p>8 INFANTS: Necessaries — Care and Support. Care and support in the helplessness of extreme youth are necessaries.</p>

<p>1 CONTRACTS: Requisites and Validity — Mutuality. No mutuality, no consideration. No consideration, no contract. In othor words, there is no contract unless each party is able to hold the other to some positive agreement. Held, a purported contract for the sale of automobiles was subject to so many exceptions and contingencies on behalf of the party agreeing to sell as to deprive his promise of any practical enforceable quality, and that a deposit made thereunder must be returned to the owner.</p> <p>2 CONTRACTS: Construction — Practical Construction of Parties. The practical construction which the parties have placed on their contract is persuasive with the court.</p> <p>3 CONTRACTS: Performance — Return of Guarantee Deposit — Burden of Proof. He who holds a deposit as a guaranty for the performance of a contract has the burden of proof, after the expiration of the contract, to allege and prove some valid defense justifying the retention of the deposit.</p>

— W. D. Boies, Judge. This is an action at law by an alleged assignee of a contract for the installation of a gas generator, against the purchaser under said contract, for the full amount of the purchase price, the purchaser having already paid assignor the full amount called for by the contract. The case was tried to the court without a jury, and the court found for the defendant. Plaintiff appeals.

— William Hutchinson, Judge. Action to annul and set aside a marriage between plaintiff and defendant, which was, solemnized at Canton, in the state of South Dakota. It is alleged that it was entered into on plaintiff’s part through misrepresentation, fraud and duress. This charge was denied by defendant, and on the testimony adduced, the trial court dismissed plaintiff’s petition, and he appeals.

<p>INJUNCTION: Violation — What Constitutes Violation — Receiving Mail and Shipments Under Forbidden Name. One will not be - punished as for contempt for the performance of acts which are not clearly within the terms of the injunction, or fairly implied therefrom. ■</p> <p>PRINCIPLE APPLIED: Defendant was enjoined (a) from using or continuing to use the words "Sioux City Hide & Fur Company" and (b) from using the words "Sioux City" in connection with other words indicating a business of dealing in hides or furs. Defendant at once changed its name; but for a period of something over a month thereafter, continued to receive shipments to it under the forbidden name, but shipments which were actually intended for it. 'Shipments under the forbidden name rapidly decreased and shipments under .the new . name quickly commenced. Held, tke said acts of defendant were not witkin tke terms of tke injunction.</p>

<p>1 EXECUTORS AND ADMINISTRATORS: Allowance and Payment of Claims — Bringing Claim to Trial — Technical Violation of Order of- Court. The -technical statutory way of bringing to trial a claim in probate is to proceed as though one was serving an original notice and to serve a ten days’ notice of the hearing on the administrator or executor, along with a copy of the claim; but an order of court that claimant bring a claim on for trial at a certain term, or suffer a dismissal, is sufficiently complied with by the filing of a “trial notice” with the clerk for the proper term, followed by a full appearance by defendant thereto.</p> <p>2 EXECUTORS AND ADMINISTRATORS: Allowance and Payment of Claims — Stating Claim — Liberality Allowed. Great liberality ■ ■ is indulged in stating a claim in probate. The ordinary rules of pleading do not apply. A defect which would render a petition . demurrable is not necessarily fatal in. the statement of a claim in probate.</p> <p>3 EVIDENCE:. Conclusions — Witness Stating Substance of Conversation. Where a witness is unable to give a conversation verbatim, but gives the substance thereof as he remembers it, such evidence is not usually excluded as a conclusion.</p> <p>4 EVIDENCE: Declarations Against Interest — Wills—Agreement to Will. Declaration of a deceased that he was to make his home with his sister and that she was to have his farm after Ms death are admissible in an action to establish and enforce such contract.</p> <p>5 EVIDENCE: Self-Serving Declarations — Non-Admissibility—Wills— Agreements to Make. Self-serving declarations or statements are not admissible. So held as to such statements by a deceased, the action being founded on an alleged agreement to make a will.</p> <p>6 APPEAL AND ERROR: Waiver of Error — Unargued Assignment of Error. ' An unargued assignment of error may be ignored. So held under an assignment of error on the part of the court in adding interest to a verdict.</p> <p>7 EXECUTORS AND ADMINISTRATORS: Payment and Allowance of Claims — Degree of Proof Required. “Claims in probate are tried as ordinary actions. A preponderance of evidence is sufficient. "Clear, satisfactory and convincing” evidence is not required, as' in actions to set aside deeds or for specific performance. (See. 3341, Code, 1897.)</p> <p>8 EXECUTORS AND ADMINISTRATORS: Payment and Allowance of Claims — Agreement to Will — Value of Services — Materiality. On the issue whether deceased had contracted to give his farm in return for care and support during the remainder of his life, the fact that deceased died soon after the contract was made and the one furnishing the care was, therefore, largely overpaid, is entirely immaterial.</p>

■Appeal from Sioux District Court. — William Hutci-iinson, Judge. Action at law for the alienation of the affections of plaintiff’s husband. The defense was-a general denial and a plea of the statute of limitations. No mitigating facts were pleaded. Upon the issues joined, the case was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $4,875, and defendant appeals.

— William Hutchinson, Judge. The several cases above entitled, as presented ■ to this court, involve the same questions of law and fact and have been submitted together. The plaintiff, by warranty deed, made and executed separate deeds of conveyance of as many different tracts of land to the defendants, who are his children and grandchildren.

<p>1 ADVERSE POSSESSION: Limitation of Actions — Ten-Year Period. Open and notorious possession of real property, under claim of title, for a period of ten years, bars an action for recovery.</p> <p>2 BOUNDARIES: Acquiescence — Knowledge. The doctrine of boundary lines by acquiescence is simply mutual agreement implied.</p> <p>3 ADVERSE POSSESSION: Operation and Effect — Relative Strength of Titles. Plaintiff in an action to recover real property on the ground of adverse possession must recover on the strength of his own title, not on the weakness of Ms adversary's.</p> <p>4 LIMITATION OP ACTIONS: Recovery of Real Property — Quieting Title. A cause of action for the recovery of real property accrues on the date of the ouster.</p>

Certiorari from Woodbury District Court. — George Jepson, Judge. This is certiorari to review the action of the defendant in imposing á fine upon the plaintiff for an alleged violation of an injunction restraining violation of liquor laws of the state.—

— K. E. Willcockson, Judge. Action to recover payment made by the plaintiff for the board of defendant’s wife at the Hospital for the Insane at Mt. Pleasant resulted in the judgment substantially as prayed. The defendant appeals.

— E. P. Howell, Judge. Originally this was a suit in equity by Ann C. Shedenhelm against the defendant Cafferty, as sheriff, and Stapleton as an execution plaintiff, to enjoin a sale on execution of certain 140 acres of land alleged by plaintiff to belong to her. The execution in the hands of the sheriff was against Oscar Shedenhelm, a son of the plaintiff; and it was claimed by the defendants that he had an interest in the land subject to the life estate of the plaintiff.

— C. W. Vermilion, Judge. The two cases are submitted on tbe same record. Each, plaintiff had installed an automatic fire sprinkler system in its building, connected with the water supply of the city.

<p>Appeal from Greene District Court. — P. M. Powers, Judge.</p> <p>Contest on tbe probate of a will. Verdict and. judgment for proponents. Contestants appeal.</p>

— W. G. Sears, Judge. Appeal by petitioner from order in babeas corpus denying bail on indictment for murder in tbe first degree. Respondent attempts cross-appeal from trial rulings against bim.—

<p>1 CONTRACTS: Validity — Conflict of Private and Public Interest— Public Policy. A contract with, a public officer, under which his private interest may conflict with the interest of the public which he is serving and under which he may be tempted to violate his duty to the public, is against public policy and void.</p> <p>PRINCIPLE APPLIED: One Baldwin, during the same period of time, was a member of the city council and the cashier of, and a partner in, a Arm engaged in the banking business. The city, through its counsel, contracted for the construction of certain curbing, agreeing to pay the contractor therefor upon the performance of the work and approval and acceptance by the city. The contractor thereafter arranged with said bank to advance money to carry on the work. To this end the contractor, before any work was done, gave the bank a written assignment of all compensation to become due for the work. Long after this, the contractor gave one James a like assignment in payment for materials furnished by James. James evidently knew of the former assignment to the bank. The bank, under its agreement, advanced large sums to the contractor. The curbing was constructed in accordance with the contract and duly approved and accepted by the city. The bank and James both claimed the compensation due from the city. Held, the conflicting interest of the city in the approval of the work and the interest of the bank to secure the repayment of the money advanced, rendered the assignment to the bank absolutely void.</p> <p>2 ESTOPPEL: Equitable Estoppel — Action Induced by Fraud. One may not predicate an estoppel on conduct which he has induced by his own fraud.</p> <p>PRINCIPLE APPLIED: A contractor, constructing curbing for ,a city, assigned to a bank, as security for money to be advanced to carry on the work, all sums to become due under his contract. Later, he became indebted to a materialman. On the knowingly false statement by the contractor and a bank official (made to forestall an attachment suit) that the bank would receive from the city enough to pay both claims, the materialman accepted from the contractor an order on the bank for any excess remaining after the bank’s claim was paid. Still later, the contractor assigned to the materialman the identical claim that ho had theretofore assigned to the bank. The materialman pleaded the invalidity of the bank’s assignment because the bank was a partnership and one of the members thereof was a member of the city council during the entire transaction. The bank pleaded an estoppel to so plead because of the taking by the materialman of the first order, claiming that it (the bank) was thereby misled, and did nothing further to protect itself. Held, the false statement by the bank official precluded any possible estoppel.</p>

<p>Appeal from Scott District Court. — A. P. Barker, Judge.</p> <p>Action for damages resulted in judgment for plaintiff. Defendant appeals.</p>

— D. M. Anderson, Judge. Action to reform a written contract for the sale of land. Judgment and decree for the plaintiff. Defendants appeal. — ■

<p>Appeal from Woodbury District Court. — John F. Oliver, Judge. •</p> <p>•Foreclosure of mechanics’ lien. Appeal on the claim that too small a recovery was allowed.</p>

<p>1 TRIAL: Transfer to Equity — Transfer on Complainant’s Request. One may not complain of the sustaining of his own motion to transfer a cause to the equity calendar.</p> <p>2 CONTINUANCE: Absence of Witness — Duty to Overrule on AdmisSion of Opposite Party. A motion for a continuance on account of the absence of a witness should be overruled when the opposite party admits that such witness, if present, would testify as claimed in the motion. (See. 3665, Code, 1897.)</p> <p>3 PLEADING: Joining Issue — Premature Assignment for Trial — Effeet. Error cannot be predicated on the fact that a cause was assigned for trial before issues were fully joined, when such issues, so far as material, were fully joined on the same day on which the assignment for trial was made.</p>

<p>1 BILLS AND NOTES: Filling Blanks — Violating Authority — Effect —Jury Question. He who signs in blank that which, when completed, will be a negotiable promissory note, and intrusts it to another with specified authority as to the filling of blanks, is not liable thereon in an action by a payee whose name was inserted as such payee in violation of the said given authority, even though such payee had no knowledge that the note had been signed in blank and intrusted to another to fill out. (See. 3060-al4, Code Supp., 1913.) Evidence reviewed, however, in the case of an endorser of a note while only signed in blank, and held to present a jury question whether there had been any violation of authority in filling out the note.</p> <p>2 BILLS AND NOTES: Filling Blank — Violating Authority — Evidence. Evidence reviewed, in a ease where a note signed in blank was intrusted to another with authority to so fill out as “to assist in financing the maker, ” and held to present a jury question whether the note had not been so filled out as to actually discharge a debt of the maker, and therefore whether there was no excess of authority in inserting the name of payee.</p> <p>3 BILLS AND NOTES: Ultra Vires — Position of Endorser — Statutory "Warranty. An endorser of a negotiable promissory note says, in effect: I warrant that all prior parties to this note had capacity to contract. So held where an endorser attempted to ward off liability by the claim that the execution of the note by the maker (a corporation) was ultra vires. (See. 3060-a65, Code Supp., 1913.)</p> <p>4 BILLS AND NOTES: Alteration of Instrument — Addition of Endorser — Non-Consent of Prior Endorser. The addition of an endorser to a note, without the consent of a prior endorser, but before the note was delivered to and accepted by the payee (who had no knowledge of the order of endorsing) is not such material change as to release the non-consenting endorser. (Sec. 3060-al25, Code Supp., 1913.)</p> <p>5 BILLS AND NOTES: Discharge of Endorser — Holder’s Eight To Elect To Hold Part of Endorsers. It is competent for the holder of a negotiable promissory note to elect to hold only a part of the endorsers.</p> <p>6 BILLS AND NOTES: Payment and Discharge — Parties Secondarily 6 Liable. The endorser of a promissory note is not primarily liable thereon because of the faet that he was at one time the maker of a note which was paid by the substitution of the note in question, on which he was only endorser. (Sec. 3060-al92, Code Supp., 1913.) °</p>

— T. L. Maxwell, Judge. Action to recover damages for personal injury resulting in death. Verdict and judgment for the plaintiff. Defendant appeals.

— Lorin N. Hats, Judge. Action of forcible entry and detainer for possession of house and ground on which it stands, resulted in a verdict and judgment for defendant. The plaintiff appeals.

— Thomas L. Maxwell, Judge. Plaintiff filed a claim against the estate of George Bix, for services rendered in his family under an express contract to pay therefor. Trial to a jury. Verdict for plaintiff. Claim allowed. Administrator appeals.

<p>1 APPEAL AND ERROR: Review — Pavorable Construction of Evidence. Rule recognized that, on review of the direction of a verdict, the defeated party has the right to have the testimony introduced construed as strongly in his favor as reason will permit.</p> <p>2 WILLS: Validity — Undue Influence — Advice and Solicitation. Under the general rule that advice and solicitation, no matter how insistent they may he, will not constitute undue influence unless it be further shown that the freedom of the testator's mind was overcome thereby, evidence reviewed, and held insufficient to carry to the jury the question of the invalidity of the will by reason of the coercion and domination of the husband of testatrix.</p> <p>3 WILLS: Validity — Undue Influence — Declarations of Testator — Purpose for Which Admissible. Declarations that a particular will was procured by fraud or undue influence, and that certain persons are, or have been, the object of testator’s affection or dislike, are hearsay as to the substantive fact asserted, but are admissible as either circumstantial evidence or as a statement of mental condition, and admissible as an exception.</p> <p>4 APPEAL AND ERROR: Harmless Error — Non-effect in Changing Result. Sustaining the rulings of the trial court is justified when, had the rulings been otherwise, the result would; have been the same.</p> <p>5 WILLS: Validity — Undue Influence — Evidence—Intemperate Habits, Conduct and Language of Coercer. That the husband drank much, and at such times did not use the wife and her sister right, and would swear at them, and that, under these conditions, the wife was afraid of him, is immaterial on the issues whether the testatrix was mentally incapable to make a will, or whether the will -in question was the will of the husband rather than of the wife, there being no evidence that, at the time, or shortly before, the will was executed, the husband had been drinking, misusing his wife and sister-in-law, or swearing at them.</p> <p>6 EVIDENCE: Opinion Evidence — Conclusions—Pear. One may, from the very necessity of the case, testify, when material, "that another person on a named occasion ‘ ‘ appeared -to be in fear ’ ’, but not that such person was in fear. The distinction is between permitting the witness to give his deduction solely from the physical appearance of such other person, and permitting him to involve and combine therewith what necessarily must have been told him by the one in fear.</p> <p>7 EVIDENCE: Opinion Evidence — Conclusions—Fear of Named Person — Necessity for Detail of Facts. One may not give his conclusion that another person appeared to be in fear of a particulor person without first detailing the facts upon which he bases his conclusion — for instance, the actions and conduct of such particular person.</p> <p>8,11,15 APPEAL AND ERROR: Review — Exclusion of Question — Necessity to Show Prejudice. He who has his question to a witness excluded should make an offer as to what he expects to prove, the purpose not otherwise appearing.</p> <p>9 APPEAL AND ERROR: Review — Failure to Advantage One’s Self of Ruling. A ruling of the court will not be reviewed when the complaining party fails to take advantage of a subsequent ruling reversing the first.</p> <p>10,13 WILLS: Validity — Undue Influence — Evidence—Reluctance to Talk in Presence of Husband — Declarations of Testatrix. Declarations of testatrix as to why she would not talk about her business affairs in the presence of her husband, who was charged with exercising undue influence over her, are not admissible to prove such undue influence. So held where the testatrix gave as reasons for not so talking in the presence of her husband that “he would not allow her to do as she wanted to”, and “would not allow her to talk about her business when he was there.”</p> <p>8,11,15 APPEAL AND ERROR: Review — Exclusion of Question — Necessity to Show Prejudice.</p> <p>12,14 WILLS: Validity — Undue Influence — Declarations of Testatrix— Mental Condition. Declarations of testatrix as to why she would not talk about her business affairs in the presence of her husband, who was charged with exercising undue influence over her, might be admissible as bearing on the mental condition of testatrix, depending on the nature of the declaration.</p> <p>10,13 WILLS: Validity — Undue Influence — Evidence—Reluctance to Talk in Presence of Husband — Declarations of .Testatrix.</p> <p>12,14 WILLS: Validity — Undue Influence — Declarations of Testatrix— Mental Condition.</p> <p>8,11,15 APPEAL AND ERROR: Review — Exclusion of Question — Necessity to Show Prejudice.</p> <p>16 APPEAL AND ERROR: Review — Rulings on Indefinite Questions— Refusal to Reframe Question. A question indefinite in form should, on request of the court, be reframed.</p> <p>17 EVIDENCE: Opinion Evidence — Conclusions—“Boss of the Family.” No witness may give his conclusion as to who was “boss” of a family — who habitually had his own way. Such matter, if material, can only be arrived at by a detail of facts, leaving the jury to diaw its own deductions.</p> <p>18 EVIDENCE: Opinion Evidence — Conclusions—Knowledge of a Fact— Wills. The conclusion of a witness that a testatrix did not know that a will was going to be made at a certain time is inherently incompetent.</p> <p>19 APPEAL AND ERROR: Review — Exclusion of Objectionable Evidence on Inadequate Objection. The court will not review an assignment of error based on the exclusion of evidence objectionable in fact, even though there was no objection at all, or the one made was inadequate.</p> <p>20 WILLS: Invalidity — Effect on Prior Will. The setting aside of one will does not result in intestacy when an unquestioned prior will exists.</p>

- — L. J. Horan, Judge. Action in certiorari to test the validity of the action of the court in discharging the defendant in contempt proceedings.

— William D. Boies, Judge. Action at law to recover damages for false arrest and malicious prosecution. All issues were submitted to a jury, and a verdict was returned for the plaintiff upon Count One of his petition for $1.00, and against him upon Count Two. The plaintiff appeals.

— F. M. Powers, Judge. Decree was entered dismissing the petition of intervention and awarding the plaintiff relief as prayed. The intervener and defendants appeal.

— F. M. Hunter, Judge. The plaintiff herein was charged with a violation of a liquor injunction, was convicted and fined, and thereupon sued out a writ of certiorari.

— D. M. Anderson, Judge. Ed L. Clark is the cestui in a trust created by the will of his father, which appoints trustees. The appellees, attorneys at law, were made an allowance out of said trust funds, without the consent of the said trustees. This appeal brings up the validity and propriety of this allowance.

<p>1 WILLS: Construction — "Remaining Brothers and Sisters”. A will provided: (a) that the widow should have a life estate in a farm; (b) that the remainder should go to two children in case they outlived the widow or had issue; and (c) that, in case either child died prior to the widow and without issue, the share of such deceased child should go to "the remaining brothers or sisters”. Held that, where one of such remaindermen died before the widow and without issue, the clause "remaining brothers and sisters” included the surviving remainderman.</p> <p>2 WILLS: Construction — "Life Interest”. "A life interest in and to my farm”, in connection with a subsequent clause, is construed to mean ‘ ‘ a life estate in the use, occupancy and control ’ ’ of the farm.</p> <p>3 WILLS: Remainders — Vested (?) or Contingent (?) — Preference of the Law. The law so strongly favors the early vesting of estates that it regards all estates as vested unless a condition precedent is so clearly expressed that the estate cannot be regarded as vested without doing violence to the language of the instrument. And, if possible, the law will even construe words of seeming condition as having no .other effect than to postpone the time of enjoyment.</p> <p>PRINCIPLE APPLIED: A testator gave to his wife a life estate in a farm, and to his two youngest sons, the remainder thereof, equally, "on the death of my said wife, should they outlive her or have issue; but should she survive one or both of said children, then the share that would otherwise have gone to such child shall be inherited in equal shares by the remaining brothers or sisters living or having issue”. The said wife, both the two youngest sons (remaindermen) and five other children survived testator. (The younger remainderman died when a mere child, and, of course, issueless, and the one half of the farm-which he failed to take passed to his six brothers and sisters, one twelfth to each.) The older remainderman. mortgaged seven twelfths of the farm, died before testator’s wife, but left a widow, and three children born after testator’s death. The constructions of the will contended for were:</p> <p>1. By the mortgagee and widow of the remainderman: That the remainderman took a vested estate on the death of testator, the element of time not being of the essence of the devise, but relating solely to the time of enjoyment of the devise; that the happening of either of two conditions subsequent, to wit, the remainderman’s (a) outliving the testator’s wife (his mother) or (b) leaving issue, rendered the vested estate non-divestible; that the first did not happen, but the second did; that, therefore, his estate was never divested; that, therefore, the mortgagee was first in right, the remainderman’s widow second, the remainderman’s three children third.</p> <p>2. By the remainderman’s three children: That their father’s estate was contingent; but if it did vest, it was divested by his death prior to that of his mother; and that the words of the will, “or have issue’’, were words of substitution — that is, words which substituted them as devisees in lieu of their father.</p> <p>3. By the five surviving children of testator: That the estate did vest in the older remainderman (their brother), but was divested by his death before that of the testator’s wife; and therefore the estate passed to them under the will, just as the first half passed to the testator’s six children when the younger remainderman died.</p> <p>Held, the first contention was correct.</p> <p>4 WILLS: Construction — Words of Substitution — “Or Have Issue.” Words cannot be given the force and effect of “words of substitution ’ ’ — that is, words substituting another or others as legatees, in case the first legatee fails to take — when such words are not employed in connection with other words purporting a gift or an intention to make a gift, but used solely in defining when and under what oiroumstanees the remainderman shall come into the enjoyment and possession of the property.</p> <p>PRINCIPLE APPLIED: See the italicized words “or have issue” under No. 3.</p> <p>5 WILLS: Construction — Defeasance Clause — Manifest Omission. It is, in effect, suggested that the construction of the defeasance clause of a will might require the insertion of a clause manifestly intended to be inserted, but inadvertently omitted.</p> <p>6 WILLS: Construction — Grant of Fee — Repugnant Clause — Effect. The clear grant of a fee is not overthrown by a subsequent clause repugnant thereto.</p> <p>PRINCIPLE APPLIED: See Par. 6 of the will, and compare the clauses preceding and following the word “but.”</p>

— Franklin C. Platt, Judge. Garnishment proceedings to hold the railway company liable as a garnishee in an action brought by the plaintiff against the defendant Carr. The trial court held the garnishee liable, and the garnishee appeals.

<p>1 BONDS: Construction — Ambiguous Connection of Unambiguous Terms — Rejection of Terms. Rule of construction: Not what the separate, definite parts of a contract mean when read as though standing alone, but what, in view of the ambiguous connections of the several parts, is the meaning of the entire instrument .when read as a whole, and in the light of (a) the subject-matter of the contract, (b) the laws, if any, giving rise to the contract, (c) the situation, objects and purposes of the parties — in short,;., the entire connected history relating to and culminating in the,-'contract. When the quest for the meaning, is ended, it mwy be necessary, in order to apply the actual meaning, to wholly ignore some terms of the contract — or at least to largely shave or restrict their ordinary meaning. So held where a surety bond, given to meet the requirements of an ordinance, apparently covered both the construction and future maintenance of a system of underground telephone conduits, but was held to cover construction only.</p> <p>PRINCIPLE APPLIED: Action by plaintiff, a surety company, against defendant, a telephone company, to recover eight years ’ premiums on a bond. ' The history of the bond was:</p> <p>First: An ordinance, known as No. 633, provided that 'telephone wires should be placed underground; that, in the doing of said work, all excavations should be guarded and all pavement replaced; that the telephone company should pay to the city and to private persons all damages consequent on improper work, and should save the city harmless from all claims growing out of the construction and maintenance of such underground system. The company, before entering upon the work, was required to present its plans, secure the approval thereof, and a permit, and give a bond “conditioned that such company mill restore, as provided by this ordinance, the streets, alleys and public places to be excavated under such permit, and pay all damages occasioned by the construction of such toorh.”</p> <p>Second: The council approved certain plans and ordered a permit to issue on the filing of a bond, “conditioned as in said ordinance provided.”</p> <p>Third: The telephone company made written application to-plaintiff for the bond, stating that it w'as to be given as indemnity against damage that the telephone company “may cause through the placing of an ttnderground conduit system for their telephones. ’ ’ A copy of the bond, in the identical form in which it was later issued, was attached to this application. The telephone company agreed to pay $50 a year as premium, and to furnish the surety satisfactory proof "at the termination of the case" that .there was no further liability on said bond, and to at all times hold the surety harmless.</p> <p>Fourth: The bond was given. It recited that it was given in pursuance of ordinance No. 633, and was entitled, "Bond to comply with Ordinance No. 633." The conditions written into this bond were broader than the conditions exacted by the ordinance, being as follows:</p> <p>"Now, if the said Iowa Telephone Company shall and will in all respects comply strictly with the provisions of said Ordinance No. 633 in the laying of its wires, conduits, erection of its poles, and other appliances, and shall and will restore the streets and alleys of said city as required by said ordinance, as well as all other public places that may be excavated in the conduct of said work, and shall pay all damages that the city may sustain by ■reason of any neglect either in the construction of said improvements or in the maintenance thereof thereafter, and shall in all other respects fully and completely comply with said ordinance, then this bond to be void, otherwise to be and remain in full force and effect.”</p> <p>Fifth: The construction work was completed IS months after the date of the bond. No claim was ever made that the construction work was not properly done or that the city or anyone had suffered damage thereby. The first year’s premium was paid when the bond was given. The surety refused a tender of premium for an additional 3 months. The surety claimed that the bond stood as a guaranty not only of construction but of future maintenance.</p> <p>Held, in the light of the entire foregoing history, the bond covered just what the ordinance demanded, no more and no less; in other words, that it guaranteed proper construction of the conduit system and payment of damages consequent thereon, and not maintenance after it was constructed.</p> <p>2 BONDS: Construction — Bond in Excess of Statutory or Ordinance Requirement — Surplusage. Where an ordinance imposes a series of duties on one who is under the jurisdiction of the municipality, and specifies that, as to some of the duties, a bond shall be given for their faithful performance, it must be presumed, as to the duties concerning which no bond is required, that the city was content to rely on the personal responsibility of the one owing the duty, and therefore that that part of a bond in excess of the ordinance requirements is surplusage. .</p> <p>PRINCIPLE APPLIED: See No. 1.</p> <p>3 BONDS: .Construction — Statutory Bonds — Inclusion of Non-Statutory Conditions — Common-Law Obligation. A bond containing the conditions prescribed by a statute or ordinance and intentionally given to comply therewith, is not converted into a common-law obligation by the addition of other conditions not required by the statute or ordinance.</p> <p>PRINCIPLE APPLIED: See No. 1.</p> <p>4 BONDS: Construction — Statutory Bonds — Inclusion of Non-Statutory Conditions — Effect. The validity or enforceable quality of a bond intentionally given in order to comply with a statute or ordinance does not extend beyond the conditions which the statute or ordinance prescribes.</p> <p>PRINCIPLE APPLIED: See No. 1.</p> <p>5 ATTORNEY AND CLIENT: Conduct of Attorney — Presentation of 5 Cause. It is worth while for attorneys to so present their causea that this may be said of them: “In leaving the ease, we desire to express our obligation to counsel on both sides for the marked thoroughness with which the issues have been presented, and the perfect frankness and fairness with which each point has been argued”, and it is worth while to here preserve it.</p>

— E. M. McCall, Judge. Action at law to recover damages for injuries received by plaintiff while working in defendant’s mine. Upon issues joined, the case was tried to a jury, resulting in a verdict and judgment for plaintiff in the sum of $5,000, and defendant appeals.

— R. M. Wright, Judge. Petition for a new trial of an action in partition commenced by plaintiffs in February of the year 1914..

<p>Appeal from Polk District Court. — Hubert Utterback, Judge.</p> <p>Action in equity for an accounting. Decree as prayed, and defendants appeal.</p>

— C. A. Dudley, Judge. Action at law to recover compensation for services alleged to have been rendered by plaintiff in the employment of defendant. Dismissed on defendant’s motion, because of insufficiency of the service of the original notice. The plaintiff appeals.

— F. M. Hunter, Judge. Garnishment proceedings to hold Plowman liable to plaintiff for an amount owed by him to defendant Smith, or because of having property in his hands at the time of garnishment belonging to Smith. The trial court sustained the garnishment and rendered judgment accordingly, and the garnishee appeals.

<p>Appeal ■from Hamilton District Court. — Robert M. Wright, Judge.</p> <p>The opinion sufficiently states the case. — Affirmed.</p>

— William Ti-ieophilus, Judge. Action in equity to quiet title to a strip of ground 20 feet wide, on the west side of plaintiff’s 10 acres of land, which defendant claims is the east 20 feet of its right of way. There was a decree for plaintiff, and the defendant appeals. — -

— Lawrence DeG-raee, Judge. Action at law for the recovery of damages on account of personal injury. Verdict and judgment for plaintiff, and defendant appeals.

— Hubert Utterback, Judge. Suit in equity to set aside a judgment obtained by one Frank O. Peterson, now deceased, against the plaintiff in the district court of Polk County, Iowa, on October 7, 1912. The trial court granted the relief prayed, and defendants, who are the heirs at law and representatives of the deceased, the sheriff of the county, and an endorsee of the original cause of action, appeal.-

— C E. Albrook, Judge. Suit in equity in the nature of-a creditor’s bill to subject certain real estate, the title to which is in the defendant Emma Sehutt, to the payment of certain judgments rendered in plaintiff’s favor against C A Sehutt The bill was dismissed, and plaintiff appeals.

<p>1 MASTER AND SERVANT: Negligence — Proximate Cause — Proof Required. Proof of proximate cause — causal connection between negligence alleged and injury suffered — is sufficient if the facts and circumstances show that it is more probable that the injury occurred because of the negligence alleged than from some other cause.</p> <p>PRINCIPLE APPLIED: On a dark, rainy night in January, an electric locomotive, moving eastward with two cars, approached a switch, preparatory to switching the rear ear to a side track to the north of the main line. This rear car was a furniture ear, higher than ordinary cars, and had two ladders at the southeast corner, one on the side and one on the end. To the right of the end ladder and 18 inches from the top of the car was a shelf, 3 feet long and 6 inches wide, and through this, the brake shaft extended upward 18 inches above the car, at a point equally distant from the center of the car and the south side. The side track curved convexly to the north. The trolley wire was not over the center of the switch track. Eor two weeks, it had been allowed to sag .so far to the south that, owing to the curve in the track, it would hit the brake shaft of this high car after the car had moved down the switch track about 150 feet. This was the negligence alleged. When last seen, deceased, with his lantern, was half way to the top of the car on the side ladder. The deceased uncoupled his car, and the engine and remaining ear passed down the main track, while the switched ear passed upon the switch track. The deceased could have worked the uncoupling lever either from the side of the car or by stepping around to the end ladder. After uncoupling, it was his duty to go to. the top of the car and stop the car at an elevator. Deceased was 5 feet, 6 .inches tall. His dead body was found, a few minutes later, in the middle, of the track, about 150 feet from the switch. There were no burns on the body or clothing. The lantern carried by deceased was found 300 feet from the body, in the west end of a sand car with which the furniture car came in contact.</p> <p>Held, the theory that deceased went to the top of the ear in the performance of the intended duty, there set down his lantern, and was later swept from the car by the sagging trolley wire, was more probable than that he was on the end ladder when he uncoupled, set his lantern on the end shelf, and, without reaching the top, fell because of the slippery condition, or from some cause other than the trolley wire.</p> <p>2 NEGLIGENCE: Proximate Cause — No Eyewitnesses — Performance of Duty — Presumption. In the search for the proximate cause of the death of an employee through a transaction of which there were no eyewitnesses, the presumption that deceased, at the time of his death, was performing the duty which he had concededly just started to perform, becomes very persuasive when, if deceased was performing such duty, he would be exposed to the very negligence alleged as a basis for recovery.</p> <p>PRINCIPLE APPLIED: See No. 1.</p>

— Robert Bonson, Judge. Action at law upon a surety bond. At the close of plaintiff’s evidence, the defendant stating that it had no evidence, there was a directed verdict for plaintiff. The defendant, the Fidelity & Deposit Company, appeals.

<p>1 EVIDENCE: Parol As Affecting Writing — Inducement—Representations as to Meaning of Written Clause. Representations made by the payee of a note as to the meaning of an ambiguous clause thereof, made for the purpose of quieting the fears of the maker and to induce him to sign the note, may amount to a fraud and, consequently, open the door to parol evidence of such representations.</p> <p>PRINCIPLE APPLIED: A property owner was unwilling to take a ‘1 term ’ ’ policy of insurance, which provided for yearly de- , ferred payments, because he was unwilling to make payments after loss. The agents of a company pointed out to him a clause in their policy which read, “subsequent payments shall not be deducted from the loss,” and represented to him that the meaning of this was that, in case of loss, subsequent premiums would not be deducted from a loss and would not be collected.. On this inducement, the note, providing for six annual payments of $50 each, was signed. The first payment was made. The company then reinsured the risk in another company and assigned said note to such other company. A loss occurred before the second payment was due, and the insured was paid in full and surrendered his policy as a condition thereto. Later, he took another policy in the company which was assignee of his former note. A second loss occurred after the maturity of the second payment on said old note, and the loss was later agreed on, but the company presented the insured’s old note and demanded an offset of $250; because, by the terms of the note, all payments became due by failure to pay the second payment. Held, the circumstances amounted to a fraud on the maker, and parol evidence was admissible to show said representations.</p> <p>2 EVIDENCE: Parol As Affecting Writing — Authority of Agent— When Immaterial. Parol evidence of representations amounting to a legal fraud, made by the agents of the payee of a contract, are admissible, on the part of the maker of the contract, against the assignee of the contract seeking enforcement against the maker, without any proof that such agents had authority to malee suelv representations.</p> <p>PRINCIPLE APPLIED: See No. 1.</p> <p>FRAUD: Pleading — Sufficiency. In an action on a note, fraud is 3 sufficiently pleaded by an allegation that the maker signed the note because of certain specified representations, amounting to a legal fraud, made by the agents of the payee, and that, but for such representations, he would not have signed it.</p> <p>4 BILLS AND NOTES: Holder In Due Courser — Defect In Title of Assignor — Effect. Whenever it appears that the title of the assignor of a negotiable instrument was defective — for instance, tainted with fraud — the one presumed to be a holder in due course must assume the burden to show that he is such in fact.</p> <p>5 CONTRACTS: Construction — Conflicting Understanding of Terms— Parol Evidence — Bills and Notes. When the ambiguous terms of an agreement have been intended in a different sense by the parties to it, that sense is to prevail against either party in which he had reason to suppose the other understood it. (See. 4617, Code, 1897.) And parol evidence is admissible to show such facts.</p>

— John L. Kamrar, Judge. Action for the specific performance of a contract between plaintiff and defendant Smith for the sale and conveyance of real estate. Defendant Collins was made a party because he claimed to have purchased the land from Smith without knowledge of plaintiff’s contract. Defendant Smith denied the execution of the contract in the form it now appears; pleads that it was obtained from him through fraud and without consideration, and is void.

• — R. M. Wright, Judge. Action in equity to quiet title to certain real estate. As to the appellants William C. Black and Mae Troutvetter, the relief prayed was that a certain mortgage on said real estate be decreed not to be a lien thereon. Plaintiff alleged that-the mortgage was paid and that it was barred by the statute of limitations.

<p>1 NEGLIGENCE: Actions for Injury — Death at “Blind Siding” — Evidence — Sufficiency. Evidence reviewed, and held insufficient • to show negligence on the part of the employees of a passing train in hitting and killing deceased, a stockman, while walking between a main and a side track at a blind siding.</p> <p>2 RAILROADS: Negligence — Signals at Remote Passing Tracks. The recognized rules governing the duty of an engineer in the matter of the giving of signals in approaching public crossings and public stations, do not apply in approaching a strictly passing track fenced on both sides and located five miles from any town and remote from any public highway or crossing.</p> <p>3 CARRIERS: Carriage of Passengers — Duty of Passengers — Rules— Negligence. A rule providing that a shipper shall ride in the caboose is reasonable, and it is the duty of the shipper to obey such rule.</p> <p>4. NEGLIGENCE: Contributory Negligence — Violation of Rule by á Shipper — Place of Danger. One who violates a rule of a railway company requiring him to ride in the caboose, places himself in a position so close to a passing track that he is liable to be hit by a passing train, which he had reason to believe would pass, and is hit and killed, and could have heard and seen the approaching train had he looked or listened, is guilty of contributory negligence as a matter o’f law.</p> <p>5 NEGLIGENCE: Contributory Negligence — Instinct of Self-Preservation — Presumption—Nonapplicability of Rule. The presumption of due care, ordinarily indulged in the absence of eyewitnesses, does not prevail when the physical facts show that the deceased could not have exercised such care.</p> <p>6 NEGLIGENCE: Contributory Negligence — Last Clear Chance — Evidence. “Last clear chance” doctrine held inapplicable under the evidence, deceased, at the time of his death, being between a main and a passing track at a point on the road some five miles from any town, and the view of the engineer of a swiftly approaching train which hit deceased being obstructed by an intervening train.</p>

<p>DEEDS: Construction — Conditional Pee Estates — Birth of Child. A conveyance of land by a parent to a son, "as an advancement . to be kept by him in trust, to be equally divided at the trustee’s death for and between the lawful heirs of his (the trustee’s) body living ami at Ms (the trustee’s) death, except the income of said land, which is to go to the use and benefit of the grantee,” on condition that grantee do not gamble, creates a conditional fee estate in grantee, which estate becomes absolute in grantee when a child is born to him, thus enabling grantee to alien the land and thus bar his own issue and defeat the possibility of a reverter to the grantor. (But construction which enlarges such estate by reason of the conveyance’s being to a grantee and "to his heirs,” "to the heirs of his body” or "to his issue,” is now prohibited by Sec. 2924-b, Code Supp., 1913.)</p>

— B. F. Cummings, Judge. Action at law to recover on an oral contract for the sale of 778 bushels of shelled com, at 73 cents a bushel. Trial to a jury and, at the close of the testimony, the court sustained a motion to direct a verdict for the defendant, and the plaintiff-appeals.

— W. H. McHenry, Judge. Suit in equity to compel defendant, which, although sued as two corporations, is but a single concern, now operating under the name of the Brown-Camp Company, to pay certain debts owed by plaintiff to third persons and to secure an accounting from defendant for the proceeds of certain property which he turned over to it under an agreement to settle and pay all of plaintiff’s debts.

— Charles A. Dudley, Judge. This defendant, Levich, A. E. Philleo, and another, were' jointly indicted for keeping a house of ill fame. Separate trials were granted. This appeal is from the conviction of Levich.

<p>CRIMINAL LAW: Conspiracy — Evidence—Declarations of Co-Conspirator. On the trial of defendant for keeping a house of prostitution, relevant declarations and conduct of a eo-defendant, not in the presence of defendant, are admissible, it being first shown that said parties were partners in the running of the house, were acting together, and in many instances were both present when various acts of prostitution and lewdness were committed in said house.</p> <p>2 PROSTITUTION, HOUSE OP: Evidence — Character of House — Declarations. Declarations of those concerned in operating an alleged house of prostitution, other than defendant on trial, and in the absence of defendant, are competent if tending to show the character of the place and inmates.</p> <p>CRIMINAL LAW: Conspiracy — Evidence—Declarations of Co-Conspirator.</p> <p>4 TRIAL: Objections — Sufficiency. The objection that a question calls & for a “conclusion" is not included in the objection that it is irrelevant, immaterial and incompetent.</p> <p>5 TRIAL: Conduct of Court — Criticism of Witness. No error is revealed by the action of the court in stating to an evasive witness that he had not answered a question, followed by a direction to answer it.</p>

— R. M. Wright, Judge. Action for damages alleged to have resulted from the collision of plaintiff’s automobile with the automobile owned by the defendant Frank Smith, and driven at the' time of the accident by the defendant Cecil Smith, minor son of the said Frank Smith. There was a jury trial, resulting in a verdict and judgment against both defendants in the sum of $250. The defendant Frank Smith appeals.

— Hugh Brennan, Judge. Action to recover damages for personal injury. Verdict and judgment for the plaintiff below. Defendants appeal.—

— B. M. Wright, Judge. Appeal from an assessment of benefits against the plaintiff in a drainage proceeding. In the district court, the plaintiff filed a petition, as provided by statute. The defendants demurred to the petition, and their demurrer was sustained. Six days later, the court entered the default of plaintiff for want of pleading, and dismissed his petition and entered judgment for costs. Thereafter, the plaintiff moved to set aside the default and judgment.

<p>CRIMINAL LAW: Judgment — Joint Judgment. A judgment “that the defendants, H. E. and B. E. each pay a fine in the sum of $300 and eosts and in default of payment of the said fine and costs that the defendants, and each of them, be committed . . . until said fine and costs are paid, but not to exceed 90 days,” does not provide a joint penalty — does not provide that, unless each, pays the fine assessed against him, both must suffer the penalty of imprisonment.</p>

— A. N. Hobson, Judge. Action for separate maintenance, in which there was a cross-petition, praying for a divorce. The cross-petition was dismissed, and decree awarding separate maintenance entered. ' The defendant appeals.

— Thomas Arthur, Judge. The parties hereto were married in 1900 and separated in January or March, 1912. At that time, their residence was in St. Joe, Missouri. She, with their son Melvin, moved to Council Bluffs on April 18,1913, and began suit for divorce August 7th following. The petition charged him with cruel and inhuman treatment, and prayed both for divorce and the custody of the child.

— William D. Boies, Judge. Defendant appeals from a conviction on the charge that he resorted to a house of ill fame for the purpose of prostitution and lewdness.