Volume 180 — Iowa Reports

— Lawrence DeGraff, Judge. This is an action for damages for personal injuries. There was a trial to a jury, resulting in a verdict and judgment for plaintiff, and the defendant appeals. —

— N. J. Lee, Judge. Action in equity, to set aside an exchange of lands because of fraud and misrepresentation of the defendants, and to restore to plaintiff the property he conveyed to the defendants, and for other relief. Defendants filed 'separate answers, Hayden admitting that his codefendant was the owner of the property which was conveyed to plaintiff, he, Hayden, having sold the same to Small, and denying each and every allegation of the petition.

<p>Appeal from Carroll District Court. — M. E. Hutchison, Judge.</p> <p>A sufficient 'statement of tbe case will be found in the opinion. —</p>

— Wm. H. McHenry and Charles A. Dudley, Judges. Action at law to recover on a policy or benefit certificate insuring William J. Hatfield, while a member of said association in good standing, against injury through external, violent and accidental means, which injury 'shall, “independently of all oilier causes, result in death within 90 days from said injury.” The defendant contested the claim, and on trial to a jury there was a verdict for plaintiff.

Smith, Judge. Action at law to recover damages. The material facts are stated in the opinion. There was a directed verdict and judgment for defendants, and the plaintiff appeals. —

<p>Appeal from Johnson District Court. — R. P. Howell, Judge.</p> <p>Action in equity to quiet title to a lot in Iowa City, Iowa. Decree for plaintiff, and defendant appeals. —</p>

<p>Appeal from Bes Homes municipal Court. — J. E. Mershon, Judge.</p> <p>The opinion sufficiently states the case. —</p>

<p>MUNICIPAL CORPORATIONS: Public Improvements — Permanent I Sidewalks — Procedure. A permanent sidewalk, constructed under Section 779, Code Supplement, 1913, is not a “puMie improvement” within the meaning of Section 792 et seq. (Title V, Chap. 7), Code, 1897, governing the construction of paving, sewers, etc. It follows that such sidewalks may be constructed and valid assessments for the cost thereof made without pursuing the procedure provided for the construction of paving, sewers, etc.</p> <p>MUNICIPAL CORPORATIONS: Public Improvements — Assess-2 ments — What Constitutes 'Abutting Property. A tract of land “abuts” upon a street only where such property and street have a boundary line in common; and, where a tract of land has been lawfully platted into smaller lots for reasonable and proper purposes, only such lots as have one of their boundary lines in common with the line of the street can be said “to abut” on such street. So held as to a tract of land divided into cemetery lots, the occasion of the holding being an attempt to assess the entire tract for the cost of a permanent sidewalk. See Section 779, Code Supplement, 1913.</p> <p>MUNICIPAL CORPORATIONS: Public Improvements — Assess-3 ments — “Abutting” and. “In Front of” as Synonymous. Principle. recognized that, in the assessment of property for public improvements, the terms “abutting” and “in front of” are synonymous.</p> <p>CEMETERIES: Title of Lot Owner — Assessment for Sidewalks. It 4 may not be said that, owing to the nature of cemetery lots, the sale thereof to divers persons does not break the integrity of the original tract out of which the lots have been carved, and that an assessment-for the cost of a sidewalk may be levied against the tract as a whole, irrespective of such sales.</p> <p>MUNICIPAL CORPORATIONS: Public Improvements — Assess-5 ments — Injunction to. Restrain Collection. Injunction to restrain the collection of a special assessment for the cost of a public improvement will lie when there is a total laelc of jurisdiction to levy any assessment.</p> <p>MUNICIPAL CORPORATIONS: Public Improvements — Assess-6 ments — Assessments Against Cemeteries. Whether cemeteries-are impliedly exempt from special assessments for public improvements, quaere.</p>

— W. S.-Ayres, Judge. Action agaiust defendant, who is a physician and surgeon, for malpractice in reducing a fracture to the femur of plaintiff’s right leg. The defendant denied all negligence in the treatment of .the case. On the issues joined, the case was tried to a jury, and, at the conclusion of the testimony offered for plaintiff, the trial court, on motion, directed a verdict for defendant, and plaintiff appeals. —

— W. J. Springer, Judge. Defendant appeals from a judgment of conviction founded upon a charge of the practice of medicine without a license. —

<p>Appeal from Polk District Court. — Citas. A. Dudley, Judge.</p> <p>Defendant was indicted for robbery, convicted, and appeals. — Reversed.</p>

Suit in equity to set aside a decree in probate, which decree, it is alleged, was entered by consent in a contest over the probate of the will of Johann Berend, deceased; and to reinstate the contest over the probate of the will. Defendants demurred to the petition, and their demurrer was sustained, and judgment was entéred against plaintiffs for costs. Plaintiffs appeal.

— EL K. Evans, Judge. Controversy to determine whether certain land, claimed to be a homestead, is exempt from the debts of an heir. Decree for the defendants in the district court, holding the property liable for the payment of the debts. Plaintiffs appeal. —

— Milo P. Smith, Judge. This is an action in equity for the specific performance of a written contract made by defendant Susanna Harris, in which she agreed to convey a right of way over lands owned by her, or in which she had an interest, at the time the contract was executed.

— J. B. Rockafelloav, Judge. Appeal by defendants from a decree of the district court setting aside assessments against lands included in a drainage district.

<p>Appeal from Carroll District Court. — M. E. Hutchison, Judge.</p> <p>Action on account resulted in judgment as prayed. The defendant appeals. —</p>

<p>WITNESSES: Competency — Transaction with Deceased — Inferable 1 Facts. Conceding, arguendo, that one incompetent to testify to a personal transaction or communication with a deceased is competent to testify to' nonprohibited facts, from which, by inference, other facts may be found, even though the fact found by inference be a fact to which the witness is not competent to testify to directly, yet such principle does not embrace the right of such witness to testify to the contents of an instrument constituting a personal communication between deceased and said witness.</p> <p>PRINCIPLE APPLIED: An heir received certain property ■ under an agreement that he would receive the same in full of his interest in the grantor’s estate. After the death of grantor, the heir claimed that, subsequent to the deeding of the land to him, the grantor executed to him another writing, which, in effect, canceled the agreement that the heir should receive the land in full of his share in the estate, and reinstated him as an heir along with other heirs. This heir testified, over objection:</p> <p>1. That, after the deeds were delivered to him, he had another paper in his possession.</p> <p>2. That said paper was not delivered to him by any person • other than the said deceased.</p> <p>3. That the paper was in the handwriting of said deceased.</p> <p>Held that, conceding the above to be unobjectionable under -Sec. 4604, Code, 1897, yet the witness was incompetent to testify as to the contents of the writing.</p> <p>DESCENT AND DISTRIBUTION: Advancements — Cancellation 2 Agreement — Sufficiency of Evidence. Strongly contradictory evidence reviewed, and held insufficient to establish the making of an agreement canceling an advancement made in full of the heir’s interest in an estate.</p> <p>EVIDENCE: Best and Secondary — Loss of Writing — Sufficiency of 3 Showing. Evidence reviewed, and held, at the best, to be very unsatisfactory on the question of the loss of a written instrument.</p> <p>EVIDENCE: Declarations — As Showing Intent and Purpose on Is-4 suable Fact. When the very issue is whether- a deceased party did do a certain act, i. e., execute a certain alleged instrument, the declarations of such party showing his intent and purpose not to do, or inconsistent with the doing of, such alleged act, made prior or subsequent to the time when it is alleged that he did such act, are competent as bearing on whether he actually did said act.</p> <p>PRINCIPLE APPLIED: - An heir received deeds to certain property, under an agreement, in the deeds, to accept the same in full of his prospective share in grantor’s estate. Alter grantor died, the heir claimed that, some years subsequent to the execution of said deeds, the grantor executed another instrument, in effect canceling the agreement that the said conveyances should be in full of the grantee’s interest in grantor’s estate. The said grantor died several years after the date of this last alleged instrument. Issue was raised on the execution of this last alleged instrument. Held, the declarations of the grantor both prior and subsequent to the date of said alleged last instrument, consistent with the. agreement in the said original deeds and inconsistent with the execution of said last alleged instrument, were competent as bearing on whether such last instrument was executed.</p> <p>EVIDENCE: Presumptions — Inconsistent Conduct — Effect. Princi5 pie recognized and applied that the long-continued and unexplained failure, under urgent circumstances, to make known the existence of an instrument conferring a valuable right on the grantee, furnishes persuasive evidence that such instrument never in fact vaiidly existed.</p> <p>EVIDENCE: Weight and Sufficiency — Inherent Improbability. 6 Principle recognized that the inherent improbability of testimony may destroy it, even though, in a technical sense, it may be said that such testimony is undisputed.</p>

— E. M. Wright, Judge. Action for damages for alleged libel. There was a demurrer to the petition, which was sustained. The plaintiff refusing to plead over, his petition was dismissed and he has appealed. —

— W. S. Hamilton, Judge. Suit to reform a policy of insurance, and for judgment thereon. On hearing, the petition was dismissed, and plaintiff appeals. —

— H. B. Boies, Judge. Action for damages for personal injuries sustained from a fall upon tlie sidewalk in the defendant city. There was a verdict and judgment for the plaintiff, and the defendant appeals. —

— Frank M. Powers, Judge. Suit to recover upon a promissory note alleged to have been given for a commission. Defendant answered and set up a counterclaim for damages. He had the burden of proof in the trial court. At the close of the testimony adduced by him, the court sustained a motion to direct verdict against defendant. He appeals. —

<p>Appeal from Madison District Court. — Lorin N. Hays, Judge.</p> <p>The defendant was convicted of murder in the second degree and sentenced accordingly. He appeals. —</p>

— W. G. Sears, Judge. Suit in equity to enjoin a disorderly house nuisance. The suit was brought under the provisions of Sections 4944-hl to 4944-hll, inclusive, Supplemental Supplement, 1915. This was the enactment of the thirty-sixth general assembly commonly known as the Red Light Injunction Statute. Three defendants, Talbott, De Roos and Valiquette, were named.

— R. M. Wright, Judge. Action for damages for personal injuries sustained by plaintiff as a result of falling from a plank upon whicli he was standing while engaged with his work. At the close of plaintiff’s evidence, the trial court sustained a motion for a directed verdict for the defendant. The plaintiff appeals. —

— 0. D. Wheeler, Judge. Action in equity for a writ of mandamus, in which action it is sought that the defendants, the duly elected, qualified and acting aldermen of the said city, be ordered and commanded to approve a plat, in the manner provided by Section 916 of the Code, 1897. —

— Oscar Hale, Judge. Action to recover damages alleged to have been sustained by reason of being wrongfully evicted from leased premises. Judgment for plaintiffs, in tbe court' below. Defendant appeals. —

<p>Appeal from Ida District Court. — F. M. Powers, Judge.</p> <p>Suit to recover on balance due for rent. Landlord’s attachment issued. There was a counterclaim, based on a claim that lessor induced defendant to contract by means of fraudulent representations concerning the character of the farm and land. The court dismissed the counterclaim, and directed verdict for plaintiff. Defendant appeals.—</p>

<p>EVIDENCE: Opinion Evidence — Time of Death. "When a person 1 died is not the subject of opinion evidence.</p> <p>DEATH: Evidence of Death — Absentees—Proceeding's for Admin-2 istration. An ex parte order for letters of administration on the estate of an absentee (Section 3307, Code Supplement, 1913), not being granted on any finding of the death of the absentee, is inadmissible, in another and subsequent proceeding, to prove death.</p> <p>DEATH: Evidence of Death — Partition—-Share of Absentee — Ad-3 judication as to Death. An order turning over partitioned •property to a duly appointed trustee to be held for an absentee does not work a constructive delivery to such absentee and an adjudication that he was not then dead, when the order and the proceeding relating thereto demonstrates that the interest of the absentee was treated as contingent (depending on whether he was then alive), and when the court at no time assumed to determine whether said absentee was alive or dead. See Section 4243, Code, 1S97.</p> <p>DEATH: Evidence of Death — Unexplained Absence — When Pre4 sumption Arises. The presumption of death, from the unexplained and continuous absence of a person for seven years, without knowledge of his whereabouts on the part of his family and other relatives, arises only at the expiration of said period. With the aid .of facts.and circumstances in addition to the absence, a prima-facie presumption of death at an earlier period may be established. Evidence reviewed, and held not to justify such earlier presumption.</p> <p>Note: Whether the absentee died prior to the expiration of said seven-year period appears to be quite immaterial in this case, but reference to the arguments and briefs reveals the fact that it was treated as material in the lower court and on appeal, and the opinion is in response thereto. Reporter.</p> <p>DEATH: Evidence of Death — Unexplained Absence — Presumption 5 —Statute in re Absentees — Effect. The seven-year period of continuous and unexplained absence of a person from his usual place of residence as a basis for the common-law presumption of death is not lengthened to ten years by the statute (Section 3307, Code Supplement, 1913,) relating to administration on the estates of absentees.</p>

<p>FRAUD: Ratification fiy Principal — Evidence. Evidence reviewed, and field insufficient to sfiow ratification fiy defendant of tfie fraudulent acts of an assumed agent.</p>

<p>PROCESS: Original Notice — Service—Overcoming Return. The 1 strong presumption of verity which attaches to a return by the sheriff of service of an original notice is only overcome by clear and satisfactory evidence to the contrary. Evidence reviewed, and held insufficient to set aside a default judgment on the plea that the return of service was false.</p> <p>PROCESS: Original Notice — Service—Non-Essential Recitals. A 2 return of service of an original notice which recites service on the defendant by name, by serving a member of defendant's family, need not again repeat the name of defendant in the recital that defendant was “not found in the county of his residence.”</p> <p>PROCESS: Original Notice — Service—Verity—Evidence. The fol-3 lowing facts are, in some degree, corroborative of the truthfulness of a return of service of an original notice:</p> <p>X. The positive testimony of the officer that he never made a false return.</p> <p>2. That the notice and copy were delivered to the officer with the addresses of the defendants indorsed thereon, and that the officer went to that address to make service.</p>

<p>HIGHWAYS: Establishment — Boundaries—Evidence. Evidence as to the true line of a highway reviewed, and held insufficient to justify the decree of the trial court.</p>

— E. P. Howell, Judge. Action for damages for breach, of contract. Tlie de fendant denied the breach on his part, and counterclaimed against the plaintiff for damages for breach on his part oí the same contract. There was a verdict for the defendant on the counterclaim, and the plaintiff appeals. —

— Wm. H. Fahey, Judge. Action for personal injuries sustained in a coal mine accident. The plaintiff was an employee, and was severely injured by a fall of slate while engaged in his work. There was a verdict for the plaintiff, and the defendant has appealed. —

— Thos. L. Maxwell, Judge. Suit by plaintiff to recover a commission for Undine a purchaser for the sale of real estate. The answer was a general denial. The cause was tried to the court .without a jury. Judgment for the defendant, and the plaintiff appeals. —

— Thomas L. Maxwell, Judge. For reasons stated later, a statement of the case in brief, the issues, and their determination, is not made here.

— R. M. Wright, Judge. Action to recover interest on a promissory note. Defense, that the note was without consideration; that plaintiff, as indorsee, took it with notice of infirmaties. Judgment for the plaintiff in the court below. —

— O. D. Wheeler, Judge. To an amended and substituted petition of plaintiff a demurrer was interposed and sustained, and, as the plaintiff elected to stand on the ruling, judgment was entered dismissing the petition. Plaintiff appeals. —

- — M. F. Donegan, J udge. In the district court, this case was pending on a writ of error issued therefrom to the justice of the peace before whom the case was originally tried. The return to the writ by the justice being incomplete and unsatisfactory to the defendant, it moved that the justice be required to amend his return and to make the same responsive to the affidavit for the writ. This motion was denied. From such order of denial, the defendant has appealed. —

— C. G. Lee, Judge. Action for damages for personal injuries sustained by reason of a fall upon defendant’s sidewalk. There was a verdict for the plaintiff, and defendant has appealed. —

<p>HOMICIDE: Self-Defense — Evidence—Jury Question. Evidence 1 reviewed on the question whether a homicide was in self-defense, and held to present a jury question.</p> <p>Evans, J., dissents.</p> <p>HOMICIDE: Manslaughter — Defining Murder — Effect. It is not er-2 ror to define murder in instructions covering a charge of manslaughter, the instructions covering the latter offense being unobjectionable.</p> <p>HOMICIDE: Manslaughter — Instructions—Careless Handling of 3 Grun, The court may properly explain to a jury when and under what circumstances the negligent or careless handling of a dangerous weapon may constitute manslaughter, even though the indictment does not specifically charge that there was such negligence.</p> <p>HOMICIDE: Justifiable Homicide — Arrest by Private Person for 4 Misdemeanor — Use of Deadly Weapon. Instructions reviewed, and held correct as to (a) the circumstances under which a private party may make an arrest for a misdemeanor; (b) the acts necessary to constitute a valid arrest; (c) the degree of force permissible in effecting such arrest; (d) the arrester’s duty to refrain from using a deadly weapon in a deadly manner in making such arrest; and (e) the result, in law, to the arrester if such a weapon was so used as to result in a homicide.</p> <p>HOMICIDE: Self-Defense — Mental Condition of Deceased — Mate-' 5 riality. Under a plea of self-defense, evidence as to the mental condition of a deceased is material only on the question of the attitude of the deceased at the time of the fatal encounter.</p> <p>HOMICIDE: Dying Declarations — Impending Death — Matters of 6 Opinion. Instructions reviewed, and held correct as to (a) the circumstances under which alleged dying declarations were such in fact, and could be considered at all; (b) the evidence proper to be considered by the jury in determining whether the deceased was under the full belief of impending death; (c) the duty of the jury to disregard all matters of mere opinion, if any, expressed by the deceased; and (d) the duty of the jury to consider only such dying statements of the deceased as pertained to the facts and circumstances attending the fatal shot.</p> <p>CRIMINAL LAW: Trial — Misconduct in Argument — Withdrawal— 7 Effect. Statements of the respective counsel as to the extent of the punishment attending a conviction, resulting in a withdrawal by the county attorney of his statement, and the substitution of the statement that the jury has nothing to do with the punishment, which latter statement was confirmed by the court orally and in the formal charge, work no prejudicial error.</p> <p>CRIMINAL LAW: Trial — Separation of Jury After Submission — . 8 Effect. The separation of the jury, after submission in a criminal case, for the purpose of answering the calls of nature, or for other innocent purposes, without speaking to nonmembers of the jury, results in no prejudicial error, especially when such jurors were usually attended by the bailiff or in his sight.</p> <p>WITNESSES: Cross-Examination — Homicide. Testimony of a wit-9ness (a) that he arrived at the scene of a shooting immediately after it happened, (b) that he found the defendant near at hand, and (c) that defendant did not want him (the witness), to go to where the deceased was until more help arrived, does not authorize, under the claim of cross-examination, and under the question as to what further happened, testimony that the defendant said “he did not think it safe to go” (that is, to the place where deceased was).</p> <p>CRIMINAL LAW: Opinion Evidence — Insanity—Form of Question. 10 A question to a nonexpert witness as to the insanity of a person must be confined to and based on the facts previously detailed hy the witness.</p> <p>HOMICIDE: Self-Defense — Evidence—Specific Quarrel with Others. 11 Under a plea of self-defense to a charge of manslaughter, defendant may not interrogate witnesses as to a specific quarrel had by deceased with other people.</p> <p>HOMICIDE: Self-Defense — Character of Deceased as to Quarrel-12 someness, etc. Under a plea of self-defense to a charge of manslaughter, witnesses may not be asked as to the “character” of deceased as to quarrelsomeness and viciousness, or as to his genera] “character” as to habit of attacking people generally. His general reputation in this respect should have been called for.</p> <p>HOMICIDE: Self-Defense — Insanity of Deceased — Refusal to Per-13 mit Showing — Effect, Under a plea of self-defense to a charge of manslaughter, -defendant suffered no prejudice because denied the privilege of showing by opinion evidence that deceased was insane, when decedent’s previous conduct was fully shpwn to the jury by evidence tending to show his unbalanced condition of mind, with attending delusions, and when there was no question as to who made the first assault at the time of the fatal encounter.</p>

— F. D. Letts, Judge. The above-entitled actions were brought at law to recover upon several policies of insurance against loss or damage by fire. The answer in each case sets up the same defense, and, by stipulation of the parties, the record of testimony in the case first entitled was made applicable to the others. There was a jury trial, and at the close of the testimony, the court directed a verdict for the defendants, and the plaintiffs appeal.

— E. M. McCall, Judge. Action on accoiint for goods sold. The answer set up an affirmative defense of compromise and settlement. Verdiet and judgment for the defendants, and plaintiff appeals.

— E. G. Albert, Judge. Action, at law to recover damages tor personal inju-' ries alleged to have been caused by the negligent maintenance of a telephone guy wire in and along a public street in the town of Manson. The defendants denied all negligence, pleaded that the guy wire was a necessary and proper part of the telephone system, erected and maintained by the telephone company upon the streets of the town under the authority and direction of the officials of the town.

— Franklin C. Platt, Judge. Action to set aside the third paragraph of the will of Bessie Graham, as having been inserted through the alleged undue influence of the beneficiary therein, resulted in the verdict and judgment as prayed. The defendant appeals. —

— W. H. Fahey, Judge. These proceedings are somewhat complicated, and the issues are involved. The first is an action by the guardian of Barbara Victora to set aside a decree in the case of Barbara Victora v. Ignatz Victora et al., and also a decree in the case of Fred Victora and Carl Victora v. Ignatz Victora and Barbara Victora, and also to set aside the contracts on which said actions were based, because of fraud practiced in obtaining the same, and for other reasons.

— Wat. H. McHenry, Judge. Action at law to recover $5,000 as a death benefit under a certificate of accident insurance in the defendant company. There was a directed verdict for the defendant in the court below, and the plaintiff has appealed. —

— W. D. Boies, Judge. Action by plaintiff to recover commission for a sale of real estate. Verdict and judgment for part of amount claimed. Defendant appeals. —

Appcul from. Polk District Court. — Lawrence DbGraff Judge. Action for divorce, for custody of children and alimony. After a trial on the merits, the plaintiff’s petition was dismissed, and she appeals. —

<p>Appeal from Cherokee District Court. — Wm. Hutchinson, Judge.</p> <p>Appeal from an order of the district court sustaining a motion to dismiss. The plaintiff appeals. —</p>

— W. J. Springer, Judge. These cases, while not submitted together, involve the same propositions of law and fact, and will be disposed of in one opinion. They are each garnishment proceedings, in which the parties named were garnished as supposed debtors of Jacob Seegmiller, on an execution issued on a judgment held by plaintiff against said Seegmiller. The trial court held the garnishees liable, and they appeal.—

— J. H. Applegate, Judge. Action for damages in consequence of collision with automobile resulted in judgment for defendant: The plaintiff appeals. —

<p>Appeal from Black Hawk District Court. — -Cuas. W. Mullan, Judge.</p> <p>Defendant was convicted of the rape of a female -under tlie age of 15 years, and appeals. —</p>

— O. H. Kelley, Judge. Action at law upon an alleged contract by which the defendant undertook to pay the plaintiff a stipulated compensation for the production of a purchaser ready, willing and able to buy the defendant’s land. —

<p>Appeal from Polh District Gourt. — Hubert Utterback, J udge.</p> <p>Suit to enjoin the obstruction of an alleged street resulted in a decree as prayed. Defendants appeal. —</p>

— M. F. Donegan, Judge. Action on a judgment entered in the justice court by W. E. Harlan, Esq., of Gray Township in the county of White and state of Arkansas resulted in the dismissal of the petition. The plaintiff appeals. —

— Wm. H. McHenry, Judge. Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals. —

— Milo P. Smith, Judge. Action in equity to enjoin defendant from laying certain file from his land to a ditch on the plaintiff’s land, contrary, as plaintiff alleges, to the terms of a written contract between the parties in reference thereto, by reason of which plaintiff alleges that defendant is collecting water from hisland by tile drains and casting it upon the land of plaintiff. There was a decree for plaintiff, and the defendant appeals. —

— Wm. H. McHenry, Judge. Action for damages to the estate of a child seven years old, killed by a team which was frightened by the unloading of the paraphernalia of a circus and the accompanying menagerie into the street, resulted in a directed verdict for defendant, and judgment thereon. The plaintiff appeals. —

— John T. Moeeit, Judge. - Judgment was entered in the court below against appellant for the value oí old paving injured while laying its tracks upon a portion of Third Avenue in the city of Cedar Rapids. The facts are stated in the opinion. —

<p>INSURANCE: Accident Insurance — Negligent Failure to Issue Pol-1 icy — Evidence. Evidence reviewed, in an action for negligence in the non-issuance of a policy of accident insurance', and, in view of the short time elapsing between the making of the application and tlie injury of the applicant, and the further fact that payment of the required fust premium was not made to an alleged agent until less than two days prior to said injury, held not to establish the negligence charged.</p> <p>TRIAL: Directed Verdicts — Overruling Motion- — Right to Change 2 Ruling. The overruling of defendant’s motion for a directed verdict at the close of plaintiff’s evidence is no obstacle to sustaining the same motion at the close of defendant’s evidence, when, as a matter of fact, plaintiff’s evidence has at no time been sufficient to present a jury question.</p> <p>APPEAL AUD ERROR: Review, Scope of — Questions Failing to 3 Disclose Proposed Evidence. When the form of a question does not disclose (a) what the answer would have been, or (b) whether its exclusion was prejudicial, counsel must disclose ■svhat fact he desires or expects to prove, in order to render the objection to its exclusion reviewable.</p>

<p>Appeal from O’Brien. District Court. — W. D. Boies, Judge.</p> <p>Appeal from a judgment in favor of the county for costs in an action for damages on account of injuries, resulting from an accident on a county bridge. —</p>

<p>VENUE: Office or Agency — Traveling Salesman. An action grow-1 ing out of a sale of machinery may be brought in the county .where it was consummated by defendant’s duly authorized traveling agent, especially when the agent resided in said county and the notes were made payable in said county. Section 3500, Code, 1897.</p> <p>SALES: Delivery — Intent—Conduct of Parties, etc. Evidence, con-2 sisting of writings and course of conduct of the parties, reviewed, and held not to show delivery of property to the purchaser.</p> <p>SALES: Rescission — Acceptance—Acts of Ownership — Effect. Acts 3 of ownership, exercised by the purchaser in ignorance that the property would not be delivered to him, are no obstacle in the way of rescission, and recovery of the price paid.</p>

<p>CONTRACTS: Legality of Object and. Consideration — Unlawful Practice of Profession — Recovery for Services — Physicians and Surgeons. Recovery may not he had for services which constitute a crime. More concretely, when the practice of a vocation or profession is punishable by fine or imprisonment unless certain specified statutory conditions are first complied with, one who assumes to practice without strictly complying with all such conditions may not recover for his services, even though he possessed high qualifications, acted in good faith, and was even misled by a public officer, in attempting to comply with said conditions.</p> <p>PRINCIPLE APPLIED: Plaintiff brought action to recover for medical services admittedly rendered to defendant. When the services were rendered, the practice of medicine, etc., was an indictable misdemeanor unless the one practicing had first secured from the state board of medical examiners a certificate of authorization and filed the same in the office of the county recorder of the county where he resided. Section 2576 et- seq., Code, 1897. Prior to the rendition of the services, plaintiff had secured the required certificate, but, by mistake, had filed it in the office of the clerk of the district court of the county where he resided, the clerk having informed him that such filing was in full compliance with the law.</p> <p>Held, plaintiff may not recover, even though he possessed high qualifications, personally acted in good faith, and was misled by the said clerk.</p>

— E. M. Wright, Judge. Plaintiff brought this action in the district court of Webster County, Iowa, originally as an action for separate maintenance, and later amended the petition, asking a divorce, temporary alimony, attorney’s fees, suit money and permanent alimony in the sum of $50,000.

— Citas. A. Dudley, Judge. Action by plaintiff as beneficiary on a benefit certificate issued by defendant to Jessie B. Murray, deceased. It was stipulated that, if plaintiff was entitled to recover at all, she was entitled to recover $726.64, with interest; There was a trial to a jury, and -at the close of all the evidence, defendant moved for a directed verdict in its favor, and plaintiff moved for a verdict in her favor.

— E. B. Woodruff, Judge. Appeal from judgment in favor of a claimant against an estate. Defense by permission of court in name of administrator by the heirs. The facts are stated in the opinion. —

<p>JUDGMENT: Lien — Loss of Lien — Subsequently Acquired Real 1 Property. Judgments are, by statute, liens on tbe real estate of the judgment defendant only during the ten years following the date of the judgment. It necessarily follows that real estate owned by the defendant at the expiration of said ten years, or subsequently acquired and later passed to beirs under the laws of inheritance, is wholly beyond tbe reach of said judgment. ('See Sec. 3801, Code, 1897.)</p> <p>LIMITATION OF ACTIONS: Application to State and Municipali2 ties — Nominal Appearance — Strictly County Matters. The State, when appearing in a purely nominal capacity, and a municipal corporation, when appearing simply as the representative of the people of such corporation, are not exempt from the operation of the statute of limitation. So held as to a county (with intervention by the State) seeking to collect an obligation due the temporary school fund of the county.</p> <p>INTOXICATING LIQUORS: Judgments — Life of Lien on Real Es-3 tate. A judgment for fine and costs in an intoxicating liquor prosecution necessarily ceases to be a lien on the defendant’s real estate at the expiration of the life of the judgment, to wit, 20 years from the date thereof, irrespective of the declaration in Section 2422, Code, 1897, that such a judgment shall act as such lien ‘‘until paid.’’ The latter section creates no perpetual lien.</p>

<p>INSURANCE: Accident Insurance — Accidental Injury and Sole 1 Cause of Death — Degree of Proof. Harmonious, consistent and related facts and circumstances may be such as to establish, prima facie, (a) that an injury was accidental, and (b) thai such injury was the sole cause of death, even though there is no expert medical testimony in support of the latter.</p> <p>PRINCIPLE APPLIED: Ice from melting snow had, during an afternoon, accumulated on fiv.e steps leading to a porch, and particularly on the top step. The insured came home after dark, and was heard to come up the walk and steps at his usual walk. When the top step was reached, the wife heard a “thud” as though a person had fallen, and a scraping sound as though the person had slid down the steps This was followed by low, continuous, monotonous talking, but no cry for help. A sound followed as though someone was. crawling up the steps on his knees. The wife opened the door, and discovered the insured aimlessly walking around on the porch in a dazed condition. He was taken inside the house. He was very pale. His talk was, at first, incoherent. Later, he said he slipped on the steps and fell to the walk. No marks of injury appeared on the body. He remained conscious for two hours, then became unconscious and so remained to the time of his death, seven hours later. In the meantime, a doctor was called. There was evidence possibly tending to show that insured was then partly paralyzed, but there was no showing of any predisposition to apoplexy or paralysis. After he was taken into the house, he vomited a bloody, watery substance. He had not been well for two years prior to his death, and had quite largely given up business, but was, at all times, up and around the city. The nature,or extent of his ailment did not appear. Prior to his injury on the night in question, he was in his usual health. In an action on the policy, there was no medical testimony that the fall (if he did fall) did or might have caused his death.</p> <p>Held, the record would justify the jury in finding (a) that the injured person was “accidentally” injured, and (b) that such injury was the sole cause of death.</p> <p>EVIDENCE: Presumption — Witholding Evidence. No unfavorable 2 presumption is raised against one who fails to call physicians on the issue as to the cause of death of a party in-question when such physicians are equally accessible to both parties.</p>

<p>MUNICIPAL COEPOEATIONS: Public Improvements — Assess-1 ments — Distribution of Excess Costs. An assessment of benefits for a public street improvement is not necessarily limited to the cost of the improvement in front of the lot assessed. It follows that, if the cost of an improvement in front of a specified lot or lots is in excess of the special benefits, or is in excess of 25 per cent of the value of the lot, such excess neéd not be paid out of the general fund of the city if such excess can, by an equitably apportioned assessment, be so distributed among other lots within the improvement that no lot will bear an assessment in excess of the special benefits received, or in excess of 25 per cent of the value thereof, even though, by such assessment, some lots may be compelled to bear a burden exceeding the cost of the improvement fronting thereon. Sections 792-a, 792-b, Code Supplement, 1913,</p> <p>MUNICIPAL COEPOEATIONS: Public Improvements — Assess-2 ments — Front-Foot Eule Levy. The presumption that an assessment of benefits for a public street improvement is according to benefits received is not overcome by evidence that consideration of the so-called front-foot rule was not wholly disregarded.</p> <p>MUNICIPAL COEPOEATIONS: Public Improvements — Assess-3 ments — “Frontage” as an Element. “Frontage” may very properly be taken into consideration as one of the elements bearing on benefits.</p> <p>MUNICIPAL COEPOEATIONS: Public Improvements — Assess-4 ments — Identical Amounts on Small and Large Tracts — Effect. It may not be presumed, from the mere fact that two separate tracts of materially different areas are assessed in tbe same amount, that such assessment is inequitable, and not according to benefits.</p>

<p>INDICTMENT AND INFORMATION: Motion to Quash or Dismiss 1 —Noncitizenship of Grand Juror. Ha who moves to quash an indictment on the ground of the noncitizenship of a grand juror has the burden to establish such grounds. Evidence reviewed, arid held insufficient.</p> <p>GRAND JURY: Qualifications — Citizenship—Presumptions. Princi2 pie recognized that a strong presumption of citizenship arises from the fact that the party has voted, held office, or otherwise performed the functions and exercised the rights of citizenship. Evidence reviewed, and held insufficient to overcome the presumption.</p> <p>CRIMINAL LAW: Appeal and Error — Review—Harmless Error— 3 Waiver. An accused may not, on appeal, complain that the court denied him the right to examine a witness at a certain period and on a certain point when such right was later accorded to him and he failed to avail himself of it.</p>

— Thomas Arthur, Judge. Dependant was convicted of murder in the first degree and sentenced to the penitentiary for life. For statement of facts, see State v. Gmclice, 170 Iowa 731. —

<p>Appeal from Cherolcee District Court. — W. D. Boies, Judge.</p> <p>Defendant was indicted, tried and convicted of the crime of carrying a concealed weapon, and, being but 18 years of age, was sentenced to the reformatory at Anamosa for a period not to exceed two years. Defendant appeals. —</p>

<p>Appeal from Palo Alto District Court. — D. F. Coyle, Judge.</p> <p>Action to recover damages for personal injury. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. —</p>

<p>EXEMPTIONS: Property Exempt — Jury Question. The issue 1 whether a traction engine is one of the instrumentalities by which a debtor habitually earns a living for himself and family is, on conflicting evidence, necessarily a jury question.</p> <p>EXEMPTIONS: Property Exempt — Threshing Machine Separator. 2 A threshing machine separator is not exempt from execution.</p> <p>EXEMPTIONS: Enforcement of Eights — Wrongful Levy — Damages 3 —Notice to Officer. Written notice by a judgment defendant to the levying officer of exemption claim is a condition precedent to the right to recover damages of the officer by reason of the wrongful detention by the officer of exempt property under levy. See Sections 3991, 4017, Code, 1897.</p> <p>APPEAL AND EEEOR: Harmless Error — Instructions—Incorrect 4 Measure of Damages. Incorrect instruction on the measure of damages becomes quite harmless when the jury finds that plaintiff has no cause of action.</p>

District Court. — John T. Moffit, Judge. ■ Appeal from a judgment of the district court of Linn County, Iowa, releasing attachment and discharging garnishee upon ground that the money due ivas for earnings due the defendant as the head of a family. Plaintiff appeals.—

<p>APPEAL AND ERROR: Review — Questions of Pact, Etc. — Law Ac-1 tions — Trial to Court. Principle recognized that, on appeal in a law action tried to the court, that version of the testimony most favorable to the prevailing party must be accepted.</p> <p>LIMITATION OF ACTIONS; Computation of Period — Contract 2 Without Time for Performance. The statute of limitations, on a contract calling for the performance of a specified act without designation as to time of performance, will commence to run only from the time the one obligated repudiatés the contract.</p> <p>DAMAC-SS; Breach of Contract — Failure to Furnish Abstract — Ex-3 amination. The obligation to furnish an abstract showing good, merchantable title does not embrace the obligation to defray the cost of examining the abstract after it has been furnished or procured.</p>

— Seneca Cornell, Judge.. Action in equity to foreclose mortgages and to establish liens and the priority thereof. There was a decree for plaintiffs, foreclosing the mortgages and determining the priority of liens and the rights of the parties. The defendant cross-petitioner People’s Savings Bank appeals from the finding of the trial court that the lien of plaintiffs’ mortgages was prior to that of said appellant.

Certiorari from Polh District Court. — W. S. Ayres, Judge. On information duly filed, the plaintiff was convicted of having violated a liquor injunction, and in certiorari proceedings, contests the validity of such conviction. —

— D. F. Coyle, Judge. This action was brought originally by plaintiff against defendants for the conversion of an automobile, in which plaintiff demanded $1,250. Defendants answered, and, by cross-petition in equity, asked the foreclosure of a lien on said automobile, for $248.25 for repairs and services on the automobile, furnished by defendant company.

— Thos. L. Maxwell, Judge.. Suit upon promissory note for $1,000. The defendant pleaded that the note was obtained by fraudulent representations and that its consideration had failed, and that the plaintiff was not a good-faith purchaser thereof in due course. There was a verdict for the plaintiff for $800 and interest thereon, such 'sum being the amount paid for the note by the plaintiff. From the judgment entered on the verdict, the defendant has appealed. —

— Tiios. L. Maxwell, Judge. Action to recover damages to goods shipped by plain tiff from Osceola, Nebraska, to Corydon, Iowa, over the Union Pacific and the Chicago, Burlington & Quincy Railroads, the former being the initial carrier. The case was originally brought in justice court, and, upon a trial there, judgment was rendered for plaintiff in .the sum of $19.25.

— Milo P. B.yiitii, Judge. Action to recover commission on the sale of real estate. There was a trial to a jury and a verdict and judgment for plaintiff. Defendant appeals. —

— W. H. McHenry, Judge. The plaintiff, as trustee for Editli S. Hatfield, administratrix of the estate of William J. Hatfield, deceased, instituted this action at law upon a benefit certificate of accident insurance issued to said William J. Hatfield in his lifetime, of which certificate the said Edith S. Hatfield is the sole beneficiary.

— M. F. TIonegan, Judge. Action to recover damages for breach of both an express and implied warranty, growing out of the sale of three carloads of apples by defendant to plaintiff. Defendant denied the alleged warranties, pleaded that plaintiff accepted the apples after inspection, and waived any warranty thereof.

— C. W. Mullan, , Judge. Saeai-i O. Gracely died testate August 20, 1914. The admission of her will to probate was contested and it set aside. The proponents appeal. —

— William Hutchinson, Judge. This is an action in equity, in which plaintiff seeks to have set off to her a .distributive share, or dower, in certain land transferred to the defendant by deed in which plaintiff and her deceased husband joined, and in which plaintiff relinquished her dower interest. Defendant asked to have its title quieted as against plaintiff’s claim.

— W. H. Fahey, Judge. Suit to subject land or its proceeds to the satisfaction of plaintiff’s judgment resulted in a decree against defendant Gasady, from, which both defendants appeal. After-wards, plaintiff perfected an appeal. —

<p>APPEAL AND ERROR: Decisions Reviewahle — Overruling Motion 1 for More Specific Statement. An order overruling a motion for more specific statement is appealable; otherwise as to an order overruling a motion for the division of a petition into counts.</p> <p>APPEAL AND ERROR: Review, Scope of — Challenge to Appeala2 bility of Order. In passing on a challenge to the appealability of an order overruling a motion for more specific 'statement, the court will not pass on the merits of such latter motion.</p> <p>APPEAL AND ERROR: Effect of Appeal — Non-Pinal Orders— 3 Staying Trial in Lower Court. An appeal from an order overruling a motion for more specific statement does not necessarily act as a stay of the trial in the lower court.</p>

— W. H. McHenry, Judge. Suit in equity by the devisees and executors of the estate of Sophia G. Watrous, deceased, to set aside a contract entered into between O. L. Watrous, now deceased, and Edtvard L. Watrous, by the terms of which it is claimed that C. L. Watrous, the husband of Sophia G. Watrous, deceased, elected to take a distributive share in the estate of his wife, and to charge an annuity thereon for the benefit of E. L. Watrous and his wife, Agues.

<p>Appeal from Palo Alto District Court. — H. J. Lee, Judge.</p> <p>Rai-iymond Buchan died testate March 23, 1907, in Champaign County, Illinois. The material portions of his will are as follows;</p> <p>* * To my wife M. J. Buchan I give all of my household goods of every description and one third of net income from all my lands during her life. * * * My son, Raymond, I give the East half of Sec. 23 and NW% Sec. 23 and the North 120 acres of the West y2 of the West y2 of Sec. 21 all in Vernon Township, Palo Alto County, Iowa, * * * This instrument I write October 10, 1906, hereby revoking my former will. * * Each and all of them shall keep and improve these lands subject to my wife’s dower interest during their lives, at their deaths it shall go to their children from their own bodies, in case no child from their own, then it shall go to the nearest heirs of my body and my personal property after Jay and Collin all of my teams and agricultural implements and my shares in .Elevator and Threshing Companies, then my wife, Mary, Jay and Collin shall get all of the other property. Nothing to be collected from Rahymond. James shall pay Collin $1,500 to be put in improvements on his Palo lands and he shall see that it is done. * • *”</p> <p>Separate tracts were given to each of his sous and to his daughter, Mary. The foregoing will was admitted to probate in the county court of Champaign County, Illinois, and subsequently, October 17, 1908, as a foreign will, in Iowa. On August 27, 1913, appellee entered into a contract in writing, by the terms of which he agreed to furnish abstract showing a good, merchantable title to the above described real estate, March 1, 1911, and convey the same to the German American Land Company, Incorporated, appellant herein, for a consideration of $57,000, to be paid: $1,000 cash at the time of the execution of the contract; $9,000, April 1,1911, with interest at 5y2 per cent; and $7,000, March 1, 1916, with interest at 6 per cent; the payment of the balance to be arranged by the purchaser’s obtaining a loan upon the premises in a sum not less than $18,000 and executing a second mortgage thereon to plaintiff to secure the payment of the balance on or before March 1, 1924.</p> <p>Plaintiff brings this action to cancel the contract and quiet title to the real estate against the German American Land Company, Incorporated, and the other defendants named, who had become interested therein as purchasers through the land company. Plaintiff alleged in his petition that the defendant failed to make payments as provided by the contract, and to otherwise carry out its terms. The defendants, except the land company, filed disclaimers. The land company filed answer alleging its readiness and ability to carry out the contract had appellee furnished an abstract showing good, merchantable title and complied with the terms of the contract upon his part.</p> <p>More than thirty days before this suit was brought, appellee served a notice upon each of the defendants of his intention and purpose to forfeit the contract, and declaring same forfeited under the provisions of Sections 4299-4301 of the Code. Decree was entered in favor of plaintiff as prayed. The defendant land company appeals. — Affirmed.</p>

<p>Appeal from Ewdin District Court. — R. M. Wrigiit, Judge.</p> <p>.The opinion sufficiently states the case. —</p>

— H. E-. Fry, Judge. Action at law to recover damages for an alleged slander. Verdict and judgment for plaintiff, and defendant • appeals. —

— John T. Moffit, Judge. G. L. Eaton, while mayor of the town of Martelle, rendered services as a laborer, for which he was paid $7.90. During his term of office, factional differences arose between him and certain members of the council, including appellant herein, and for a time the orderly administration of the town’s business was considerably disturbed. Bills were contracted, but, on account of existing differences of opinion, were not promptly paid.

— Joseph J. Clark, Judge. Action at law, originally brought on a contract for commission for the sale of real estate. In the main action, an attachment was issued, and defendant filed a counterclaim to recover damages on the attachment bond. Tlie case was tried to a jury, resulting in a verdict for the defendant in the main case, and for $5 actual damages and $125 exemplary damages on the counterclaim.

— N. J. Lee, Judge. This is an appeal from a decree rendered against the defendant surety company and in favor of Drainage District No. 2 of Humboldt County. A number of case3 were consolidated and tried together.. Other claimants intervened. Tlie cases were tried in equity. The surety company appeals. —

— C. H. Kelley, Judge. Appellant brought separate suits in justice of the peace court in Linn County against each of the following named parties: Peter Weber, Fred H. Towner, Nick Wagner, M. C. Lewis, A. F. Balsley, Mrs. F. Blonigan, Geo. W. Godfrey, Ben Colton, F. A. Bush, Geo. W. Hill, Berte Boughton, and L. W. Andrews, upon the separate note of each.

— John T. Moffit, Judge. Adelia Coleman, in January, 1904, died seized of a tract of 116 acres of land in Linn County, Iowa, survived by N. R. Coleman, her husband, and several sons and daughters.

<p>VENUE: Change of Venue — Superior Courts — Nonresident Defendant. An action by a city to enjoin a threatened violation of a city ordinance is not an action “for the violation of a city ordinance,” within the meaning of Section 260, Code Supplement, .1913. It follows that, in an action in the superior court for such threatened violation, a nonresident defendant has an arbitrary right to a change of venue to the district court, under Section 261, Code Supplement, 1913.</p>

— F. 1\I. Powers, Judge.. This is an action at law against defendants as copartners practicing medicine and surgery, for damages for malpractice. Trial to a jury. Verdict and judgment for plaintiff. Defendants appeal. —

<p>lUSTJRAlSrCE: Forfeiture — Additional Insurance — Mistake as to Expiration of Former Policy. The act of taking out insurance from a specified date, on the mutual but mistaken assumption on the part of the insurer and insured that a former policy on the same property but in a. different company expired on said date, with no intention to effect concurrent, additional or double insurance, instantly works a complete surrender of ail rights under the unexpired portion of the former policy, and thus leaves the property with but one insurance thereon, to wit, the new policy.</p>

— Lawrence De Grape, Judge. Action at law to recover indemnity under a certificate of membership in defendant association. There ivas a trial to a jury and a verdict and judgment for plaintiff for the amount claimed, $1,250, interest and costs. The defendant appeals. Plaintiff has also appealed from the ruling of the court in permitting defendant to amend its answer. —

— William Ti-ieopi-iilus, Judge. Action brought by the owner'of a package of furs, against both defendants as common carriers. It was an interstate shipment. The goods were lost in transit and never delivered to the consignee. The action is in trover to recover the value for conversion. The contract of carriage, by its express terms,- — -and appellant contends by the law then in force, — limited the recovery to $50.

— Charles A. Dudley, Judge. Action at law for damages claimed to have resulted from an explosion of a mixture of kerosene and gasoline which had been sold to plaintiff as kerosene. Trial to a jury. Verdict for plaintiff. Defendant appeals. —

<p>Appeal from Story District Court. — R. M. Wrigi-it, Judge.</p> <p>The opinion states the nature oí the case. —</p>

<p>Appeal from Polk District Gourt. — W. H. McHenry, Judge.</p>

<p>Appeal from Polk District Gourt. — W. H. McHenry, Judge.</p> <p>Appeal from a judgment for costs upon a directed verdict in favor of the defendant. —</p>

— Citas.. A. Dudley, Judge. Action at law upon a policy of life insurance. Jury waived. Trial to the court. The opinion states the. facts.

<p>Appeal from Polk District Court. — Lawrence DeGraff, Judge.</p> <p>The opinion states the nature of the case and the material facts. —</p>

— A. P. Barker, Judge. Suit in equity to reform and to compel specific performance of the terms of a written contract. The facts are stated in the opinion. —

— W. J. Springer, Judge. Suit in equity to cancel and set aside a sheriff’s sale and to enjoin the execution of a sheriff’s deed. Decree.as prayed. Defendant appeals. —

H. McHenry, Judge. Action at law to recover damages alleged to have been occasioned by the fraud and deceit of the defendants in the sale to plaintiff of certain shares of corporate stock. There was a directed verdict and judgment for defendants, and plaintiff appeals. —

Ayres, Judge. Action to recover damages for personal injuries sustained by plaintiff as the result of the collision of one of defendant’s cars with an automobile, in which plaintiff was riding with another person. The accident happened January 10, 1915. The automobile was struck by a northbound car on defendant’s track, and it is claimed by plaintiff that the automobile had stopped when it was upon the railway track.

— E. G. Albert, Judge. This is an action in equity to have all the property that Smiley Francis, deceased, had at the time of his death, declared to be the property of plaintiff, under an oral contract which plaintiff claimed to have had with the deceased, and, failing in that contention, to have the court award her such an amount from the estate of deceased as would compensate her for services performed by her for deceased during his lifetime, and to have certain property…

— Thomas L. Maxwell, Judge. Action for the construction of the last will and testament of R. D. Gardner, deceased. From the finding and judgment of the district court, the plaintiffs appeal. —

— F. O. Ellison, Judge. Action at law on an appeal to the district court from the award of a sheriff’s jury upon the question of the damages to be paid plaintiff for the tailing of a right of way through her land. There was a trial to a jury, which assessed plaintiffs’ damages at $3,050. The defendant appeals. —

— Hubert Utterback, Judge. Action in equity to enjoin defendant from expelling Thomas D. Hatton, a nephew of plaintiff’s, from the West Des Moines High School because of the nonpayment by plaintiff or anyone for said minor of tuition for schooling and instruction, and to recover $50.75 already paid by appellant to defendant school board on account of tuition for said boy, which pajunent is alleged to have been made under protest and because of coercion and duress by…

— James W. Willett, Judge. This was an action in probate for the allowance of a claim in favor of the estate of Mary L. Bradford, deceased, and against the estate of C. J. Hoyt, deceased. The amount claimed was $4,000 and interest, and that amount was allowed. The case was tried to the court, without a jury. The administrator appeals. —

— W. S. Ayres, Judge. Suit in equity for partition and to set aside a guardian’s deed and other conveyances of real estate. Decree in favor of defendants. Plaintiffs appeal. —

<p>Appeal from Jones District Court. — F. O. Ellison, Judge.</p> <p>The opinion states the case. —</p>

<p>HIGHWAYS: Alteration, Etc. — Uncertain Record — Acquiescence— Injunction. Changes by the public authorities in the location of a highway will be permanently enjoined when it appears: (a) That the present location is substantially on the lines called for in the original establishment; (b) that such present ' location has been acquiesced in as correct for more than half a century by the public generally, by the public authorities, and by the adjoining property owners; and (c) that a laying out of the road on the uncertain lines pointed out in the original order of establishment would be practically impossible —at least would not locate the road either on its present location nor on the location to which it is proposed to remove it.</p>

<p>SPECIFIC PERFORMANCE: Contracts Enforceable — Weakness of 1 Mind — Inadequate Consideration. Mere weakness of mind, unaccompanied by inequitable incidents, is insufficient to defeat the enforcement of an executory contract of sale, when such person has sufficient intelligence to understand the nature of the transaction and is left to act on 'his own free will. Held, contract enforceable, though the one objecting was quite aged, was very eccentric, was, to some extent, afflicted with senile dementia and arteriosclerosis, though the payments were long extended, and though the land was under-sold in some small degree.</p> <p>SPECIFIC PERFORMANCE: Proceedings and Relief — Non-Discre2 tion to Deny Relief. A definite, written contract for the sale of lands, on a valuable and adequate consideration, freo from fraud, and which may he enforced without hardship on either party, leaves a court of equity with no discretion to deny specific performance.</p> <p>WITNESSES: Competency — Attorney and Client — Confidential 3 Communications. Principle recognized that communications by a client to his attorney are not privileged unless they are confidential.</p> <p>APPEAL AND ERROR: Presumption — Equity Causes — Disregarding 4 Incompetent Evidence. On appeal in an equity cause, it must be presumed that the trial court disregarded all incompetent testimony.</p> <p>SPECIFIC PERFORMANCE: Defenses — Defects in Title — Waiver 5 by Plaintiff- — Effect. One may not defeat specific performance by pleading in defense that which plaintiff waives. So held where defendant pleaded that he had rented the land and could not deliver free possession as agreed.</p>

<p>Appeal from Polk District Court. — Charles A. Dudley, Judge.</p> <p>The issues and material facts are sufficiently stated in the opinion. —</p>

<p>CONTRACTS: Rescission and. Abandonment — Grounds—Default of 1 Both Parties — Mechanics’ Liens. One who is in default in the performance of a contract may not rescind, even though the other party is also in default. So held under a building contract, where the contractor was seeking to rescind, but was in default in the completion of the building at the time agreed, arid the owner was likewise in default in making payments as . provided by the contract.</p> <p>CONTRACTS: Rescission and Abandonment — Abandonment of 2 Building Contract — Right of Owner. An unjustifiable abandonment of a building contract arms the owner, nothing appearing in the contract to the contrary, with right to complete the building and 'charge the reasonable cost and expense thereof to the defaulting contractor. Evidence reviewed, and held that the expenditures in completing an abandoned building were . reasonable.</p>

H. Kelley, Judge. Action for damages resulting from the alleged negligence of defendant in operating a motor cycle. Trial to a' jury. Verdict and judgment in favor of defendant. Plaintiff appeals. —

<p>Appeal from Kossuth District Court. — N. J. Lee, Judge.</p> <p>Suit in equity to enjoin the contractor and joint boards of supervisors in a drainage proceeding from entering upon the premises of appellant to excavate a ditch. The facts are fully stated in the opinion. —</p>

<p>Appeal from Benton District Court. — B. F. Cummings, Judge.</p> <p>Action for weekly indemnity under a policy for health insurance. The facts are stated in the opinion. —</p>

<p>Appeal from Marshall District Court. — James W. Willett, Judge.</p> <p>Action at law against the surety on a bond given by an ' executrix of an estate to secure the payment of certain claims allowed against said estate. Plaintiff filed motion for judgment upon the pleadings and record, which was sustained, and judgment entered against the surety. Surety appeals. —</p>

<p>NEGLIGENCE: Acts or Omissions Constituting — -Unguarded. Elec- . 1 trie Power Wires. The court may not say, as a matter of common law, that' an electric power company was not negligent in failing to insulate or otherwise guard its power wires from contact with other wires lawfully constructed in the same vicinity, even though the povrer company could not, in all cases, foresee in specific detail the way or manner in which other wires might come in contact with such power wires. Former holdings, disapproving the so-called doctrine of “reasonable anticipation” in case of torts, reaffirmed.</p> <p>NEGLIGENCE: Acts or Omissions Constituting — Trespassers and 2 Licensees- — Condition and Use of Lands, Etc. A telephone lineman engaged in repairing a telephone line on premises over which the line extended, is neither a trespasser nor a mere naked licensee — at least not in such sense that an electric power company owes him no duty with reference to its near-by power wires.</p> <p>NEGLIGENCE: Acts or Omissions Constituting — Negligence per se 3 —Unguarded Electric Wires. Unguarded electric light or power wires along public highways constitute negligence per se. (Section 1527-c, Code Supplement, 1913.) Applied where a telephone wire slipped from the hands of a lineman, sprang back, and, unknown to the lineman, was, before it struck the ground, carried over and in contact with an uninsulated or otherwise guarded electric power wire.</p> <p>APPEAL AND ERROR: Presentation of Grounds of Review — Theory 4 of Case — Inconsistent Attitudes. On appeal, one may not contend for the materiality of a fact which, on trial in the lower court, he successfully excluded on the plea of immateriality.</p> <p>EVIDENCE: Opinion Evidence — Contradiction of Statutory Re-5 quirement — Competency. Opinion evidence, contradictory. of the requirements of a statute, is wholly incompetent. So held where it was sought to show hy opinion evidence that insulation and other guards for electric wire were unnecessary, though required by statute.</p> <p>STATUTES: Construction — Police Regulation — Application to Prior 6 Construction. A statute requiring insulation or other guards for electric light and power wires applies, in the absence of provisions to the contrary, to lines erected prior to the enactment of the statute.</p> <p>NEGLIGENCE: Acts or Omissions Constituting — Jury Question. 7 Where a circuit breaker was installed in an electric power plant and automatically opened when the line was grounded, held to be a jury question whether the servant in charge was negligent in closing it when it opened at the time in question.</p> <p>ELECTRICITY: Negligence — Common-Law and Statutory Obliga8 lions. The common-law obligation to provide reasonable protection against dangers from electric wires, and the statutory obligation to provide specified guards, apply to wires carrying any kind of electricity, “static” as well as that generated for light or power purposes.</p> <p>NEGLIGENCE: Contributory Negligence — When Question of Law. 9 Contributory negligence becomes a question of law only in those exceptional cases where the want of care of the injured party is so manifest and flagrant as to at once convince all fair and candid minds that he did not exercise the caution for his own safety which marks the conduct of ordinarily prudent men. Evidence reviewed, and held to present a jury question as to the contributory negligence of an electric lineman in not discovering that a telephone line was in contact with a line carrying a heavy power current.</p> <p>APPEAL AND ERROR: Harmless Error — Incompetent Testimony— 10 Preliminary Offer. The reception of incompetent testimony, preliminary to a further offer, which latter is wholly rejected, followed by distinct direction to the jury to disregard the incompetent evidence already received, may fully cure the error. So held where, in a personal injury action, the preliminary testimony received tended to show that another person at a former time had been killed at or near the place where the plaintiff was injured.</p> <p>TRIAL: Verdict — $8,500—Excessiveness. Verdict for $8,500, for 11 serious and permanent injuries to plaintiff's nervous system, sustained. Plaintiff was SI years of age, married, in good health at time of injury, of good habits, had been employed for a considerable time as a telephone lineman at $55 per month and expenses, and was in line for promotion. His injuries crippled him materially in his power to do physical labor.</p> <p>PLEADING: Amendment — Conforming Pleadings to Proof. To 12 allow amendments which conform the pleadings to the proofs is clearly within the discretion of the court. So held where, in a personal injury action, an amendment set up an additional item of expenditure. ■</p>

<p>. Appeal from Cedar District Court. — John T. Moppit, Judge.</p> <p>Action at law to recover upon an alleged oral contract to share in commissions earned in the sale of real estate. Verdict and judgment for plaintiff, and defendant appeals.</p>

<p>Appeal from Marshall District Court. — B. F. Cummings, Judge.</p> <p>Action for damage consequent on the alleged killing of a two-year old colt on defendant’s right of way resulted in judgment against defendant, from which it appeals.- —</p>

— A. N. Hobson, Judge. Ti-ie incorporated town of Clermont asserts that it has annexed to its territory certain lands owned by plaintiffs. The plaintiffs challenge the legality of this annexation. On their petition, the district court issued a writ of certiorari to review the legality of the proceedings. Upon hearing, it annulled the writ, and plaintiffs appeal. —