Volume 176 — Iowa Reports

<p>CONTRACTS: Consideration — Failure of Consideration — Vendor Without Title. No recovery may Be had on a contract of sale of property which the vendor did not own and which he had no authority to sell. So held as to a note and mortgage given for a patent right.</p>

— E. G. Albert, Judge. Action at law to recover tbe amount of six certificates of deposit issued by tbe Farmers Bank of Glidden, Iowa, to tbe defendant, and by bim endorsed in blank and delivered to the plaintiff. There was a trial to tbe court without jury, and judgment rendered for plaintiff for tbe aggregate amount of tbe certificates sued upon. Defendant appeals.

<p>1 CONSTITUTIONAL LAW: Uniform Operation — Regulation of Salaries — Justices of tie Peace. See. 4600-a, Code Supp., 1913, regulating the salary of justices of the peace, is not unconstitutional, as being arbitrary, unreasonable and not of uniform operation.</p> <p>2 CONSTITUTION AL LAW: Public Policy-Interference by Judiciary. The right of the judiciary to declare a law invalid, solely on the ground that it is contrary to sound public policy, is unknown in our system of jurisprudence.</p> <p>3 CONSTITUTIONAL LAW: Distribution of Powers — Interference With Judiciary — Justices of the Peace. See. 4600-a, Code Supp., 1913, regulating the salary of justices of the peace and authorizing the board of supervisors to make an allowance for actual expenses, is not vulnerable to the objection that the supervisors are given power to interfere with the judiciary.</p> <p>4 CONSTITUTIONAL LAW: Legislative Acts — Delegation—Allowanee to Justices of the Peace. Sec. 4600-a, Code Supp., 1913, allowing boards of supervisors to make an allowance to justices of the peace for actual expenses, is not vulnerable to the objection that legislative power is conferred on the supervisors.</p> <p>5 CONSTITUTIONAL LAW: Legislative Department — Salaries. The legislature has plenary power over the salaries of public officers.</p>

— J. B. Rockafellow, Judge. Action to recover commission as agent in procuring a purchaser for certain real estate. Opinion states the facts. Directed verdict for the defendant in the court below. Judgment upon the verdict. Plaintiff appeals.

— R. P. Howell, Judge. Action to recover commission on the sale of real estate. Judgment for the plaintiff in the district court. Defendant appeals.

— W. J. Springer, Judge. Action in equity to cancel a deed on the ground of fraud. Decree for' the defendants in the court below;. Plaintiff appeals.

— Charles E. Albrook* Judge. Action at law to recover damages for the death of plaintiff’s intestate. Verdict and judgment for plaintiff, and defendant appeals.

— C. G-. Lee, Judge. Action at law to recover damages on account of personal injury. Verdict and judgment for plaintiff, and defendant appeals.

<p>1 CRIMINAL LAW: Appeal — Record—Insufficiency. Alleged error in overruling a motion for directed verdict and in the giving of instructions will be disregarded when the record on appeal fails to show (a) that any such motion was ever made and (b) that any ' exceptions were ever taken to the instructions. A general omnibus exception to the instructions as a whole is insufficient.</p> <p>2 CRIMINAL LAW: Trial — Instructions—Stating Substance of Statute. An instruction in a criminal case which states the substance of the statute under which accused is being prosecuted is unobjectionable. So’held under the Medical Practitioners’ Act.</p>

— D. F. Coyle, Judge. Action to establish disputed corners and boundary lines. There was a judgment for plaintiff, and within a year thereafter, the defendants filed a petition for new trial, which was denied, and defendants appeal.. The facts, so far as they are material upon this appeal, are stated in the opinion.

— R. M. Weight, Judgé. Action to set aside the will o£ Andrew Shillinglaw on the ground of mental incompetency and undue influence. The defendants pleaded the statute of limitations, in that the action was not commenced within five years after notice of the filing: of the will of decedent. This plea was sustained by the trial court, and the plaintiffs appeal.

<p>1 INSURANCE: Accident Insurance — Abrasion of Skin — Septicaemia —Intervening Cause. Septicemia, resulting in death, but set in motion or caused by an external, violent and accidental abrasion of the skin, howsoever slight, is not an ‘ ‘ intervening cause'' within the meaning of an accident policy providing indemnity for death ‘ ‘ resulting directly cmcl 'loithout vnt&rvewmg cause from a bodily injury, . . ■. and effected solely by external, violent and accidental means.” The abrasion of the skin remains, in law, as the direct cause of death.</p> <p>2 INSURANCE: Accident Insurance — Policy—Construction—"With-,out Intervening Cause.” Articles of incorporation of an accident insurance company, and a part of the policy issued, limiting indemnity to members dying “solely by accidental means,” receives no added meaning by the insertion of the clause, "without intervening cause.”</p> <p>3 INSURANCE: Accident Insurance — Policy—Construction—"Skin or Outer Covering of Eye.” Whether the words "the skin or outer covering of the eye,” appearing in an accident policy, refer to the skin of the .body generally or to the skin or outer covering of the eye only, quaere.</p> <p>4 INSURANCE: Accident Insurance — Proximate Cause — "Death Resulting Prom Infection” — Non-Applicability of Clause. A provision of a by-law constituting a part of an accident insurance policy, which limits liability for death when ‘ ‘ resulting from infection,” but which is not pleaded as grounds of affirmative defense, furnishes no reason for denying liability when the uncontroverted evidence shows that the sole proximate cause of the death was an accidental abrasion of the skin resulting in septiesemia.</p> <p>5 PLEADING: Matters Specially Pleaded — Insurance Clause Limiting Liability. A by-law which, by reference, is made a part of an accident insurance policy, and which limits the liability of the company for death "resulting from infection,” must be specially pleaded if expectation is had of relying .on it as an affirmative defense. (Sec. 3629, Code, 1897.)</p> <p>Deemer, J., specially . concurs.</p>

— George Jepson, Judge. Action in replevin to recover two swine under and by virtue of plaintiff’s chattel mortgage, and claiming that his chattel mortgage lien was superior to the claim of appellee for damages caused by trespassing animals. ■ The court found for the defendant, and the plaintiff appeals.

S. Withrow, Judge. In 1911, appellant was the owner of a certain bridge across the Mississippi Eiver, extending from a point in Eliot Township, Lonisa County, Iowa, to a point in the city of Keithsburg, Illinois. A portion of this bridge, being within the' limits of the above named township, is taxable in Iowa, under the statute. The assessor for Eliot Township fixed the value of that portion of the bridge taxable in Iowa at $800,000.

— C. W. Vermilion, Judge. Action in equity to enjoin the defendant from depriving the plaintiff of the use of a certain pond or reservoir of water for' the use of his live stock. There was a decree, as prayed, and defendant appeals.

— B. F. Cummings, Judge. Action at law to recover damages for failure to transport two carloads of hogs from St. Anthony to Marshalltown, Iowa, on day named. There was a jury trial. Plaintiff claimed $138.91, but, because of a failure of proof as to some items, the recovery was but $104.95. Defendant appeals.

<p>1 WILLS: Construction — Ambiguous Will — Parol Evidence. Parol evidence may be received upon the construction of an ambiguous will, in so far as is necessary to apply the language of the will to the object or thing which testator had in mind and intended when he made the devise.</p> <p>PRINCIPLE APPLIED: Testator, at the time of the execution of his will, and at the time of his death, owned three town lots, four tracts of land in See. 6, Twp. 81, Range 21, and one tract in Sec. 1, Twp. 81, Range 22. Subject to a life estate to the wife in all the property, he devised to his seven children as follows:</p> <p>To one, the three town lots.</p> <p>To another, a tract in 6-81-21, subject to a charge of $250 in favor of a son, John.</p> <p>To another, a tract in 6-S1-21.</p> <p>To another, the tract owned by testator in 1-81-22, subject to a charge of $350 in favor of John.</p> <p>To another, a tract in 6-81-22 which testator never owned, subject to a charge of $100 in favor of John.</p> <p>To another, a tract in 6-81-22 ivhich testator never otwied, subject to a charge of $100 in favor of John.</p> <p>If the two latter descriptions had read ‘1 Range 21, ’ ’ they would. have covered land that testator did then own and continued to own up to his death. Three years later, testator, by a codicil, increased John's legacy to $1,800, and also increased the aforesaid charges to cover the increase. Held, parol evidence was admissible to show that, when testator made his will, he manifestly had in mind and intended to devise the two remaining tracts owned by him in 6-81-21.</p> <p>2 DEEDS: Subsequently Acquired Title — Grantor’s Interest in Other Lands — Inurement to Grantee. Where a quitclaim deed to real estate, or a valid contract therefor, purports, and is intended, to convey a greater interest than the grantor was at the time possessed of, the interest of the grantor in lands other than the lands conveyed by said deed may inure to the benefit of the grantee when necessary to protect grantee from a partial failure of the title intended to be conveyed by said deed. (See Sec. 2915, Code, 1897.)</p> <p>PRINCIPLE APPLIED: A testator devised to his wife, in. lieu of dower, a life estate in eight tracts of land, and, subject thereto, devised the fee in these tracts to six sons and daughters, with a legacy to a seventh child charged to certain devises. One daughter received three town lots, subject only to the mother’s life estate. This daughter', assuming that she was the owner of the fee in the said lots, contracted for full value to convey said lots by quitclaim deed, subject to her mother’s life estate, and released to her vendee “all her interest in all real estate devised’’ under her father’s will. Before the daughter executed her deed, the mother died intestate, and, in partition proceedings, the court held that the mother had not elected to take under the will, and consequently died seized of one third of all the eight tracts. It followed that the daughter could convey to her vendee only a two-thirds plus a one-twenty-first interest in said lots. Held, the one-twenty-first interest of the daughter in all the tracts of land subsequently acquired through her intestate mother inured to the benefit of the purchaser from the daughter.</p> <p>3 DESCENT AND DISTRIBUTION: Surviving Spouse — Election Between Will and Distributive Share — Evidence. Evidence reviewed, and held to support the findings of the trial court that a widow-had not elected to accept the provisions of a will in lieu of her distributive share.</p> <p>4 WILLS: Distributive Share of Spouse — Election. An election t» accept the provisions of a will in lieu of distributive share is not shown by the mere fact that a surviving widow received the rents, for one year accruing from the premises in which her husband had devised her a life estate in lieu of her distributive share, together with statements by her, on one or more occasions, that she was willing to accept that which her husband had devised to her.</p> <p>5 TENDER: Maintenance of Tender — Interest. Interest follows a, failure to maintain a tender.</p> <p>6 PLEADING: Matters Specially Pleaded — Tender. Tender should be specially pleaded.</p>

— C. W. Vermilion, Judge. Prosecution for alleged arson, in that the defendants caused to be burned certain stock and fixtures of one Allie Joseph, with the intent thereby to injure the insurer of such property. There was a verdict of guilty, and defendants have appealed.

<p>1 PERJURY: Evidence — Sufficiency. Evidence reviewed, and held sufficient to sustain a conviction for perjury.</p> <p>2 PERJURY: Assignments — Proof of Part Only — Effect. Proof of one of two different material assignments of perjury is sufficient to sustain a conviction.</p> <p>3 CRIMINAL LAW: Evidence — Evidence Obtained by Search of Person. Demonstrative evidence obtained by a search of the person of accused at the time of his arrest is admissible when material and relevant on the issue of guilt. So held in the case of marked money.</p> <p>4 CRIMINAL LAW: Evidence — Objection—Sufficiency. The objection of incompetency, irrelevancy, immateriality and insufficient identification, when interposed to the offer of demonstrative evidence taken from the person of accused when arrested, does not embrace the objection that the introduction would compel self-incrimination.</p> <p>5 TRIAL: Instructions — Refusing Instructions — Showing of Prejudice. • Refusal of trial court to give requested instructions will not be denominated error when not accompanied by a showing that the points were not covered by the instructions given.</p> <p>6 CRIMINAL LAW: Evidence — Other Offenses — Perjury. On the issue whether the defendant did a certain thing on a certain occasion, the fact that he did something of the same kind on a different occasion may be proven, provided it shows the existence, on the occasion in question, of any intention, knowledge, good or bad faith, or other state of mind the existence of which is in issue. So held on issues in a charge of perjury.</p> <p>PRINCIPLE APPLIED: Defendant was indicted for perjury, in that he had sworn “that he did not on a certain occasion sell intoxicating liquors to one Hegarty.” On the trial of the perjury charge, defendant claimed that he had not sold any liquor, but was acting as agent only, and that his testimony on which the perjury was assigned was given non-corruptly and in good faith. The State was permitted to show that Hegarty had purchased liquor of defendant at times other than that on which the perjury was based. Held, proper.</p>

Certiorari from Taylor District Court. — Thomas L. Maxwell, Judge. This is an original proceeding in this court brought by certiorari to test the rulings of the district court in striking out the first count of an information for contempt and sustaining a demurrer to the second count. The only printed matter in the case is plaintiff’s argument.

— Hubert Utterback, Judge. On June 19, 1911, there was submitted to the voters of Des Moines at a special election this proposition: ‘ ‘ Shall the city of Des Moines purchase, establish, erect, maintain, and operate waterworks with all necessary reservoirs, mains, filters, streams, trenches, pipes, drains, machines, apparatus, and other requirements of waterworks plant or system?” 3,330 votes were cast for the proposition, and 442 against.

— E. G. Albert, Judge. The proceedings up to the bidding for the pavement of certain streets in the city of Carroll were regular. A form of contract, together with the plans and specifications, was on file with the city clerk, and bidders were required to use a form provided in bidding.

— Milo P. Smith, Judge. The defendant, a public service corporation, appealed from the judgment of the district court imposing a fine for the violation of a city ordinance prohibiting it from charging more than the amount fixed by an ordinance for services rendered in supplying electric light and power.

— John T. Moeeit, Judge. In the district court, this was an appeal from a paving ■assessment ordered by the city council of the city of Marion. The trial resulted in a reduction of the assessment and denial of further relief. The assessment against plaintiff was confirmed as against one parcel of property in the amount of $50, and as against another parcel in the amount of $200, the original assessment appealed from being in the amount of $232.32 against each parcel.

— O. D. Wheeler, Judge. Appeal from an assessment against abutting property owners for special benefits claimed to have ensued from the construction of a pavement in front of the lots. Opinion states the facts.

— Henry Silwold, Judge. Action on a written guaranty under which defendants are alleged to have become indebted on a promissory note resulted in judgment as prayed. The defendants appeal.—

<p>1 EVIDENCE: Parol as Affecting Writing — Explaining Private Writing. A private writing, as a letter, in the nature of an admission, • ■’ may be explained by. parol, even though not ambiguous.</p> <p>2 APPEAL AND ERROR: Harmless Error — Facts Shown by Competent and Incompetent Evidence. The reception of incompetent evidence of a fact otherwise fully established by competent evidence is harmless error.</p> <p>3 TRIAL: Special Interrogatories — Interrogatory Not Calling for Ultimate Fact. A special interrogatory, not calling for an ultimate fact, is properly refused submission to the jury.</p> <p>PRINCIPLE APPLIED: A bond, guaranteeing the performance of a building contract, provided that the same should be void if the obligee gave the contractor an extension of time without the consent of the surety. The court refused to submit this interrogatory: “Do you find that plaintiff gave the contractor an extension of time beyond Oct. 20th for the completion of the contract?” Eeld, properly refused, because not enabling the jury to differentiate between (a) an extension agreed upon by the obligee and the contractor, and (b) an extension taken by the contractor and acquiesced in by obligee because helpless to do otherwise.</p> <p>4 APPEAL AND ERROR: Harmless Error — Instructions Misstating Pleading. Correctly stating the issues to the jury renders harmless immaterial departures from or even misstatements of the pleading's.</p> <p>5 TRIAL: Requested Instructions — Matters Otherwise Covered. Requested instructions, substantially covered by instructions given by the court, are properly refused.</p> <p>6 PRINCIPAL AND SURETY: Release of Surety — Failure to Notify Surety. The fact that the obligee in a bond had the beUef, during the progress of the work, (a) that the contractor was not paying his bills with business promptness and might not have money sufficient to pay all bills, and (b) that mechanics’ liens might be filed, was not a ‘ ‘ discovery of an act or omission on the part of the principal that might involve a loss” of which the surety was entitled to notice under the terms of the bond.</p> <p>7 PRINCIPAL AND SURETY: Release of Surety — Burden of Proof. A surety on a bond which guarantees the performance of a contract, on conditions not specified as conditions precedent, must plead and pi'ove such noncompliance with said conditions as effects his release.</p>

<p>1 MASTER AND SERVANT: Place of Work — Servant’s Assumption of Safety — Negligence. A servant may assume to be reasonably safe a place of work erected or prepared under the sole supervision of the master, and without participation by the servant. And if the place is not reasonably safe, and the master, as an ordinarily prudent person, ought to have so known, then he is negligent in requiring the servant to make use of such place. So held in the erection and use of a scaffold.</p> <p>PRINCIPLE APPLIED: To paint a 21-foot store ceiling, the master, winder the sole supervision of its mwnager, fastened brackets to an interior pillar, and thereon was laid one end of a 2x12x24-foot plank, the other end resting on the top of a show window 19 feet to the south. The ends of the plank, therefore, extended somewhat beyond the end supports. The plank sagged. Por a middle support, one end of a 2x4x15 was set upon the floor, with the upper end under the middle of the plank. Neither end of the plank was nailed, it being moved along as the work progressed. Short, 2-inch material was nailed to the under side of the planto and around the end of the 2x4 support, thus forming a pocket in which the end rested; but otherwise the end of the support was not fastened. The jury might have found that the support was not toe-nailed to the floor. A workman, weighing 160 pounds, stood nearer to the bracket than to the end of the 2x4 support. Plaintiff stood half way between the end of the 2x4 support and the show window. This 2x4 support was three quarters of am, moh too long, thereby pivoting the plank in the middle — causing it to “bow up.” When .plaintiff reached up with his brush, the south end of the plank swung to the west, and plaintiff fell and was injured. Held, record sufficient to carry the question of the master’s negligence to the jury.</p> <p>2 TRIAL: Instructions — Form, Requisites and. Sufficiency — Assumption of Fact. Instructions reviewed, and held not to assmne that the scaffold in question vras defectively constructed.</p> <p>3,5 TRIAL: Instructions — Applicability to Evidence — Unsupported Theory. A theory unsupported by any evidence should not be presented to the jury.</p> <p>4 APPEAL AND ERROR: Harmless Error — Instructions—Submission of Matters Not in Issue. The submission of matters not in issue is not necessarily prejudicial error. So held in the submission of the issue of negligence in both the “construction” and “maintenance” of a scaffold, the former only being in issue, but the evidence on construction and maintenance being identical.</p> <p>TRIAL: Instructions — Applicability to Evidence — Unsupported Theory.</p> <p>6 TRIAL: Instructions — Construction as a Whole — Proximate Cause. Even though in a particular instruction it would have been eminently proper for the court to have given the ordinary rules bearing on proximate cause, yet the charge is sufficient if, in other portions thereof, the subject of proximate cause is fully covered.</p> <p>7 DAMAGES: Future Pain and Suffering — Evidence—Life Tables. Any fair evidence showing the continuance or permanency of injuries justifies the submission of the issue and the receipt of life tables as bearing thereon.</p> <p>8 EVIDENCE: Opinion Evidence — Relative Credibility of Conflicting Experts. It is not for the court to pass upon the relative credibility of conflicting experts apparently having the same means of information.</p> <p>9 APPEAL AND ERROR: Review — Questions of Fact — “Most Favorable View” Rule. On the question of sustaining the amount of the verdict returned, the appellate court will treat as- true the evidence most favorable to appellee.</p>

- — Milo P. Smith, Judge. Suit in equity to test the validity of certain taxes assessed against the plaintiff’s property. The trial court dismissed the petition, and plaintiff has appealed.

— W. S. Ayres, Judge. Action on a certificate of membership in defendant association stipulating for insurance resulted in a directed verdict for defendant and judgment thereon. The plaintiff appeals.

— Milo P. Smith, Judge. Action brought by a subcontractor on a surety bond given by a principal contractor. The opinion states the facts. Judgment for defendant in the court below. Plaintiff appeals.

— M. E. Hutchison, Judge. Action to recover amount alleged to be due upon a policy of insurance. Policy issued to insure plaintiff’s interest as mortgagee in the property insured. Cause tried to the court without a jury. Judgment' for the defendant, dismissing plaintiff’s petition. Plaintiff appeals.

— W. S. Hamilton, Judge. A jury found the defendant guilty of murder in the first degree, and directed that capital punishment be inflicted. Sentence passed accordingly,, and defendant appeals.—

— John F. Talbott, Judge. Action to set aside a conveyance of real estate on the ground of fraud. Opinion states the facts. Decree for the plaintiff! in the court below. Defendant appeals.

— W. S. Ayres, Judge. Action to recover damages consequent upon fraud alleged to bave been practiced in the purchase of three shares of stock in the Des Moines Life Insurance Company. From judgment entered on the verdict, plaintiff appeals.

— J. H. Applegate, Judge. This action was begun by Michael Hintz, October 6, 1913, alleging that a certain deed signed and acknowledged by him, purporting to convey three lots in Stuart to his son, Joseph A. Hintz, though recorded, had never been delivered, and that said defendant had never complied with the conditions therein, and praying that the same, together with a mortgage executed by the grantee to the Stuart Savings Bank, be set aside and canceled.

— W. S. Hamilton, Judge. Action at law upon a policy of accident insurance issued hv defendant to the plaintiff. Upon the issues joined, the case was tried to a jury, resulting in a verdict for plaintiff in the sum of $819. Defendant appeals.

<p>INCEST: Indictment and Information — Sufficiency. Ungrammatical arrangement of clauses of an indictment will not render it insufficient, if a person of common understanding would know what was intended. So held as to an indictment for incest.</p>

<p>MASTER AND SERVANT: Place for Work — Master Acquiescing in Abandonment of Safe Way — Effect. A master who has provided a convenient, adequate and safe way for his employees to cross dangerous portions of his premises, and then acquiesces in what amounts, practically, to an entire disregard by his employees of the use of such provided way, will not be heard to say that he has performed his full magisterial duty to care for the safety of his employees.</p> <p>PRINCIPLE APPLIED: A set of factory buildings were located along both sides of three intervening switch tracks used in the operation of the plant. Workmen, in large numbers, were required daily to pass back and’forth between the buildings. The master built a tunnel under the tracks, thereby connecting the buildings. Danger signs were erected'at the openings into the tunnel, directing the workmen to use the tunnel instead of crossing the tracks. But employees generally, without objection from those in authority, and the officers, superintendents and foremen, continued to cross over the tracks instead of going through the tunnel, which was not, at all times, well drained and was not, at times, the shortest route. Superintendents, at times, even ordered ears uncoupled and separated, in order to afford passage over the tracks. This .practice continued for some two years after the tunnel was built, and until deceased was caught between two cars and killed. Held, (a) the act in providing the tunnel and posting the notices was not of itself a full discharge of the master’s duty, and (b) the master was under obligation to see that the ears were operated with reasonable regard for the safety of the workmen.</p> <p>2 MASTER AND SERVANT: Rules — Duty to Promulgate — Independ: ent Workmen — Dangerous Acts. When a business is conducted by many servants, performing work independently of each other, and the work of one becomes periodically dangerous to another, it is the duty of the master to promulgate rules and regulations for the giving of warnings to persons likely to be endangered when such dangerous acts are about to b,e performed.</p> <p>PRINCIPLE APPLIED: A set of factory buildings were located along both sides of three intervening switch tracks operated by the master. Prom 6 to 60 carloads of freight were handled in the yards each day. In the ordinary work of the yards, ears were moved by means of a crane, or by pinch bars, or by knocking one car against another. Numerous workmen daily passed back and forth over these tracks in the course of their work, passage between ears being afforded, at times, by uncoupling and separating the cars. Deceased, employed in one of the buildings, had occasion, in the course of his work, to pass over the traeks and between the ends of two cars. Without warning, they were knocked together and deceased was killed. The master had promulgated no rules for signalling the movements of cars nor provided for the service of guards at openings between the ears. Held, the negligence.of the master was a question for the jury. (In Division II, the duty to promulgate rules is, in effect, held to be mandatory.)</p> <p>1,3 MASTER AND SERVANT: Place for Work — Master Acquiescing In Abandonment of Safe Way — Effect.</p> <p>4 MASTER AND SERVANT: Safe Place for Work — ‘ ‘Reasonable Care to Provide Safe Place” — ‘‘Reasonably Safe Place.” The terms or expressions, ‘‘duty to exercise reasonable care to provide a, safe place,” and ‘‘duty to provide a reasonably safe place,” are identical in meaning and legal effect.</p> <p>5 MASTER AND SERVANT: Actions — Instructions—Contributory Negligence — Servant.Using Less Safe of Two Routes. Whether a servant was guilty of contributory negligence in taking the less safe of two routes across railway tracks would depend materially on whether the safer route was then free and unobstructed.</p> <p>6 NEGLIGENCE: Contributory Negligence — Contributory Per Se— Facts Not Constituting. The court cannot hold that an injured party was guilty of contributory negligence as a matter of law, unless his conduct was so clearly reckless or imprudent as to leave no room for difference of opinion in the minds of impartial jurors.</p> <p>PRINCIPLE APPLIED: Factory buildings were separated by three switch traeks, much used in the operation of the plant. Numerous workmen were daily required to pass back and forth between these buildings. The master built a tunnel under the tracks and warned workmen to go through the tunnel and not over the tracks; but, for two years, all employees practically ignored the use of the tunnel and continued to pass over the tracks without objection from the master. The tunnel was not always well drained and not always the shortest route between the buildings. Superintendents, at times, ordered cars uncoupled and separated, in order to afford passage for the workmen. Deceased, though formerly employed .at the plant, had worked only two or three days in one of the buildings. A machine broke. He was sent on an urgent errand to the millwright, who was on the farther side of the tracks. He started hurriedly across the tracks, taking the shortest route and the course usually followed by other workmen. In the direct line of his course, he came to two slightly separated ears on the farther track and passed between them just as they were, without warning, knocked together, and he was killed. Within a few seconds after being hit, he said: "They shoved the cars down and never hollered.” Whether he saw or could have seen the men handling the cars did not appear. The cars were not handled by an engine. There was no eyewitness. Held, the question of contributory negligence was for the jury.</p> <p>7 NEGLIGENCE: "No Eyewitness Rule” — When Rule Applies. The fact that a living witness may have seen the deceased at a point of time howsoever close to the point of time of injury, does not exclude the presumption of due care under the "no eyewitness rule,” if there was opportunity for the deceased, when not in the view of the witness, to perform such acts of watchfulness or caution as reasonable care required at his hands.</p> <p>8 APPEAL AND ERROR: Review — Custom and Practice of Trial Court — Determination of Lower Court Conclusive. A finding by the lower court as to the existence or nonexistence of a certain alleged custom or practice in such court, when supported by some evidence, is conclusive on the appellate court. So held in regard to a claimed custom under which the reporter entered exceptions to rulings of the court, without such exceptions’ being audibly made by the counsel.</p> <p>9 APPEAL AND ERROR: Exceptions — Conduct of Counsel in Argument — Acquiescing in Action of Court. He who objects to the conduct of counsel in the matter of argument to the jury, and thereby induces the court to admonish and caution the offending counsel, or to otherwise rule to such extent as the court may then deem fit and proper, will be presumed fully satisfied with the action of the court, m the absence of a request for some other and more specific action.</p>

<p>1 PLEADING: Demurrer — Ruling—Adjudication. A ruling on a demurrer to a pleading, though not excepted to, is no adjudication of the law governing a subsequently- filed substitute pleading.</p> <p>2 MORTGAGES: Foreclosure — Waiver—Election of Remedies — Inconsistent Pleadings. A pleading asking a foreclosure o£ a mortgage, simply (a) for the interest due thereon, (b) for the amount of taxes paid, and (e) for abstract fee paid, filed after a former pleading asking a foreclosure for principal, interest and taxes had been held bad on demurrer, is not a waiver of the right to later plead that, under the terms of the mortgage governing defaults in payment of interest, taxes, etc., the entire principal had matured, and that the plaintiff was, therefore, entitled to a foreclosure for (a) principal, (b) interest, (c) taxes paid, and (d) abstract fees, paid.</p> <p>PRINCIPLE APPLIED: A petition, manifestly defective in its allegations, was filed, praying the foreclosure of a mortgage-fa) for principal, (b) for interest, and (c) for taxes paid. On demurrer, it was held bad. Plaintiff, without excepting to the ruling bn demurrer, then filed his “first” amended and substituted petition, simply praying a foreclosure (a) for interest, (b) for taxes paid, and (e) for abstract fee paid. Later, plaintiff filed a “second” amended and substituted petition, praying a foreclosure (a) for principal, (b) for interest, (c) for taxes paid, and (d) for abstract fee paid. Held, the filing of the “first” amended and substituted petition was not a waiver of the right to file the "second” — was not a waiver of the right to insist on the claim that, under the conditions of the mortgage, the entire principal was matured by defendant’s failure to pay interest, taxes, etc.— was not an election to proceed solely for the unpaid interest, tames, abstract fee, etc.</p> <p>3 MORTGAGES: Foreclosure — Assignee of Note and Mortgage — Interest Installment — Ownership. Evidence reviewed, and held to show that plaintiff in foreclosure was the owner of an unpaid installment of interest in question as indorsee.</p> <p>4 MORTGAGES: Foreclosure — Conditions—Demand and Notice — Validity. A condition in a mortgage that certain acts of omission or commission on the part of the mortgagor shall, at the option of the mortgagee, mature the entire indebtedness, and that an action to collect or foreclose may be brought %cithout first mak-ÍMg demand for fulfillment of conditions or giving notice of election to treat the debt as matured, is valid.</p> <p>5 MORTGAGES: Foreclosure — Breach of Conditions — Evidence. Evideuce reviewed, and held sufficient to show that a mortgagee had breached the conditions of the mortgage in the matter of paying taxes, interest, etc.</p> <p>6 PAYMENT: Requisites and Sufficiency — Checks. A bank, at whose place of business a note is payable, may not accept as payment the cheek of the maker of the note upon another bank. ,</p> <p>7 MORTGAGES: Foreclosure — Commencement of Action — Subsequent Defaults — Amendments. Breaches of the condition of a mortgage occurring subsequent to the commencement of the action to foreclose may very properly be set up by way of amendment.</p>

— Hugh Brennan, Judge. Proceedings in probate upon the final report and discharge of Zora M. Krell (formerly Zora M. Hahnen) as guardian of her two minor ehildren. Exceptions were filed to her report by Des Moines Savings Bank, as guardian for the same wards, having been duly appointed as such upon the resignation of the mother. Upon the hearing of such exceptions, her sureties upon successive bonds appeared and made defense.

Certiorari from Cerro Gordo District Court. — M. F. Edwards, Judge. .This is a proceeding by certiorari to review the action of the lower court in releasing the defendants in the main action from a charge of contempt for the alleged violation of an injunction. The opinion states the case. The writ is annulled and the judgment

— Hubert Utterback, Judge. Action to test the validity of a statute and an ordinance of the defendant city licensing and regulating what are known as “jitneys.” The trial court sustained both, and plaintiff appeals.

— M. E. Hutchison, Judge. This is a will contest over the admission to probate of an instrument purporting to be the last will and testament of one Frieda Dobals, deceased, upon objections filed by some of her children.

— R. P. Howell, Judge. Action to recover from the defendant one half of the alleged commission or profit in a certain transaction alleged to have been handled by plaintiff and defendant as a joint enterprise, the full amount of such commission or profit having been paid to'the defendant alone. Upon trial to a jury, a verdict was rendered for the plaintiff and a judgment entered thereon. The defendant appeals.

' Appeal from Woodbury District Court. — George Jepson, Judge. Action to recover damages from defendant for breach of duty as an attorney, for falsely and maliciously inducing one Severson to break a contract which he (Severson) had with plaintiff, and for a conspiracy to defraud plaintiff out of his property, or the proceeds thereof. Upon issues joined, the ease was tried to a jury, resulting in a directed verdict for defendant, and plaintiff appeals.

— N. J. Lee, Judge. Action at law upon four promissory notes, aggregating $10,000. The answer admitted the execution of the notes, but denied that the same were due, and set up an affirmative defense thereto, which will be set forth in the body of the opinion.

— C. H. Kelley, Judge. Appeal from the judgment of the court in setting aside a default, and from the action of the court in correcting the record made at the time the default was set aside. Defendant appeals.

— Charles E. Albrook, Judge. Action at law upon a policy of fire insurance, issued by defendant company, to plaintiff R. J. Moore, covering a frame dwelling house, with foundation and cellar walls, situated upon a certain tract of land in Franklin County. Upon issues joined, the cause was tried to the court, without a jury, resulting in a judgment for plaintiffs,- and defendant appeals.

— W. D. Boies, Judge. Action at law to recover from defendants upon a certified transcript of a foreign judgment. Judgment for plaintiff, and defendants appeal. The issues joined and the questions to be considered upon this appeal involve a somewhat complicated state of facts, which are sufficiently stated in the opinion.

— M. E. Hutchison, Judge. Action to recover damages, due to an explosion of oil claimed to have been sold by defendant to plaintiffs, which plaintiffs resold to another, in whose hands the oil exploded. On issue joined, the case was tried to a jury, resulting in a verdict and judgment for defendant, and plaintiffs appeal.—

— W. S. Ayres, Judge. Action to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.

— Hubert Utterback, Judge. Action to restrain the city from the enforcement of an ordinance prohibiting the standing of automobiles upon certain of the public streets of Des Moines. Decree for the plaintiff in the court below. Defendants appeal.

— Hugh Brennan, Judge. - Action in equity to recover the amount alleged to be due on a certain promissory note, and to foreclose a mortgage given to secure the same. Judgment and decree in favor of the defendant Laura B. H. Roberts. From this judgment, plaintiff appeals.

— W. S. Ayres, Judge. Action by an administrator to recover damages for the death of the intestate decedent. At the close of the evidence, there was a directed verdict for the defendant. The ground of such direction was that the decedent and the defendant were engaged in interstate commerce at the time of the injury, the petition declaring upon a cause of action under the state law and not under the Federal Act. The plaintiff appeals.

— Chas. A. Dudley, Judge. Action upon a contract, for- the erection and painting of fifty bulletin boards, and the painting of a like number of wall signs, for advertising defendant’s business in this state. Defendant admitted the contract, but pleaded plaintiff’s failure to perform, on its part, and also interposed two counterclaims, one of which was withdrawn, before the submission of the case-to the jury.

— Chas. A. Dudley, Judge. Action for damages consequent on a collision with defendant’s street car resulted in a directed verdict and judgment thereon. The plaintiff appeals.

<p>1 EVIDENCE: Parol as Affecting Writing — Collateral Oral Agreement —Showing Inducement. Beeeiving in evidence an oral agreement, collateral to and contemporaneous with' a written one, showing the inchioement for entering into the written one, is not violative of the parol evidence rule, the writing being silent as to such inducement.</p> <p>PRINCIPLE APPLIED: Action by an administrator to collect on a note. The maker pleaded that, at the time of the execution of the note in question, and another note, and as a part of that transaction, the payee orally agreed with the maker that, if the maker would take the money and execute the notes and mortgage and pay to the payee the six per cent, interest thereon annually during the lifetime of the payee, she (the payee) would make a will and bequeath to the maker the notes or the amount of the notes, and that in pursuance of this oral agreement the notes and mortgages were executed. . No such bequest appeared in the last will of said payee. No consideration was recited in the notes. Held, the oral agreement was provable.</p> <p>2 CONTRACTS: Consideration — Contract to Will Property. A contract by the payee of a note to devise said note (together with one formerly, executed), or the amount thereof, to the maker, is supported by a sufficient consideration in the maker’s agreement to take the money and execute the note and mortgage and pay to payee, during her lifetime, interest in excess of what payee could then get from anyone else.</p> <p>3 WILLS: Contract to Devise — Evidence. Evidence reviewed, and held sufficient to establish a contract to bequeath certain property to claimant.</p> <p>4 WITNESSES: Privileged Communication — Attorney Acting as Scrivener Only. A communication by a testator to an attorney as to the provisions of a will is not privileged when the attorney had nothing whatever to do with the will, or anything relating thereto, beyond copying it from a rough draft made by his partner.</p> <p>5 TRIAL: Reception of Evidence — Proper Reception — Subsequent Incompetency Shown — Procedure. Testimony rightly received, as the record then stands, remains in the record for consideration, even though incompeteney of the witness is later made to appear, iunless such testimony is stricken on motion. So held where, after testimony was received, it was made to appear on cross-examination that the witness was, arguendo, incompetent.</p> <p>6 PAYMENT: Recovery of Payments — Mistake of Pact — Involuntary Payments — Ignorance of Existence of Evidence. Payments made in ignorance of the existence of evidence which would establish non-liability may not be recovered on the plea of mistake of fact, or that the payments were involuntary by reason of such ignorance.</p> <p>7 WILLS: Contract .to Devise or Bequeath. — Breach.—Damages. Damages may be recovered for breach of a contract to devise or bequeath property.</p> <p>8 EXECUTORS AND ADMINISTRATORS: Claims — Limitation for Filing — Equitable Relief — Unsettled Estates. Claims filed against an unsettled estate after the expiration of 12 months from the giving of notice by the executor of his appointment need not be supported by a strong showing of equitable circumstances entitling to relief from the statute. (Sec. 3349, Code, 1897.) In such case, the question is quite largely one of conscience and fair dealing.</p> <p>PRINCIPLE APPLIED: Defendant, threatened with suit on a note given to deceased, paid the note. In truth, she gave the note under an agreement that she would pay the interest thereon during the life of payee, and that payee would make a will and bequeath said note to defendant. Payee died without making such a will. Defendant paid the note, in the belief that no sufficient competent evidence of said agreement was in existence. Later, defendant discovered that prior wills of deceased recognized the agreement. But by this time, the 12 months’ limitation on filing claims had expired, but the estate remained unsettled. Claim was promptly filed after discovering this latter evidence. Held, the showing was sufficient to avoid the statute.</p>

<p>1 RAILROADS: Right of Way — Easement for Special Purpose — Termination. A grant of railroad right of way for particular purposes terminates as soon as the said purposes cease to exist or are abandoned. So held where such right of way was granted in order to enable the railroad to reach and serve a packing house and stockyards, the packing house and stockyards being later abandoned.</p> <p>2 EASEMENT: Creation — Presumption—Railroads. A grant or gift of ground for a railway right of way is presumptively of an easement therein only.</p> <p>3 BASEMENT: Creation — Creation for Special Purpose — How Proved. Surrounding facts and circumstances may be sufficient to show that an easement was granted for a special purpose only. So held where a railway right of way was held to have been granted for the sole purpose of enabling the railway to reach and serve a packing house and stockyards and terminated on the abandonment thereof.</p> <p>4 PLEADING: Answer — Defendant Utilizing Plaintiffs’ Allegation. Defendant need not allege that which is a part of his ease when plaintiffs have accommodatingly alleged it for him.</p> <p>5 PLEADING: Issue, Proof and Variance — General Denial — Evidence Admissible — Quieting Title. On the issue whether an easement for a railway right of way was permanent, evidence that it was granted for a special purpose is admissible under a general denial.</p> <p>6 EASEMENT: Creation — Degree of Proof Necessary. He who alleges an oral grant of a permanent easement must establish the same by clear, definite and unequivocal testimony. So held in case of a railway right of way.</p> <p>7 APPEAL AND ERROR: Abstract of Record — Denial—Fullness Required — Certification of Record. Appellees’ denial of appellant’s abstract which fails to point out the defect alleged to exist as specifically as the case mil permit will be disregarded. (Rule 32.)</p> <p>Salinger, J., dissents as to the application made.</p> <p>PRINCIPLE APPLIED: Appellant’s abstract, in an equity case, revealed (a) certificates, in the usual form, dated September 30, 1912, signed by the reporter and judge, to the effect that the transcript contained “all the evidence offered or introduced in said cause . . . upon the trial thereof;” (b) that said transcript was filed on November 13, 1912; and (c) that the decree recited that the matter came on for hearing on December 26, 1912, and “thereupon the plaintiff and defendant introduced their evidence,” etc.</p> <p>Appellee filed a denial. His denial was to the effect that appellant’s abstract and his (appellee’s) amendment did not contain all the evidence because evidence was introduced on December 26th. He alleged that this latter evidence (without identifying it or in any further way pointing it out) was not made of record. He also alleged that abstract contained no evidence taken later than said September 30th.</p> <p>Appellant then amended his abstract and showed that the evidence was closed on September 7, 1912, and that the court then made this order, to wit: “Both parties rest. Testimony closed;” and alleged that this order had never been set aside and no additional evidence was ever offered. Held, appellee’s denial was not as specific as the circumstances permitted and demanded, and would not overcome the presumption arising from the record, as .shown by appellant’s abstract and amendment, that the abstract did contain, all the evidence. •</p> <p>8 APPEAL AND ERROR: Record — Certification — When Required. Appellant is under no obligation to resort to a certification of the record unless appellee’s denial of the appellant’s abstract is as specific as to the defect complained of as the ease will permit. (Sec. 4122, Code, 1897.)</p> <p>Salinger, J., dissents as to the application made.</p> <p>9 APPEAL AND ERROR: Abstract of Record — Denial—Amendment —Construction. An amendment by appellant to his own abstract, correcting the record as to proceedings prior to a certain date, cannot be construed as being responsive to a denial by appellee as to the correctness of the abstract as to proceedings subsequent to said date.</p> <p>10 APPEAL AND ERROR: Transcript — Official Certification — Inconsistent Recitals in Decree — Construction. Recitals in a decree, inconsistent or apparently contradictory with the official certification of the transcript by the reporter and judge, will, if possible, be so construed as to harmonize with the latter.</p> <p>PRINCIPLE APPLIED: A transcript was duly certified by the reporter and judge as containing all the evidence. Such transcript was filed on November 13th following, presumably for the purpose of aiding the judge in reaching a decision. Decree was rendered December 26th following, and recited that on said date “the plaintiff and defendant introduced their evidence,” etc. Held, the recital in the decree had reference to the filing of the transcript on November 13th.</p> <p>11 APPEAL AND ERROR: Transcript — Official Certification — Inconsistent Recital in Decree — Effect. A naked assertion by counsel that evidence was introduced on the date of the deeree, even when aided by a reeital in the deeree to that effect, will not overcome the official certificate of the reporter and the judge that the transcript contains all the evidence. (Sees. 3675, 4118, Code, 1897.)</p> <p>Salinger, J., dissents.</p>

— Bobert Bonson, Judge. This is an appeal from an assessment levied against the property of the Chicago, Great Western Bailroad Company by the board of supervisors of Dubuque County in proceedings establishing a drainage district.

<p>Appeal from Polk District Court. — W. S. Ayres, Judge.</p> <p>Petition for a new trial was sustained. The defendant appeals.</p>

— W. H. Fahey, Judge. This is a suit upon an oral contract for the sale of corn. Defendant’s demurrer to the petition was sustained and the petition dismissed, and judgment rendered against plaintiff for costs. The plaintiff appeals.

— J. B. Rockaeellow, Judge. Action to recover as for the conversion of personal property, on which plaintiff claims to have had a landlord’s lien. The opinion states the facts. Judgment for defendant in the court below.

— W. H. McHenry, Judge. Interveners file petition asking that a certain judgment entered against the garnishee in the original cause be set aside. Opinion states the facts. Cause tried in equity. Decree dismissing petition of intervention. Interveners appeal.—

<p>1 NEGLIGENCE: Independent Contractor — Landlord and Tenant. A landlord is liable in damages to a tenant injured by reason of tbe negligent act of the owner’s independent contractor if the owner knows of the negligent act of his independent contractor and knows it renders the place unsafe for tenants and negligently allows the unsafe condition to continue (holding, arguendo).</p> <p>2 PRINCIPAL AND AGENT: Agent’s Liability to Third Persons— Nonfeasance. An agent is not liable to a third person for nonfeasance — for a failure to discharge a duty which he owes to his principal, even though the principal owes that duty to such third person.</p> <p>PRINCIPLE APPLIED: The electrical wiring of an occupied apartment house was let to one who was strictly an independent contractor. Defendant had no property interest in the building, but, as agent of the owner, had charge and control of the building, and, arguendo, it was conceded that said defendant (a) represented said owner, under authority from the owner, in directing the 'carrying on of the wiring, and (b) had contracted with tile owner to keep the premises in a safe condition. Said contractor, unknown to plaintiff, took up a hoard leading to plaintiff’s apartments and negligently failed to guard the opening, and, within three hours thereafter, plaintiff, in the darkness, fell therein and was injured. Defendant did no affirmative act of negligence. Held, plaintiff could not maintain an action against the agent for her injuries.</p>

<p>Appeal from Scott District Court. — "William Theophilus, Judge.</p> <p>Action for the conversion of two automobiles, with their accessories. Trial to a jury, and, at the conclusion of the testimony, the trial court directed a verdict, in plaintiff’s favor, against the Pennsylvania Company, for the value of the property. After entry of judgment, the Pennsylvania Company appealed.</p>