Volume 183 — Iowa Reports

<p>Appeal from Polk District Court. — Chas. A. Dudley, Judge.</p> <p>This is a contest over the will of Ann Monahan. The proponents .are two sons of the testatrix, and the contestants, two daughters. There was a verdict for the contestants. The proponents have appealed.</p>

<p>BROKERS: Compensation — Fraud of Principal — Evidence—Sufficiency. Evidence reviewed, and held insufficient to show that the principal, in order to avoid the payment of a commission, had fraudulently availed himself of the efforts of the broker.</p>

<p>Appeal from Hamilton Distrct Court. — E. M. McCall, Judge.</p> <p>Action on account for flue lining and tile purchased by defendant of plaintiff. The jury, by direction of the court, returned a verdict in favor of the plaintiff for the amount claimed. Defendant appeals.</p>

<p>APPEAL AND EKEOR: Supersedeas Bonds — Liability. A supersedeas bond, conditioned as provided by statute, becomes a nullity upon the final entry by the appellate court of an order of reversal and for new trial, with judgment against appellee for all the costs of appeal. So held where appellee, after reversal and on new trial, obtained a second judgment, and sought to hold the former supersedeas bond therefor. (Sec. 4128, Code, 1897.)</p>

<p>Appeal from Plymouth District Court. — William Hutchinson, Judge.</p> <p>Suit in equity to rescind and cancel a contract for the exchange of lands, and for other relief. Decree as prayed, and defendant appeals.</p>

— F. D. Letts, Judge. Action on the alleged settlement and for services resulted in a judgment for plaintiff. The defendant appeals.-—

— R. P. Howell, Judge. Action at law by which plaintiff sought to recover for the wrongful removal of a line fence by the defendants. ■ Defendants counterclaimed for alleged wrongful acts committed by the plaintiff in the removal and conversion of cross-fences, cutting and removal of hay and grain growing on the established public way, digging and- removal of dirt on said way, and the burning of defendant’s wood thereon.

— E. G. Albert, Judge. Plaintiff, as trustee in bankruptcy of the estate of Frank and Henry Wiemer, bankrupts, instituted this action in equity, June 23, 1914, to terminate a trust and to •recover said bankrupts’ alleged equitable interest in 1(50 acres of land, asking for an accounting against Ida L. Wiemer, trustee, for said bankrupts’ share of the rents and profits of the lands.

— Wm. S. Ayres, Judge. Action in equity to recover judgment upon a note made to plaintiff by the defendants Henry and Delilah Pyle for money loaned, and to foreclose the pledge made to the bank as collateral security by said Henry and Delilah, of a note executed by defendant National Life Association to Delilah Pyle, and guaranteed by all the defendants except the association.

— R. M. Wright, Judge. Action at law to recover damages on account of the alleged wrongful injury and death of plaintiff’s intestate. There was a directed verdict and judgment for defendant, and plaintiff appeals.

— Hubert Utterback, Judge. Action for an injunction. Opinion states the facts. Decree for the defendants in the- court-below. Plaintiffs appeal.

— O. D. Wi-ieeler, Judge. Action at law to recover amount of check drawn by defendant in plaintiff’s favor ujion the First National Bank of Council Bluffs. Trial to jury. Verdict and judgment for 'plaintiff, and defendant appeals.

PolJc District Court. — T. H. Guthrie, Judge. Action at law to recover compensation upon a contract, and damages for an alleged violation thereof. Defendant moved to transfer the trial to equity, and this appeal is from the judgment of the district court overruling said motion.

— J .W. Kintzinger, Judge. Action at hrw on a promissory note for $1,000, dated July 21, 1903, payable to Peter Kiene, and endorsed “without recourse” to the plaintiff. At the close of the testimony, the court directed a \-erdict for plaintiff for the full amount of said note. Defendant appeals. The facts are fully stated in the opinion.

— Eskil C. Carlson, Judge. Plaintiff and defendant, on the 11th day of September, - 1916, entered into a written lease for an apartment on the third floor of the Wright Building, in Des Moines, Iowa.

— J. H. Applegate, Judge. An action at law, brought to recover damages on account of the alleged alienation of the affections of plaintiff’s wife. The cause was originally tried to a jury, which returned a verdict for the plaintiff; and from the judgment entered on the verdict, defendant appealed. Upon hearing the appeal in this court, the judgment below was reversed, on the ground that the verdict of the jury was without sufficient support in the evidence.

— R. P. Howell, Judge. Suit in equity to set aside the conveyance of a forty-acre tract of land, as having been made in fraud of creditors. The petition was dismissed, and .plaintiff appeals.—

<p>Appeal from Floyd District Court. — J. J. Clark, Judge.</p> <p>The final report of H. O. Doore, as administrator de bonis non of the estate of Joel Doore, deceased, having been filed in court for approval, A. R. Eggert, as administrator of the estate of Sarah Doore, deceased, appeared, and made objections thereto on grounds stated in the opinion. After being amended under direction of the court, the report was approved, and the administrator de bonis non discharged. The administrator of the state of Sarah Doore appeals.—</p>

— Josepi-i E. Meyer, Judge. Action to recover certain commissions paid by plaintiff to the defendant by mistake, in the sum of $225, for merchandise sold to defendant in the sum of $48.50, and on a check made by defendant to plaintiff, upon which payment was refused, in the sum of $185.49.

— Thos. J. Guti-irie, Judge. Plaintiff was injured by being struck and run over by defendant’s automobile,- on or about September 23, 1916, while attempting to cross Locust Street at its intersection with Tenth Street in the city of Des Moines. At the time of the accident, she was going south on Tenth Street, on the west crossing. The defendant, at the time of the collision, was proceeding east in his automobile, on Locust Street.

<p>Appeal from Osceola District Court.- — William Hutchison, Judge.</p> <p>The opinion states the case.</p>

— W. I). Boies, Judge. Action to recover damages for alleged negligence in setting a broken arm. Judgment for the defendant. Plaintiff appeals.

— R. P. Howell, Judge. Action at law to recover upon a contract of employment. There was a verdict and judgment for plaintiff, and defendant appeals.

<p>Appeal from Van Karen District Court. — Seneca Cornell, Judge.</p> <p>Suit on a promissory note. Opinion states the facts. Both parties appeal.</p>

— N. J. Lee, Judge. Suit in equity to rescind and set aside a contract for fhe sale of land. Upon trial to the court, the petition was dismissed, and plaintiff appeals. The material facts are stated in the opinion.

— C. H. Kelley, Judge. Action at law upon a benefit certificate issued by the defendant, a fraternal insurance society. Two defenses were pleaded. There was a. verdict for the plaintiffs, and the defendant appeals.

— J. B. Rockaeellow, Judge. Action for damages consequent upon failure 'of tenant to obtain possession under lease, resulted in a directed verdict for plaintiff on first two counts of petition, and for defendant on last count, and judgment thereon. The plaintiff appeals.

— J. B. Rockafellow, Judge. Plaintiff brought action against defendant Misner to recover commission alleged to be due for the,sale of real estate. Intervenors claim that they were the ones who made the sale and were the efficient cause of bringing the seller and purchaser together, and that they were entitled to the commission. The defendant admitted liability to someone, but denied liability to plaintiff.

— David Mould, Judge. Ti-ie Fulton Bank sued Violet and T. C. Mathers on a promissory note, executed by them to the Bennett Auto Sup- - ply Company as the price of an automobile, and by said company transferred to said bank.

— B. F. Cummings, Judge. Action for damages resulted in a directed verdict for defendant, and judgment thereon. The plaintiff appeals.

— Shelby Cullison, Judge. In the district court, this was an appeal from an order of the board of supervisors, establishing a drainage district. The appeal was taken in due form, and a petition filed, as required by statute. The appellees moved for a dismissal of the appeal, on the ground that the appellants had filed no objections before the board of supervisors. At . the close of appellant’s evidence, this motion was sustained.

— D. F. Coyle, Judge. Suit in partition resulted in a decree finding that plaintiff was owner of % of the realty involved, Sue A. McAllister, %, John A. McAllister, Edward A. Mechling, and Milo Miller, thereof. All the defendants appeal.

— C. H. Kelley, Judge. Appeal from an order of the district court confirming the establishment of a drainage district by the board of supervisors of Floyd County, Harriet E. Stewart appellant.—

— N. J. Lee, Judge. Suit in equity to reform a deed and enforce specific performance. There was a decree for the plaintiff, and the defendant appeals.

<p>1 BILLS AND NOTES: Transfer — Evidence. The declaration of one acquiring a note to which he was not a party, to the effect that he wishes to “take up” the note, does not necessarily exclude the purpose to purchase it.</p> <p>2 EVIDENCE: Parol as Affecting Writing — Bills and Notes — Indorsement as to Payment. The indorsement “Paid,” on the face of a promissory note, while prima-facie evidence of a complete satisfaction, is, nevertheless, subject to oral explanation or contradiction, especially as against the maker, who was not a party to the transaction which resulted in such indorsement.</p> <p>3 EVIDENCE: Kelevancy, Competency, and Materiality — Intent and ■ Purpose. The holder of a note (not a party thereto on its face)' may testify, in an action thereon, that, in acquiring the note, it 'was not his intention to voluntarily pay the note, but that it was bis intention to purchase the note.</p> <p>4 BILLS AND NOTES: Actions — Title to Sustain Action. Plaintiff’s title to a note, though acquired from one who was without authority to sell it, may not be questioned by the maker, in an action thereon, when the former owner acquiesced in and ratified the unauthorized sale.</p>

— C. B. Robbins, Judge. Action to recover judgment on a promissory note. The defense was that there was fraud in its inception, and that plaintiff acquired it subject to such infirmity. The issues were submitted to the jury, and verdict returned for defendants, on which judgment was entered. The plaintiff appeals.

<p>Appeal from Pottaioattamie District Court. — A. B. Thornell, Judge.</p> <p>Action for damages for negligence in the manufacture and sale of certain serum known as hog cholera serum. The serum was manufactured and sold for-the purpose of use as a preventive for hog cholera. There was a verdict for the plaintiff, and the defendants appeal.</p>

— M. F. Edwards, Judge. Suit in partition of real estate. The real contest is over the ownership of the property. The defendant Andrew O. Mossestad, appellant herein, claimed to he the soie and absolute pwner thereof. The trial court confirmed his share at one third, and he appeals.

— H. B. Boies, Judge. The defendant, - with W. H. and John Kiefer, was indicted September 24, 1913, for fraudulent banking, charging that: “The said Adam Kiefer, W. EL Kiefer and John Kiefer on or about the 6th day of March, in the year of our Lord One Thousand Nine Hundred and Thirteen in the county aforesaid, did, being then and there engaged in the banking and deposit business under the name and style of Kiefer Brothers Banking Compány, a copartnership, which…

— Chas. Hutchinson, Judge. This is a prosecution for adultery, the prosecuting witness being the injured husband. There was a verdict of guilty, and the defendant appeals.

<p>1 NOVATION: Substitution of New Debtor — Surrender of Old Notes, Etc. The act of a creditor in surrendering the notes of his debtor for a pre-existing indebtedness, and accepting the notes of a third party in lieu thereof, and placing said latter notes in judgment, and collecting thereon, as far as possible,-works an irrevocable novation of the debt against said .original debtor.</p> <p>PRINCIPLE APPLIED: A savings bank, under mortgage foreclosure, became the owner of a brick plant. Immediately thereafter, Watt, who was a director of the bank, and its cashier, with four associates not connected with the bank, organized, for the purpose of carrying on said brick business, an Iowa corporation, with 250 shares of $100 each. Each organizer received 50 shares, but paid nothing therefor. The bank immediately conveyed the brick plant to the Iowa company, and the latter gave the bank its two notes: one for $7,000, secured by first mortgage on the plant, and one for some $500, unsecured. This $7,500 represented the amount the bank had, to date, loaned on account of said brick concern.</p> <p>The new Iowa company commenced to borrow of the bank. In four years, this new borrowing totaled $13,000, and the bank took a second mortgage therefor, on the plant. Watt was still cashier of the bank. Six years after the Iowa company was organized, its indebtedness to the bank totaled $40,000. At this time, Watt was president of the Iowa company, and also president of the bank. At a meeting of the stockholders of the Iowa company, Watt, its president, proposed that, if the stockholders would absolutely assign all their stock to him, he would do three things, to wit:</p> <p>1. Personally pay all the debts of the Iowa company.</p> <p>2. Reorganize said Iowa company and increase its capital stock to $50,000.</p> <p>3. Deliver ten shares of the reorganized company to each of the six old stockholders of the Iowa company, he (Watt) to own absolutely the remaining 440 shares.</p> <p>The stockholders accepted Watt’s proposition, and assigned their stock to Watt. Watt did not reorganize the Iowa company. Evidently he discovered that to add $25,000 of capital stock would necessitate, under Iowa law, the actual paying in of $25,000 cash or its equivalent. To avoid this, Watt organized an Arizona corporation, with $50,000 capital stock, and with a name identical with that of the Iowa corporation. Watt was president of this corporation. This stock was distributed by Watt as he had agreed, though, for reasons not appearing, he divided his 440 shares (plus 10 shares voluntarily waived by one of the old stockholders) among himself and four other persons. Watt and his associate stockholders caused the Iowa company to convey all its property to the Arizona company, subject to the debts of the Iowa company. This conveyance constituted the only “payment” by the stockholders for their stock.</p> <p>Watt did not 'individually pay the debts of the Iowa company. What was done was this, viz.: The Arizona company executed its notes to the savings bank for some $22,000, for a like amount ■of the notes of the old, denuded Iowa company to the bank, and said old notes of the Iowa company wore then surrendered by the banlc. . The Arizona company later renewed some of its said notes to the bank, and still later, and while Watt was still •president of the bank, the bank placed them in judgment. After Watt died (he being president of the bank until his death), the bank sold the Arizona plant under these judgments,, and realized $4,500. All meetings of the directors and stockholders of both the Iowa and Arizona corporations were at all times held at and in the directors’ rooms of the hank.</p> <p>After the bank received the notes of the Arizona company jn lieu of the notes of the Iowa company, it never made any claim, either in the reports of its examining committees or in its official reports to the state or in any other manner, that Watt, its president, was owing the bank on his said promise to pay the debts of the Iowa company, until after the death of Watt, when it filed against his estate a claim of some $23,000, based upon old notes of the Iowa company accruing prior to the time Watt made his agreement to pay sa'id debts.</p> <p>Held, the act of the bank (1) in accepting the notes of the Arizona company in lieu of the notes of the Iowa company, (2} in surrendering the notes of the Iowa company, and (3) in placing the same in judgment and selling the plant of the Arizona company thereunder, worked a complete novation, — irrevocably cancelled the debt of the Iowa company to the bank on said notes so surrendered.</p> <p>2 CONTRACTS: Validity — Non-Literal Performance — Effect. One who performs his contract undertaking in a manner acceptable to those to whom performance is due, may not later assail the validity of his undertaking, on the ground that he, himself, did not literally perform his said undertaking as he had agreed.</p> <p>3 CONTRACTS: Performance — Substantial Performance. Substantial performance of a contract is, ordinarily, all that is required.</p> <p>PRINCIPLE APPLIED: See No. 1. Held, the act of Watt, in organizing a new and foreign corporation, with the increased capital stock, and his action with reference thereto, were a substantial performance of his agreement to reorganize the Iowa corporation and to increase the capital stock thereof, etc.</p> <p>4 CONTRACTS: Construction — Subject-Matter—Scope and Extent of Obligation. An enforceable agreement to pay the debts of a financially embarrassed corporation does not embrace the personal notes of the officers of said corporation given for money borrowed by said officers for the sole use and benefit of the corporation.</p> <p>5 GUARANTY: Discharge of Guarantors — Guaranty of Debt — Novation of Debt — Effect. Liability upon the guaranty of a debt ceases upon the subsequent novation of the guaranteed debt.</p> <p>PRINCIPLE APPLIED: A bank was a heavy holder of the obligations of a financially embarrassed corporation. Certain parties were induced to give the bank their personal guaranty of the payment, to a stated amount, of the obligations of the corporation. A few days later, a new corporation was organized, which took over all the property of the old and embarrassed corporation, and which new corporation executed to the bank its notes for and in lieu of the debts of the old corporation, which notes the bank accepted, and surrendered the obligations held by it against the ol(T corporation. Held, the conduct of the bank worked a novation of the guaranteed debt, and released the guarantors.</p> <p>6 CONTRACTS: Consideration — Guaranty in Consideration of Indefinite Extension of Debt. A guaranty' of á debt, in consideration of such extension of time as the holder of the debt might elect to give the debtor, is not supported by a sufficient consideration, even though the said holder did forbear collection for a time.</p> <p>7 COEPOEATIONS: Corporate Debts — Liability on Unpaid Stock. Extending credit to a corporation, with knowledge that the corporate stock has been issued without payment therefor, precludes the one so extending credit from pursuing the stockholders on their unpaid stock subscriptions.</p> <p>8 COEPOEATIONS: Stock — Issuance—Consideration. If consideration for an issuance of corporate stock would exist if the stock were issued to one person, such consideration equally exists for its issuance to another, to whom the first party caused the corporation to issue it.</p> <p>9 BANKS AND BANKING: Imputing Knowledge of Director to Bank. It may not be presumed that a bank director conveyed to his 'bank knowledge acquired by him</p> <p>(a) In professional confidence as attorney for a client other than the bank, or</p> <p>(b) In transacting, as director of another corporation, business in conflict with that of the bank.</p> <p>PRINCIPLE APPLIED: A bank was a large creditor of an embarrassed corporation. Several directors of the bank were directors of the corporation. The stockholders and directors of the corporation conceived the plan of organizing a new corporation, to take over and merge the old corporation, and the plan of having the new corporation issue its stock to them for no consideration other than the receipt by the new corporation of the assets of the old corporation. The plan was carried out. The attorney who drew the necessary papers to effectuate the plan was a director of the bank. The new corporation became insolvent, and' the bank lost heavily. The bank then sought to hold the stockholders of the new corporation, on the plea that they never paid for their stock. On the issue whether, the hank extended credit to the new corporation with knowledge that the stockholders had not paid for their stock, held that such knowledge might not he imputed to the hank (a) from the knowledge of said attorney, nor (b) from the knowledge of those who were directors both of the hank and, of the said corporation.</p> <p>10 BANKS AND BANKING: Knowledge of Director Knowledge of Bank. Principle recognized that a bank is held to know and remember what its directors learn while acting as such.-</p> <p>11 FRAUDS, STATUTE OF: Debt of- Another — Oral Promise. An oral promise to pay a written obligation which is, in form, the sole obligation of another, is not within the statute of frauds, when it is made to appear that said obligation is, in fact, the ■personal obligation of the .oral promisor, and for his sole benefit.</p> <p>12 BANKS AND BANKING: Officers — Misapplication of Funds. The president of a hanking partnership who, to further his own personal interests, causes loans to be made by • the bank to a known insolvent concern, is liable to the partnership for the resulting loss.</p> <p>13 BANKS AND BANKING: Officers — Liability. A bank president who, at a time when his bank had no money with which to make a loan, caused his bank to issue, without consideration, its certificate of deposit to another bank, which thereupon actually furnished the money for the loan, may not defend an action against him by the bank for recoupment of the loss, on the ground that his bank has not yet paid said certificate.</p> <p>14 EVIDENCE: Conclusions — Understanding of Witness. The “understanding” of witnesses that a savings bank was the owner of and carrying on a business prohibited to such bank is an inadmissible conclusion.</p> <p>15 EVIDENCE: Declarations of One Having Conflicting Interests. Declarations of the deceased officers of a savings bank that the hank was owner of and carrying on a business prohibited by law to the hank are inadmissible, when such declarations are distinctly hostile to the interests of the bank.'</p> <p>IS BILLS AND NOTES: Execution and Delivery- — Failure to Read — • Effect. One who can read, and has an opportunity to read, and does not read, may not assert lack of knowledge of the contents of a note signed by him.</p> <p>17 BANKS AND BANKING:. Directors — Scope of Authority. Individual directors of state and savings banks, ■unless specially authorized by the board of directors, have no power to bind their bank to the discharge of obligations not connected (a) with the management of the bank’s ordinary business, or (b) ■ with the receipt and payment of deposits; and this is especially true when the director has interests adverse to those of the bank.</p>

— John T. Mofeta, Judge. Suit in equity to set aside an alleged change of beneficiary in a fraternal benefit insurance certificate, and to declare the original beneficiaries entitled to the proceeds of the policy. Judgment for defendant. Plaintiff appeals.—

— Thomas Arthur, Judge. Action to enjoin the defendants, board of supervisors and other public officials, from constructing a grade upon a highway obstructing the flow of surface water gathered into a ditch and discharged upon the public highway. Decree for the plaintiff in the court below.

<p>Appeal from Jasper District Court. — John F. Talbott, Judge.</p> <p>Action to enforce a mechanics’ lien. The district court dismissed plaintiff’s petition. Plaintiff appeals.</p>

Court. — John T. Moffit, Judge. Action for damages resulting from a collision of two automobiles. Verdict for plaintiff for $1.00. Both parties appeal.

— F. O. Ellison, Judge. Suit, in equity for specific performance and other relief in equity. The facts are fully stated in the opinion.—

— E. M. McCall, Judge. Ti-ie Workmen’s Compensation Act provides that, wlien the action of the tribunals created by the act are certified to the district court, it “shall render decree in accordance therewith.” The order certified in this case found that the employer was under no liability for the death of the employee, caused by a stroke of lightning. The district court took a contrary view, and gave the claimant a judgment for |3,000. The employer appeals.

<p>CHATTEL MORTGAGES: Sale of Property as Working Waiver of Lien. One of several beneficiary creditors under a trust deed to chattel property who allows the trustee to sell the property, and later approves of a sale by the purchaser to si third party who, in good faith, supposed that the property was free of any incumbrance, will not be permitted, subsequently, to bring forth a prior chattel mortgage on the property and foreclose the same.</p>

— George H. Castle, Judge. Action to recover damages for mutilating a dead body. Judgment for tbe plaintiff in the court below. Defendant appeals.

— Edward M. McCall, Judge. This case involves the right of a claimant to a fund held as for escheat. The opinion states the facts. The right was denied by the court below. Plaintiff appeals.

— Thomas Arthur, Judge. Action involving the validity of a contract. The trial court held that said contract was invalid. Defendants ap- . peal.

— Lorin N. Hays, Judge. Action for temporary injunction restraining the prosecution of a suit to remove a guardian, pending a hearing in equity to determine and construe certain wills under which the ward became entitled to the property, and to fix the character of the property in the hands of the guardian — whether a trust fund or otherwise. Temporary injunction issued in the court below, as prayed. Defendant appeals.

— M. F. Edwards, Judge. Suit in equity to set aside a deed on the ground of undue influence and false representations in obtaining the same, and on the ground that the plaintiff was intoxicated when he executed the same, to such an extent that he did not know what he was doing. After a full hearing upon the merits, the trial court dismissed the petition, and the plaintiff appeals.

— M. F. Edwards, Judge. The defendant appeals from a conviction on a charge of incest. The facts are fully stated in the opinion.—

— W. S. Ayres, Judge. Suit in equity by the plaintiffs as members of the defendant association, asking to enjoin the enforcement against them of certain by-laws and amendments purporting to have been adopted by the defendant association, whereby the rights of the plaintiffs, as certificate holders of life insurance, will be greatly depreciated in value. There was a decree for the plaintiffs, and the defendants have appealed.'—

— O. D. Wheei.er, Judge. Action for damages for conversion of corn upon which the plaintiff claimed to have a landlord’s lien. There was a verdict for plaintiff, and the defendant appeals.

— Henry Silwold, Judge. On an application to have a guardian appointed over the property of defendant, John Ferguson, there was a trial to a jury, at the close of which the trial court,directed a verdict for the defendant; and the plaintiff appeals.

<p>Appeal from Page District Court. — E. B. Woodruff, Judge.</p> <p>Action for damages against a carrier for negligent delay in. the shipment of poultry. There was a verdict for plaintiff, and the defendant appeals.</p>

— William S. Ayres, Judge. Action at law to recover the reasonable value of storing aud transferring machinery repairs for defendant. There was a trial to a jury, and a verdict and judgment for the plaintiff for $567.72. Defendant appeals.

— Francis M. Hunter, Judge. Action in mandamus to require the trustees of a township to cause a certain highway to be put in passable condition, and to require an equitable apportionment of the road funds to be made for that purpose. On motion, the petition was dismissed. The plaintiff appeals.

— Charles Hutchinson, Judge. A search warrant was issued under the authority of the district court-of Polk County, directed to the sheriff, under which, on. April 28, 1917, he seized a quantity of cigarettes.

— Thos. L. Maxwell, Judge. The question is whether appellant, whose petition was successfully demurred to on the ground that the cause presented was barred by limitations, was by such ruling wrongfully denied the benefits of Section 3455 of the Code, which authorizes the rebringing of an action where plaintiff has, for some cause other than his negligence, failed in the prosecution of an earlier action.

— Lawrence DeGraff, Judge. Action for damages resulted in a directed verdict and judgment for the defendant. The plaintiff appeals.

— E. G. Albert, Judge. Action for damages for breach of a contract of guaranty in the sale of a stallion. There was a verdict for the plaintiff and the defendant appeals.

— W. H. Fahey, Judge. Plaintiffs seek to recover damages caused by an unduly delayed interstate shipment, and for an overcharge of freight. A verdict was directed for the defendants. From granting a new trial, the defendants appeal.

— W. H. Fahey, Judge. Suit upon an instrument, including a promise to pay. The defendant admitted his signature, hut averred that it was obtained by the fraud of the payee and its agent, McCarty. The general nature of the fraud thus charged is that McCarty induced the defendant to believe that he was signing a receipt.

Smyth and Oscar Hale, Judges. Suit for specific performance of a contract of purchase resulted in the dismissal oí the petition. The plaintiff appeals.

- — A. P. Barker, Judge. Application for an order in probate. The question involved was whether certain property of the state was subject to a collateral inheritance tax. The trial court held adversely to the claim of the treasurer of state for an assessment of such tax, and he has appealed.

— Wm. H. McHenry, Judge. Suit by appellant to recover for injuries sustained by his minor son. Verdict was directed for defendant, and plaintiff appeals.

— A. J. House, Judge. Action for damages resulted in a directed verdict for defendant and judgment thereon. The plaintiff appeals.—

— Henry Silwold, Judge. It suffices for the purpose of preliminary statement that this is a suit by a landlord, complaining of violations of contract provisions in the lease. The landlord had a verdict, and the defendant appeals.

Appeal •/rom Jasper District Court. — K. E. Willcockson, Judge. Suit to enjoin tlie opening of a highway, and for damages to buildings and crops occasioned by the use of explosives in blowing out trees and stumps, in attempting to open said highway in front of plaintiff’s premises. Facts are stated in the opinion.

— R. P. Howell, Judge. Proceeding in certiorari to test validity of an order made by the board of supervisors. The writ of certiorari was not sustained, and the plaintiff appeals. The material facts are stated in the petition.

— E. M. McCall, Judge. Suit by plaintiff on accident insurance policy or certificate, to recover $5,000. Defendant filed an equitable cross-petition, asking a rescission of the contract and that it be cancelled, because of the alleged fraud of deceased in his application, and because of a change in his occupation. The issue raised by the cross-petition was tried, and the same was dismissed on the merits, and defendant appeals.—

— William Hutchinson, Judge. On August 5, 1889, the defendant insurance company issued an ordinary life policy for $3,000 on the life of John J. Condon, making the same payable to Mary J. Condon, his Avife, and Nellie, Louis, and Geraldine M. Condon, his children, or to their executors, administrators, or assigns, share and share alike.

<p>1 INSURANCE: Waiver of Automatic Forfeiture. An insurer who fails to avail himself of an automatic forfeiture of all rights under a policy when it is to his interest not to -do 'so may not avail himself of such forfeiture when it is to his interest to do so. More concretely, an insurer who, while the insured is alive, continually fails to insist upon the payment of assessments, etc., within the time specifically stipulated by the policy, 'and thereby causes the insured, as a reasonably prudent person, to believe that such payments may be made within a reasonable time aftér such stipulated time, thereby waives the right, after the insured is dead, to insist that the policy was automatically forfeited by the failure of the insured to make his last payment within the time stipulated in the policy.</p> <p>2 JURY: Waiver. The right to have disputed questions of fact determined by the jury is waived.by the conduct of counsel in permitting the court to proceed, without objection, on its clearly expressed understanding that all matters are withdrawn from the jury and are to be disposed of by the court.</p>

— Seneca Cornell, Judge. Action for damages for loss and injury in certain shipments of berries. The petition was in four counts, and claimed injuries, respectively, on four carload lots. The case was tried to the court without a jury. There was a finding and judgment dismissing the petition, and the plaintiff has appealed.

<p>Appeal from Marshall District Court. — James W. Willett, Judge.</p> <p>Appeal from a garnishment proceeding. Facts appear fully in the opinion.</p>

<p>Appeal from Polk District Court. — Lawrence De Grain?, Judge.</p> <p>The opinion states the facts</p>

<p>Appeal from, Johnson District Court. — R. P. Howell, Judge.</p> <p>Action for damages claimed to have resulted from the derailment of one of defendant’s electric cars. There was a trial to a jury, and verdict in favor of the defendant for costs. Plaintiff appeals.</p>

<p>Appeal from Linn District Cowt. — Milo P. Smith, Judge.</p> <p>Suit to foreclose a contract for the sale of real estate. Judgment and decree of foreclosure as prayed. Defendant appeals.</p>

— Lorin N. Hays, Judge. Suit in equity for specific performance of a contract, to convey real estate. Decree and judgment for defendant. Plaintiff appeals. The facts are stated in the opinion.—

— ¡W. EL Fahey, Judge. Action in equity for a mandatory injunction requiring the defendant to give to plaintiff an adequate crossing over its tracks. The opinion states tire facts. Decree for the plaintiff. Defendant appeals.

<p>CORPORATIONS: Conspiracy to Destroy Business. Evidence reviewed, in an action to compel tlie transfer of shares, and held insufficient to show that plaintiff was in a conspiracy to destroy defendant's business.</p>

<p>Appeal from Boone District Court. — E. M. McCall, Judge.</p> <p>Action to enjoin the establishment of a consolidated school district, and to enjoin certain defendants from acting as officers thereof. Decree for the defendants. Plaintiff appeals.</p>

— Chas. W. Mullan, Judge. Appeal from an order overruling a motion to set aside a receiver’s sale. The facts are stated in the opinion.

— Henry Silwóld, Judge. Action upon a policy of insurance for $5,000 death benefits. The court directed the jury to return a verdict in favor of the plaintiff for $100. Plaintiff appeals. The facts are fully stated in the opinion.

<p>Appeal from Polh District Court. — Charles A. Dudley, Judge.</p> <p>The opinion states the nature of the case and the material facts.</p>

<p>TELEGRAPHS AND TELEPHONES: Ordinance Authorization of ToU Lines. Telephone toll lines — those operating solely between the cities and towns of the state — require no ordinance authorization as a condition precedent to the right to occupy streets and alleys. (See Secs. 776, 2158, Code, 1897.)</p>

— J. J. Clark, Judge. Action in equity to enjoin the defendant from main taining a certain ditch, and for other relief. On trial to the court, the petition was dismissed, and plaintiff appeals.—

— W. S. Ayres, Judge. Suit to recover money paid for stock in the Des Moines Stationery Company, and to cancel a note given in part payment thereof, and require defendant to return to plaintiff a certain note and mortgage hypothecated as collateral security for the payment thereof. On hearing, the petition was dismissed. The plaintiff apyieals.

— R. M. Wright, Judge. This is an action to recover damages for personal injury, occasioned by a fall on a sidewalk alleged to have been permitted by the'city to become dangerous on account of ■ accumulated snow and ice thereon. It was alleged that the snow and ice were permitted by the city to remain on the walk for an unreasonable time after it became rough, rounded, and uneven, by travel over the walk. Judgment for the plaintiff in the court below. Defendant appeals —

— W. 1). Boibs, .Judge. Action at law to recover damages for the death of plaintiffs intestate. Verdict and judgment for defendants, and plaintiff appeals.

<p>MUNICIPAL CORPORATIONS: Non-Negligent Defects — Elevated Obstructions. While the maintenance of a slight depression in a sidewalk might be denominated non-negligence per se, yet the maintenance of an equally slight elevation in the sidewalk may present a jury question on the issue of negligence. So held where a section of a cement walk had -been elevated from one to three inches above the surrounding walk by the growth of a tree.</p>

<p>Appeal from Linn District Court. — F. O. Ellison, Judge.</p> <p>Suit in equity for rescission. The opinion states the facts.</p>

— K. E. Willcockson, Judge. Appeal by creditors of the estate from an order holding certain property to be exempt from liability for payment of their claims. The material facts are stated in the opinion.

<p>1 EVIDENCE: Opinion Evidence — Examination of Experts. An expert who answers an opinion question which assumes tlie existence of a certain fact, which fact the expert has not yet testified to, will be presumed to have had such fact in mind in giving such answer, when the record shows that, subsequent to such answer, he did testify to the existence of such missing fact, and knew thereof before he gave said answer.</p> <p>2 APPEAL AND ERROR: Harmless Error — Curing Error by Instructions. The erroneous admission, on a matter not in issue, of non-inflammatory evidence bearing on the amount of recovery, is cured by specific instructions to the jury to wholly disregard the same in making up their verdict.</p>

— John F. Talbott, Judge. Suit in equity to recover an amount claimed to be due for rent of real estate, and to foreclose a lien by which the payment of such claim is alleged to be secured. The issues were tried to the court, which found for the plaintiff, as prayed, against the defendant Beenblossom, and dismissed the petition as against thé other defendants. Plaintiff appeals.

— Joseph E. Meyer, Judge. Action for damages on account of tlie alleged negligence of the defendant city in failing to provide proper harriers and to place warning lights at a ditch in one of its streets. Judgment for plaintiff. Defendant appeals.

— J. W. Anderson, Judge. Writ of certiorari was issued on application of plaintiff, to which return was made, and the record is here for review.-

A-ppeal from Webster District Court. — E. M. McCall, Judge. Action at law to recover damages for personal injury, Verdict and judgment fo.r plaintiff. Defendant' appeals.—

<p>Appeal from Polk District Court. — Lawrence DeGraff, Judge.</p> <p>Action in mandamus. Opinion states the case. Judgment dismissing plaintiff’s petition. Plaintiff appeals. — •</p>

— E. M. McCall, Judge. Action at law upon an insurance policy to recover for’ loss and damage by fire. Verdict and judgment for plaintiff, and defendant appeals.'

— Lorin N. Hays, Judge. Suit in equity to restrain the board of supervisors from removing a bridge under which plaintiffs claim a right-to a passway for stock, and to substitutes small concrete culvert. Decree as prayed. Defendants appeal.

<p>Appeal from Polk District Court. — Lawrence DeGraff, ' Judge.</p> <p>Action in partition. Opinion states the facts. Judgment dismissing plaintiff’s petition. Plaintiff appeals.—</p>

<p>Appeal from Ida District Court. — E. G. Albert and M. E. Hutchison, Judges.</p> <p>Ti-ie opinion sufficiently states the case.</p>

<p>Appeal from Pocahontas District Goart. — D. F. Coyle, Judge.</p> <p>Action to recover damages for overflow. Trial to a jury. Verdict aud judgment for plaintiff. Defendant appeals.</p>

— Thomas J. Guthrie, Judge. Suit in equity to enjoin defendants from interfering with plaintiff’s possession of certain real estate. There was a decree for plaintiff, as prayed, and defendants appeal. The material facts are stated in the opinion.

— H. B. Boies, Judge. This is an action in equity, by which plaintiff seeks to rescind a contract and to set aside and cancel 140 promissory notes, aggregating the sum of $14,000, of which, 128 notes were given by plaintiff to defendant G. H. Jameson, and 12 notes were given to E. J. Hanna, as part payment in the purchase of 35 vacant town lots in the city of Waterloo; and to recover the sum of $10,000, advanced payments made in said purchase, and interest and taxes since…

— Lawrence De Graff, Judge. Action to recover alleged balauce of salary due to the plaintiff from the defendant for the unexpired portion of his term as secretary of the plaintiff. There was a trial to a jury. At the close of the evidence, the trial court directed a verdict for the defendant, and the plaintiff appeals.

<p>Appeal from Washington District Court. — Henry Silwold, Judge.</p> <p>Suit in equity to set aside a deed, it being averred in the petition that such deed was obtained from, the plaintiff by defendants 'by fraud and undue influence and without consideration, and while the plaintiff was in a weakened mental condition.' The defense was a general denial, and an averment of adequate consideration received by' the plaintiff. There was a decree dismissing the petition, and the plaintiff has appealed.</p>

<p>Appeal from Hardin District Court. — R. M. Wright, Judge.</p> <p>The plaintiffs and appellees had verdict for a commisr sion which they claimed was due for aiding in a sale of land made by the defendant, and defendant appeals.</p>

<p>Appeal from Polk District Court. — Lawrence I)e Grape, Judge.</p> <p>Action by the plaintiff to recover from the defendant county the amount of certain mulct taxes' heretofore paid by it, on the ground that such taxes were illegally exacted. There was a demurrer to the petition, and the plaintiff has appealed.</p>

<p>Appeal from Polh District Gowrt. — William McHenry, Judge.</p> <p>Action for personal injuries sustained by a minor. At the close of plaintiff’s evidence, there was a directed verdict for the defendant, and the plaintiff appeals.</p>

<p>1 APPEAL AND ERROR: Directed Verdicts. A directed verdict may not, on appeal, be aided by giving consideration to the fact that the trial court had the advantage of seeing and observing the witnesses.</p> <p>2. NEGLIGENCE: Negativing Causes. Testimony as to the proximate cause of an injury is not in equipoise on two opposing theories when one theory has such support in the evidence as would fairly justify an impartial jury in finding that such cause was,established, while the other cause has no support in the evidence, and is wholly theorized as a possibility.</p> <p>' PRINCIPLE APPLIED: A railway track was very rough and . uneven, and by reason thereof the engine swayed and jerked in passing over the track, and created a condition which rendered it possible for one to be thrown from the engine. A post had been negligently placed very near the track. Deceased was in the performance of his duties as fireman on the engine. A very short time thereafter, at a point along the rough track, he was found close to the track, and with wounds and bruises on Ms dead body. The jury might have found that his body hit the post. There was no evidence that he was sick or diseased. Held, the possibility that deceased fell from sickness or disease, and not from the lurch of the engine, was not sufficient to place the testimony in equipoise on the two conflicting theories.</p> <p>3 NEGLIGENCE: No Eyewitness Rule. Principle recognized that a presumption of due care arises, in the absence of eyewitnesses.</p> <p>4 MASTER AND SERVANT: Rough Railway Track, Etc. An employee upon a railway engine may not be held to have assumed the risk attending the operation of an engine over a rough and uneven track, with a post negligently left in close proximity thereto, from the mere fact that he Knew of such cimdition, unless the 'danger is so imminent that a reasonably prudent person would not have continued in the work — a question which is rarely one of law.</p>

<p>Appeal from Osceola District Court. — William Hutchinson, Judge.</p> <p>Action for personal injuries sustained upon a highway, by reason of obstructions negligently placed and permitted and left unguarded by the defendants, as alleged. There was a demurrer to the petition, which was sustained. Judgment being entered thereon, the plaintiff has appealed.</p>

<p>Appeal from Pollc District Court. — W. S. Ayres, Judge.</p> <p>This was a suit in equity to compel the correction of a tax levy. The relief prayed by the appellee was granted, and the defendants appeal.</p>

<p>1 EXECUTORS AND ADMINISTRATORS: Paying Taxes from Personaity. An administratrix may not legally apply the personal property of an estate to the payment of taxes on the real estate left hy deceased, when she was not, as administratrix, in possession of such real estate, and when said taxes were not even payable when the intestate died. But where such taxes were paid from rents accruing subsequent to the intestate’s death, the error may be corrected by charging the administratrix with one third and the shares of the heirs with two thirds of the payment.</p> <p>2 EXECUTORS AND ADMINISTRATORS: Paying Interest on Mortgage Indebtedness. An administratrix may validly pay, from the personal funds of the estate, duly filed claims for interest due on the intestate’s real estate mortgages.</p> <p>3 EXECUTORS AND ADMINISTRATORS:' Repairs on Homestead. Repairs or betterments on the homestead during the “occupan-. cy” period may not be made at the expense of the estate.</p> <p>4 EXECUTORS AND ADMINISTRATORS: Rents — When Treated as Realty. Rent notes falling due after the death of the owner of the real estate will *be treated as real estate, with consequent right on the part of the surviving widow, who was administratrix, to refuse to account, as administratrix, for one third of such rents.</p> <p>5 EXECUTORS AND ADMINISTRATORS: Attorney Pees — Necessity and Reasonableness. An administrator must defend his employment of an attorney on behalf of the estate, and the amount paid the attorney, by affirmative evidence showing the necessity for the services and the reasonableness of the amount paid. Evidence of the amount that the administrator agreed to pay is wholly immaterial. Even a judgment against the administrator for the amount of the fee will be ignored, in the absence of a showing that it was rendered on an issue as to its reasonableness.</p> <p>6 EXECUTORS AND ADMINISTRATORS: Administrator Employing Attorney to Defeat Will. An administrator has no authority, as such, to employ an attorney to contest the probate of a will and to charge the estate with the resulting fees.</p>

<p>1 WILLS: Non-Heir Devisee Contesting Subsequent Will. A devisee who, without the will in his favor, would, under the laws of inheritance, take no part of testator’s estate, may not contest a later will by testator, on the ground of mental incompetency of testator, without necessarily and unavoidably admitting that testator was fully competent to execute the will in his — contestant’s — favor. It follows that such contestant will he limited to evidence of incompeteney subsequent to the execution 'of the will in his favor.</p> <p>2 WILLS: Presumption and Burden of Proof. Proponent’s burden of proof to prove testamentary capacity is met, in the first instance, by a showing, or concession, that testator had executed another will two months prior to the will in question, and was then possessed of testamentary capacity.</p>

<p>X DRAINS: “Deepening and Widening” Under, Guise of “Gleaning and Repairing.” An assessment made under a proceeding "to clean ané repair’’ a public drain, -without notice to the property-owner, is wholly illegal, when the work actually done constitutes, in general substance, a “widening -and deepening” of the ditch, even though, in the process of “widening and deepening,” cleaning and repairing was done. (See Secs. 1989-all, 1989-a21, Code Supp., 1913.)</p> <p>2 DKAINS: Illegality — Estoppel. Landowners are not estopped to object to an illegal assessment by the naked fact that they knew ■that work was being done on the drain. So held where the work done was under proceeding to clean and repair, but in truth constituted a widening and deepening.</p> <p>3 PAYMENT: Voluntary Payments — Drainage Assessments. The payment of a drainage assessment to the county treasurer, under the distinct understanding that such payment was to be held subject to the outcome of pending litigation relative to the legality of such assessment, is not such a voluntary payment as will estop the one paying from demanding the return of the money after the assessment has been declared illegal; and especially so when such payment remains unexpended in the hands of the treasurer.</p>

<p>Appeal from Clayton District Court. — A. N. Hobson, Judge.</p> <p>Suit in partition of lands. The real contest, however, is one of ownership. All parties claim as heirs of Hugh McKellar, also known in the record as Hugh McKellar, Jr. McKellar died intestate and unmarried, seized of the lands involved herein. The parties are divided into two contesting groups. The first group, including the plaintiffs and the first-named five defendants, comprises the surviving brothers and sisters, and the children of one brother deceased.' This group claims the full title by collateral inheritance.</p> <p>The second group comprises the last five-named defendants. They are the children of Clara Johnson Adams, deceased, the alleged illegitimate child of Hugh McKellar. This group claims the full title by direct inheritance through their mother. There was a decree for the second group. The other parties have all appealed.</p>

<p>Appeal from Cerro Gordo District Court. — J. J. Clark, . Judge.</p> <p>On this appeal, the sole question is whether the defendant railroad is liable to the plaintiff company because of an alleged misdelivery of an interstate shipment entrusted by the plaintiff to said railroad company. The district court held the railroad was thus liable, and defendant appeals.—</p>

<p>Appeal from Monona District Court. — George Jepson, Judge.</p> <p>Suit in partition of lands owned, at tbe time of his death, by George E. Loyd. All the parties save one are the widow and devisees under the will of Loyd. The other party is Charles Hicks, who intervened in the action, claiming to be the illegitimate son of the testator, and to be duly recognized by the testator as such. Hicks proved an adjudication in the state of California of his paternity, and due acknowledgment thereof. He was not, however, a devisee under.the will. The trial court confirmed the title of the property pursuant to the terms of the will, and awarded it to the devisees therein and to the widow. The intervening defendant has appealed.</p>

<p>CARRIERS: Loss or Injury — Burden to Show Human Agency. Receipt by a carrier of live stock in good condition, followed by the -death of the stock prior to arrival at point of delivery, creates a presumption of negligence on the part of the carrier only in those cases where the conditions attending the dead stock indicate injury hy human agency. In the absence of such indications, the shipper must negative death by natural causes.</p>

<p>NEW TRIAL: Interested Interpreter. Basis for new trial is not furnished' by the fact that plaintiff, without conscious fraud, called and used, in the trial of'the case, an interpreter who, unknown to the court, jury, and opposing counsel, was interested in the outcome of the suit, when it appears that the testimony interpreted (a) was correctly interpreted, (b) was not vitally material, and (c) was practically without dispute in the record. (Sec. 4091, Code, 1897.)</p>

<p>Appeal from■ Polk District Coiw't. — W. S. Ayres, Judge.</p> <p>Plaintiff claims he was injured because the defendant, his employer, was negligent in not providing him a safe place wherein to work. He has verdict and judgment, and defendant appeals.</p>

<p>1 APPEAL AND ERROR: Law of Case. A ruling, on appeal, that the evidence was sufficient to carry an issue to the jury, is conclusive on a subsequent appeal, on practically the same record.</p> <p>2 TRIAL: Inaccuracy Cured by Other Instruction. An inaccurate instruction as to the assessments due on a policy of insurance may be rendered harmless, in view of the real issues, by construing the instructions as a whole.</p>

<p>Appeal from- J adosan District Court. — A. J. House, .Judge.</p> <p>The district court enjoined the city of Maquoketa from issuing bonds to secure funds with which to construct it light plant. Hence this appeal.</p>

<p>1 JUDGMENT: Parties Concluded — Withdrawal Without Prejudice. A’decree which quiets title against all defendants, yet later distinctly specifies those against whom title is quieted, is not conclusive on a defendant not specifically mentioned in the decree, especially when the record shows a dismissal, without prejudice, at a later date, and prior to any joinder of issue thereon, of the answer and cross-petition of said latter defendant.</p> <p>2 HOMESTEAD: Sales by Guardian — Validity. A guardian’s sale and deed of a homestead belonging to an insane wife, for debts neither antedating the acquisition and occupancy of the homestead nor created by the husband or wife, are a nullity. Especially is this true when the husband is not made a party to the proceedings leading up to and culminating in the sale and deed, and does not join in said deed with said guardian. (Secs. 2974, 2976, 3166, Code, 1897.)</p> <p>3 HOMESTEAD: Sales by Guardian — Husband Joining in Deed. Conceding, arguendo, that a guardian may, under Section 3225, Code, 1897, validly sell the homestead, to. which an insane wife has title, yet such deed is of no validity unless the husband joins therein. (Sec. 2974, Code, 1897.)</p> <p>4 GUARDIAN AND WARD: Validity — Limitation of Actions. The five-year limitation for questioning the validity of a guardian’s sale and deed does not apply to a deed which is absolutely void.</p> <p>5 - HOMESTEAD: Abandonment by Husband. The act of a husband in neither residing in nor giving any attention to a homestead for four years after he knew that the title, standing in the name of the wife, had been quieted against her, works a complete abandonment of the homestead by him, even though the decree quieting title might have been defeated by proper contest.</p>

Certiorari from Guthrie District Gowrt. — W. H. Fahey, Judge. Certiorari to a judge of the district court, whereby it is sought to annul an order entered by the defendant judge. The order ivas one of correction of an entry of his.court.—

<p>Appeal from Cass District Court. — Ti-iomas Arthur, Judge.</p> <p>The appellee permitted the Atlantic, Northern & Southern Railway Company to operate its trains over tracks owned and operated by the appellee. The plaintiff was injured because the licensee road, by negligent operation of one of its trains, frightened the horses of plaintiff, and caused them to run away and be injured. The sole question is whether the appellee is liable for such negligence on part of its said licensee.</p>

— M. F. Edwards, Judge. Action for damages for shortage in the quantity of coal shipped to the plaintiff! and delivered to it by the defendant. There was a trial before a justice of the peace, and a judgment of $11.55.

— Charles Hutchinson, J udge. This is a prosecution for maintaining a liquor nuisance. There was a verdict of guilty, and the defendant appeals.

— W. S. Hamilton, Judge. The indictment charged defendant with having committed the crime of murder in the first degree. He was found guilty of murder in the second degree, and sentenced accordingly. He appeals.

<p>1 INTOXICATING LIQUORS: Possession of Liquors — Revenue Stamp Presumption. Presumption of guilt of unlawful sale and keeping for sale is raised both by the finding of liquors in a place of business, and by the possession of an internal revenue stamp for such liquors. (Sec. 2427, Code, 1897.)</p> <p>2 INTOXICATING LIQUORS: Evidence — Relevancy, etc. Evidence bearing upon defendant’s want of knowledge of the possession of liquors is wholly irrelevant, when it is conceded that defendant had full knowledge.</p> <p>3 EVIDENCE: How Strangers Would Testify. What another person would testify to, if asked as to a certain matter, is wholly incompetent.</p> <p>4 INTOXICATING LIQUORS: Intent Not Element of Sale The matter of intent is not involved in an 'accusation of selling intoxicating liquors.</p> <p>5 INTOXICATING LIQUORS: “Gift” as Violation. A “gift” of intoxicating liquors to one’s employee, in' order to induce the employee to continue work, is a violation of that part of the statute which prohibits gifts of such liquors “in consideration * * * óf any services or in evasion of the statute.” (Sec. 2382, Code Supp., 1913.)</p> <p>6 TRIAL: Instructions — Defining Terms. Failure, in the absence of a request, to define the term “evasion of the statute,” is not error.</p> <p>7 INTOXICATING LIQUORS: Place Made to Resemble Saloon. The jury may, on the issue whether a so-calied “Temp Bat” was a place for .the unlawful sale oi intoxicating liquors, take into consideration the fact that the place was equipped in all respects as intoxicating liquor saloons were formerly equipped.</p> <p>8 INTOXICATING LIQUORS: Offenses — Judgment—Modification. Fine reduced from $1,000 to $600.</p>

— PI M. McCall/Judge. Action for damages consequent on a collision with a motorcycle, resulted in judgment for plaintiff. The defendant appeals.

— M. F. Edwards, Judge. A. justice of the peace gave the plaintiff judgment for . damages to a shipment delivered by him to the defendant railroad, and which, it is alleged, reached the consignee in bad condition. On writ 'of error, tbe district court affirmed the judgment of the justice, and defendant appeals.

— R. M. Wrigiit, Judge. The Arpes Evening Times and the Ames Weekly Tribune, newspapers published in the city of Ames, Story County, Iowa, were rival candidates before the board of supervisors of said county for selection or appointment by -said board as a county official newspaper, under the provisions of Code Section 441 of the Code of 1897.

— W. D. Boies, Judge. Action in replevin to recover the possession of a portable mill used for sawing lumber. There was a directed verdiet and judgment for defendant, and the plaintiff appeals. The material facts are stated in the opinion.

— Henry Sil wold, Judge. Action to recover damages consequent on personal in-' jury in defendant’s mine, resulted in judgment as prayed. The defendant appeals.

— Francis M. Hunter, Judge. Action on an alleged oral lease for rent. The facts are stated in the opinion. Judgment for plaintiff, as prayed. ] )efendant appeals.

— Henry Silwold, Judge. Action under the Federal Employers’ Liability Act to recover on account of personal injuries. Verdict and judgment for the plaintiff. Defendant appeals.

— E. G. Albert, Judge. Action on a policy of insurance against death by lightning, to recover for the death of a horse alleged to have been killed by lightning. Cause tried to a jury. Verdict for the plaintiff. Judgment on the verdict. Defendant appeals.—

<p>Appeal from Linn District Court. — John T. Moppit, Judge.</p> <p>Action to foreclose a mechanics’ lien. Decree dismissing plaintiffs petition. Plaintiff appeals.</p>

— W. S.' Ayres, Judge. Appeal from Madison District Court. — Lorin N. Hays, Judge. O. P. Cline (now deceased) and Laura Cline were formerly husband and wife. On April 10, 1909, in an action then pending in the distinct court of Polk County, the wife was granted a divorce from her said husband, with an allowance of alimony in the sum of $10,000, and $500 for counsel fees.

— W. EG. McHenry, Judge. The plaintiff’s property .having been assessed for the expense of paving and curbing Ingersoll Avenue in the City of Des Moines, appealed therefrom to the district court, where the assessments were held to be invalid, and set aside. From that decision, the defendant city appeals.

— Thomas J. Gutiirie, Judge. Action at law, to recover upon a policy of accident insurance. There ivas a judgment for plaintiff, and defendant appeals.

— Ti-ios. J. Guti-irie, Judge. Action to recover damages, for personal injury. The opinion states the facts. Judgment for the plaintiff. Defendant appeals.

— Milo P. Smith and F. O. Ellison, Judges. Action for libel and slander. Demurrer to petition. Demurrer sustained. Plaintiff filed an amended and substituted petition. Motion to strike amended and substituted petition on the ground that it was simply a repetition of the cause of action alleged in the original petition. Sustained. Amended and substituted petition stricken. Defendant properly preserved exceptions to both rulings, stood upon his pleadings, and appealed.

— William Hutchinson, Judge. The Grain Growers Incorporated Co-operative Association of Melvin was organized in 1905.

— -Lawrence De Graff, Judge. This is a suit by a resident and taxpayer of the city of Des Moines, to- restrain the defendants, who are the mayor, city council, and officers of said city, and William Horrabin, contractor, from carrying out the terms of a contract between the said city and Horrabin, for the construction of a bridge across the Des Moines River at a point connecting University Avenue with North Street in said city, and to restrain the issuance and sale of bonds…

■Appeal from Ida District Court. — M. E. Hutchison, Judge. Appeal from an action approving guardian’s report. After the approval had been entered, objections were filed to the report by certain bondsmen, who had become such in a proceeding instituted by the guardian, some years before, to sell the minor’s real estate. Opinion states the facts. Objection of intervenors overruled; decree approving report affirmed. Intervenors appeal.

Appeal ¡rom Eumloldt District Court. — N. J. Lee, Judge. Contestant objected to the probate of the will, on the ground of alleged undue influence and mental incapacity. The formal execution of the will was admitted. There was a trial to a jury. At the close of the evidence, contestant withdrew the issues as to the alleged undue influence. The jury found for the contestant, and proponents appeal.—

<p>1 BILLS AND NOTES: Acceptance — Separate Writing. Written acceptance of a check by tke drawee thereof may be by a writing separate from the check. So held in the case of a telegram.</p> <p>2 BILLS AND NOTES: When “With Exchange’’ Is Surplusage. The term “with exchange” is pure surplusage when added to a check which is drawn upon a bank by the bank’s own depositor, and which is payable at said bank.</p> <p>3 BILLS AND NOTES: Primary Liability. A bank which unconditionally promises to pay its depositor’s check in a named amount becomes primarily liable on the check to one who acts on the promise.</p>

— E, lb Howell, - Judge. Under a contract between him and the school district of which appellant Koontz is treasurer, the intervenor undertook to buy bonds, to be issued by the district. In connection, he made a. deposit with defendant hank. He asserts he is entitled to a return of said deposit, because of failure on part of ihe district (o comply with said contract. The trial court awarded a return. ' Henee this appeal.—

<p>1 NEGLIGENCE: Presumption — Speed of Automobile. It may not be presumed that an automobile was moving at a rate of speed in excess of 25 miles per hour (Section 1571-ml9, Code Supp., 1913), from the naked fact that, upon coming in contact with an object, the automobile moved the object a distance 9! 50 feet.</p> <p>2 NEGLIGENCE: Equal Fault. Plaintiff, when equally at fault with defendant, may not recover damages consequent upon an accident. So held where neither of two motor vehicle drivers gave warning of his approach to'an intersecting highway.</p>

<p>Appeal from Warren District Court. — Lorin N. Hats, Judge.</p> <p>Suit to rescind exchange of farms resulted in decree as prayed. Defendants appeal.</p>

— M. E. Hutchison, Judge. Action to recoven damages for trespassing animals. Opinion states the facts. Verdict and judgment for the plaintiff. Defendant appeals.

— John T. Moffit, Judge. Action to recover damages from a charitable institution for injuries received through the negligence of defendant’s employees. Petition dismissed. Plaintiff appeals.

— H. B. Boies, Judge. Suit in equity to foreclose a mortgage upon real estate, and against appellant upon a contract by which he assumed and' agreed to pay the mortgage indebtedness. Decree as prayed.—

— N. J. Lee, Judge. Suit for specific performance of an oral contract 'to execute a note and mortgage. Decree for plaintiff as. prayed. Defendant appeals.