Volume 185 — Iowa Reports

— Hubert Utterback, Judge. The appellant claims to have loaned money to the appellees, as individuals. The counter contention is that these appellees signed as the agents of the Second Christian Church, and are not personally bound. The trial court-adopted their view, and the plaintiff appeals.

<p>ABATEMENT AND REVIVAL: Nature, of Action. Bach of two 1 parties, as hostile principals in an accidental collision, may ' maintain a separate action against the other for his damages, and the action first brought is not pleadable in abatement of the action last brought.</p> <p>MUNICIPAL CORPORATIONS: Right of Way at Intersections. A 2 city may validly determine by ordinance which of two vehicles, traveling on different intersecting streets without change of direction, shall have the right of way in, crossing such intersection. (Sec. 755, Code, 1897.)</p> <p>EVIDENCE: Whether Object Moved Slowly or Rapidly. A witness 3 may not, in the absence of some basis for intelligent comparison, competently give his opinion as to whether an object was moving slowly or rapidly, nor may he, when the basis for comparison appears, make the comparison for the jury.</p> <p>HIGHWAYS: Negligence by Not Yielding Right of Way. The 4 driver of a vehicle who fails to yield the right of way to another vehicle at an intersecting crossing, when he has ample time, and. is under legal obligation to so do, is guilty of negligence.</p>

<p>Appeal from Buena Vista District Cou/rt. — James DeLand, Judge.</p> <p>Action for equitable relief. Petition dismissed, and plaintiff appeals. The facts are stated in the opinion.</p>

— B. F. Cummings, Judge. Action of replevin for the possession of plaintiff’s own cattle, held in distraint by the defendants as trespassing stock. The trial court sustained defendants’ motion for a judgment upon the pleadings, and dismissed the petition. Plaintiff appeals.

— Hubert Utterback, Judge. Plaintiff brought suit in justice of the peace-court to recover $7.85, the alleged value of a barrel of beer consigned to him at Valley Junction, Iowa. The shipment was from Omaha, Nebraska, over the line of defendant’s railway.

<p>Appeal from Linn District Court. — John T. Moffit, Judge.</p> <p>Defendant appeared specially to object to the jurisdiction of the court, because, as it alleged, no proper notice was served. The trial court sustained the defendant’s exceptions, or pleas, to the jurisdiction, and the plaintiff appeals.</p>

<p>WITNESSES: Antecedent Character of Witness. The permissible 1 range of cross-examination may embrace a showing of the depraved habits, antecedents, and character of the witness.</p> <p>WITNESSES: Contradictory Statements. A witness may be im2 peached, on cross-examination, by a showing that he has, on another occasion, made statements which are not only contradictory of his present statements, but wholly at variance with the obvious purpose of his present statements, even though such contradictory statements very seriously reflect on the moral character and credibility of the party to the action who has called the witness.</p> <p>Weaves, J., dissents as to application made.'</p> <p>CRIMINAL LAW: Curing Error. The full withdrawal of non-3 inflammatory testimony, followed by ample admonition to the jury to wholly disregard the same, cures any error in its original reception.</p> <p>CRIMINAL LAW: Oral Instructions. Evidence may be with-4 drawn from the jury by an oral instruction,' — even when given during the deliberations of the jury.</p> <p>TRIAL: Impeachment of Verdict. Jurors may not impeach their 5 verdict by affidavits to the effect that they did not understand the court’s rulings with reference to the rejection of certain testimony. ..</p>

— F. O. Ellison, Judge. ■ The defendant, while serving a term in the penitentiary, is charged in the indictment with and was convicted for having escaped from custody when on a public road and railway, going from his work in a place owned by the state outside of the penitentiary enclosure. He appeals.

— F. M. Hunter, Judge. The defendant, having been convicted upon a charge of stealing chickens, and sentenced to imprisonment in the penitentiary, appeals. The material facts are stated in the opinion.

<p>Appeal from Benton District Court. — B. F. Cummings, Judge.</p> <p>Indictment for cheating by false pretenses. There was a verdict of guilty, and judgment thereon. The defendant appeals.</p>

<p>WITNESSES: Husband and Wife. A wife is not a competent wit-1 ness against her husband-, who is charged with an assault to commit a crime the consummation of which would be a crime against herself. So held on a charge of assault with intent to commit rape. (Sec. 4606, Code Supp., 1913.)</p> <p>APPEAL AND ERROR: Sufficiency of Brief Point. A brief point 2 to the effect that it was error for the court to overrule a seven-pointed motion to direct a verdict, and likewise error to overrule a nineteen-pointed motion in arrest of judgment, is fatally lacking in particularity.</p>

— C. A. Dudley, Judge. Action at law, to recover damages for personal injury. The material facts are stated in the opinion. There was a judgment for the defendant for costs, and plaintiff appeals.

— J. J. Clark, Judge. Action to reform a deed, and to quiet title in the plaintiff. Opinion states the facts. Decree for the plaintiff in the court below. Defendant appeals.

<p>Appeal from Allamakee District Court. — A. N. Hobson, Judge.</p> <p>Action to recover damages for personal injuries received by plaintiff while employed by defendants.</p>

— M. E. Hutchison, Judge. Action to recover damages consequent upon the removal of a second floor constructed by a tenant in one end of the demised building, and a stairway thereto. At the close of evidence, the court, on motion, directed a verdict for defendant, on which judgment was entered. The plaintiff appeals.

— Thomas Maxwell, Judge. Suit to recover damages because defendants engaged in a conspiracy to slander the plaintiff. The defendants are jointly impleaded for this alleged conspiracy, and it is further charged that each and all of them carried out the objects of the conspiracy, and did slander the plaintiff. There were directed verdicts for each of the defendants, jointly and severally, and plaintiff appeals.

— F. M. Edwards, Judge. . The compensation statute committee on arbitration made the plaintiffs an award, on the ground that their son had met his death through injury in the course of employment by defendant. The industrial commissioner, sitting in review, modified this award. The parents claim that they, duly removed this finding to the district court.

<p>JUDGMENT: Absence of Prayer. Prayer for relief is just as es-1 sential as plea and proof. S.o held where personal judgment was erroneously entered in the absence of any prayer therefor.</p> <p>APPEAL AND ERROR:( Failure to Question Insufficient Cause of 2 Action. A legally insufficient cause of action becomes' sufficient, in the absence of attack thereon in the trial court.</p> <p>PLEADING: Necessity for Prayer, Etc. Plea, prayer, and proof 3 are essential conditions precedent to the entry of judgment. So held where the court erroneously entered judgment in the absence of either plea or prayer.</p> <p>CORPORATIONS: Equitable Ownership of Property. Property 4 purchased by an officer of a corporation in his own name, with funds paid him by the corporation as compensation for official services, does not equitably belong to the corporation, simply because no formal contract existed as to what compensation should be paid for such services.</p> <p>FRAUDULENT CONVEYANCES: Reliance on Representation. One 5 may not predicate reliance on a representation which is contradicted by an authorized public record, of which he is charged with notice, and by his own personal knowledge.</p>

<p>Appeal from Scott District Court. — F. D. Letts, Judge.</p> <p>The plaintiff prayed that the collection of a sewer tax be enjoined. To its petition a demurrer was interposed and sustained. As plaintiff elected to stand on the ruling, the petition was dismissed. Plaintiff appeals.</p>

— George W. Dun-ham, Judge. Suit by an administrator to recover for the negligent killing of his decedent. At the close of plaintiff’s evidence, there was a directed verdict for the defendant, and the plaintiff appeals.

— W. H. Fahey, Judge. The defendant was convicted of the crime of shooting with a gun at a dwelling, with intent to injure or deface the same, and appeals.

<p>Appeal from Marshall District Court.- — Clarence Nichols, Judge.</p> <p>This case is now before us for decision on rehearing. The material facts are recited in the opinion.</p>

<p>Appeal from Polh District Court. — Lawrence De Graff, Judge.</p> <p>Defendant was informed against and accused of the crime of operating a motor vehicle without proper lights. He appealed to the district court. The trial court found defendant not guilty, and the State appeals.</p>

— Henry Silwold, Judge. Suit in partition of lands. The plaintiff averred that he was the owner of an undivided one half thereof, and that defendant was the owner of the other undivided one half. He averred, also, that he had discharged incumbrances upon. the property, amounting to about $25,000, aud be prayed that he have contribution from the defendant of one half thereof, and that he have a lien upon her undivided one half for the payment of the same.

<p>APPEAL AND ERROR: What Notice Brings Up. An appeal 1 “from the judgment and decree entered in said cause against the plaintiffs,” leaves no part of said judgment as the law of the case on appeal — brings up the decree in its entirety.</p> <p>WILLS: Life Estate (?) or Naked Use (?) A devise which pro-2 vides that devisee</p> <p>(a) shall live upon the real estate,</p> <p>(b) shall have the right to make any use of it which he may desire,</p> <p>(c) shall have all proceeds therefrom, *</p> <p>(d) shall pay all taxes and insurance and make all repairs,</p> <p>(e) shall pay interest on a specifiéd indebtedness,</p> <p>(f) shall support a sister so long as she does his housework,</p> <p>(g) may sell, on a price consented to by other heirs, and</p> <p>(h) shall, “after the property is sold,” have $1,000 out of the proceeds, the balance to be divided among other heirs, 'does not grant a life estate, — grants nothing but a use for a specified compensation, — but does grant the $1,000 to devisee after any authorized sale, howsoever made.</p> <p>WILLS: Unreasonableness, 'me claim of unreasonableness nee-3 essarily falls, unless the will and the proper extraneous matters reveal the facts from which unreasonableness may be deduced.</p> <p>WILLS: Construction Leading to Intestacy. The law is abhorrent 4 of any construction of a will which will lead to even partial intestacy.</p>

<p>Appeal from Black Hawk District Court. — Franklin C. Platt, Judge.</p> <p>The petition of the plaintiff, appellant, alleges, in effect, that defendants bought of Collins eleven promissory notes, which were the property of plaintiff, and made by it to its own order, and endorsed by it in blank; that but a small part of the purchase price was paid in cash, and the balance in property; that, so, defendants have wrongfully converted so much of the purchase price as was paid other than in cash: and judgment is prayed for the difference between the value of the notes and the lesser sum paid for them in cash. Defendants, in effect, make general denial, and plead certain affirmative defenses as constituting a waiver of whatsoever rights plaintiff might otherwise have had, and as an estoppel to complain that other than cash was paid.</p> <p>By stipulation, the defendant and appellee Citizens Savings Bank has been eliminated from the suit.</p>

<p>Appeal from Taylor District Court. — Thomas L. Maxwell, Judge.</p> <p>Action in detinue resulted in its dismissal. The plaintiff appeals.</p>

<p>Appeal from Decatur District Court. — H. K. Evans, Judge.</p> <p>Defendant was convicted of violating an ordinance of the town of Decatur, and appeals.</p>

— J. W. Anderson, Judge. Action for purchase price of a steam-turbine, sold by plaintiff to defendant. Judgment for plaintiff. Defendant appeals. The facts are stated in the opinion.

<p>GUARDIAN AND WARD: Former Incompetency as Bearing on 1 Present Incompetency. On the issue whether a guardian should be appointéd, the real test is incompetency at time of trial; but evidence of incompetency .prior thereto may carry a presumptlon of incompetency down to and at the time of trial. Evidence reviewed, and held' to fully overthrow the presumption.</p> <p>INSANE PERSONS: Explaining Unequal Distribution of property. 2 Inferences of incompetency, arising from the fact that the one sought to be placed under guardianship had made a very unequal distribution of her property among her children, may be explained by evidence showing that the distribution was, under the circumstances, eminently fit, reasonable, and proper.</p> <p>GUARDIAN AND WARD: Defendant as a Testifying Exhibit. A 3 jury, finding of incompetency is not necessarily conclusive on the appellate court by reason of the fact that the jury had the advantage of personally observing the alleged incompetent while she was a witness.</p>

— F. F. Dawley, Judge. The plaintiffs, who owned 80 acres of land, entered into a contract with defendant, employing him to act as agent in the exclusive supervision of the sale and conveyance thereof. Defendant found a purchaser, to whom the land was sold for $8,000, as of March 1, 1916, upon the delivery of deed and possession.

<p>Habeas Corpus Proceedings. — John F. Talbott and K. E. Willcockson, Judges.</p> <p>The facts appear in the opinion.</p>

<p> Original Proceedings in Habeas Corpus. </p>

— Chas. A. Dudley, Judge. Action on nine promissory notes, executed by the Mammoth Vein Coal Company, November 1, 1915, to the Goodman Manufacturing Company, and indorsed by J. A. J. Powers, aggregating $917.94, aided by garnishment proceedings. Defendants interposed a plea in abatement, and, by way of counterclaim, prayed for damages consequent on the wrongful suing out of the writ of attachment.

— F. 0. Ellison, Judge. The defendant appeals from a judgment awarding the plaintiff damages alleged to have been sustained by reason of the negligence of the defendant.

— Thos. J. Guthrie, Judge. Suit, for a mandatory writ to compel defendant to remove an alleged obstruction from one of the principal streets of plaintiff incorporated town. Decree as prayed.

— H. K. Evans, Judge. The board of supervisors of Ringgold County, acting upon the petition of a number of landowners, ordered the establishment and improvement of Drainage District No. 1. Certain objectors appealed from said order to the district court of that county, where the action of the board was sustained. From that judgment, futher appeal brings the matter to this court.

<p>Appeal from Des Moines Municipal Court. — J. E, Meyer, Judge.</p> <p>Action to recover damages for injury to property, caused by a collision with a train. Opinion states the facts. Directed verdict for the defendant in the court below. Plaintiff appeals.</p>

<p>Appeal from Appanoose District Court. — D. M. Anderson, Judge.</p> <p>Action upon a judgment by confession upon warrant of attorney of record in Cook County, Illinois.</p>

— C. W. Vermilion, Judge. Plaintiff alleged in her petition that a team of horses, which she was driving upon one of the streets of defendant city, became frightened at an excavation and some obstructions in the street, causing her to be thrown from the buggy and severely injured, her buggy to be broken and damaged, and one of the horses so injured that it had to be killed. There was judgment upon the verdict of the jury in her favor for $1,000, and defendant appeals.

<p>Appeal from Polk District Court. — Thos. J. Guthrie, Judge.</p> <p>The opinion states the case,.</p>

<p>TAXATION: Treaty Limitations. A treaty provision to the effect that the alien, nonresident “representatives” of an intestate resident of this state shall succeed to the estate on the same terms as the inhabitants of this state may succeed thereto, includes “heirs,” etc., and limits the collateral inheritance tax to 5 per centum.</p>

<p>CONTRACTS: Forfeitable Land Contracts. Forfeitures of land 1 contracts for breach of contract conditions must he worked out through the 30-day notice provided by Sec. 4299, Code Supp., 1913.</p> <p>ASSIGNMENTS: Land Purchase Contracts. A contract for the pur2 chase of land on monthly payments is assignable.</p> <p>CONTRACTS: Forfeiture — Inconsistent Conduct. A party to a con-3 tract may not demand and receive the amounts due under a ■contract, and later, without any change of condition intervening, claim that the contract has been forfeited.</p> <p>VENDOR AND PURCHASER: Contract for Warranty. A contract 4 to give a warranty deed conclusively implies a warranty against all incumbrances, even though vendor describes that which he sells as “all my right, title, and interest.”</p>

Certiorari from Polk District Court. — Lawrence De Graff, Judge. Certiorari- to test the right of a commission appointed under the Workmen’s Compensation Act to hear and determine the liability of a railroad company to its employee, when the injury arose at a time when both were engaged in interstate commerce.

— Thomas Arthur, Judge. This case involves the right of a widow to support out of the estaté of her husband, because of the provisions of an antenuptial contract. Opinion states the facts. Demurrer to the petition or claim of plaintiff sustained in the court below. Claimant appeals.

<p>RELEASE: Unintentional Misstatement of Present Fact. A state-1 ment by a physician that an injured party “was all right to go to work,” “was all healed up,” “was just as good as ever,” based on the injured party’s apparent condition, and on the history of his injury, is a statement of present fact, and, if untrue, even unintentionally so, is sufficient to avoid a release entered into in full reliance that such statement was true.</p> <p>RELEASE: Release at Law. The avoidance of a release on the 2 ground of mutual -mistake may be had in an action at law.</p> <p>RELEASE: Return of Consideration. A release may be avoided for 3 mutual mistake without returning the consideration received for the release, when it appears that the consideration was given to the injured party for known and acknowledged injuries, and for nothing else, — i. e., loss of time. And evidence is'admissible to, show for what the consideration was given.</p> <p>APPEAL AND ERROR: -Belated Objection to Pleading. Inconsist4 ency in pleading both fraud and mutual mistake in avoidance of a release may not be urged for the first time on appeal.</p> <p>RELEASE: Fraud — Jury Question. Semble, that a positive state-5 ment by the physician of a railway company, untrue in fact, that an employee “was as good as ever,” made with full knowledge that the statement would be used as a basis for settlement with the company, is sufficient to carry to the jury the issue of fraud in the subsequently executed release.</p>

— George Jepson, Judge. Action to recover a balance due on the sale of certain wool. Opinion states the facts. Verdict and judgment for the plaintiff in the court below. Defendant appeals.

— O. D. Wheeler, Judge. Action to recover a certain amount of money which it is claimed was overpaid to the contractor for the construction of a certain ditch in Drainage District No. 10, of Pottawattamie County. Demurrer to the petition sustained by the court. Plaintiffs appeal.

— N. J. Lee, Judge. Action to recover damages for injury to property. The opinion states the facts. Verdict and judgment for the plaintiff in the court below. Defendant appeals.

— F. M. Edwards, Judge. Action to recover commission for the sale of real estate. Directed verdict for the defendants. Plaintiff appeals.

— James W. Willett, Judge. Action in equity to construe a will. The trial court construed the will in accordance with plaintiffs’ contention, and defendants appeal.

— W. Gr. Sears, Judge. Plaintiff has verdict and judgment 'for the alleged reasonable value of labor performed in the bakery of defendants. They appeal.

— H. Gr. Evans, Judge. Action at law to recover damages from defendants, for assault and battery. Trial to a jury, verdict for the defendants, and judgment against plaintiff for costs. Plaintiff appeals.

— George Jbpson, Judge. Action for damages for assault and battery. There was a verdict for the plaintiff for $200. On motion of the defendant, the trial court ordered a new trial. The plaintiff appeals.

- — D. M. Anderson, Judge. Action for personal injuries to plaintiff, while in the employ of the defendant, in operating a stump puller. There was a trial to a jury, and a verdict for plaintiff. Defendant appeals.

<p>Appeal from Cerro Gordo District Court. — Joseph J. Clark, Judge.</p> <p>Action for damages consequent on being burned as the result of an explosion, resulted in judgment against the defendant, from which it appeals.</p>

— W. G. Sears, Judge, Action in replevin to recover the possession of 4,000 bushels of corn. The right of possession was claimed by virtue of a contract of purchase of same from defendant Reddix. Reddix had a three-fifths share of the com, as the tenant who raised'the same. The defendant Henning had a two-fifths share thereof, as the landlord of Reddix. The defendant Turin Savings Bank had a mortgage on the three-fifths interest of Reddix.

<p>CONTRACTS: Combined Contract of Sale and Lease. A contract , 1 in the dual form of a contract (1) of sale of lands, and (2) of a lease of the premises at a stipulated rental per month, will he construed as applying the rent payments to the purchase price, when such is the purpose of the contract when construed as a whole.</p> <p>COSTS: Cost of Transcript. No authority exists for the making of 2 a transcript of the evidence during the trial and taxing the cost thereof as costs in the case and making such costs a lien on the property involved.</p>

<p>Appeal from Woodbury District Gourt. — J. W. Anderson, Judge..</p> <p>Appeal from an order denying exemption of certain property from taxation.</p>

— Oscar Hale, Judge. Action for damages for negligence resulting in the death of plaintiff’s intestate. At the close of the evidence, there was a directed verdict for the defendants.

— Lorin N. Hays, Judge. Suit to enjoin the sale of the undivided one-fourth interest of Melissa Livasy in 120 acres of land resulted in a decree as prayed. The defendants appeal.

— Seneca Cornell, Judge. Suit in replevin to recover the possession of a new Overland automobile. The right of possession in plaintiff is laid upon the alleged fact that the plaintiff had purchased and paid for the same.

— John T. Moffit, Judge. Action in equity by the executor of a deceased surety on a note, to recover the amount paid in satisfaction of the note. Plaintiff claimed that defendant and her husband were principals, and that the deceased was surety.

<p>Appeal from Union District Oowrt. — H. K. Evans, Judge.</p> <p>Suit to recover rent. Judgment for plaintiff. Defendant appeals.</p>

— J. B. Bockafellow, Judge. The appellee made a claim upon the estate of his father, George Parnham, for money expended in making permanent repairs and improvements upon certain lands leased to claimant by his parents in their lifetime. The trial court allowed him less than he claimed, but he does not appeal. Certain heirs at law have appealed from the allowance that was made.

— Homer A. Fuller, Judge. Contest of the will of Mary Casey. The contestant is a daughter, for whom no provision was made in the will. The ground of contest was an alleged insane delusion .on the part of the testatrix. There was a verdict for proponents, and contestant appeals.

— Thomas Guthrie, Judge. Action at law for damages for the breach of an oral contract for services. The defendant’s demurrer to the petition was sustained, and judgment was rendered against plaintiff for costs. The plaintiff appeals.

— H. K. Evans, Judge. Action for damages consequent upon a verdict for defendant and judgment thereon. The plaintiff appeals.

<p>Appeal from Mahaska District Court. — Henry Silwold, Judge.</p> <p>Dependant was indicted for perjury, convicted, and appeals.</p>

— Henry Silwold, Judge. This defendant, together with Robert and Rudolph Steinke, was indicted by the grand jury, charged with the crime of assault with intent to commit great bodily injury. A demurrer to the indictment was overruled, and, defendants demanding a separate trial, this defendant was first tried to a jury, and convicted of assault and battery; and judgment was pronounced, by which said defendant was committed to the county jail for 30 days. He appeals.

— C. W. Vermilion, Judge. Certiorari proceedings to test the authority of a board of supervisors in establishing a highway. On hearing, the proceedings were dismissed. Plaintiff appeals.

<p>Appeal from Hamilton District Court. — R. M. Wright, Judge.</p> <p>Appeal from refusal to dissolve a temporary injunction, granted at the suit of the plaintiff town.</p>

— J. W. Anderson, Judges. Action at law to recover $500 purchase money paid upon a land contract which the plaintiff rescinded on account of alleged breach by the defendant. There was a verdict for the plaintiff, and the defendant appeals.

— W. S. Hamilton, Judge. Plaintiff and appellant charged that certain negligence of appellee in driving an automobile caused a collision between said automobile and a motorcycle upon which plaintiff was riding, and that thereby she was injured. She appeals because the court directed the jury to return a verdict against her.

— F. D. Letts, . Judge. Appeal from the judgment1 of the court below, affirming the finding of the town council of the incorporated town of LeClaire, sitting as a board of equalization.

<p>Appeal from Buchanan District Court. — Chas. W. Mullan, Judge.</p> <p>Suit in equity for the partition of real estate.</p>

— R. P. Howell, Judge. Action to enforce the specific performance of an oral contract. The opinion states the facts. Decree dismissing plaintiffs’ petition in the court below. Plaintiffs appeal.

— 1ST. J. Lee, Judge. Action to rescind a written contract for the sale and exchange of land. Opinion states the facts. Decree for the plaintiff in the court below. Defendants appeal.

— John F. Talbott, Judge. This is au action for damages claimed to have resulted from the publication of alleged libelous statements. The court, at the close of the evidence, sustained defendant’s motion for a directed verdict, and plaintiff appeals.

<p>FRAUDS, STATUTE OF: Promise to Pay Debts of Old Partnership. 1 The oral promise of an incoming partner, on a consideration personal to himself, to pay the debts of the old partnership, is not within the statute of frauds.</p> <p>PARTNERSHIP: Estoppel by Holding Out. He who holds himself 2 out as a partner is thereby estopped to deny liability as a partner to any creditor who relies thereon.</p>

<p>Appeal from Guthrie District Court. — J. H. Applegate, Judge.</p> <p>Appeal from an assessment for the cost of paving street intersections.</p>

<p>DEEDS: Non-Conflicting Habendum and Granting Clauses. A habendum clause which provides:</p> <p>(a) That the conveyance shall be nullified as to a grantee who sells the premises prior to the death of grantor;</p> <p>(b) That the grantor retains the income, use, control, and possession during his lifetime; and</p> <p>(c) That a named sum shall be a charge on the land and payable to a named person by grantee after grantor’s death,— is not irreconcilable with or repugnant to a general granting clause which makes no pretense of defining the estate granted.</p>

<p>Appeal from Sioux District Gou/rt. — W. D. Boies, Judge.</p> <p>Action for damages for the value of certain personal property, claimed to be exempt, which was sold by the sheriff upon execution.</p>

<p>NEGLIGENCE: Performing Act in Ordinary Way. It is not neg-1 ligence to perform an act in the manner in which such an act . is ordinarily performed.</p> <p>NEGLIGENCE: Non-Causative Connection. Negligence without 2 causative connection with injury becomes immaterial. So held as to an explosion of inflammable oil.</p>

— W. J. Springer, Judge. Action in equity to cancel certain deeds and a bill of sale on the ground that there was no delivery made during the lifetime of the grantor. Decree was entered for the plaintiff. Defendants appeal.

<p>Appeal from Lucas District Court. — D. M. Anderson, Judge.</p> <p>Convictipn for seduction. Defendant appeals.</p>

<p>WORDS AND PHRASES: Sidewalks. A sidewalk is a part of the 1 street expressly reserved for pedestrians, and constructed differently from other portions of the street.</p> <p>STATUTES: Construction — Delegation of Authority to Cities and 2 Towns. The legislature has plenary power over the streets and highways, and may delegate such authority to the cities and towns within which the streets are located; and the power to control, improye, and repair the streets is conferred on cities and towns, under Section 753, Code, 1897, and Sections 751 and 792, Code Supp., 1913, without any prescription as to the manner of so doing.</p> <p>MUNICIPAL CORPORATIONS: Powers — Jurisdiction of Courts— 3 Arbitrary and Oppressive Acts of City Council. Where certain powers are conferred on the city council, and the manner or mode of performance has not heen directed hy the legislature, such manner or mode ought not to be arbitrary or oppressive; and when this is attempted, the courts may interfere, and prevent an unreasonable course on the part of the city in carrying out what the city council has enacted.</p> <p>lyfUNICIPAL CORPORATIONS: Powers — Improper Mode or Manner 4 of Performance of Powers. Courts cannot interfere with the acts of a city under a power clearly conferred by the legislature, but may interfere to prevent the arbitrary and unreasonable or oppressive mode or manner of performing what the city council, in its legislative discretion, may order or require.</p> <p>MUNICIPAL CORPORATIONS: Powers — Arbitrary and Unreason5 able Acts — Reducing Width of Sidewalks. Allegations of a petition that the city .council acted arbitrarily and unreasonably in passing a resolution reducing the sidewalks to five feet in front of plaintiff’s office building held insufficient t<3 justify the interference of the courts, the petition failing to show that the street was not similarly narrowed on other portions of the street other than opposite plaintiff’s building, and that the width of the street may not have been apportioned between pedestrians and the general traffic in strict conformity to the necessities of each; and held that the facts alleged in the petition were not sufficient to show that the acts complained of were arbitrary, unreasonable, and oppressive, or, to overcome the presumption that the city council had not acted otherwise than legally and in good faith.</p>

— D. M. Anderson, . Judge. Originally, this was a suit in equity to reform a deed. By subsequent amendment, it became a suit to construe a deed and to quiet title. There was a decree for the plaintiffs, and the defendants appeal.

— Seneca Cornell, Judge. .Suit'to subject certain land to the payment of three judgments resulted in the dismissal of the petition. The plaintiff appeals.

<p>MUNICIPAL CORPORATIONS: Municipal Water Plant — Taxation. 1 Under Sections 724, 747-a, 748, and 894, Subdiv. 5, Code Supplement, 1913, and Sections 749, 750, Code, 1897, the duty and power of the waterworks trustees is not alone confined to tbe fixing of rental rates, but also extends to tbe estimating tbe deficit, if any, to be provided for by the tax; and upon the performance of this duty by the trustees, the city council is obliged to levy the tax therefor, provided the trustees have not transcended the provisions of the statutes; and this obligation of the city and its agencies is not optional nor discretionary, but is mandatory, that a sufficient sum total be provided for the maintenance of the plant.</p> <p>MUNICIPAL CORPORATIONS: Municipal Water Plant — Taxation 2 —Levy to Produce Surplus. The allegations of answer that the levy sought to be made in a suit of waterworks trustees against a city council would only increase a surplus held good on demurrer, as trustees have no statutory duty to accumulate a surplus.</p>

— G. D. Thompson, Judge. Action for damages for the wrongful death of plaintiff's decedent. At the close of the evidence, the trial court directed a verdict for the defendant. The plaintiff appeals.

— E. M. McCall, Judge. This case involves an appeal from the action of the town council of defendant town, sitting as a board of review, in' raising the assessment for moneys and credits against appellee $25,000, on account of a contract which appellee says was an option contract, and not properly assessable as moneys and credits; but appellant contends that it is a contract of sale for the sale of real estate, and has been so treated by the parties, and is. properly…

— R. P. Howell, Judge. This is the second appearance of this cause in this court. See 162 Iowa 525. Held: as matter of law, that there had been a binding employment, and that the only question for the jury was the amount due for the services.

— Seneca Cornell, Judge. Controversy over the ownership of certain bank deposits, which were represented by passbooks. The deposits in question were made in his lifetime by Grant Buckner, now deceased. The plaintiff is his administratrix, and as such, claims the amount of the deposits. The controversy involves separate deposits in two banks.

— O. D. Wheeler, Judge. Suit in partition of lands in the name of A. H. Dolph at the time of his death. By way of cross-petition and petition of intervention, the widow and children of J. H. Dolph alleged that 954 acres of the land had been conveyed to J. H. Dolph, and prayed that title thereto be quieted in them. The plaintiff, as widow of A. Iff. Dolph, alleged that, if J. H. Dolph acquired said land, this was in fraud of her marital rights.

Apjjeal from Polk'District Gourt. — W. H. McHenry, Judge. This action is prosecuted in the name of the administratrix of the estate of Franklin J. Milligan, against Clyde L. Herring, doing business as the Herring Motor Company, the Herring Motor Supply Company, the Herring Motor Company, the Ocean Accident and Guarantee Corporation, and the Des Moines Union Railway Company, for damages resulting from injuries which, it is alleged, were negligently inflicted upon Milligan,…

— F. M. Powers, Judge. Judgment oil promissory notes went against defendant J. C. Smith, despite defense by him and his codefendants, his sureties, that no valid consideration supports the notes, and that they had been materially altered. From this judgment, no appeal has been taken. A further defense was that the notes were obtained by fraudulent representations. The sureties were released. Hence, plaintiff appeals.

<p>INSURANCE: Negative Conditions Precedent. A policy which 1 provides (1) for a general stated' indemnity in case of death from accident, but (2) for a reduced indemnity in case the death results from a particular kind of accident unless specified exculpating circumstances attend such latter accident, imposes the obligation on the insurer, in order to escape by payment of such reduced indemnity, to allege and prove that the specified exculpating circumstances did not exist.</p> <p>‘PRINCIPLE APPLIED: A policy provided for a general indemnity of $5,000 in case of accidental death. It also provided for $1,000 only, in case death resulted (1) from the overturning of an automobile, or (2) from the insured’s being thrown from an automobile, unless the automobile (a) was struck by a train, or (b) by another automobile, without fault of the driver ol the automobile in which the insured was riding. The proofs of loss simply showed that death resulted from the overturning of an automobile, and that there were no eyewitnesses. Held: (1) that the proofs were sufficient for a $5,000 recovery; and (2) that the insurer must plead that the automobile was not struck by a train, and was not struck by another automobile.</p> <p>WORDS AND PHRASES: “Unless.” “Unless” is often employed 2 as equivalent to “except.”</p> <p>EVIDENCE: Negative Conditions. He who so draws his contract 3 as to assume both a general liability and a special but lesser liability dependent on a negative condition precedent, has the burden, in order to escape with the lesser liability, to prove that the exempting conditions did not exist.</p> <p>PRINCIPLE APPLIED: See No. 1.</p>

<p>RAILROADS: Self-Preservation and Reliance on Signals. The pre1 sumption that a person will act in harmony with the recognized instinct of self-preservation, aided by the legal right ot deceased to- rely on the giving of warning signals by an engine crew in approaching a public crossing, at great speed, on a daTk night, may create a jury question on the issue of deceased’s negligence in entering upon such crossing, even though, under other conditions of light at the same place, the deceased might have had an unobstructed and safe view of an approaching t-rain for a distance varying from 260 feet to one-half mile.</p> <p>DEDICATION: Conclusive Intent. Intent on the part of an owner 2 of land to dedicate the same for a public highway will not be conclusively presumed on a record showing:</p> <p>1. That, for at least 20 years, the public had continuously and generally used, as a public highway, a well-defined railway grade, which had been abandoned for switching purposes.</p> <p>2. That, during said time, the public authorities Improved said way as a public highway.</p> <p>S. That, until about the end of said time, the railway company maintained a crossing where said abandoned grade touched its main line, but then removed said crossing, owing to the fencing of said way by the presumed owner thereof.</p> <p>HIGHWAYS: Dedication by Conduct. Conduct on the part of an 3 owner of land, when relied on to show a conclusive intent to dedicate the land for highway purposes, must be unequivocal. ■So held where the record showed travel and public improvement for many years, but revealed uncertainty (a) as to the ownership of the land during part of the time, and (b) as to the extent and nature of the original right in the land.</p> <p>RAILROADS: Estoppel to Dispute Public Nature of Crossing. A i railway may not be estopped from insistirig that, at the time of an accident, a crossing was not public, when it had removed said crossing and ceased the maintenance of the same long prior to the accident in question.</p>

<p>Appeal from Hamilton District Court. — R. M. Wright, Judge.</p> <p>Action to recover on a written contract. There was a verdict for the defendants and judgment entered thereon. The plaintiff appeals.</p>

<p>Appeal from Polk District Court. — Thomas J. Guthrie, Judge.</p> <p>On motion of defendant, the entire cause was transferred to the equity side of the calendar. From this ruling, the plaintiff appeals.</p>

<p>MUNICIPAL CORPORATIONS: Taxation — Agricultural Lands— ■ Electric Light System. Lands within city limits, occupied and used in good faith for agricultural purposes, and not divided into parcels of 10 acres or less, are exempted, under Section 616, Code Supp., 1913, from all city taxes except for road purposes, and cannot be taxed for electric lighting purposes, under Section 894, ¡Subdiv. 6, Code Supp., 1913.</p>

— B. M. Wright, Judge. Action for damages for false representations, whereby the defendant obtained from the plaintiff a relinquishment of plaintiff's interest in certain property owned jointly by plaintiff and defendant. There was a Verdict for the plaintiff, and the defendant appeals.

— H. E. Fry, Judge. Action of replevin against the defendant Weeks and his successors in title to recover property obtained by Weeks from the plaintiff by false and fraudulent representations. There was a trial to a jury, and a verdict for the plaintiff. The defendant appeals.

— R. M. Wright, Judge. Appeal from a drainage assessment. In the district court, the assessment made by the board of supervisors was confirmed. From such order, the plaintiff appeals.

<p>BRAINS: Assessment of Benefits — Reduction of Assessments. Evidence reviewed, and field that assessments made against landowner for the drainage ditch were inequitable, and should be reduced.</p>

<p>INTOXICATING LIQUORS: Nuisance — Sales By Druggist. Evi1 dence reviewed, and held sufficient to sustain a finding that a druggist sold intoxicating liquors as a beverage.</p> <p>INTOXICATING LIQUORS: Presumptions — Burden of Proof as to 2 Registered Pharmacist. An instruction that the presumption arising from the finding- of intoxicating liquors in the place of business of a druggist, who was a registered pharmacist, was that the same were kept for the purpose of illegal sale, held correct, when taken in connection with other instructions that (a) the jury should take into consideration the evidence, if any, of-sales, and that (b) the jury could not convict the defendant unless they found that he used said building for the purpose of selling intoxicating liquors therein, or kept intoxicating liquors in said building for the purpose of sale.</p> <p>INTOXICATING LIQUORS: Nuisance — Burden of Proof as to Reg-3 istered Pharmacist. While, under Section 2385, Code, 1897, a registered pharmacist can purchase intoxicating liquors other than malt, for the purpose of compounding medicines that cannot be used as a beverage, yet he is not authorized to manufacture or sell any compound that may be used as a beverage, and the burden is upon him to show that intoxicating liquors found in his place of business are kept for a lawful purpose.</p> <p>INTOXICATING LIQUORS: Instructions — Liquor Statutes to be 4 Construed to Prevent Evasion. Instruction of the court to the jury that the liquor statutes should be so construed by the courts and jurors as to prevent evasion, held correct, under Section 2431, Code, 1897.</p> <p>TRIAL: Verdict — Impeachment—Affidavit of Jurors. A verdict may 5 not be impeached by affidavits of two of the jurors that, but for a certain instruction, the jury would have returned a verdict of not guilty, or would have disagreed.</p>

— R. M. Wright, Judge. Action to recover $500, which plaintiff, appellee, claims is due from defendant, because he, plaintiff, as a tenant, vacated 240 acres of land, pursuant to the terms of a written contract. Plaintiff asked a reformation of the contract, which was denied, bnt the court rendered judgment, against the defendant for $500, and defendant appeals.

— H. B. Boies, Judge. Suit in partition resulted in an order for the sale of the real estate, an order distributing same among the three tenants in common, and the satisfaction of four mortgages executed by one of them, Mary Walker Bisby, on her undivided one third thereof, from her portion of the proceeds. She appeals.

— George Jepson, Judge. A warrant was duly issued and placed in the hands of the defendant as constable, who placed Dunahoo under arrest. Thereupon, he sued out a writ of habeas corpus, and on hearing, was discharged. Defendant appeals.

<p>Appeal from Blade Hawlc District Court. — George W. Dun- . • ham, Judge.</p> <p>On August 14, 1915, the plaintiff, a dealer in laundry machinery, entered into a contract for the conditional sale of certain machinery to one Wilson, doing business under the name of Everybody’s Laundry, such machinery to be shipped to the purchaser, at Waterloo, Iowa, but the title to and the ownership of the same to remain in the seller until the , agreed price, $2,642.50, was paid. The terms of the conditional sale, as proposed, were reduced to writing, signed by Everybody’s Laundry Company and by the plaintiff, American Laundry Machinery Company, and C. F. Noftzger, salesman. This writing was acknowledged by the said Noftzger and placed on record in the office of the recorder of Black Hawk County. The machinery was shipped to and received by the Everybody’s Laundry, and kept in its place of business in Waterloo.</p> <p>In May, 1917,- while having the machinery in its possession, under the terms of the said contract, and while there still remained unpaid upon the purchase price a remainder of $1,459.61, the purchaser was adjudged a bankrupt, and’ one F. P. Ballon was appointed trustee of the estate in the bankruptcy proceedings. In the list of creditors filed by the bankrupt in said proceedings, there was included the name of the American Laundry Machinery Company, as a creditor, to the amount of $1,459.61, and in the “description of securities” for said debt, there was a written statement, “Conditional sales contract securing notes.” The trustee declining to recognize the plaintiff’s right to a lien on the machinery for the unpaid amount of the debt, this action was brought by plaintiff to establish its said claim. After the action was begun, and before the matter came up for hearing, the trustee, by agreement with the plaintiff, sold the property, and the proceeds thereof have been preserved and brought into court, to be disposed of according'to the rights of the parties as they shall finally be determined and adjudged herein.</p> <p>Trial was had and the case submitted for decision upon the pleadings filed and a stipulation of facts. The court found for the defendants, and the plaintiff appeals.</p>

— W. D. Boies, Judge. The nature of the issues and the material facts in the two above-entitled causes, which were consolidated for the trial in the court below, - will be found sufficiently stated in the following opinion.

Sioux District Court. — William Hutchinson and W. D. Boies, Judges. Appeal from the action of the court in setting aside default judgments. Opinion states the facts.

<p>Appeal from Humboldt District Gowrt. — N. J. Lee, Judge.</p> <p>An appeal from the action of the court in refusing to set aside a decree of foreclosure. Opinion states the facts. Plaintiffs appeal.</p>

<p>CRIMINAL LAW: Trial — First Objection on Appeal. Objection to 1 part of an opening statement cannot be made for tbe first time on appeal.</p> <p>CRIMINAL LAW: Trial — Remarks of Counsel — Failure to Prove 2 Claims Made in Opening Statement. Failure of tbe State to prove tbe claim made in good faitb by tbe county attorney in bis opening statement to tbe jury, that tbe State expected to prove that tbe defendant bad in bis possession liquor, a few days before tbe sale for which be was on trial, did not constitute reversible error.</p> <p>WITNESSES: Corroboration — Evidence. Where a witness tes3 tified that a bottle of liquor which he purchased from defendant had been drunk by himself and another person, testimony of the other person that, on that day, he drank with the purchaser, who appeared to be intoxicated, whisky from a bottle, was admissible, as corroborating the purchaser in his statement that he had purchased the whisky, and also as showing that the contents of the bottle were intoxicating.</p>

<p>Certiorari to Black Hawk District Court. — O. W. Mullan, Judge.</p> <p>The opinion states the case.</p>

— Henry Silwold, Judge. Action at law to recover damages on account of alleged misrepresentations concerning land conveyed to the plaintiff. There was a verdict for the plaintiff, and from the judgment entered thereon, the defendant appeals.

<p>Appeal from Lee District Court. — W. S. Hamilton, Judge.</p> <p>Action to recover damages for injuries claimed to have resulted from a fall upon defendant’s sidewalk. At the conclusion of plaintiff’s evidence, the court directed a verdict for the defendant. Plaintiff appeals.</p>

<p>Appeal from Polio District Court. — Lawrence HeGraff, Judge.</p> <p>Appeal from the action of the court in refusing to set aside default.</p>

— W. D. Boies, Judge. Action at law upon an oral contract for the sale of corn. Verdict and judgment for the plaintiff, and defendant appeals.

— C. W. Vermilion, Judge. This case involves the right of the city to enjoin the defendant from the use of a certain strip of land claimed to have been occupied by the defendant for ten years. The strip occupied was a part of the street. The defendant claimed that she had acquired some right to it by adverse possession, acquiescence, or estoppel. Decree for the plaintiff in the court below. Defendant appeals.

<p>Appeal from Pottawattamie District Court. — J. B. Rockaficllow, Judge.</p> <p>Action for damages. Directed verdict for defendant. The material facts are stated in the opinion.</p>

<p>BANKS AND BANKING: Deposits — Bight of Bank to Offset Indebtedness — General Deposit. A bank holding a matured ' indebtedness due it from a depositor has the right to offset its indebtedness against the balance due the depositor; and where the bank did not know that a deposit was made for the purpose of paying a. check, to be drawn later, to pay for automobiles, the deposit was general, and not special, and the bank had a right to offset its matured indebtedness against such deposit.</p>

Apj>eal from Crawford District Court. — M. E. Hutchison, Judge. Action in equity to enjoin the defendant from pursuing the practice of medicine and surgery in Crawford County, Iowa. Decree as prayed, and defendant appeals.

— William Hutchinson, Judge. Action to cancel certain warrants issued by the plaintiff city to the defendant company. Decree as prayed. Opinion states the facts.

<p>RAILROADS: Grossing Accidents — Reliance on Precautions — Con-1 tributary Negligence. Where a person injured at a railway crossing knew of the automatic signaling device at the crossing, and was induced by its failure to work to believe the crossing safe, the jury had a right to consider that fact in determining whether he exercised ordinary care in attempting to go upon the crossing.</p> <p>RAILROADS: Crossing Accidents — Signals—Negligence—Negative 2 Testimony. Where plaintiff and his companion testified that they listened intently for signals, before going upon a railway crossing, and heard none, and the train crew were not examined as witnesses upon that subject, evidence held sufficient to go to the jury upon negligence in not giving signals.</p>

<p>Appeal from Polk District Court. — Chas. A. Dudley and T-homas J. Guthrie, Judges.</p> <p>Plaintiff, who is the surviving widow of John T. Carr, who was killed about 6 o’clock A. M. on the morning of December 1, 1916, while walking north on East Thirty-third Street, near the intersection thereof with Cleveland Avenue in the city of Des Moines, brings this action, as administratrix of his estate. When about on Cleveland Avenue, deceased met a southbound street car, and stepped from between the east and west tracks of defendant onto the track. When somewhere near the north side of Cleveland Avenue, he was struck by a northbound interurban car, and fatally injured. A trial was had in the district court, resulting in a verdict for plaintiff. Upon motion of defendant, the verdict was set aside, and a new trial granted, on account of errors in two instructions. Both parties appeal. The questions presented do not call for a detailed statement of the evidence. Plaintiff, having first completed her appeal, is denominated the appellant.</p>

— Thomas Arthur, Judge. Action upon a guaranty of a payment of a proniissory note. Plea: The statute of limitations has run against the maker of the note, and the guarantor is entitled to invoke the same statute in his own behalf. Judgment and decree for the plaintiff in the court below. Defendant appeals.

— J. F. Talbott, Judge. Action at law to recover damages on account of alleged negligence in the transportation of freight. Judgment for plaintiff, and defendants appeal.

<p>VENDOR AND PURCHASER: Presumptions — Possession—Evidence 1 —Burden of Proof. In the absence of other showing, the right to possession is in the holder of the legal title, and the burden of showing a superior right thereto is upon the party asserting it.</p> <p>VENDOR AND PURCHASER: Possession — No Right until Pur2 chaser Acquires Title. A mere contract to sell and convey land at a future date confers no right of possession until the purchaser has acquired title in himself.</p> <p>VENDOR AND PURCHASER: Possession — Consent of Vendor to 3 Possession before Passing of Title. While, prior .to the passing of title under contract not providing for possession, purchaser could not, without the consent of the vendor, acquire the right of possession, yet if, after making the initial payment, and before the delivery of deed, the vendor consents to thé purchaser’s entering into possession, the purchaser could rightfully hold such possession, pending the delivery of the deed or final adjudication of his rights.</p> <p>PRINCIPAL AND AGENT: Powers of Agent — No Ratification With-4 out Knowledge. To bind the owner of property by acts of agent in letting purchaser into possession, after an initial payment, but before delivery of deed, it must appear that the agent 'had authority from the owner; and, in the absence of knowledge on the part of the owner that the agent had so assumed to act in his behalf, there could be no ratification.</p> <p>FORCIBLE ENTRY AND DETAINER: Right of Action — Against 5 One Claiming Possession as Purchaser. The action of forcible entry and detainer will lie against one claiming possession, if he is unlawfully in possession.</p> <p>FORCIBLE ENTRY AND DETAINER: Right of Action — Tenant at 6 Will. A person who takes wrongful possession of property may become a tenant at will by being permitted to remain there 30 days or more, making it necessary to terminate his tenancy by statutory notice; but, his tenancy being so terminated, he is liable to eviction by summary proceedings.</p> <p>APPEAL AND ERROR: Briefs — Improper Matter — Counsel Criti7 cised. Conduct of counsel, in presenting immaterial matter, and in making vicious attack, upon trial judge, in his brief, censured and criticised.</p>

<p>DIVORCE: Alimony Mad© Subject to Invalid Mortgage. The court, in awarding a homestead to a wife as alimony, may make suck homestead subject to a mortgage in favor of the creditor of the husband, even though such mortgage was invalid because not signed by the wife, and especially may the wife not question the foreclosure of such mortgage when she has never questioned the decree which awarded her the property.</p>

<p>Appeal from Pollc District Cowt. — Lawrence DeG-baff, Judge.</p> <p>The opinion states the case. Rebecca H. Orwig appeals.</p>

<p>Appeal 'from Cerro Gordo District Court. — J. J. Clark, Judge.</p> <p>Suit for divorce. . Judgment and decree in favor of plaintiff. Defendant appeals.</p>

— D. F. Coyle, Judge. Defendant appeals from a decree in the court below canceling and setting aside certain real estate conveyances.

— James W. Willett, Judge. Action to recover damages for personal injury. There was a trial to a jury, verdict and judgment for $5,000 for plaintiff, and defendant appeals.

— M. E. Hutchison, Judge. Proceedings upon a claim filed against the estate of Werner Moeller, deceased. Demurrer thereto was sustained and judgment entered against the claimant for costs.

— A. B. Clark, Judge. Action iu the superior court of Cedar Rapids for damages on account of alleged false representations in the sale of a Ford automobile. Judgment for plaintiff. Defendant appeals.

<p>Appeal from Harrison District Court. — Shelby Cullison, Judge.</p> <p>Plaintiff brought her action for divorce on the ground of cruel and inhuman treatment. Defendant filed a cross-petition, asking a divorce on the ground of adultery. After a full trial on the merits, the trial court granted the plaintiff a divorce, and the custody of the two children, with a small amount of alimony. The defendant appeals.</p>

<p>Appeal from Wcvpello District Oowrt. — -Seneca Cornell, Judge.</p> <p>Action on a promissory note for f325 against the maker, Charles L. Hunter, an incompetent and spendthrift, and against H. H. Harrold, his guardian. The plaintiff obtained the note from Hunter while he was under guardianship, the consideration thereof being an old automobile, which was received by Hunter and soon thereafter abandoned by him at a repair shop. The defense of incompetency and guardianship was avoided by the plaintiff by pleading that he sold the automobile in regular course of business, without knowledge of the purchaser’s incompeteney or of the guardianship over him, and that the automobile has never been restored to the plaintiff. Evidence having been introduced in support of the allegations thus pleaded, the trial court directed a verdict for the plaintiff. The defendants appeal.</p>

— M. F. Edwards, Judge. The plaintiff is an independent school corporation; the defendant, a consolidated independent school district.

— W. S. Hamilton, Judge. Suit on promissory note. Trial to the court without a jury. Judgment for plaintiff for the amount of the note. Defendant appeals.

— Milo P'. Smith, Judge. Action to recover damages for false representations in the sale of land. Opinion states the case. Directed verdict for the defendants. Jugdment on the verdict. Plaintiff appeals.

<p>Appeal from Black Hawk District Court. — C. W. Mullan, Judge.</p> <p>Action for damages for personal injuries sustained upon the streets of the defendant. There was a verdict for the plaintiff, and judgment thereon. Defendant appeals.</p>

<p>INSURANCE: Life Insurance — Note as Part Payment of Premium. 1 The mere giving of a note for a premium due on life insurance will not work the payment of the premium, but the insurer may so treat it as being the equivalent of cash, and so deal with the insured as to waive the right to deny that the note at maturity worked an actual payment, although not paid.</p> <p>APPEAL AND ERROR: Review — Law Actions — Trial to Court— 2 Finding Has Effect of Verdict. In a case tried to the court without a jury, its findings have the effect of a verdict.</p> <p>INSURANCE: Life Insurance — Evidence—Sufficiency. Evidence re-3 viewed, and held sufficient to sustain the finding of the court that an insurance company which had accepted a note for part of the third premium on life insurance, and retained the note and demanded payment after it became due, waived its right to claim a forfeiture of the policy.</p> <p>INSURANCE: Life Insurance — Right to Insurance Under Loan Value i —Failure to Present Policy for Endorsement. Where an insurance policy provided that, after the payment of three premiums, the ' policy would, upon presentation for endorsement, he extended for such length of time as the loan value would huy extended insurance, the failure of the insured to present the same for such endorsement did not prevent the extension of the policy, where such payments had been made, and the policy was extended, and continued effective without such endorsement.</p>

— Thomas L.'Maxwell, Judge. Action at law to recover upon a policy of life insurance. There was a directed verdict and judgment for the defendant, and the plaintiff appeals.

— John T. Moffit, Judge. Appeal from an assessment of benefits in the construction of a sewer. The appellant obtained a partial reduction of its assessments in the district court, but was otherwise unsuccessful in its contention. From the order of the district court, it has appealed.

<p>Appeal from Guthrie District Court. — J. H. Applegate, Judge.</p> <p>The defendant was convicted of the crime of perjury, and appeals.</p>

— John F. Talbott, Judge. The trial court instructed a verdict in favor of the defendant. It sustained a motion to direct verdict, generally. Its action must be sustained here if any of the grounds of the motion were well taken. Plaintiff contends that none of them were.

— John F. Talbott, Judge. The plaintiff, city of Oskaloosa, brought a suit in equity, demanding the reformation of a certain agreement of settlement that had been entered into between the parties. Its petition was dismissed, and it does not appeal. The defendant filed a cross-bill, asserting, in effect, that the city had injured him by maintaining a described nuisance, and he prayed that an injunction issue to restrain the further continuance of the alleged nuisance.

<p>Appeal from Polk District Oourt. — Lawrence DeGraff, Judge.</p> <p>The opinion states tbe case.</p>

Appeal- from Taylor District Court. — H. K. .Evans, Judge. This is a will contest. The objections to the probate of the will were that deceased was of unsound mind, and that the will was executed as the result of undue influence.

— M. F. Edwards, Judge. This is, in effect, a creditor’s suit, wherein the creditor, as plaintiff, seeks to subject to her judgment a testamentary trust fund, on the theory that the judgment debtor, as the beneficiary of the trust, is the equitable owner of the fund. There was a decree dismissing the petition, and the plaintiff has appealed.

<p>TAXATION: Constitution — Requirements as to Laws — Purpose and 1 Need of Revenue. Under Article 7, Section 7, Constitution of Iowa, the purpose for which revenue is needed must he set out in the act which authorizes the tax out of which the revenue comes; and the legislature Is required to declare the need of ■revenue and the purposes for which it isi needed; and the tax must be levied and exacted to meet the needs so found to exist.</p> <p>CONSTITUTIONAL LAW: Mandatory Purposes — Legislature Must 2 Obey. The provisions of the Iowa Constitution are mandatory and binding upon the state legislature, which is but one of the agencies of the government.</p> <p>TAXATION: Statutes — Constitutionality—Cigarette Law — Penalty 3 Not for Revenue. The provisions of Section 5007, Code, 1897, providing for the assessment of a tax of $300 against persons selling cigarettes, and places where cigarettes are sold, are not for the purpose of securing revenue, but to aid in the enforcement of the inhibitions of Section 5006, Code, 1897, against such illegal traffic, and therefore do not violate Article 7, Section 7, of the Constitution of Iowa.</p>

— E. B. Wood-ruff, Judge. Action for damages for breach of contract, in that the defendant failed to make delivery to the plaintiff of wheat sold by a written contract.

— O. D. Wheeler, Judge. Suit for damages caused to a shipment of horses. The shipment consisted of 208 horses, contained in nine ears. The shipment ivas billed from Billings, Montana, to Omaha, with stopover privileges at Alliance and Grand Island, Nebraska. Blaintiff’s original allegation of damages was that about one half of the horses were made sick at the stockyards of the defendant at Alliance, Nebraska, because of the drinking of impure water furnished by the defendant.

— B. F. Cummings, Judge. Suit in equity by the owner of the third story of a building, against the defendant as owner of the first and second stories of such building, ánd of the lot on which the building is located, to enjoin the defendant from removing certain steam, water, and sewer pipes with which the steam, water, and sewer systems of the plaintiff are connected, such connection being had in the basement of the building.

<p>Appeal from Eeohulc District Court. — K. E. Willcockson, Judge.</p> <p>Action for slander. The answer was a plea of justification and a plea in mitigation. There was a verdict for the plaintiff of one dollar. From judgment on the verdict, the plaintiff has appealed.</p>

<p>Appeal from Shelby District Goivrt. — J. B. Rockafellow, Judge.</p> <p>Action for partition. A demurrer to the petition was sustained. From such ruling, the plaintiffs have appealed. Appellees have filed a motion to dismiss the appeal, which is well taken, and the appeal is dismissed.</p>

— Hubert Utterback, Judge. The ultimate question is whether error was committed in charging an executor with interest on funds in his hands belonging to legatees.

— O. D. Wheeler, Judge. Suit in equity to set aside a deed of real estate, as having been obtained by fraud and undue influence. Plaintiff also prayed that a lien be established in her favor upon such real estate, to the amount of $500. There was a decree for the plaintiff, and the defendants appeal.

— Thomas Arthur, Judge. Action to recover from defendant a balance alleged to be due upon a verbal contract for the sale of corn. Trial to a jury. Verdict and judgment for plaintiff. Defendant appeals.

— B. F. Cummings, Judge. Kuit by the plaintiff, as receiver of an insolvent corporation, against the defendant, to recover money which was the property of the plaintiff corporation, and which was wrongfully paid to and received by the defendant. The answer was, in general effect, a denial that the payment of the money in question to the defendant was wrongful. There was a decree dismissing the petition. The plaintiff appeals.

— Lorin N. Hays, Judge. We think the ultimate question is one of fact, and is whether the plaintiff appellee has waived his rights to the real estate iu controversy — whether or not the contract sued on by appellee has been forfeited or waived. The trial court held there was no forfeiture or waiver, and defendants appeal.

— John F. Talbott, Judge. Suit in equity to compel defendants to account for and pay over to' plaintiffs tlie difference between the par value of 800 shares of stock and its actual value. Other issues were included, not necessary to state. On hearing, the petition was dismissed.

<p>Appeal from Clay District Court. — D. F. Coyle, Judge.</p> <p>Action at law to recover damages on account of an alleged assault. There was a trial to a jury, and a verdict for plaintiff. Thereafter, defendant moved for a new trial on the ground of newly discovered evidence. Motion denied, and from this order, defendant appeals.</p>

<p>MASTER AND SERVANT: Hidden and Lurking Dangers. The j. “safe-place-to-work” rule is violated by the failure of the master to warn his servant of a lurking and hidden danger, which is not ordinarily incident to the carrying on of the work, of which danger the master had knowledge, and of which danger the servant did not have knowledge.</p> <p>PRINCIPLE APPLIED: A metal boiler or “tar head,” 3 feet in diameter and 10 feet high, in which tar was melted, rested on a cement foundation, and extended upward through the room and into the room above. The top of the 'boiler was bell-shaped, into which a lid was fastened by simply calking it. A steam pipe, connected with a distant boiler, entered the top of the tar head. A faucet, through which tar was drawn, was located at the bottom of the boiler. When steam was turned in at the top to melt the tar, danger of explosion existed, unless a vent valve, also located at the top, was opened. An employee, who had never before worked around the boiler, and who had no knowledge of its construction, except what he could see while working in the lower room, was directed to draw tar therefrom. Without the knowledge of the employee, steam was turned into the boiler by the superintendent of the works, without opening the safety vent. The servant had no warning of the danger of explosion. The 'boiler exploded, and the employee was injured.</p> <p>Held, the master violated his duty in not warning the servant.</p> <p>TRIAL: Excessive Verdict — $5,000. Verdict of $5,000 for personal 2 injuries sustained, as nonexcessive.</p>

— John T. Moffit, Judge. Action for damages caused by an automobile collision. Judgment was entered for the defendant for costs, upon a directed verdict in his favor. Plaintiff appeals.

— W. G. Sears, Judge. Action brought by the husband and daughter, beneficiaries of the insured, to recover on a benefit certificate issued by defendant on the life of the insured. Plaintiffs had judgment as prayed, and defendant appeals.

<p>CARRIERS: Carriage of Goods — Furnishing of Equipment — Special Contracts — Cooperage of Cars. "Where there were no provisions for coopering of cars in the tariff schedule filed 'by a carrier relating to intrastate shipments, and said schedule did provide that “suitable boards will be furnished at all loading stations for use in coopering cars,” a shipper could not recover for labor performed and nails furnished which were reasonably necessary to put cars in condition to transport sand and gravel; for, while it is the duty of the carrier to furnish suitable' cars, under Section 2116, Code Supp., 1913, the statute does not make the car-' rier liable for such matters, and it is the duty of the shipper, in such a case, to refuse to accept the cars; and any allowance to the shipper, outside of that for lumber, would be an unjust discrimination, prohibited by Section 2128, Code, 1897.</p>

<p>Appeal from Woodbury District Court. — G'eorge Jepson, Judge.</p> <p>Action for damages for the death of plaintiff’s intestate. The action was brought against the city and against Ray Callander, an employee of the defendant city, who- was driving the automobile at the time. No evidence was introduced on behalf of the defendant city, and, at the conclusion of the plaintiff’s evidence, the trial court sustained a motion to direct a verdict in favor of the city. Callander defaulted, and the case was submitted to the jury as to him, • and a verdict for $13,000 returned. The plaintiff appeals from the ruling of the court, and the judgment rendered against, him for costs. The opinion shows the facts more in detail.</p>

— Eskil O. Carlson, Judge. Action to recover an alleged balance owed to plaintiff. The defendant pleaded a counterclaim. Trial resulted in a verdict for the defendant and judgment thereon. Plaintiff appeals.

— O. D. Wheeler, Judge. Action to recover the sum of $400, claimed to be due under the provisions of a written lease. There was a directed verdict 'for the plaintiffs, and defendants appeal.

<p>Appeal from Crawford District Court. — M. E. Hutchison, Judge.</p> <p>Suit in equity for the modification of a decree. The facts are fully stated in the opinion. There was a decree in favor of plaintiff, and defendant cross-petitioner appeals.</p>

— A. J. House, Judge. Action to enforce the specific performance of an agreement to exchange lands. The opinion states the facts. Decree for the plaintiff in the trial court. Defendant appeals-

— C. H. Kelley, Judge. Appeal from au order of the district court for the taxation of costs. The facts are stated in the opinion.

<p>Appeal from Greene District Court. — E. G. Albert, Judge.</p> <p>Appeal by objectors from an order in probate.</p>

— R. P. Ho well, Judge. Action for damages consequent on a collision with defendant’s train resulted in judgment for plaintiff. The defendant appeals.

<p>Appeal from Calhoun District Court. — E. G. Albert, Judge.</p> <p>An action for damages on account of tlie alleged failure to deliver 2,100 bushels of corn, purchased by plaintiff of defendant. There was judgment on a verdict for plaintiff. Defendant appeals.</p>

<p>CARRIERS: Facilities Furnished — -Discriminations—Allowing Use of 1 Spur Track by Shipper. Where a railway company has constructed a spur track for the convenience of shippers, it cannot grant to a particular shipper, as against other shippers, the exclusive right to use such track, as the same would be in violation of Section 2125, Code Supp., 1913, forbidding discriminations; and such a contract, when made, is void.</p> <p>PARTIES: Intervention — Right to Intervene. An owner of land 2 along a spur track, who has sold part of the same, with an agreement to defend his grantees in the use of switch tracks, has such an interest as to be allowed to intervene in a suit brought by another shipper, seeking to restrain the railway company from allowing the use of the track by other shippers.</p>

— Hubert Utterback, Judge. Action at law to recover damages. The facts are stated in the opinion. Trial to a jury, and directed verdict for defendant. Plaintiff appeals.

— O. D. Wheeler, Judge. Suit in equity to establish and confirm the plaintiffs’ and interveners’ claims of title to certain land, and to set aside a certain deed to the defendant Francis Bradley: The trial court, after hearing the evidence, found for the defendants, dismissed the bill, and plaintiffs and interveners appeal.

— W. S. Hamilton, Judge. This action is in equity, to foreclose a real estate mortgage. Defendants M. L. Wilsey and wife claim that they are the owners of the property in question, and that their title is prior and superior to any claim of the plaintiff’s. The trial court so found, after a full hearing on the merits, and the plaintiff appeals.

— C. A. Dudley, Judge. A car driven by one Brownell was alleged to have been diverted from its course and thrown into the railing of a bridge because of the condition in which the defendant is alleged to have kept a roadway. The decedent, Teague, was in this car, and was so injured as to come to his death shortly thereafter.

— L. N. Hays, Judge. This is a will contest. The contestant is the daughter of the deceased. There was a verdict sustaining the will, and the contestant has appealed.

<p>NEGLIGENCE: Landlord and Tenant — Injuries of Employee of Ten-1 ant — Sufficiency of Evidence. Evidence reviewed, and held sufficient to present a jury question, and to sustain a verdict, on the ground that the defendants were negligent in permitting water to leak from the ceiling, where an employee of the tenant was injured by the fall of plaster from the ceiling, during construction work being carried on above by the landlord.</p> <p>PRINCIPAL AND AGENT: Liability of Principal — Negligence of 2 Architect and Engineer. The owner of a building is liable for the negligence of his architect and engineer while the latter is acting within the scope of his employment in constructing the building.</p> <p>TRIAL: Verdict — Form—Joint Defendants. There was no error in 3 not submitting separate forms of verdict ras to the defendants where, under the evidence, if there was any liability, both defendants joined in the action would be liable.</p> <p>NEGLIGENCE: Landlord and Tenant — Injuries to Tenant — Con-4 tributory Negligence — Sufficiency of Evidence. Evidence reviewed, and held a question for t'he jury as to whether the employee of a tenant, injured by being struck with a piece of plaster tailing from the ceiling, was guilty of contributory negligence.</p> <p>NEG-LIG-ENCE: Landlord and Tenant — Construction of Lease — Dam-5 ages from Dang'erous Condition. A provision in a lease whereby the tenant waived claims for damages from the construction of an additional story to a building referred only to damages received from proper construction, and did not cover damages for negligence in constructing the additional story, and did not release the landlord from his acts in creating a dangerous condition.</p> <p>TRIAL: Examination of Juror — Association with Insurance Com-6 pany — Discretion of Court — Harmless Error. The trial court is within its discretion, in a personal injury case, in allowing prospective jurors to be examined in regard to their being associated with insurance companies insuring against personal injuries; and where objection to the question was sustained, there was no prejudice.</p> <p>TRIAL: Instructions — Applicability to Evidence — Instructions Tak7 en as a Whole. In an action for injuries caused by the fall of plaster from the ceiling, instruction as to the pouring of concrete and water held not objectionable as to the use of the word “water” when only concrete was poured, when taken in connection with the other instructions.</p> <p>TRIAL: Verdict — Excessiveness—Personal Injury. Evidence re-8 viewed, and held that a verdict for $7,500 was not excessive, where a fracture of the skull had been received, causing inter-cranial hemorrhages and intense suffering to a 36-year old man, who had not recovered at the time of the trial, 8 months after the injury, and whose memory was bad, and who could not keep books as well as before the injury, and when there was a possibility that the injuries might result in epilepsy or insanity.</p>

<p>Appeal from Wapello District Court. — 11. M. Anderson, Judge.</p> <p>The appellant Plioenix Trust Company was garnished as a supposed debtor of the principal defendant, N. M. Norfolk. The answer of the garnishee did not show an absolute indebtedness to the principal defendant, but, as contended, only a contingent liability. The court ordered that the garnishee hold the money until the further order of the court, subject to be applied, when due, to defendant, and that the garnishment matter be continued, subject to the further order of the court. From this order, the defendant and the garnishee appeal.</p>

— Appeal from an action of the district court effectuating an award against appellant by a board of arbitration, sustained on review by the industrial commissioner.

— Seneca Cornell, Judge. Suit at law on an insurance policy for damages alleged to have been done to a building by lightning. One defense was by pleading, in answer filed on the law side, that there had been a common-law arbitration; that the award resulting was conclusively binding on the parties; and that tender of the amount awarded had been duly made and kept good.

<p>SALES: Retention of Defective Goods. Retention of palpably defective goods for an unreasonable time, and without complaint, bars rescission.</p>

<p>Appeal fro-m Lee District Court. — W. S3. Hamilton, Judge.</p> <p>Action in equity, for the purpose of impressing a trust upon certain real estate, to establish a lien, and to foreclose the lien on the trust property for the purpose of discharging the lien thereon. After a full trial on the merits, the trial court held that the plaintiff had failed to show that he was entitled to any relief on the equitable issues, but gave judgment in his favor against Sullivan, for the amount of the note specified in the contract, and held that the property belonged to defendant Swan, free from any lien or claim on the part of plaintiff. Decree was entered accordingly, and the plaintiff appeals. The defendants, appellees, have filed a motion to strike the evidence from the abstract, and to affirm the decree, because the evidence was not properly certified and preserved by the trial court. The motion i.s well taken, and is sustained, and the decree is</p>

— Milo 1*. Smith, Judge. Action to recover withdrawal value of an insurance policy. The defendant insisted on the deduction of the amount of a certificate of loan, and tendered payment of the 'balance. On hearing, the court entered a decree allowing the plaintiff the withdrawal value of the policy, plus the accumulated Iuofits. The defendant appeals.