Volume 184 — Iowa Reports

— John T. Moffit, Judge. Action to construe a will and to determine the power of the trustee named in the will. Opinion states the facts.

— C. A. Dudley, Judge. Action on account for merchandise. Verdict by direction of the court for a part only of plaintiffs demand. Plaintiff appeals.

<p>Appeal from. Polk District Court. — W. S. Ayres, Judge.</p> <p>The plaintiff bad a recovery as beneficiary of a certificate issued by the defendant, and it appeals.</p>

— D. M. Anderson, Judge. Action of replevin by plaintiff of certain property bid off by the defendant at plaintiff’s public sale. At the close of the evidence, there was a directed verdict for the plaintiff, and the defendant has appealed.

- — -Shelby Oullison, Judge. Action by tlie State for an injunction. A temporary injunction, or restraining order, was at first issued, and afterwards vacated or dissolved by the trial court, on motion of defendants, from which order the State appeals.—

— E. G. Albert, Judge. Action in equity to enjoin the officers of :x consolidated independent school district from exercising the funclions of officers of such corporation, and to enjoin the corporation from assuming any rights as such. Judgment dismissing plaintiffs’ petition. Plaintiffs appeal.

— (A. 1). Thompson, Judge. Action iu the nature of quo warranto, to test the right of defendants to hold the office of school directors of the consolidated independent school corporation of Gilbert, in Story County. The facts are stated in the opinion. The court below found in favor of relators.

— Seneca Cornell, Judge. Action to recover damages consequent upon a fall, resulted in a judgment for tlie plaintiff. The defendant appeals.

— John T. Moffit, Judge. Action by a landlord to recover the value of property sold by the tenant, upon which plaintiff claims a landlord’s lien. Verdict and judgment for defendant. Plaintiff appeals.

<p>Appeal from Wright District Court. — E. M. McCall, Judge.</p> <p>Suit in equity for partition of real estate. The facts appear in the opinion.</p>

— J. H. Applegate;. Judge. Action to recover the value oí stock in a corporation, which stock proved to be worthless, and which was purchased by plaintiff at the solicitation of the defendant. There ivas a trial to a jury, and a verdict and judgment for defendant. The plaintiff appeals.

— Seneca Cornell, Judge. This is a habeas corpus proceeding, involving a controversy over the custody of a child. -The defendant is the father of the child. The trial court awarded to him the custody. The petitioner, by her next friend, Ella Buchanan, has appealed.

— J. W. Anderson, Judge. Action at law to recover damages for the death of the plaintiff’s intestate. After trial to a jury and verdict for plaintiff, the court sustained the defendant’s motion to set aside the verdict, and entered judgment for the defendant, notwithstanding the finding of the jury.

— W. F. Springer, Judge. The appellant railroad ivas once the debtor of one Cox. Case & Company sued on an assignment from Cox. The railroad company defended that, subsequent to the assignment, it was ordered, in garnishment proceedings in Illinois, to pay the fund to an Illinois creditor of Cox’s. This plea was successfully demurred to; hence this appeal.

<p>Appeal from Calhoun- District Court. — M. E. Hutchison, Judge.</p> <p>Suit to declare a trust in real property. The facts are fully stated in the opinion..</p>

— James W. Willett, Judge. Action at law to enforce landlord’s lien.for rent. The priority of this lien upon certain personal property was contested by the defendant J. J. Snyder Company. On trial to the court, it was found and adjudged that plaintiff’s lien for rent was inferior to and subject to the claim of said J. J. Snyder Company; and plaintiff appeals.

- — Gitas. A. Dudley, Judge. This is an action for rent, aided by landlord’s attachment. The property involved is a lot of fixtures, furniture, and cooking utensils, sold by intervenor to the defendant for. use in a restaurant. The property was purchased and taken on the leased premises (which were occupied by defendant under a written lease with plaintiff) after the execution of the lease, and after possession had been taken of the premises by the defendant.

— Lawrence De Gram’, Judge. Action on five notes. Tbe defense pleaded was that these were obtained by fraud; and by way of counterclaim, defendant demanded judgment for the amount paid thereon. Verdict -and judgment were for defendant, including recovery of the amount previously paid on the notes. The plaintiff appeals.

<p>Appeal from Lirm District Court. — Milo P. Smith, Judge.</p> <p>Action to foreclose a subcontractor’s lien. Decree below establishing the lien. The owner appeals.</p>

— Milo P. Smith, Judge. Action by a stockholder to rescind a subscription for stock, and recover notes delivered and money paid on the subscription. Decree in the court below dismissing plaintiff’s petition. Plaintiff appeals.

A-ppeal from Audition District Gourt. — E. B. Woodruff, Judge. Mrs. Lois G. Stuart, a resident of Audubon, Iowa, died testate.

<p>MUNICIPAL CORPORATIONS: Public Improvements — Damnum 1 Absque Injuria. Damages resulting from the non-negligent grading, paving, and guttering, by a municipality, of its public streets is damnum absque injuria. So held where damages resulted from accelerated drainage.</p> <p>WATERS AND WATERCOURSES: Surface Waters — Drainage by 2 Means of Paving, Sewers, Etc. A municipality, by grading, paving, guttering, and sewering its public street® in the general course of natural drainage, may, without liability to the owner of a servient estate, carry surface waters to, and deposit them at, practically the same point to which nature would carry and deposit them, even though the flow is accelerated and the volume of water is increased by the consequent interference with evaporation and seepage.</p>

— John T. Moffit, Judge. This action was originally begun by the plaintiff against the defendant, George W. Cameron, to recover a sum claimed to be due it from Cameron. In this action the plaintiff sued out an attachment, and levied upon a certain stock of goods owned by Cameron. At the time of the levy, the goods were mortgaged. Thereafter, the mortgagees appeared and claimed the property under their mortgage.

— C. W. Mullan, Judge. Appeal from a proceeding to condemn certain land for cemetery purposes. Opinion states the facts. Judgment for the plaintiffs in the court below for an amount unsatisfactory to the plaintiffs. Plaintiffs appeal.

— John F. Talbott, Judge. Action to recover damages for personal injury. Opinion states the facts. The district court directed a verdict for the defendant. Plaintiff appeals.

<p>Appeal from Polk District Court. — Lawrence DeGraff, Judge.</p> <p>The opinion sufficiently states the case.</p>

— W. S. Ayres, Judge. This is an appeal from a judgment for $10,000 damages on account of injuries received by plaintiff in a collision with one of defendant’s interurban cars.

— Lawrence De Graff, Judge. Suit in equity to foreclose a mechanics’ lien. A decree was entered, finding defendant indebted to plaintiff, as assignee of one Errington, a building contractor, in the sum of $1,362.43, and establishing a lien therefor upon certain property, subject, however, to the payment of certain debts due from Errington to several intervening subcontractors. The plaintiff appeals.

— Joseph E. Meyer, Judge. Action in equity to enjoin the defendants from tearing down the Savery Hotel building in Des Moines, and from interfering with the possession of plaintiffs, who were tenants of certain storerooms and other portions of said building, and to enjoin defendants from interfering with plaintiff’s means of ingress and egress, and to enjoin defendants from commencing legal proceedings to obtain possession of the property.

<p>WILLS: Rights of Devisees — Partition by Remaindermen Prior to 1 Execution of Trust. Remaindermen who, under a will, are entitled to possession of real property only after the execution of a clearly defined trust, may not have partition of the property, or any part thereof, prior to the full execution of said trust, on the plea that the testator set aside more property than was necessary for the purposes of said trust, and that the court should revise the amount and immediately divide the balance among said remaindermen. So held where testator devised all his property, which was quite extensive, in trust for the life support of two nephews.</p> <p>TRUSTS: Management of Trust — Death of Trustee — Effect. The 2, 6 death of a trustee prior to the execution of the trust does not terminate the trust, when no special trust or confidence was reposed by the truster in the deceased trustee.</p> <p>PARTITION: Actions for Partition — Right to Possession as Affect-3 ing Right. He only may maintain partition who is entitled to the immediate possession of his or her share of the property. So held where' there was an attempt to partition prior to the full execution of a preceding trust.</p> <p>CONVERSION: Equitable Conversion — Wills. A will which de4 vises real estate to a trustee, and directs the trustee to execute a named trust and then .to sell the property and to divide the proceeds among certain remaindermen, works an equitable conversion of the realty into personalty, thereby depriving the remainderman of any legal or equitable interest in the land itself, and, needless to say, of the right to partition the land.</p> <p>PARTITION: Proceedings and Relief — Incumbrances. A definite 5 devise of all of testator’s property to a trustee, with equally definite direction to the trustee to use the income for the life support of two named beneficiaries and then to sell the property and divide it among certain named persons, creates something more than an “incumbrance,” within the meaning of Sec, 4249, Code, 1897, which provides that, if any question of “incumbrances” arises in an action for partition, the court may direct issue to be made for the settlement of the same.</p> <p>TRUSTS: Management of Trust — Death of Trustee — Effect. 2,6</p>

— W. S. Hamilton, Judge. Action by a mortgagee on a policy of insurance. Opinion states the facts. Verdict and judgment for the plaintiff. Defendant appeals.

— Lawrence DeGraff, Judge. Action at law to recover upon an alleged contract of life insurance. There was a directed' verdict and judgment for the defendant, and plaintiff appeals.

— John F. Talbott, Judge. The plaintiff is the illegitimate child, of one Thomas Singmaster, and brings this action to establish her right to participate in his estate, and for partition. Decree for the plaintiff in the court below. Defendants appeal.

<p>Appeal from Des Moines Mmdc&pal Court. — Joseph E. Meyeii, Judge.</p> <p>Action for libel. Verdict and judgment for the plaintiff. Defendant appeals. Opinion states the facts.</p>

— H. E. Fry, Judge. Action to recover money paid on the purchase price of land, on the theory that the contract provided for the purchase of land which the seller did not own. Cross-petition asking reformation of the contract. Opinion states the facts. Plaintiff appeals.

<p>Appeal from Jones District Court. — F. O. Ellison, Judge.</p> <p>Action to construe a will. Opinion states the facts.</p>

— Milo .P. Smith, Judge. Action to construe the provisions of a will, and for a decree partitioning property of an intestate among the devisees of a will. Opinion states the facts.

J. Lee, Judge. Appeal from judgment for damages on account of a drainage improvement. The necessary' facts are stated in the opinion.

— Charles A. Dudley, Judge. The decedent rightfully made use of a passenger elevator, maintained and operated by the defendant in its building. She fell, in some manner, and was found to be dead. A verdict was directed for the defendant, and plaintiff appeals.

— C. W. Mullan, Judge. The plaintiffs claim that they and the defendants, other than Muehl, were joint adventurers in an attempt to produce a device to transmit the power used in operating a motor vehicle equally to both driving wheels; that Muehl was employed to further said joint venture, and generally employed to give the parties the benefit of his experience as an expert mechanical engineer and as an inventor; that, during the employment, Muehl made certain discoveries;…

— W. S. Ayres, Judge. Action for damages on account of the flooding of plaintiff’s land. Judgment in favor of defendant for costs upon a directed verdict in its favor was entered in the court below.

<p>DESCENT AND DISTRIBUTION: Homestead. Incumbrance Payable 1 from General Assets. The right of a widow, to whom the homestead has been assigned as part of her one-third share, to demand that homestead incumbrances on which she is not personally liable be discharged by the remaining two-thirds solvent part of the estate, is not waived by the act of the widow in requesting the referee in partition to sell the homestead, and in purchasing the same at such sale, when the court had never ordered such sale.</p> <p>PARTITION: Construction of Decree. A decree in partition of 2 homestead and non-homestead property, which decree specifically sets aside the homestead to a widow, as per her application, and then orders a salé of “said premises,” will not be construed as ordering a sale of the homestead.</p> <p>PARTITION: Value of Homestead Set Off to Widow. The setting 3 aside of -the -homestead to the widow, in accordance with her demand, necessarily works the effect, in partition, of requiring the court, in some proper manner, to determine the fair value of the homestead, and to charge such amount against her one-third share.</p>

<p>MINES AND MINERALS: Leases — Payment of Minimum Royalties. A lessee, who is obligated for a stated period to pay á minimum yearly royalty for mining coal, with, right to terminate the lease when all minabie coal under the premises is exhausted, may not escape payment ef such royalty unless he establishes (a) that no minabie coal exists, and (b) that he has duly terminated the lease.</p>

— Henry Silwold, Judge. Certiorari proceedings to test the validity of the organization of a consolidated independent school district. On hearing, “the district court annulled and set aside “all proceedings taken or actions had,” and ordered all property returned to the respective districts included. The defendants appeal.

— W. S. Hamilton, Judge. Suit on a policy of insurance. A demurrer that suit is prematurely brought was sustained. So was an amendment to the demurrer, asserting that the suit is brought top late. Plaintiff appeals.

<p>Appeal from Crawford District Court. — M. E. Hutchison, Judge.</p> <p>Objections to the admission of the will of Claus Jahn were interposed by his daughter, and on trial it was set aside, because of a-finding of his alleged want of capacity to execute said will. The proponents appeal.</p>

<p>INSURANCE: Accident Insurance — Accidental Means — Over-Exer1 tion — -Burden of Proof. Death from “voluntary over-exertion” is a defense upon which the insurer -has the burden of proof, under a policy of accident insurance which provides against liability for such cause.</p> <p>INSURANCE: Accident Insurance — Diseased Condition of Insured— 2 Effect. When one is, by a policy of -accident insurance, indemnified against death from injuries of a specified nature, and dies from such injuries, it is no defense that he was, by disease, more susceptible to fatal results from such injuries than he would have been had he been free from such disease.</p> <p>INSURANCE: Accident Insurance — “Accident” Defined — Injury 3 Intervening in Doing Voluntary Act. An accident is an event which takes place without one’s foresight or expectation. Such an event is none the less an accident by accidental means because it intervenes in the doing of some voluntary act by the one injured, unless the doing of such voluntary act is attended with such manifest d-anger of injury to the doer that he will not be heard to say that he did not anticipate the consequences.</p> <p>PRINCIPLE APPLIED: An accident policy insured against death through “external, violent, and accidental means.” Deceased and another had removed the casing -and inner tube on-an auto tire, and had patched the same. After replacing the tire, deceased discovered that the tube still leaked, -and he, without assistance, attempted to take off the casing again. He kneeled upon one knee, took hold of the tire with both hands, pulled and jerked at it for some time, and finally it came off, with such suddenness that he slipped, and, to maintain his equilibrium, he staggered back several paces, with the tire in his hands. He immediately turned pale, complained of being ill, dropped the tire, put his hand to his head, lay down upon the ground, was at once cared for, but died within an hour. Prior to the injury, the insured was, apparently, in robust health.</p> <p>Held, to present a jury question on the issue whether the deceased died by accidental means.</p> <p>INSURANCE: Accident Insurance — 'Death by Accidental Means— 4 Prima-Facie Case. A prima-facie right of recovery on an ordinary accident insurance policy is made by evidence (a) that the insured was engaged, even voluntarily, in the performance of a legitimate act, not manifestly dangerous; (b) that, while so engaged, the insured unexpectedly recéived some injury; and (c) that the insured died soon thereafter.</p>

B. Woodruff, Judge. The appellee had verdict and judgment on account of an injury alleged to have been sustained through the negligence of defendant while the appellee was in its employ. It appeals.

— O. B. Wheeler, Judge. Tpiis is a suit in equity to set aside a deed from the mother of appellant to her brother, Fritz Stortenbecker; an attack upon a contract made at the time the deed was, and as'part of the same transaction, and to have treated as part of the estate of the mother, now deceased, the certain widow’s allowance made the mother in the estate of her deceased husband, and of a sum paid her as her distributive share.

<p>RAILROADS: Injuries on Track — Trespassers—Anticipating Presence. Railroad employes are under no duty to anticipate the presence of unknown, trespassers in and about their cars, by reason of the fact that such trespassers had, previous to the time in question, been permitted to play in the railroad yards.</p>

— Thomas Arthur, Judge. The appellant filed a petition to obtain a divorce. Issue was joined upon this. Defendant also filed cross-petition, setting up that a court of competent jurisdiction in Missouri had divorced him from this plaintiff. In the cross-petition, he prayed that he be awarded the custody of the minor child of the parties. At the close of all the evidence, the plaintiff and appellant attempted to dismiss her divorce suit without prejudice.

— B. F. Cummings, Judge. This is an action by the administrator of the estate of Cornell Nodland, against the defendants, who. were, at the time, engaged in the manufacture of window sashes, screens, etc., for injuries received by him while employed in said sash factory, which resulted in his death. At the time he was injured, deceased had hold of a piece of lumber about 20 inches in length and 5 inches in width, which he was having ripped by a circular ripsaw.

— J. B. Rockafellow, Judge. Action for damages consequent upon the publication of an alleged libel resulted in a directed verdict and judgment thereon. The plaintiff appeals.

— F. M. Hunter, Judge. An appeal was taken to tbe district court by the claimant, as widow of decedent, from the dismissal of her claim by the Iowa Industrial Commissioner, reversing the award of the committee of arbitration. -On hearing, the decision of the commissioner was affirmed, without prejudice to an action by the administrator of decedent’s estate against the county. The claimant appeals.

<p>GIFTS: When Undelivered Gift is Vested. A deed which provides 1 that, after the death of the grantor and his wife, the grantee shall pay the purchase price in stated amounts to grantor’s heirs, but which specifically names said heirs, works a complete vesting of the several separate gifts in the named persons as of the date of the deed, even though a donee dies before the payment is due.</p> <p>NAMES: Descriptio Personae. The term, “heir,” when added to 2 the name of a person who is to he the recipient of a gift, will, ordinarily, be considered only as a description of the said person.</p> <p>BILLS AND NOTES:' Determinable Time. Whether a deed which 3 provides that the grantee shall, after the death of grantor, pay the purchase price to a named person, is a negotiable instrument, quaere.</p>

— W. S. Ayres, Judge. Plaintiff has verdict and judgment on a claim that the defendant injured her by the negligent operation of one of its cars. Defendant appeals.

— James D. Smyth, Judge. The controlling question is whether the trial court erred in holding, as matter of law, that plaintiff and appellant was guilty of contributory negligence.

<p>Appeal from Polk District Court. — Hubert Utterback, Judge.</p> <p>Action to recover damages consequent on the falling of a radiator in defendant’s building on plaintiff’s foot. From judgment against her, the defendant appeals.</p>

<p>NEGLIGENCE: Unguarded Openings in Unfinished Building. One 1 who has full knowledge of an unguarded opening in the floor of an unfinished building, and inadvertently steps therein, may not predicate negligence on the mere fact that, the opening was unguarded, and that he had not been warned of the dangers attending said opening.</p> <p>APPEAL AND ERROR: Assignment of Error — •Insufficiency. As-2 signments which require the court to search out the evidence ■and rulings bearing thereon are wholly insufficient.</p>

— George Wilson, Judge. On petitiou praying that defendant be restrained from issuing a certificate to the Bonaparte State Bank, authorizing it to commence business, and that, on final hearing, he be required to ascertain whether the establishment of such an institution would be inimical to the interests of the public, a temporary injunction was issued, as prayed. On motion, the restraining order was dissolved. From this order, plaintiff appeals.

— William H. McHenry, Judge. Suit to restrain an alleged nuisance created by the noisy operation of machinery, and alleged to interfere with the use and enjoyment of the dwelling house of appellants. Pending the hearing, a temporary injunction issued, ordering a partial abatement. On final heáring, the appellants were denied all relief, and they appeal.

<p>Appeal from Jones District Court. — John T. Moffit, ■Judge.</p> <p>Action to enjoin the maintenance of a new concrete dam higher than a crib dam which had existed at substantially the same locality for about 40 years. The State, by petition of intervention, prayed for the same relief. On hearing, the court entered a decree enjoining the maintenance of the new dam with flashboards more than 10 inches in height. The plaintiff and the State appeal.</p>

<p>WITNESSES: Competency — Transactions with Deceased — Proof of 1 Marriage. Plaintiff in an action against the heirs of an estate for the admeasurement of dower, is not a competent witness to testify that she married the deceased, was never divorced from him, and was his wife at the time of his death. (Sec. 4604, Code, 1897.)</p> <p>TRIAL: Reception of Evidence — Premature Objections. An objec2 tion to a specified line of testimony, made prior to the introduction of any such testimony, is not premature, when, the objection being overruled, such testimony was immediately received.</p> <p>TRIAL: Reception of Evidence — Non-Necessity to Repeat Objec3 tions. A definite objection, once lodged against a specified line of testimony, need not and ought not to be repeated at every stage wlien such, testimony is offered, unless the objector has so demeaned himself that the court may fairly assume that the objector has waived his former objection.</p> <p>MARRIAGE: Evidence — Sufficiency. Testimony by one claiming 4 to have been the wife of a deceased that she married deceased, was never divorced from him, and was his wife at the time of his death, does not, prima facie, establish the fact of legal marriage, when the record reveals the further fact that claimant had had three prior matrimonial ventures, and offered secondary and inconclusive evidence of the death or divorce of said three prior husbands.</p>

— E. G. Abbert, Judge. The material facts, so far as discoverable from the printed record, are stated in the opinion. There was a verdict for the defendant, and from the judgment entered thereon, the plaintiff appeals.

— E. M. McOall, Judge. On appeal from tbe assessment against plaintiff’s right of way, the district court reduced the amount from $1,500 to $1,000. Both parties appeal, that of defendants being first perfected.

<p>Appeal from Limi District Gowrt. — John T. Moefit, Judge.</p> <p>Action at law to recover upon a surety bond. There was a directed verdict for the plaintiff, and from the judgment rendered thereon, the defendant appeals.</p>

<p>MASTER AND SERVANT: Inoompetency of Fellow Servant. In-1 competency means want of ability which is adapted to the performance of a task, whether because of lack of experience, natural qualifications, or deficiency of disposition to properly use one’s ability and experience. Evidence reviewed, and held to present a jury question as to the inoompetency of a fellow servant, and as to the master’s knowledge-.thereof.</p> <p>LIMITATION OF ACTIONS: Amendments After Running of Stat-2 ute. A specific and detailed allegation of negligence may, after the statute has run against an action, be substituted for a general allegation which had not, up to the time of substitution, been questioned.</p> <p>TRIAL: Evading Ruling of Court. A ruling that counsel was at-3 tempting, in his argument, to evade a ruling of the court with reference to reading from a transcript, will, ordinarily, be conclusive on the appellate court.</p>

— Milo P. Smith, Judge. Action at law to recover damages on account of neglect of defendant's agent. Verdict and judgment for plaintiff, and defendant appeals. The material facts are stated in the opinion.

— H. K. Evans, Judge. Suit iu equity for the partition of real estate. Plaintiff alleged in liar petition tliat sbe is the illegitimate child of deceased, and entitled to share in his estate. The facts are stated in the opinion. The court dismissed plaintiff’s petition. She appeals.

— C. L. Taylor, Judge. Action at law to recover damages for personal injury. Verdict and judgment for defendant, and plaintiff appeals.

<p>INSURANCE: Venue in Action on Policy. Motion to transfer to the proper county is the only remedy possessed by a foreign insurance company, when, on due service, it is sued in the wrong county on a policy issued by it in this state.</p>

— Milo P. Smith, Judge. Action at law upon a promissory note upon which the defendant Jacobs is an alleged endorser. Judgment for the plaintiff upon a directed verdict, and' the defendant Jacobs appeals.

— Milo P. Smith, Judge. Upon an information filed in the superior court of Cedar Rapids, the defendant was convicted of violating a certain city ordinance. From the judgment entered in that proceeding, , he appealed to the district court, where he was again tried and again convicted, and he brings the case by further appeal to this court.

— Milo P. Smith, Judge. The defendant, having been convicted upon an indictment charging him with the crime of wilfully and maliciously obstructing and injuring a certain public highway, appeals. The material facts are stated in the opinion.—

<p>MORTGAGES: Equitable Mortgage by Advancing Purchase Price. 1 When one loans money to vendee for the special purpose of enabling the vendee to purchase specified property, with an oral agreement that vendee will assign the contract to the lender as security, and the money is so used, though indirectly, and the contract is delivered to the lender, and is, later, formally assigned in fulfillment of the contract, he acquires an equitable lien or mortgage, superior to the lien of a judgment creditor of the vendee.</p> <p>VENDOR AND PURCHASER: Equitable Interest Based on Option. 2 No equitable interest in property is created by the payment of a merely nominal sum, in connection with an agreement that the vendor will, at a later date, and on the payment of a named substantial sum, execute a contract of sale to the vendee. In other words, a mere optionee has no equitable interest in the property covered by the option.</p>

— B. F. Cummings, Judge. Action at law to recover damages for an alleged breach of contract. There was a verdict and judgment for plain,tiff, and defendant appeals. The material facts are stated in the opinion.

B. Wood-ruff, Judge. Suit in equity to set aside a certain deed of conveyance of land in. Mills County, and to establish the title of the plaintiff therein. There was a decree for the plaintiff, and the defendant has appealed.

— Lorin N. Hays, Judge. Suit in equity to quiet title. The real cl'aim of the plaintiff is that she is entitled to a sheriff’s deed to certain real estate which had been sold under execution, and for which the plaintiff holds the certificate of sale. The defendant Hanby is the grantee by quitclaim deed from the execution debtor. Pursuant to such deed, he purported to redeem from the execution sale.

— W. W. Cardbll, Judge. Action in replevin resulted in judgment for the possession of the property in controversy, or, in lieu thereof, its value. Defendant appeals.

— Robert M. Wright, Judge. The appellee obtained decree of divorce and allowance of alimony and an award of attorney fees. All these actions are complained of on this appeal.

<p>INSURANCE: Failure to Plead Avoidance. A plea that an admit-1 • tedly false and material statement of fact in an application for insurance avoided all liability on the policy may not be met by evidence that the insured truthfully recited the facts to the company’s agent when the, application was prepared, unless such facts are pleaded by the insured, in the form of an avoidance.</p> <p>TRIAL: Effect of Improperly Received Testimony. It is erroneous 2 to instruct as to the affirmative effect of improperly received testimony.</p> <p>INSURANCE: What Constitutes a “Concealment.” Naked failure 3 of an insured to inform the insurer of the existence of a material fact is not, per se, a “concealment,” within the meaning of a policy which provides for nonliability in case of a concealment. “Concealment” embraces the intentional withholding of a material fact which the insured ought, in honesty, to communicate.</p> <p>INSURANCE: Waiver of Erroneous Statement as to Ownership. An 4 erroneous statement as to ownership of property becomes quite immaterial when, subsequent to the issuance of the policy, the insurer was fully apprised of the error, and failed to cancel ■the policy.</p> <p>INSURANCE: Pre-Existing Incumbrance on Property. A provision 5 ' which nullifies the policy in case the insured property is or becomes incumbered by a lien which is “created by the voluntary act of the insured, or within his control,” is not violated by liens which were created by the prior owners of the insured property, and before the policy holder became a purchaser.</p> <p>INSURANCE: Change in Interest by Judicial Proceedings. The 6 foreclosure of a mortgage and sale thereunder do not, prior to the issuance of the deed, work any change in the “interest, title, possession, or use” of the insured property, within the meaning of a policy which avoids liability in case such change actually occurs.</p> <p>INSURANCE: Additional Insurance by Execution Purchaser. Pro-7 visions against additional insurance hy the insured are manifestly not violated by the act of the purchaser at foreclosure sale in taking out a policy to protect his interest.</p> <p>INSURANCE: Deductions from Policy. The insurer may not com-8 plain that the court did not instruct the jury to deduct from the amount due on the owner’s poliey the amount of a policy held by a purchaser at execution sale, when the insurer asked no such instruction, prayed for no such relief, and did not show that said latter policy was collectible.</p>

Oertiorari to Mahaska District Oowrt.— K. E. Willcockson, Judge. We have two questions: Does the fact that the relator gave testimony before the grand jury of Mahaska County, tending to prove that she had violated the laws against the unlawful sale or keeping of liquors since she was enjoined' from thiis selling or keeping, give her immunity against being punished for violating said injunction?

— Lawrence De Graff, Judge. The case involves review of adjudging petitioner guilty of contempt for violating an injunction restraining dealing with intoxicating liquors.

— W. S. Ayres, Judge. The defendant issued to plaintiff a policy indemnifying plaintiff against any damages it might suffer by reason of bodily injuries due to accident suffered by any employee of the plaintiff. This suit is to recover on said policy for damages sustained by plaintiff from compensation made one of its injured employees. The plaintiff had a verdict, and defendant appeals.

<p>Appeal from, Washington District Court. — K. E. Willcoci-cson, Judge.</p> <p>Action for damages to horses in passing over a cattle guard in defendant’s right of way resulted in judgment for plaintiff. Defendant appeals.</p>

<p>LIBEL AND SLANDER: Joint Slander. Joint, slander cannot ex-1 ist, in the absence of a conspiracy.</p> <p>LIBEL AND SLANDER: Non-Slanderous Words. Words cannot bé 2 slanderous when they do not of themselves detrimentally reflect on the good character of complainant, and when the circumstances attending the uttering justify no inference of bad character.</p>

<p>JURY: Equitable Suit on Note. Right to jury trial does not exist 1 in an action originally brought at law, but changed into an equitable action for judgment on a note and for foreclosure of the lien securing the Same, and later transferred in toto, and without objection, to the equity calendar.</p> <p>EQUITY: Timeliness of Issues. A purely law action in the supe2 rior court may be converted into a purely equitable action after the cause has reached the district court by proper transfer.</p>

<p>Appeal from Mahaska District Court. — TC E. Willcockson, Judge.</p> <p>This is a proceeding in probate, involving the distribution of the personal estate oí J. O. Hess, deceased. Mary E. Hess filed an application in the probate court, asking for an order of distribution whereby the administrator should be directed to turn over to the applicant all the personal property of the decedent, on the ground that it was all exempt property, and that the applicant was the common-law wife of the decedent at the time of his death. The application being contested, a hearing was had at the October, 1916, term, and a so-called decree was rendered, granting the application. Later in the same term, the order was set aside, and a new trial granted. The plaintiff appeals.</p>

<p>Appeal from Woodbury District Court. — W. Gr. Sears, Judge.</p> <p>Plaintiff alleges he was injured by the negligence of the defendant, without negligence on his part. Verdict is directed against him, and he appeals.</p>

<p>Appeal from Guthrie District Court. — J. H. Applegate, Judge.</p> <p>Action for damages for alienating the affections of plaintiff’s wife. There was a directed verdict for the defendant, and plaintiff appeals.</p>

<p>Appeal from Plymouth District Court. — W. D. Boies, Judge.</p> <p>Action to recover commissions paid on sale of real estate, on the ground of fraud and collusion on the part of the defendants, as agents of the plaintiff. The answer was, in effect, a general denial. There was a verdict for the plaintiff. From a judgment thereon, the defendants have appealed.</p>

<p>SALES: Refusing Goods Because of Belayed Delivery. A sale in 1 which title has passed to the buyer by reason of delivery to a carrier, in accordance with the orders of the buyer, is in no wise defeated by subsequent delay on the part of the carrier in delivering the property, unless the seller is in some manner responsible for such delay. Failure of the seller to forward a bill of lading, and shipping over one of two permissible routes, are not sufficient to show such responsibility, unless such acts are shown to have been the proximate cause of the delay.</p> <p>SALES: Routing the Goods. He who unqualifiedly orders goods, 2 without designation of route, impliedly authorizes the seller to choose any reasonable route.</p>

<p>Appeal from Gherolcee District Court. — William Hutchinson, Judge.</p> <p>Action to recover for services and serum used in the treatment of hogs for cholera resulted in verdict and judgment for plaintiff. The defendant appeals.</p>

— William Theophilus, Judge. Suit in equity to enjoin the defendant from maintaining a dike or levee. This dike obstructed the flow of water from plaintiff’s land. Upon trial had, there was a decree for the plaintiff. The defendant has appealed.

— W. Gr. Sears, Judge. Suit to rescind the purchase of stock in the defendant bank, and to cancel a note executed therefor. A. B. Beall, for himself as creditor, and for all other creditors, filed a petition of intervention. Plaintiff demurred thereto, and moved that the same be stricken from the files. The court sustained both the motion and the demurrer, and from this ruling intervener appeals.

<p>Appeal from Woodbury District Court. — W. G. Sears, Judge.</p> <p>The opinion states the case.</p>

— C. H. Kelley, Judge. Upon a counterclaim filed by the two Sylvesters in a case brought against them by the appellant, Schultz, the Sylvesters obtained judgment against Schultz. Schultz claims to be the assignee of a judgment against appellee C. A. Sylvester, and thereunder attached the supposed interest of C. A. Sylvester in said joint judgment.

Suit to recover damages alleged to have been caused by failure to carry out agreed-to shipping directions. Defense, in effect, that the shipping agreement relied on is void in law, because not authorized by tariffs on file with the Interstate Commerce Commission. Judgment for the plaintiff, and defendant appeals.

<p>Aptpeal from Polk District Court. — Charles Hutchinson, Judge.</p> <p>Indictment charging murder iu the first degree. Conviction of murder in the second degree. Defendant appeals.</p>

<p>Appeal from Black Ilawk District (Jourb. — II. B. Bonos, Judge.</p> <p>Dependant appeals from a conviction on a charge of rape. The material facts are stated in the opinion.</p>

<p>Appeal from Polk District Court. — Charles Hutchinson, Judge.</p> <p>Conviction of larceny on an indictment charging that defendant and two others stole an automobile.</p>

<p>OBSTRUCTING JUSTICE: Resisting Arrest Without Warrant. A peace officer who attempts to make an arrest without a warrant, because of-acts which take place in his presence, may be validly and reasonably resisted by the one sought to be arrested, when said acts constitute no public offense or an attempt to commit a public offense.</p>

<p>EVIDENCE: Standard for Judging Alleged Malpractice. Physi1 cians of the allopathic school of medicine, who are not familiar with the homeopathic method of using or administering medicine or treating disease, are not competent, in an action for alleged malpractice growing out 'of homeopathic treatment, to give their opinion as to whether certain medicine would produce any physiological effect, or any effect, on the patient; and especially is this true when it appears that the homeopathic school seek, in their treatment, to avoid physiological effect.</p> <p>■PRINCIPLE APPLIED: The allopathic physician in the above case was permitted, in the trial court, to state that certain medicine, diluted in a stated ma!nner, and given in stated doses, “would have no physiological effect,” and that certain other medicine given in a certain way “would have no effect.” Held, error.</p> <p>EVIDENCE: Expert Testifying Directly to Reasonable Care. A 2 physician, though qualified as an expert in an action for alleged malpractice, may go no. further than to state the practice or custom, which prevails in the treatment of disease in the locality, and under the circumstances, in question. He may not wholly usurp the functions of the jury by stating that certain treatment was not ordinarily skillful. Especially may he not so testify when he- speaks solely from the standpoint of a school of medicine radically foreign to the one in question.</p> <p>PHYSICIANS AND SURGEONS: Neglecting Patient. Failure of 3 a physician to regularly call upon the patient is a fact which may be received and given due consideration, along with other evidence bearing on negligence and proximate cause.</p>

— Lorin N. Hays, Judge. Suit in partition of lands. The plaintiffs aver that they are the owners of an undivided six tenths of such lands, and that the defendants are the owners of an undivided fonr tenths thereof. The defendants deny that plaintiffs have any interest in the lands, and by a cross-bill claim to be the absolute owners thereof. There was a decree for the defendants, and the plaintiffs appeal.

— John F. Talbott, Judge. Suit in equity for specific performance of a contract for an exchange of lands. The answer admitted the contract, but denied performance thereof by the plaintiff. It further averred a rescission thereof by the defendant for good cause. There was-a decree dismissing the petition, and the plaintiff appeals.

— O. D. Wheeler, Judge. Said trustee in bankruptcy sought to subject certain alleged property of certain bankrupts. The trial court sustained him as to improvements placed upon certain lands, and refused to establish his claim upon the land on which the improvements were placed. Both parties have appealed.

— William Hutchinson, Judge. Appeal from a special assessment by the city council for a sewer improvement. The assessment was fixed by the city council at $100. On appeal to the district court, this assessment was confirmed. From such order the plaintiff has again appealed.

— W. Gr. Sears, Judge. The question is whether a suit may be maintained by a parent for the reasonable value of transporting his children to a school outside of his own district, the home school being unreasonably distant, without prior arrangement with the school board, and whether plaintiff’s claim has been so ratified as that the defendant is estopped now to deny it.

<p>CANCELLATION OF INSTRUMENTS: Burden of Proof. The bur-1 den of proof that rests upon the transferee of a fraudulent negotiable instrument, to prove, when he is a plaintiff at law on the instrument, that he is a holder in due course, equally rests upon such transferee when he is a defendant in an action in equity to cancel such-instrument by reason of the fraud.</p> <p>Salinger, J., dissents.</p> <p>BILLS AND NOTES: Evidence Bearing on Good-Faith Holdership. 2 On the issue whether a holder of a note is a holder in due course, material inquiries are:</p> <p>1. Whether the holder had knowledge, and if so, what knowledge, of the original execution of the note.</p> <p>2. Whether the holder took the note from, the payee in part payment of a claim of doubtful collectibility.</p> <p>3. Whether the holder’s name had been forged as a witness to the security.</p> <p>4. Whether the note was in excess of the security, the note b'eing a loan.</p> <p>5. Whether the holder made inquiry concerning the security.</p> <p>6. Whether the holder wilfully omitted to make inquiry concerning the validity of the note.</p> <p>Salinger, J., dissents as to the application made.</p>

— P. G. Norris, Judge. Action for damages consequent upon alleged alienation of the affections of plaintiff’s husband, resulted in judgment against the defendant. She appeals.

S. Franklin, Judge. Action at law to recover damages on account of an alleged collision of automobiles in the city of Des Moines. Judgment for plaintiff, and defendant appeals.

— Lawrence De Graff, Judge. Appeal from the proceedings of the city council of the city of Dos Moines in the matter of an assessment for the cost of paving a street abutiing upon plaintiff’s property.

— D. M. Anderson, Judge. Action at law to recover damages for personal injury alleged to have been sustained by reason of the defendant’s negligence. There was a verdict and judgment for defendant, and plaintiff appeals.

— C. W. Vermilion, Judge. Plaintiff brings this action for recovery upon a promissory note mhde by the defendant Walter A. Hartman, and to establish a lien therefor upon a certain house and lot which the defendants, husband and wife, claim to be exempt to them as a homestead. The trial court entered judgment for plaintiff, as prayed, on the note, but denied the prayer for equitable relief; and from this ruling the plaintiff appeals.

— George Jepson, Judge. Action in equity to enjoin an alleged liquor nuisance. The petition was dismissed at plaintiff’s cost, and he appeals.

— O. A. Dudley, Judge. Action at law to recover damages for personal injury. There was a directed verdict and judgment for the defendant, and plaintiff appeals.

<p>CONTRACTS: Waiver by Inconsistent Conduct. One who buys corporate stock, under an agreement that the corporation will, on demand, repurchase the same, and thereafter is a party to the dissolution of the corporation, and to the merging of its assets with the assets of another concern, and to the incorporation of a new corporation to take over said merged assets, irrevocably waives all his former contract right to demand a repurchase oí his stock.</p>

<p>Appeal from■ Polk District Court. — Thomas J. Guthrie, Judge.</p> <p>Suit in equity to enjoin defendants from molesting or interfering with plaintiff’s possession of certain leased premises. Decree dismissing plaintiff’s petition.</p>

— G. W. Vermilion, Judge. Action for divorce on the ground of cruel and inhuman treatment. There was a decree for the plaintiff, including the custody of the children, alimony, and costs. The defendant appeals.

— -R. P. Howell, .Judge. Suit in equity to set aside and declare void a written contract for the sale of land. The trial court found the equities to be with plaintiff, and entered a decree as prayed. The defendants appeal.

<p>MASTER AND SERVANT: Prohibited Child Labor. The Work-1 men’s Compensation Act does not apply to a master who has assumed to employ a child of such age that its employment is absolutely prohibited. Such condition affords no possibility for that mutual contract relation upon which said act essentially rests. (Secs. 2477-a, 2477-m, Code Supp., 1913.)</p> <p>MASTER AND SERVANT: Child Labor — Misrepresentation of Age. 2 A master who has assumed to employ a child of such age that its employment is absolutely prohibited, may not defend an action for injury to the child arising out of and in the course of the employment, by the plea that the child falsely misstated her age. The master must know that thte child is of such age that he may legally employ it.</p>

<p>PRINCIPAL AND AGENT: Personal Obligation of Agent. An agent, while acting for his principal, may personally obligate himself to a third person with reference to the matter which he is handling for his principal. Evidence reviewed, and held insufficient to show that a bank "cashier, while acting for the bank, had agreed to pay a specified indebtedness fro.m the proceeds of a mortgage loan made by the bank.</p>

— F. M. Hunter, Judge. These proceedings were begun to charge the defendants Bauman and Hanna with personal liability for debts contracted by Johnson, the ground for such alleged liability being that said debts were contracted by Johnson while in business as a retail dealer in merchandise, and that, in May, 1915, said debts being still unpaid, Johnson sold his stock of merchandise in bulk to the defendant William Bauman, without giving notice of his intention so to do, as…

— M. E. Hutchison, Judge. Action at law to recover damages occasioned to plaintiff’s property by the alleged negligence of the defendants. The material facts are stated in the opinion. There was a judgment in favor of plaintiffs against the defendant Goldheim, and he appeals.

<p>A ppeal from Webster District Court. — Edward M. McCall, Judge.</p> <p>Suit in equity, to subject real estate to the payment of plaintiff’s 'judgment. There was a decree dismissing the petition, and the plaintiff appeals.</p>

Appeal' from Mahaska District Court. — John F. Talbott, Judge. Suit to set aside and cancel judgment, and enjoin the execution of a sheriff’s deed. Ella M. Carpenter intervened, claiming to own the land. On hearing, decree was entered as prayed. Howerton appeals from the order of court overruling motion for new trial.

— Joseph J. Clark, Judge. Suit ‘to have construed a clause in the will of John Bye, devising “my homestead property.” On hearing, this was held to pass the entire farm, rather than the 40 acres on which the dwelling was located. The plaintiff appeals.

— H. E. Fry, Judge. Suit to quiet title. There was a defense and a cross-bill by the defendant Thomas Griffin. Upon trial had, there was a decree for the plaintiff, and the appellant, Thomas Griffin, appeals.

<p>Certiorari to Des Moines Municipal Court. — J. E. Mershon, Judge.</p> <p>This is a certiorari proceeding, brought to test the legality of an order entered by the respondent, as judge of the municipal court of the city of Des Moines. The facts appear in the opinion.</p>

- — J. J. Clark, Judge. Indictment for maintaining a liquor nuisance in Winnebago County. Upon trial had, a verdict of guilty was rendered, and judgment entered thereon. The defendant appeals.

— G-. A. Wilson, Judge. The defendant was convicted of having carried a concealed weapon, and sentenced to serve a term of two years in the penitentiary at Fort Madison. He appeals.

— M. F. Edwards, Judge. Suit in equity to foreclose a purchase money mortgage. The main defense was a counterclaim for alleged shortage of acreage in the land purchased by the defendant. There was also a counterclaim for breach of warranty against incumbrances, and for failure to furnish an abstract of title. There was a decree for the plaintiff, and the defendant appeals.

— Thomas Arthur, Judge. The plaintiff has verdict and judgment for an injury to his person and his property which he alleges was due to the negligence of the defendant. Defendant appeals.

— TL. E. Fry, Judge. Creditor’s bill, asking to set aside a conveyance from husband to wife, alleged to have been made in fraud of creditors. There was a decree dismissing the petition, and the plaintiff appeals.

— H. E. Fry, Judge. Action to recover royalties, pursuant to a written contract. There was a verdict for the plaintiff, and judgment thereon. The defendant appeals.

— W. H. Fahey, Judge. Suit in partition of real estate. The controversy has arisen over the report of the sale of the referee. The defendants filed objections thereto, on the ground that the price was inadequate. The objections were overruled, and the defendants appeal.

<p>Appeal from Mari-on District Court. — J. H. Applegate, Judge.</p> <p>Charles H. Colby owned the NE/! of the SE^4 and Ike NE% of the SW% and the W% of the SW% of Section 34, in Township 74 North, of Range 19 West of the 5th P. M., in Marion County, and thereafter conveyed said land, including the following, in his deed:</p> <p>“The grantor reserves, however, from this deed all coal and iron and minerals on or under said land, including the oils of all kinds, and the right to enter upon said land and sink shafts for the purpose of mining and carrying away from this said land all such coal, iron, and minerals of all kinds, and oils of all kinds, and for the purpose of mining and carrying away from said land all such coal, iron, and minerals of all kinds, and oils of all kinds, and for the purpose of erecting all necessary machinery for such mining purposes or securing such oils at any and all times he or his assigns may see fit, and also .all rights for prospecting for any of said minerals or oils, providing such prospecting, mining and securing of said coal, ores and oils shall be done with as little inconvenience to the grantee, or his grantees, as the carrying on of such work shall admit of, also shall have the use of such an amount of the surface of said lands not exceeding five acres as may be necessary or convenient for mining purposes, also the right of way, not exceeding one hundred feet in width'for a railroad track or tracks across the above described lands. If the parties hereto are unable to agree upon the value thereof, no surface shall be taken and occupied without adequate compensation therefor, found by a board of arbitrators, each party selecting one, the two so chosen selecting a third. The additional consideration of ten dollars for each and every diamond drill hole after drilling same shall be paid by said grantor and received by said grantee in full for all damages to crops, fences, or otherwise, which may reasonably be caused by the acts of said grantor, his successors, assigns, agents, or employes in entering upon and prospecting for said coal, other minerals, or mineral products on said lands. Said grantor to have the right to remove all tools, machinery, and appliances used in prospecting by him, his successors, ■assigns, agents or employes. This waiver to run with the land.”</p> <p>Thereafter, the assessor of the township containing the land, assessed, in the spring of 1917, the coal under said land at $80 per acre. Colby objected thereto before the board of review, which body reduced the assessment to $20 per acre. He then appealed to the district court, where, on hearing, the assessment on the entire quarter section was reduced to $2,000.' Colby appeals. — Modified and affirmed.</p>

<p>Appeal from Boone District Oowrt. — It. M. Wrigt-it, Judge.</p> <p>Suit to foreclose a mechanics’ lien resulted in dismissal of the petition. Plaintiffs appeal.</p>

— G. W. Dunham, Judge. Action for diminution in value of land after conveyance, but, as is alleged, before transfer of possession, resulted in a directed verdict for defendant and judgment thereon. The plaintiff appeals.

— J. E. Mershon, Judge. Tins case was brought as an action on account, aided by attachment. The defendant, by ansAver, admitted the account, and filed a counterclaim for damages for wrongful issuance of the attachment. The amount of the account was for about $150. The jury rendered a general verdict for the defendant, ivhich ivas the equivalent of alloAving the defendant, as damages, the full amount of the account against him.

<p>Appeal from Linn District Court. — Milo P. Smiti-i, Judge.</p> <p>Action upon an accident policy. Judgment for defendant.</p>

Court. — O. H. Kelley, Judge. Proceedings to establish lost comers. There was a finding by the eourt from which the defendants have appealed.

A ppeal from■ Wwren District Oowrt. — W. EL Fahet, Judge. Suit to cancel a contract and conveyance made bj . Kibble to the appellants. The trial court sustained the conveyance; and, while it does not seem to have formally can-celled the contract, it gave a money allowance, on the theory that the appellants had breached the contract. The defendants appeal.

- — George Jepson, Judge. The evidence has not been properly preserved. Appellant asks us to reverse a judgment which plaintiff had below, for matters that it asserts may be passed upon without reference to the evidence.

<p>Appeal from Polk District Court. — Geo. A. Wilson, Judge.</p> <p>Conviction for maintaining a liquor nuisance. Defendant appeals .</p>

<p>APPEAL AND EKROK: Absence of Brief Point. “Brief” points 1, 7 limit review of appeal.</p> <p>LARCENY: Value in Absence of Market. One may testify as to 2 the reasonable value of a stolen secondhand article in a given locality and at a given time, even though no general marlcet then exists in said locality for such an article, when it appears that he had knowledge, at the time in question, of the nature, use, condition, and original cost value of said article.</p> <p>CRIMINAL LAW: Avoiding Evidence of Other Offenses. Evidence 3 of offenses other than that charged is not admissible, when the accused solemnly admits the existence of every fact which such other offenses would tend to prove. So held in a prosecution • for receiving stolen property.</p> <p>TiARCENY: Issue, Proof, and Variance. Whether there is a fatal 4 failure of proof, when an indictment for larceny, or for receiving stolen property, alleges the stealing or the receiving of several articles of a lump sum value, and the evidence shows that some of the articles were not stolen, or not received, quaere.</p> <p>LARCENY: Articles Severed from Realty. Articles and things 5 severed from the realty may be the subject of a subsequent larceny.</p> <p>CRIMINAL LAW: Variance in Proof. No variance occurs by per-6 mitting evidence of a “force-feed lubricator” which is described in the indictment as a “self-feeding lubricator.”</p> <p>APPEAL AND ERROR: Absence of Brief Point. 1,7</p> <p>RECEIVING STOLEN GOODS: Proof of Value. Value may be es-8 tajblished, in a prosecution for receiving stolen goods, by showing the value when the property was stolen, and that no change has taken place in the property up to the time of the felonious receiving.</p> <p>CRIMINAL LAW: Affirmative Showing of Error. He who claims 9 that a specified instruction does not cover a certain point must affirmatively show that said point is not covered in any of the other instructions.</p> <p>CRIMINAL LAW: Duty of Jury to Convict. It is not error to in-1'0 struct the jury that they should find the accused guilty provided they find, beyond a reasonable doubt, the existence of every fact upon which his guilt depends.</p> <p>CRIMINAL LAW: Indefinite Assignment. An assignment of error 11 is wholly insufficient which simply asserts “that the court erred in overruling defendant’s motion for a new trial, and that a new trial should have been granted, under the record in the evidence.”</p>

■Appeal from Fremont District Gowrt. — O. D. Wheeler, Judge. This appeal involves a construction of the will of Ellen P. Monroe, with a view to determining whether it violates our statute against perpetuities, or is void for other reasons urged. The trial court held the will to be valid. We find no argument for appellee.

<p>Appeal from Webster District Court. — E. M. McCall, Judge.</p> <p>Petition to set aside judgment and order a new trial was sustained. Plaintiffs appeal.</p>

<p>Appeal from Monroe District Court. — Seneca Cornell, Judge.</p> <p>Action to construe a will. Opinion states the facts. Decree in the court below is against the construction placed on the will by the intervenor. Intervenor appeals.</p>

— Clarence Nichols, Judge. Action for damages resulted in a verdict for plaintiff and judgment thereon. The facts are stated in a former opinion, found in 159 Iowa 537. The defendant appeals.

— A. P. Barker, Judge. Action for indemnity on a life insurance policy resulted in a directed verdict for the defendant and judgment thereon. Plaintiff appeals.

— Hubert Utterback. Judge. Action to recover damages claimed to have been caused by the catching of plaintiff’s dress skirt upon a defective bar or obstruction on the floor of one of defendant’s cars, while she was engaged in alighting therefrom. At the close of plaintiff’s evidence, there was a directed verdict in favor of the defendant, and plaintiff appeals.

<p>Appeal from Polk District Court. — Lawrence De Graff, Judge.</p> <p>Suit in equity to set aside deed, and to quiet title to land. On trial to the court, the petition was dismissed, and plaintiffs appeal. The material facts are stated in the opinion.</p>

<p>LANDLORD AND TENANT: Voluntary Removal as Defense to 1 Eviction Suit. A landlord, sued by bis tenant for wrongful eviction, may show, on tbe issue whether the tenant’s removal was voluntary or otherwise:</p> <p>1. That he and the tenant had a mutual, oral agreement for the termination of the lease; and</p> <p>2. That, prior to any alleged eviction by the landlord, the tenant had determined to abandon the premises, and was making active efforts to so do.</p> <p>FRAUDS, STATUTE OF: Oral Agreement to Terminate Lease. An 2 oral agreement to terminate a written lease, entered into subsequent to the execution of the lease, is not within the statute of frauds. •</p> <p>CONTRACTS:' Oral Termination of Lease. A mutual, oral agree-3 ment between a landlord and his tenant for the termination of the lease, is supported by a sufficient consideration.</p>

— George Jepson, Judge. Action to quiet title to a certain strip of land. Defense: Adverse possession and acquiescence. Decree for the plaintiff in the court below. Defendants appeal.

— O. D. Wheeler, Judge. Action at law, to recover damages for the alleged flooding of the plaintiff’s land. There was a trial to a jury, and, at the close of the evidence, the court directed a verdict for the defendant. Plaintiff appeals.

<p>Appeal from Linn District Court. — Milo P. Smith, Judge.</p> <p>An action at law to recover damages on account of a deficiency-in the acreage of land sold and conveyed by defendants to plaintiff. There was a judgment for plaintiff, and defendants appeal.</p>

<p>HIGHWAYS: Burden of Proof. One who is on the wrong side of 1 the highway at the time he suffers a collision with another, has the burden to show that his presence on such side was consistent with ordinary care.</p> <p>EVIDENCE: Physical Impossibility. The physical impossibility of 2 a transaction is sufficient reason for wholly rejecting it.</p>

— O. W. Vermilion, Judge. Action to construe a deed. Opinion states the facts. Decree in the court below for the plaintiffs. Defendants appeal.

— -Milo P. Smith, Judge. Action for damages for breach of covenants of warranty. The existence of a right of way easement over the granted premises constituted the alleged breach. The defense was a counterclaim, wherein the defendants alleged that, under their real agreement with the grantee, such easement was excepted from the warranty, and that, by mistake of the scrivener, such exception was not written into the deed. Eeformation of the deed was prayed.

— W. H. McHenry, Judge. Action to recover benefits under an accident insurance certificate. The defense was that the death of the insured resulted from a cause which was-excepted from the operation of the insurance certificate, in that the insured died from asphyxiation by gas. The trial court dismissed the .petition, and the plaintiff appeals.

<p>Appeal from Linn District Court. — F. O. Ellison, Judge.</p> <p>Suit in equity for specific performance of a contract of purchase of real estate. The plaintiffs were the vendors, and sued for the purchase money. Defendant’s demurrer to the petition was overruled, and decree entered for the plaintiffs. The defendant appeals.</p>

— W. J. Springer, Judge. Suit in equity, to set aside conveyance of real estate, and for other relief. On trial to the court, the petition was dismissed, and the plaintiffs appeal. The facts are sufficiently stated in the opinion.

— John W. Anderson, Judge. Action by a physician against the county to recover for services rendered to patients suffering from smallpox. The opinion states the facts. Judgment for defendant in the court below. Plaintiff appeals.

— H. E. Fry, Judge. Action at law to recover the price paid for a span of horses, the' contract of purchase having been rescinded by the purchaser for breach of warranty and false representation as to one of the horses. There was a verdict for the plaintiff, and judgment thereon. Defendant appeals.

<p>Appeal from Sac District Court. — E. G. Albert, Judge.</p> <p>Action to recover money had and received by the defendant on account of the plaintiff. There was a trial to the court, and a judgment for the plaintiff. The defendant appeals.</p>

<p>Appeal from Marion District Court. — J. H. Applegate, Judge.</p> <p>Suit to quiet title. A demurrer to the petition was sustained. Plaintiff appeals.</p>

<p>APPEAL AND ERROR: Harmless Error — Question Excluded and 1 Answer Retained. Sustaining objections to a question after answer has been given is barmless to tbe one propounding tbe question, when the answer was allowed to remain in the record.</p> <p>EVIDENCE: Opinion Evidence — Speed. Competency to estimate 2 speed is a condition precedent to giving one’s judgment as to speed; and a question whether an object was moving “as fast as a man running,” is not allowable, because presenting no standard of comparison.</p> <p>EVIDENCE: Relevancy, Competency, and Materiality — Insurance as 3, TO Bearing on Negligence. Whether one who is sued for -damages resulting from his negligence did or did not carry insurance against such occurrences is wholly immaterial.</p> <p>EVIDENCE: Opinion Evidence — Examination of Experts. Error 4 may not be predicated on the fact that a witness gave expert testimony without first qualifying, when he later qualified, and gave the same testimony.</p> <p>EVIDENCE: Opinion Evidence — Weather Conditions. Whether 5 weather conditions were the same on two different occasions is a question of fact, and not of opinion.</p> <p>EVIDENCE: Opinion Evidence — Competency of Experts. An in-6 competent, opinion may be rendered harmless by a later detail by the witness of his sources of knowledge, and by an explanation which definitely reveals what he meant by the opinion in question.</p> <p>NEGLIGENCE: Instructions — Crossing Street at Points between 7 Public Crossings. Proper for the court to explain to a jury the relative degree of care .exacted of a pedestrian in crossing á public street, (a) at a public crossing provided specially for pedestrians, and (b) at points not so specially provided.</p> <p>NEGLIGENCE: Instructions — Concurrent and Contributory Negli8 gence. Incidental reference, in instructions, to concurrent negligence, in connection with correct instructions on contributory negligence, is harmless error.</p> <p>TRIAL: Instructions — Form, Requisites, and Sufficiency — Repeti9 tions. Repetitions in instructions, of a correct statement of law, do not constitute error.</p> <p>EVIDENCE: Relevancy, Competency, and Materiality — Insurance as 3,10 Bearing on Negligence.</p> <p>NEGLIGENCE: Acts Constituting — Evidence. Evidence reviewed, 11 and held insufficient to show negligence in the operation of an automobile on a much frequented street, at a speed less than that prohibited by ordinance.</p> <p>NEGLIGENCE: Contributory Negligence — Crossing Streets. Look-12 ing up and down a street, before attempting to cross at points other than usual crossing places, cannot be said, as a matter of law, to satisfy the lawful demands for care.</p>

<p>CARRIERS: Non-Diversion of Shipment. A carrier operating un1 der a written, authorized, interstate, live-stock-shipping contract, which provides for limited common-law liability, is not guilty of diverting the shipment, and thereby subject to full common-law liability, by unloading the stock for inspection at the stockyards on its line, nearest the state boundary, in obedience to state quarantine regulations, even though such unloading is in violation of the shipper’s oral instructions, given prior to the •signing of the contract.</p> <p>EVIDENCE: Live-Stock-Shipping Contracts. A written, iive-stock2 shipping contract, complete and. unambiguous, may not be varied by prior oral shipping directions.</p> <p>CONTRACTS: Statutory Regulations as Part of. Regulations made 3 under authority of statute law may, ipso facto, enter into and become a part of a contract. So held as to a common carrier, in unloading stock for health inspection.</p> <p>LIMITATION OF ACTIONS: Second Action as Continuance of 4 Former Action. A shipper who is under contract obligation to bring damage actions within a stated time after loss, and who has consumed such time, and more, in the unsuccessful prosecution of -an action in the name of the wrong party in interest, may not, within six months after such unsuccessful termination, institute and maintain an action in the name of the proper party, on the theory that the latter action is a statutory continuance, of the first. (Sec. 3455, Code, 1897.)</p>

<p>Appeal from Kossuth District Court. — B. F. Coyle, Judge.</p> <p>Appeal from a drainage assessment. The facts are stated in the opinion.</p>

— O. I). Wheeler, Judge. Action brought under the Federal Employers’ Liability Act, to recover damages for personal injury. Opinion states the facts. Judgment was rendered for the defendant in the court below, on a directed verdict. Plaintiff appeals.

— Shelby Cullison, Judge. Action by Dolpb Remy, a minor child, in the name of his next friend, against the city of Shenandoah, for damages caused by a firecracker, striking him in the eye during* a public celebration in that city. The court, at the close of the evidence for plaintiff, directed the jury to return a verdict for defendant.

<p>Appeal from Calhoun District Court. — M. E. Hutchison, Judge.</p> <p>Suit in partition of land formerly owned by Charles D. Bench, who died testate. The controversy is between devisees of the will, and involves a construction thereof. The trial court entered decree awarding to the .widow one third thereof, and to the only child of the testator, the remaining two thirds. Harry Delbert Bench, the contingent devisee, appeals.</p>

W.- Vermilion, Judge. There is involved a construction of so much of the so-called Compensation Act as deals with the basis for computing compensation.