Volume 187 — Iowa Reports

<p>Appeal from Des Moines Municipal Court. — Eskil O. Carlson, Judge.</p> <p>Action for the purchase price of an ensilage cutter. The jury returned a verdict in favor of defendant by direction of the court.</p>

— Shelby Cullison, Judge. Action iu equity to rescind and cancel an executory contract for the exchange of Iowa farm land owned by the plaintiff for other land owned by the defendants, or one of them, in Saskatchewan, Canada. There was a decree for the plaintiffs, as prayed, and defendant appeals.

<p>CONTRACTS: Consideration-Value oí Services. Testimony as to 1 how much the services performed by claimant were worth a year was not admissible in an action on express contract for services performed at a certain rate, when said testimony did not have a tendency to establish the contract alleged.</p> <p>WITNESSES: Competency — Transactions with Deceased. That the 2 evidence of the claimant disclosed a personal transaction on her part with the decedent did not render such testimony inadmissible, and there was no ground for the exclusion of the evidence, in the absence of an objection of incompeteney of the witness, as, under Sec. 4604, Code, 1897, it is the witness, and not the testimony, that is made incompetent.</p> <p>WITNESSES: Competency — Age at Time of Conversation. The fact 3 that a claimant against the estate of her father for services rendered the deceased was not of age at the time of the conversation testified to by her did not disqualify her from testifying as to such conversation.</p> <p>WITNESSES: Competency — Transactions with Deceased. Where a 4 witness, testifying as to a conversation of deceased with another person, did not take part in the conversation, she was not incompetent to testify thereto, under Sec. 4604, Code, 1897.</p> <p>PARENT AND CHILD: Child’s Claim for Services — Mutual Under-5 standing. To justify the allowance of a claim of an adult child for services rendered her parent, it must be shown either that (a) what she did was upon express promise of the parent bo pay therefor, or (b) that such facts and circumstances existed as would authorize a finding that there was an expectation of the parent to make compensation therefor. It is not necessary that an express contract be shown to have been made, or that a specified compensation was contemplated; and such an expressed or implied contract may be established by facts and circumstances warranting such an inference, as well as by direct proof. Evidence reviewed, and held that it was a question for the jury as to whether deceased expected to pay and the daughter expected to receive compensation for services rendered by her.</p>

<p>Appeal from, Polk District Court. — George A. Wilson, Judge.</p> <p>A written instrument having been filed for probate as the last will and testament of J. Clark Tinsley, deceased, certain persons claiming to be the heirs at law of said Tinsley appeared and objected thereto, for reasons stated in the opinion. On trial to the court, the objections were overruled, and the instrument was adjudged to have been duly proved and established. The contestánts appeal.</p>

<p>EXECUTORS AND ADMINISTRATORS: Allowance and Payment 1 of Claims — Pension Money. Pension money paid by the United States government to the guardian of an insane pensioner, under Sec. 9015, U. S. Compiled Statutes, did not, upon the pensioner’s death, become a part of the assets of his estate, and was not liable for the payment of the debts of his said estate.</p> <p>PAUPERS: Soldiers — Nonaccjuiescenee in Poorhouse Relief. The 2 county is not authorized to send an old soldier to the poorhouse if he prefers to he given other relief, as provided by Secs. 2230, 2231, Code Supp., 1913, and it cannot recover, after his death, for expenses in maintaining him at a poorhouse, in absence of evidence that he did not prefer to be given such other relief, or that he was incompetent to express intelligent preference, or that it was impossible to maintain him other than at the poorhouse, the burden being on' the county to show that the expense was incurred legitimately.</p>

— Milo P. Smith, Judge. The plaintiff, claiming to be the owner of Lot 2, Block 3, in the original town of Cedar Rapids, and of a right appurtenant to said lot to use the water power afforded by a dam in the Cedar River, brings this suit in equity to enjoin and restrain the city of Cedar Rapids and others from alleged encroachment upon said property or interference with said right.

— J. W. Anderson, Judge. Action for damages for breach of contract. The measure of damages claimed is the value of work done and materials furnished upon the contract before it was breached by defendant. Estoppel is pleaded by both parties. There was a trial to the court, and a judgment dismissing the petition. The plaintiff appeals.

<p>APPEAL AND ERROR: Subsequent Appeal — Law of Ca.se. The 1 opinion of the Supreme Court on the former appeal becomes the law of the case on the subsequent appeal.</p> <p>APPEAL AND ERROR: Second Appeal — Nature and Sufficiency of 2 Additional Evidence. On second appeal, evidence reviewed, and held not substantially different from that on the first appeal; and principle recognized that, in considering such additional evidence, the Supreme Court will take into account that it is opinion evidence, and an estimate based wholly upon recollections of observations had a long time ago.</p>

<p>WITNESSES: Permissible Leading Question. A leading question 1 does not necessarily work reversible error.</p> <p>NEGLIGENCE: Future Probability of Insanity, Etc. On the ques-2 tion of damages by reason of an injury caused by negligence, expert testimony is admissible of the future probabilities of resulting insanity or epilepsy.</p> <p>EVIDENCE: Appearance of Health. An expert medical witness, 3 though he has never professionally treated the person in question, but has had ample opportunity to observe, and has observed him, may competently testify that such person appeared at a certain time to be healthy.</p> <p>EVIDENCE: Admissions of Blame. Admissions of a defendant to 4 the effect that he was to blame for an accident are admissible when such admissions are inconsistent with his later version of the transaction.</p> <p>APPEAL AND ERROR: Curing Error. The specific withdrawal of 5 wholly incompetent testimony, with equally specific direction to the jury to disregard it, cures the error, especially when such testimony is supported by other competent testimony.</p> <p>APPEAL AND ERROR: Estoppel to Allege Error. Error may not 6- be predicated on the submission of an issue, (a) when complainant asked for such submission, and (b) when the argument, on appeal, is a clear departure from the exception in the trial court.</p> <p>APPEAL AND ERROR: Erroneous Submission of “Last Clear 7 Chance.’’ The submission of the doctrine of “last clear chance” without a justifying record therefor is non-prejudicial when the record would justify no other finding than that the injury was caused wholly by the negligence of the defendant or wholly by the negligence of the plaintiff. .</p>

— Henry Bank, Jr., Judge. Action for a fire loss upon an insurance policy. The question in dispute is whether certain lumber destroyed by fire was so. located as to come within the description of the policy.

<p>APPEAL AND ERROR: Review — Scope and Extent in General — Cer1 tiorari Proceedings. A judgment deciding that there is a contempt for violating a liquor injunction is not reviewable de novo on certiorari in the Supreme Court, despite the concession of appellee that it is so reviewable. i</p> <p>INTOXICATING LIQUORS: Contempt — Intent to Use Liquor — Evi2 dence. That a person who had been enjoined from the selling of intoxicating liquors dropped a sack containing 48 quarter-pint bottles, filled with whisky, and ran when an officer was seen, was ample proof of intent to use the liquor .unlawfully, and so to violate the injunction.</p> <p>INTOXICATING LIQUORS: Contempt — -Sufficiency of Evidence. Ev3 idence reviewed, in an action for contempt for violation -of a liquor injunction, and held sufficient to sustain adjudication of contempt.</p> <p>APPEAL AND ERROR: Review — Harmless Error — Wrong Ground 4 for Correct Decision. The Supreme Court cannot interfere when an objection is sustained, when a good objection in fact existed.</p>

<p>Appeal from Marshall District Court. — B. F. Cummings, Judge.</p> <p>The appellant purchased rubber tires of the appellee. This is a suit for the purchase price. The difference between the parties is on the claim of appellant that freight paid for the transportation ,of these tires should be deducted from the purchase price, and that tender with such deduction has been made and refused. A verdict for the full amount of the purchase price was directed against the defendant, and it appeals.</p>

— H. B. Boies, Judge. Action in equity for an injunction and for a writ of mandamus to be directed to the board of directors of the defendant school district. There was a decree as prayed, and defendants appeal. The material facts are sufficiently stated in the opinion.

— Thomas L. Maxwell, Judge. The plaintiff has verdict and judgment for damages caused by breach on part of defendant of a written contract to sell to plaintiff timothy seed of merchantable quality, to be delivered at a stated time, there having been .failure to deliver by that time, or at all.

— E. B. Woodruff,. Judge. Action at law to recover damages for the alleged breach of a contract for the sale or exchange of real estate. Trial to a jury, and at the close of plaintiffs’ testimony, the trial court sustained the defendants’ motion for a directed verdict, and rendered judgment against plaintiffs for costs. The plaintiffs appeal.

— J. H. Applegate, , Judge. Plaintiff has verdict and judgment on account of certain repairs alleged to have been famished by it to the defendant, and defendant appeals.

— E. M. McCall, Judge. Action at law, in probate, to establish a claim against the estate of Mary E. McCausland, deceased. The claim is on a promissory note, alleged to have been executed by J. E. McCausland and deceased, in favor of plaintiff. A jury was waived, and, after a trial on the merits, the objector introducing no testimony, the trial court found for plaintiff, and allowed and established the claim for the full amount of the note, $4,200 and interest.

— Seneca Cornell, Judge. Prosecution for alleged rape. There was a verdict and judgment of guilty, and the defendant appeals.

<p>Appeal from Wapello District Court. — Francis M. Hunter, Judge.</p> <p>The plaintiff has verdict and judgment for a commission he claims to have earned in making or promoting the sale of a farm owned by appellant J. L. Wyckoff. Defendants appeal.</p>

<p>Appeal from Polk District Court. — W. H. McHenry, Judge.</p> <p>The trial court canceled an assessment in aid of the defendant, drainage district, and which had been assessed against the appellee, and it enjoined defendants from thereafter making any assessment against plaintiff. Defendants appeal.</p>

— F. D. Letts, Judge. Action for damages consequent .on an alleged assault and battery resulted in a directed verdict for defendants. Tbe plaintiff appealed.

— B. F. Cummings, Judge. Suit to subject certain property to a judgment recovered against the defendant, Sam Mall. The petition was dismissed. Plaintiff appeals.

<p>Appeal from Winnebago District Court. — J. J. Clark, Judge.</p> <p>The defendant Torkelson drew checks upon the Forest City National Bank, and against a general checking account, and to an amount not greater than the funds he had on deposit. The Freeborn County State Bank, upon presentation of these checks, paid the same to defendant. The defendant was indebted to the plaintiff, and he garnished the Iowa bank. The garnishment process was served after the checks had been presented to and paid by the Freeborn County State Bank, and before these checks reached the Iowa bank. ’ The question is whether the presentation to and payment of the checks by the Freeborn County State Bank so operated to assign the funds Torkelson had in the Iowa bank as that, when the garnishment was served,' the last-named bank had no moneys belonging to Torkelson. The trial court held that there was an effective assignment, and that the garnishment process was served too late to reach any funds of the defendant. The Iowa bank has no concern in the determination of the case. It has deposited the money claimed to have been assigned by Torkelson, to await the order of the court, but the plaintiff creditor appeals.</p>

<p>Appeal from Lucas District Court. — D. M. Anderson, Judge.</p> <p>Action in equity to determine the rights and interests of the parties in the proceeds of certain fire insurance. which was paid into court by the insurance companies; also, to determine the rights of the parties in certain real estate. Plaintiff claimed to be the owner of the real estate and of the insured property. The trial court found that plaintiff was not entitled to the full relief asked by him, and granted him partial relief, and honored a written contract for one half the store, and also his right to share by inheritance in his mother’s half of the property. He appeals.</p>

— Hubert TJtterbacic, Judge. Appeal from an order that defendants and appellants pay to their son, George Owen, an alleged pauper, a stated sum monthly, for the relief, maintenance, and care of said son.

— E. M. Wright, Judge The defendant was convicted under an indictment charging him with willfully and unlawfully keeping whisky, and carrying it about on his person, with intent to sell the same, contrary to law. He appeals.

— D. M. Anderson, Judge. Action iu equity to reinstate a life insurance policy for $6,000, issued by. tbe defendant to Charles H. Fuller, and afterward canceled. The material facts and nature of the issues joined will be found in the opinion. A money judgment is also demanded. The trial court dismissed the bill, and plaintiff appeals.

<p>WILLS: Construction — Property Devised. A lawyer’s bequest o£ all bis law library and contents of bis safe, including bis safe, books of account, and promissory notes, did not include money in tbe bank, evidenced by a bank book in tbe safe, sucb bank book not being a book of account.</p>

— Chas. W. Mullan, . Judge. Action to recover damages for personal injuries resulting in death, brought under the Federal Employers’ Liability Act. Verdict and judgment for the plaintiff in the court below. Defendant appeals.

— W. G. Sears, Judge. Action for damages consequent on a collision with an automobile, resulting in a verdict for the plaintiff and judgment thereon. The defendant, Julius Oversen, appeals.

— O. C. Bradley, Judge. Suit for the partition of real property. The court below sustained a demurrer to plaintiffs’ petition, and entered a decree dismissing the same, and they appeal.—

— C. C. Bradley, Judge. Action at law to recover the amount of certain bank checks, drawn by the defendant, payable to the order of John Wilson. Judgment for the defendant, and plaintiff appeals.

— W. S. Hamilton, Judge. Action of right for the possession of real property and damages resulted in a finding of court for the defendants and judgment thereon. The plaintiff appeals.

— George Jepson, Judge. Defendant was convicted in the court below of the crime of robbery, and appeals from a judgment sentencing him to the Reformatory at Anamosa.

— William Hutchinson, Judge. Action in equity in the nature of a creditor’s bill to subject certain real estate to the payment of judgments rendered against the defendant E. B. Stone. Decree for plaintiff, as prayed, and defendants appeal.

— J. W. Anderson, Judge. Action to recover upon an injunction bond. There was a directed verdict and judgment for the defendants, and plaintiff appeals.

— J. B. Bockafellow, Judge. This action was brought in partition. Jennie L. Smith intervened, claiming an interest in the property sought to be partitioned. Her petition was dismissed. She appeals. The opinion states the facts.

- — O. C. Bradley, Judge. Suit in equity, to compel the specific performance of a contract to convey real property. The facts are stated in the opinion. The court below dismissed plaintiff’s petition, without prejudice to his right to commence a suit for damages, and plaintiff appeals.

— James DeLand, Judge. Action in forcible entry and detainer. Opinion states the facts. Judgment for the defendant in the court below. Plaintiff appeals.

— W. G. Sears, Judge. Action to recover from a wrongdoer the amount paid by an insurance company for personal injuries sustained by an employee for which the employer became liable under the Workmen’s Compensation Act. Demurrer to plaintiff’s petition was sustained. Opinion states the facts. Plaintiff appeals.-

<p>Appeal from Des Moines District Court. — Oscar Hale, Judge.</p> <p>Defendant was indicted for murder in the first degree, convicted of manslaughter, and appeals.</p>

• — O. I). Wheeler, Judge. Action to recover damages for personal injuries occasioned by a fall upon a sidewalk. The negligence charged is that the city permitted ice and snow, which fell upon its sidewalk at a certain point, to become rough, rounded, and uneven; and that plaintiff, in attempting to pass over it, slipped and fell, without any fault on her part. Judgment for the plaintiff in the court from which the appeal is taken. Defendant appeals.

<p>HIGHWAYS: Boundary Lines — Location of Fences. Evidence 1 reviewed, in a suit by a landowner to restrain the removal of his fence from its location in the public highway, and held sufficient to show "that the fence was not on the true line, and was not located in conformity with the highway, as shown in field notes of the survey on which it was originally established.</p> <p>HIGHWAYS: Boundary Lines — Evidence. In the absence of evi2 deuce from which it may he inferred that a fence along a highway was located in accordance with the actual and practical location, the plat and field notes of the establishment and location will control.</p> <p>FENCES: Location in Highway — Adverse Possession. Where a 3 fence is located in the highway, and not on the correct line, the owner of such fence cannot acquire any right to its maintenance by adverse possession.</p>

— Homer A. Fuller, Judge. Dependant was convicted, in the court below, of the crime of resorting to a house of ill fame for the purpose of lewdness, and appeals from the judgment of the court sentencing him to a term of five years in the penitentiary.—

— William Hutchinson, Judge. Suit in equity to compel the specific performance of a contract to convey real property. The facts are fully stated in the opinion. There was a decree in the court below in favor of plaintiff against all of the defendants, but this appeal involves only a controversy between the defendant J. J. Tiémay and his codefendants and cross-petitioners herein as to the proper division of the proceeds to be derived from the sale of the land.

<p>MASTER AND SERVANT: Workmen’s Compensation Act — Juris1 diction — Review by Certiorari. An affirmative finding by tbe industrial commissioner, in a proceeding under tbe Workmen’s Compensation Act, that the relation of employer and employee existed, and that the injury for which compensation was sought arose out of and in the course of the employment, will not be set aside in certiorari proceedings as being in excess of jurisdiction, upon the ground that the findings were against the ■ greater weight or preponderance of the evidence.</p> <p>COURTS: Jurisdiction — Definition. Jurisdiction is the power to 2 hear and determine questions of law and fact, and confers the power to decide wrong as well as right.</p> <p>MASTER AND SERVANT: Workmen’s Compensation Act — Death 3 in Course of Employment. The finding of the industrial commissioner that decedent, although he had left the premises under order of the foreman, and returned on a personal commission, was under the Workman's Compensation Act, and still an employee when killed, held, not against the undisputed evidence.</p>

<p>DRAINS: Establishment — Repairs—Lateral Ditch — New Improvements. Where the original drainage system of the district was completed, and put to a practical test, and it was found that a natural, unimproved channel, relied upon to serve the purpose' of the lateral or tributary to the completed ditch, does not perform that office satisfactorily, the substitution of a new ditch for such natural channel is not a repair, but a nerd and independent improvement, the cost of which must be paid for by assessments under a new district. (Secs. 1989-a21, 1989-a25, Code Supp.-, 1913.)</p>

— Thomas Arthur, Judge. Plaintiff, in an action for divorce, caused a writ of attachment to issue, and certain stock to be levied upon. Defendant’s mother intervened, claiming that certain of the property levied on had been transferred to her before any rights of the plaintiff accrued, and that she was, at the time the action was commenced, the owner of the property; and she asked that it be released from the attachment. Decree for the intervener in the district court.

— O. D. . Wheeler, Judge. Suit in equity for rescission, and to recover the purchase price paid for a tract of land in Colorado. The facts are fully stated in the opinion. There was a decree in favor of plaintiff, as prayed, and defendant appeals.

<p>Appeal from Carroll District Court. — M. E. Hutchison, Judge.</p> <p>Action to set aside a deed on the ground of fraud. Decree for the defendants, dismissing plaintiff’s petition. Plaintiff appeals. Opinion states the facts.</p>

<p>APPEAL AND ERROR: Dismissal — Moot Case — Expired Term of Lease. An appeal will t»e dismissed, as involving only the taxation of costs, where the appellant, a tenant, gave up possession of the leased farm in controversy and took another from a third person, from the date when he was required, under the decree from which he appealed, to surrender possession of the land in controversy, which decree dismissed his petition asking for specific performance of an agreement to make a new lease for the second year, so that the term for which the new lease was demanded had fully expired.</p>

W. Vermilion, Judge. Action at law to recover damages for personal injury. There was a trial to a jury, and verdict and judgment for plaintiff. The defendant having taken an appeal to this court, an affirming opinion was handed down at the January term, 1919. See Swaim v. Chicago, R. I. & P. R. Co., 170 N. W. 296. Thereafter, a petition for rehearing was granted, and the cause has been resubmitted, with additional arguments.

— D. F. Coyle, Judge. Clark executed a warranty deed to Ballou, covenanting .against incumbrances. Ballou made like deed to DeLand. DeLand brought suit against Ballou for breach of the covenant, and Ballou notified Clark to appear and defend. He failed to do so. DeLand recovered a judgment against Ballou.

<p>Appeal from Wapello District Court. — Seneca Cornell, Judge.</p> <p>This is an action to recover damages resulting from a wrongful act causing death. The only controversy is as to whether or not the administrator of the deceased can recover for funeral expenses. The court held against the defendant on this proposition, and the defendant appeals.</p>

<p>Appeal from Pottawattamie District Court. — O. I>. Wheeler, Judge.</p> <p>Action on a policy of insurance. The defendant made a special appearance to object to the jurisdiction of the court for want of appropriate notice of suit. A hearing being had upon such special plea, it was by the court overruled, and the defendant appeals.</p>

— Thomas Arthur, Judge. Action for damages for the burning of plaintiff’s building in a conflagration. There was a demurrer to the petition, which was sustained, and the plaintiff appeals.

— Titos. Arthur, Judge. Ti-ie plaintiff and his assignors were induced by appellant McManus to enter into contract to buy certain Canadian lands of the Grand Trunk Pacific Land Company. The purchasers made payments upon the contract. Originally; this was a suit at law, praying judgment against defendant for the sums so paid. As a result of motions filed by appellants, the suit became, in effect, an attempt of plaintiff to rescind.

<p>SCHOOLS AND SCHOOL DISTRICTS: Pupüs, Grades, and Gradué 1 .tion — Diploma. The public ceremonial of graduating exercises is not a graduation. It is not the ceremonial, but it is the completion of the prescribed course, which entitles one to a ’ diploma, which is simply an evidence that the course has been completed, and so evidenced by the graduation.</p> <p>SCHOOLS AND SCHOOL DISTRICTS: Pupüs, Grades, and Gradua2 tion — Diploma—Duty of Officers to Issue. Even without a statute requiring the issuance of a diploma, there is imposed a legal duty on the officers of a public high school to issue written evidence of a pupil’s graduation, in the form of a certificate, a diploma, or the like, to those, who have satisfactorily completed the prescribed, course of study, unless for sufficient reasons they are justified in not doing so.</p> <p>MANDAMUS: Subjects and Purposes — Compeüing Issuance of 3 Diploma. .School officials were not justified in refusing a high school pupil a diploma, merely because she refused to wear a cap and gown at the graduation exercises, .on the ground that they were nauseating from fumigating, and also might carry disease. Held that she was entitled to mandamus to compel the authorities to issue the diploma.</p> <p>MANDAMUS: Subjects and Purposes — Records of Pupil’s Grades. 4 The records of a pupil’s grades during her course are the property of the school district, and not of the principal and superintendent of schools, and upon her graduation, she is entitled to a copy of the same. Held that she was entitled to mandamus to compel the school authorities to deliver the same to her.</p> <p>SCHOOLS AND SCHOOL DISTRICTS: Government — Officers’ H-5 legal Actions — Remedies. One complaining of a rule of public school authorities is not limited to an appeal to the county superintendent of schools, under See. 2818, Code, 1897, if the rule is unreasonable, and not within the scope of the power conferred upon the school authorities.</p>

<p>Appeal from Dallas District Court. — George B. Lynch, Judge.</p> <p>Plaintiff, appellant, brought this action in equity, to recover $1,000 deposited by him in the form of a check, on a paving bid. At the proper time, defendant moved to transfer the cause to the law side of the calendar, which was sustained; and from such ruling the plaintiff has appealed.</p>

— M. F. Donegan, Judge. Action for damages for personal injuries sustained in a collision with plaintiff’s automobile by one of defendant’s trains at a street crossing in the city of East Moline, Illinois. At the close of all the evidence, there was a directed verdict for the defendant on the ground of contributory negligence of plaintiff. Plaintiff appeals.

— William Theophilus, Judge. Action at law, in which, plaintiff seeks to recover $335, with interest, for furnishing defendant with a new set of batteries for an electric automobile, and for certain repairs and extras thereon. The contract was in writing, by a letter or proposition by defendant to plaintiff, and accepted by plaintiff.

— o. B. Bockafellow, Judge. Plaintiff has judgment for damages claimed to have been sustained through the alleged wrongful death of his decedent, and defendant appeals.

— Lorin N. Hays, Judge. This is a condemnation proceeding, under the provisions of Section 2120-n et seq., Code Supplement, 1913. From the assessment of the sheriff’s jury, the condemnor corporation appealed to the district court. From an adverse judgment there, it has again appealed.

<p>WILLS: Eights of Devisees — Title by Descent. Where a devise in 1 a will gives the same estate to a devisee that he would take under the statute of descent, if there were no such will, the • beneficiary takes the worthier title by descent, and not by the will.</p> <p>WILLS: Lapsed Devises — Devise to Husband — Prior Death of Hus-2 band. Under Sec. 3281, Code, 1897, providing that, “if a devisee die before the testator, his heirs shall inherit the property devised to him, unless from the terms of the will a contrary intent is manifest,” a devise by a wife to her husband of the share of the estate to which he was entitled under the law lapsed, upon his death before her death, and no rights survived to his heirs, children of his first marriage, a contrary intent being evident £pom the will.</p>

— Francis M. Hunter, Judge. Suit in equity to enjoin the defendant Wapello County from removing the plaintiff’s fences, as being alleged encroachments upon the highway. Upon application of the defendant county, Acton, interested as an abutting owner, was made a party defendant. The district court found that both abutting owners were encroaching upon the highway and fixed the partition line between them and decreed the same to be the center line of the highway.

— George B. Lynch, Judge. Action by the plaintiff to recover damages for the loss of consortium of her husband, by reason of personal injuries sustained through negligence of the defendant, which resulted in the death of the husband. There was a demurrer to the petition, which was sustained. The plaintiff' elected to stand upon her petition, and submit to judgment of dismissal. She appeals.

— W. N. Birdsall, Judge. Action at law by plaintiff, to recover certain back pay. There was a demurrer to the petition, which was sustained. The plaintiff appeals.

— H. B. Boies, Judge. Action of replevin. The plaintiff obtained possession of tbe property under a writ. It alleged that it was the absolute owner of the property. The defendant denied the ownership and right of possession of the plaintiff, and avers himself to be the owner, and entitled to possession. There was a directed verdict for the plaintiff, and the defendant appeals.

<p>Appeal from Iowa District Court. — Balph Otto, Judge.</p> <p>Action for divorce. There was a decree for plaintiff, and the defendant appeals.</p>

— Edward M. McCall, Judge. The plaintiffs instituted two actions, which, by agreement, were tried together. The first was to restrain the board of supervisors of Boone and Webster Counties from accepting a joint drainage ditch, and the other action was an appeal by plaintiffs from the assessment of benefits.

— F. O. Ellison, Judge. Plaintiff seeks to recover a commission of $1.00 per acre for lands sold by the defendant to one Anderson, and the claim is based upon an agreement that such commission shall be paid the plaintiff for “following up work and closing land deals with customers,” Anderson being one of the customers referred to.

— K. E. Willcockson, Judge. Suit in equity to set aside a deed of real estate, and to establish the title of the plaintiffs to an undivided share of such real estate. The trial court dismissed the petition, and the plaintiffs appeal.

— K. E. Willcockson, Judge. Suit in equity to quiet title and to set aside deed on the ground of the fraud of the grantees and mental incompetency of the grantor. There was a decree for the plaintiff, and defendants appeal.

<p>RAILROADS: Liabilities Arising from Operation — Accidents at 1 Crossings — Contributory Negligence. A driver of an automobile, having stopped 115 feet from the point of collision, and having driven across the track at 8 or 10 miles an hour, -without stopping or paying any further attention to approaching trains or engines, held per se guilty of contributory negligence, in failing to pay attention and to exercise care and to have his car under control.</p> <p>APPEAL AND ERROR: Harmless Error — Evidence Elsewhere Re-2 ceived. Exclusion of evidence of a driver of an automobile as to whether it would have been possible for him to stop after his attention was called to the engine held harmless to plaintiff, where he had otherwise testified, in effect, that he could not stop. ^.</p> <p>TRIAL: Evidence — Repetition. Evidence objected to held repeti3 tion, and objection properly sustained on that ground.</p> <p>TRIAL: Evidence — Cross-Examination-—Explanation by Witness. 4 Where a witness, when asked a question on cross-examination, desired to explain something, and was directed by the trial court to answer the question and then explain, and the answer itself was an explanation, and he was re-examined after this ruling, and was not asked by his counsel as to what explanation he desired to make, there was no error.</p>

<p>TRUSTS: Resulting Trusts — Widow's Interest in Land. If title to 1 a widow’s undivided one-third interest in land passes without consideration to her subsequent husband, he will be assumed to have become a trustee, and will be required to account therefor, after her death, to her children by her prior marriage.</p> <p>DESCENT' AND DISTRIBUTION: Advancements — Conveyance by 2 Mother to Son — Presumption. It is to be presumed that a conveyance by a mother to a son without consideration is an advancement.</p>

— William Hutchinson, Judge. Suit in equity for the cancellation of adoption papers which plaintiff alleges she was induced to sign by fraud. There was a decree in the court below, canceling the agreement and ordering the child returned to plaintiff.

— H. B. Boies, Judge. Plaintiff made claims against the estate of the administrator’s decedent, Parkhurst. The matter was tried to the court, with jury waived. The administrator consented to an allowance of $300. The trial' court made such allowance, and denied all other relief. Plaintiff appeals.—

— W. H. Fahey, Judge. For reasons that will appear in the body of the opinion, we pretermit the making of a preliminary statement.—

<p>Appeal from Black Hawk District Court. — H. B. Boies, Judge.</p> <p>Suit to recover on a promissory note. Execution admitted. Counterclaim for damages alleged to have resulted from fraud practiced in a land sale, for the purchase price of which said note was given. There was a judgment on the counterclaim which canceled the note and mortgage. Plaintiff appeals.</p>

— H. A. Fuller, Judge. On February 25, 1918, the plaintiff, claiming to be the owner in fee simple of the northeast quarter of the northwest quarter and the south half of the northwest quarter of Section 35, Township 70, Bange 31, in Binggold County, sold and conveyed the same to J. R. Taylor; but, it appearing that the defendant S. W. Taylor made adverse claim to a portion of the described premises, the said grantee, J. R. Taylor, withheld from plaintiff a part of the…

— Lawrence Db Grabe, Judge. Action to recover damages consequent on a collision with defendant’s ice wagon, resulting in a directed verdict for the defendant. The plaintiff moved for new trial, and, on hearing, the motion was sustained. The defendant appeals.

<p>WILLS: Construction — Vested (?) or Contingent (?) Devise. A devise directing the sale of real estate and the division of the proceeds among named legatees; with added clause that, “should any of the legatees be dead at the time of the distribution of the proceeds, then said share shall go to his or her living heirs," conveys an interest which vests absolutely in the named legatees, on the death of testator.</p>

<p>APPEAL AND ERROR: Dismissal Because of Loss of Interest. An 1 appeal will foe dismissed wlien appellant’s only interest is as a trustee of a testamentary trust which, subsequent to the taking of the appeal, has wholly terminated, under the terms of the will, hy the death of the cestui que trust.</p> <p>TRUSTS: Termination hy Failure of Purpose. Principle recognized 2 that a trust terminates when the purpose for which it was created ceases to exist.</p>

— J. W. Anderson, Judge. Separate actions brought by the Live Stock National Bank and the Sioux City Cattle Loan Company upon separate notes were aided by attachments levied upon some horses and cattle on which intervener claims a prior lien. The cases were, by agreement of counsel, consolidated and tried to the court upon the issues tendered by the petition in intervention. Judgment was entered- in favor of the intervener, and plaintiffs appeal.

— R. P. Howell, Judge. The plaintiff asserts that he is an “innocent purchaser” of a note made by Baker to LeGrand, and that he is entitled to have a lien established to secure payment of said note. The trial court gave him judgment against Baker, and established the lien as prayed. Baker appeals. Le-Grand made default.-

<p>VENDOR AND PURCHASER: Sale (?) or Agency(?) A contract 1 wherein first party agrees to institute a selling campaign for land belonging to second party, and to pay second party a stated sum for the land at a stated time, out of which sum second party agrees to discharge existing mortgages, constitutes a sale by second party to first party, and not a contract of agency.</p> <p>MECHANICS’ LIENS: Interest of Unpaid Vendor of Land. The 2 interest which one has in land (sold prior to the furnishing and erection of improvements thereon) because of the unpaid purchase price is not subject to a mechanics’ lien for such improvements.</p> <p>MECHANICS’ LIENS: Stranger to Title Bound by Estoppel. Prin3 ciple recognized that a stranger to the title to land may become personally liable for the value of improvements placed thereon, provided he so conducts himself that the one improving has a right to rely, and does rely, on him for payment. Evidence held to show affirmatively that no such reliance was had.</p> <p>MECHANICS’ LIENS: Holding Non-Contracting Party. One who 4 contracts with a conditional vendee of land, and in sole reliance on such vendee for payment, may not later change the account and hold the vendor personally liable.</p> <p>PRINCIPAL AND AGENT:. Personal Trust Relation. Principle 5 recognized that' a trust committed to an agent is presumed to be exclusively personal, and cannot be delegated.</p>

<p>Appeal from Webster District Court. — E. M. McCall, Judge.</p> <p>What we have to decide is how the words “nonresident of the state,” found in Section 8451 of the Code of 1897, which tolls the statute of limitations during the time in which a defendant is a nonresident of the state, should be interpreted. The trial court held that, as matter of law, there was no time in which the defendant was a nonresident, within the meaning .of said statutory provision, and the plaintiff appeals.</p>

— E. M. McCall, Judge. Action in equity to foreclose an attorney’s lien. The material facts are stated below. Upon motion of counsel for defendant, the cause was transferred to the law side of the docket for trial. From this ruling, plaintiff appeals.

<p>Appeal from Ringgold District Coxvrt. — Homer A. Fuller, Judge.</p> <p>The defendant appeals from a judgment of conviction in the district court of Ringgold County, of the crime of resorting to a house of ill fame for the purpose of lewdness.</p>

<p>Appeal from Hamilton District Court. — G. D. Thompson, Judge.</p> <p>Action in equity to foreclose a mechanics’ lien. There was a decree for plaintiff, and defendants appeal.</p>

<p>MASTER AND SERVANT: Workmen’s Compensation Act — Skot 1 Firer as Employee. A shot firer, employed and discharged hy the miners in a coal mine with the consent of the operating master, and paid from a fund created hy the operator’s deducting a certain sum from the wages of each miner, is the employee of the operator.</p> <p>MASTER AND SERVANT: Workmen’s Compensation Act. Wheth2 er certain facts constitute a workman the employee of the master is a question of law, and the decision of the Industrial Commissioner is reviewahle hy the court.</p>

— Lawrence DeGraff, Judge. Action at law for the recovery of rent pursuant to the terms of a written lease. ' There was a directed verdict and judgment for the plaintiff, and defendants appeal.

— W. G. Sears, Judge. Action on a certificate of membership issued to Michael Fahey by the defendant, stipulating the payment of $2,000 upon his death, if in good standing, resulted in a directed verdict for defendant and judgment thereon. The plaintiff appeals.

Des Mames Mumeipal Court. — E'skil G. Carlson, Judge. Action on warranty in conveyance against incumbrances amounting to $83.92, resulted in the dismissal of the petition. On certificate of the trial court that an appeal should be allowed, the plaintiff brings the cause to this court.

- — John F. Talbott, Judge. Plaintiff’s action is to reform a certain written instrument. Defendants answer, denying plaintiff’s right to a reformation, and on cross-petition ask that the instrument be enforced specifically. Opinion states the facts. This action was before this court at a former sitting, and an opinion filed. Upon petition, a rehearing was granted, the case was reargued, and again submitted to this court, for further consideration.

<p>BAILMENT: Measure of Damages. The measure of damages for 1 negligent injury to a bailment is not the difference between the value of the bailment at the time of storage and at the time of redelivery, but is the depreciation in value caused by the bailee’s negligence.</p> <p>DAMAGES: Avoidable Consequences. The measure of damages 2 for a comparatively trifling injury to property is the reasonable cost of restoration or repair.</p>

— Thomas J. Guthrie, Judge. Appeal from an order of the court fixing the one year’s allowance to a widow, and directing an automobile to be turned over to her as exempt property.

<p>Appeal from Polk District Court. — -Thomas J. Guthrie, Judge.</p> <p>Action on an accident insurance policy. Verdict directed for the defendant. Plaintiff appeals. Opinion states the facts.</p>

— Eskil C. Carlson, Judge. Action to recover damages on account 'of the breach of an oral contract. Verdict and judgment for plaintiff. Defendant appeals.

<p>ASSAULT AND BATTERY: Self-Defense — Evidence. Evidence 1 held to afford no basis whatever for instructions relative to self-defense.</p> <p>ASSAULT AND BATTERY: Unjustifiable Assault. No issue but 2 the one pertaining to measure of damages should be submitted on a record which reveals an unjustifiable ass&ult.</p>

<p>Appeal from Floyd District Court. — C. H. Kelley, Judge.</p> <p>Suit in equity, to establish and foreclose a lien upon collateral security. Upon the trial had, the court granted the plaintiff partial relief, and denied other substantial relief prayed. The plaintiff appeals.</p>

— Henry Bank, Judge. Appeal from the action of the court in refusing to allow interest on the amount of the verdict from the date of the death to the time oí the rendition of the verdict.

— Thomas J. Guthrie, Judge. Action at law to recover damages for injuries received by plaintiff, in a. collision between an auto truck, in which he was riding, and an engine and train operated by defendant. Trial to a jury, and verdict and judgment for plaintiff. The defendant appeals.

— H. B. Boies, Judge. Action for damages for personal injuries resulting from a fall upon an icy sidewalk of defendant. There was a verdict for the plaintiff, and the defendant appeals.—

— M. F. Edwards, Judge. Action to recover the consideration stated in a written contract of purchase. Defendant admitted his signature to the written contract, but averred that the contract never went into effect, because an oral condition precedent was not performed by plaintiff. There was a verdict and judgment for the defendant, and plaintiff appeals.

— J. H. Applegate, Judge. Action by plaintiff, manufacturers and jobbers of mill work at Des Moines, Iowa, against the Consolidated Independent District of Bussey, Iowa, and Oskar Knutson, . contractor, and the Chicago Bonding & Surety Company, to recover the value of mill work furnished by it, and used in the construction of a consolidated school building by Knutson, at Bussey, Iowa.

— Joseph E. Meyer, Judge. - Plaintiff brought this action in equity-to recover from both defendants for a fire escape, the material and labor for the construction of which it furnished. Plaintiff also asked that the amount due be declared a lien, and that the court adjudicate and determine which of defendants, or whether all, are indebted to plaintiff, and the amount.

— Hubert Utterback, Judge. . Suit against the county treasurer, to cancel upon his books certain entries which purported to have levied taxes under a void and illegal assessment. There was a demurrer to the petition, which was sustained, and plaintiff appeals.

— O. S. Franklin, Judge. . Action by plaintiff to recover on account of coal sold to the defendants, in the sum of $189.87. The defendant filed a counterclaim, asking damages for breach of contract to furnish coal. Trial to a jury, and verdict and judgment for the defendant for $203.33. The plaintiff appeals.

— Joseph J. Clark, Judge. This is a garnishment proceeding. The controversy is between the plaintiff, as the garnishing creditor, and the American Radiator Company as an intervener, claiming the fund. There was a judgment for the intervener, and the plaintiff appeals.

— Lawrence De Grape, Judge. Suit in equity for an accounting of profits realized by the defendants as alleged agents of the plaintiffs, or as associates in a joint undertaking. There was a trial bn the merits, and a decree dismissing the petition.

— M. F. Edwards, • Judge. Proceeding under the Workmen’s Compensation Act to recover compensation for the loss of an eye, being the only eye the complainant had at the time of his injury. The industrial commissioner allowed compensation as for total disability, deducting, however, from such allowance the compensation value of the eye previously lost. This allowance was affirmed by the district court, and the defendant appeals.

— William Hutchinson, Judge. Action for damages for the breach of an alleged contract for the purchase of 20,000 bushels of corn. There was a verdict and judgment in favor of the plaintiff, and defendant appeals.

— E. G. Albert, Judge. The plaintiff obtained the setting aside of a deed wherein said Lawrence Guggerty was grantee, and he has decree quieting the title to the land described in said deed. Hence this appeal.

<p>APPEAL AND ERROR’: Insufficient Assignment. Error points and brief points must clearly demonstrate, without independent investigation by tbe court, (1) what error is claimed to have been committed, and (2) why it is error.</p>

— Hubert Utterback, Judge. This is a suit in equity, to recover judgment upon and to foreclose a chattel mortgage note given for the purchase price of and upon a piano.

— Hubert Utterback, Judge. Action against defendant and the conductor and engineer in charge of the train, for damages resulting from personal injuries in a collision between the train and a motorcycle on which plaintiff was riding. The accident occurred at a crossing in the city of Des Moines. From a directed verdict in favor of the defendants, the plaintiff appeals.

Polh District Court. — Joseph E. Meyer, Judge. Prosecution for murder in the first degree. There was a verdict and judgment of guilty of murder in the second degree, and a sentence of imprisonment for life. The defendant appeals.

— G. D. Thompson, Judge. Suit in equity for an accounting. The case was first heard before a referee. The report of the referee found for the defendants. The trial court sustained the report, and dismissed the petition. Plaintiff appeals.

— C. H. Kelley, Judge. Action to recover indemnity paid by plaintiff, under tbe terms of a policy of insurance issued to the People’s Mutual Telephone Company, on account of the death of an employee. The facts are fully stated in the opinion. There was a verdict and judgment in favor of the plaintiff in the court below, and defendant appeals.

— W. G. Sears, Judge. Suit to recover for an alleged shortage in gasoline carried by the defendants, with which is coupled what is, in a sensed an alternative claim: to wit, a demand for repayment of excess freight charges.

— Milo P. Smith, Judge. Action for malicious prosecution. Defendants, claiming that the action was brought in the wrong county, appeared and filed a motion for a change of place of trial. This motion was overruled. Defendants appeal.

<p>REFORMATION OF INSTRUMENTS: Mutual Mistake and Non-Negligence. He who relies on mistake as a ground for reformation of an instrument must clearly and satisfactorily show: (1) That the mistake was mutual; and (2) that he was not negligent in the preparation of the contract.</p>

— H. E. Fry, Judge. Defendant, as administrator, with will annexed, of the estate of Mary Keegan, appeals from the judgment of the court allowing a claim of $300( against the estate.

- — M. F. Edwards, Judge. On the petition of some of the defendants, the defendant board proposed to construct a drainage improvement. The plaintiffs’ own lands lying on a lower level than the proposed outlet of said improvement, they obtained an injunction restraining the construction of said improvement, and defendants appeal.

<p>Appeal from Harrison District Gowrt. — O. D. Wheeler, Judge.</p> <p>Dependant was found guilty in a bastardy proceeding, and appeals.</p>

<p>REFORMATION OF INSTRUMENTS: Mutual Mistake. Reformation will be granted when it is made to appear that the parties, through mutual oversight, failed to state in the contract that the grantor was not selling the mineral rights underlying the land in question.</p>

— Thos. A. Guthrie, Judge. Action to cancel certain assessments made for street improvements. Opinion states the facts. Decree for the defendant, dismissing plaintiff’s petition. Plaintiff appeals.

— F. O. Ellison, Judge. Plaintiff brought this action in partition, claiming to be the owner of a one-third interest in two certain lots, containing 20 acres, and that defendant Lovina Beam was the owner of an undivided two thirds. Defendants claimed that the 20-acre tract was the homestead of plaintiff and her deceased husband, and that plaintiff had, by occupancy, elected to take her homestead rights therein.

- — E. M. McOall, Judge. Action at law to recover'$461.31, balance alleged to be due on a lumber bill. Trial to the court without a jury. At the trial, plaintiffs dismissed as to defendant Fannie Reese.

<p>MUNICIPAL CORPORATIONS: Firemen’s Pension — “Paid” Fire Department. A retired fireman is entitled to a pension, under Sec. 932-e, Code Supp., 1913, only in case he is of the required age, 50 years, and has served the required time, 22 years, in a paid fire department, to wit, a fire department the members of which are paid a regular salary, in return for their entire time.</p>

— F. F. Dawley, Judge. This is a proceeding in the nature of quo warranto, to test the right of defendants to hold the office of school director of the consolidated independent district of Troy Mills. Judgment ivas entered dismissing plaintiff’s petition. Plaintiff appeals.

— James W. Willett, Judge. Suit in replevin, whereby plaintiff claimed the right of possession, as absolute owner, of “one set of diamond earrings” and “one ring.” The defendant answered, averring absolute ownership, and, therefore, right of possession thereunder. The plaintiff appeals from the refusal of the trial court to make an intermediate order.

— Atherton B. Clark, Judge. Action for damages for wrongful death. There was a verdict and judgment for the plaintiff for $13,500. The defendant appeals.

'Appeal from Lee District Court. — W. S. Hamilton, Judge. In an action by the plaintiff, to obtain possession of lands which he had leased to the defendants, the verdict found the defendants to be not guilty. Plaintiff appeals.—

— B. F. Cummings, Judge. , Action for damages for an alleged assault committed upon the plaintiff by the depot agent of the defendant com-party at Ferguson, Iowa. There was a verdict and judgment for $250, and defendant appeals.

— J. B. Rockafbllow, Judge. The petition, as amended, alleged that plaintiffs, in the fall of 1916, entered into an oral contract with the defendant, — who is owner of a large tract of land on which all cottonwood, elm, and other trees of sufficient size were to he sawed for lumber, except walnut trees, which were to be either sawed into lumber or sold in the log, to the best advantage to the parties, — by the terms of which plaintiffs were to cut and haul the logs to the…

Appeal froth Page District Court. — Shelby Oullison, Judge. Suit in partition of certain land and claim for one third of distributive share of personal property were heard together, and both the petition and claim dismissed. The plaintiff and claimant appeals.

Appeal, from Dickinson District Court. — James DeLand, Judge. Suit in equity for the specific performance of a contract to purchase realty. Plaintiff’s petition was dismissed, and judgment entered against him for costs, and he appeals.

<p>NEGLIGENCE: Willfully Assuming Position of Danger. A servant 1 may not be said, under presented record, to have been negligent in placing himself in a position of danger, when the emergency was grave, and required quick action to prevent an explosion.</p> <p>MASTER AND SERVANT: Federal Employers’ Liability Act— 2 “Unsafe” Locomotive. The duty of an interstate railway carrier to only use “safe” engines is an absolute duty, under the Federal Locomotive Boiler Act, and the court should so instruct. (See U. S. Comp. Stat., Sec. 8639-a.)</p> <p>MASTER AND SERVANT: Federal Employers’ Liability Act— 3 Withdrawal of Assumption of Risk and Contributory Negligence. Assumption of risk and contributory negligence have no place in an action under the Federal Employers’ Liability Act, when plaintiff rests his action solely on a violation by the master of a Federal act enacted for the safety of employees.</p> <p>EVIDENCE: Best and Secondary — Scope of Employment. An em-4 ployee, in the absence of better evidence showing definite liim itations, may testify what his duties were under specified circumstances.</p> <p>EVIDENCE: Competency — Non-Expert—Condition of Injured Limb. 5 Plaintiff, a non-expert, may explain to the jury the condition of his injured limb, especially when the expert testimony on -both sides of the controversy was in harmony therewith.</p> <p>NEW TRIAL: Excessive Verdicts — $4,000. Verdict for $6,250 for 6 severe personal injury, reduced by the trial court to $4,000, held not excessive.</p>

<p>Appeal from Tama District Court. — J. W. Willett, Judge.</p> <p>Action at law to recover damages for an alleged unlawful assault and attendant defilement of the plaintiff. Trial to a jury, and verdict and judgment for plaintiff for $1,500. Defendant appeals.</p>

— Hubert Utterback, Judge. Suit in partition, resulting in a decree awarding the estate of the decedents to the cross-petitioner, Maude Booker. The plaintiffs and defendants, other than M,cNabb and Maude Booker, appeal.

— F. F. Dawley, Judge. Action at law upon two promissory notes. Judgment was prayed against the three defendants, only one of whom, Hendrix, was the maker. A cross-petition was filed by the maker, Hendrix, against his codefendants, praying that Barber, the payee of the note, be charged with primary liability therefor. There was a judgment for the plaintiff, in conformity with the prayer of its petition and the prayer of the cross-petition of Hendrix.

<p>TRIAL: Instructions — Failure to Object — Showing in Avoidance. 1 He who fails to object to instructions prior to the reading thereof to the jury must excuse his failure by something more than a verified and undisputed statement, in connection with a motion for a new trial, that he “overlooked” the error in question. (Sec. 37d5-a, Code Supp., 1913.)</p> <p>APPEAL AND ERROR: Invited Error. One may not invite an er-2 ror and then base a claim of error thereon — may not ask an instruction and then base a claim of error on the giving.</p> <p>ACCORD AND SATISFACTION: Acceptance of Check. The ac-3 ceptance of a check does not, as a matter of law, constitute an accord and satisfaction, unless it be established with the required degree of certainty that such was the intent of the parties.</p>

<p>ADVERSE POSSESSION: Deeds to Abandoned “Public Square.” Ten years’ unquestioned possession, under recorded deeds, of a public square of an abandoned municipal corporation ripens-into an indefeasible title against a school corporation which embraced such land. (See Sec. 932, Code Suppl. Supp., 1915.)</p>

— F. F. Dawley, Judge. Suit to quiet title. The claim of title of plaintiff William H. Robison is based upon an oral contract, entered into with Joseph Robison, his father, eight years prior to his decease. Joseph Robison died in 1910. The defendants are the widow and children of Calvin Robison, brother of William, who died in 1916. There was a decree for the plaintiff, and the defendants appeal.

— M. E. Hutchison, Judge. Defendant was indicted by the grand jury of Oalhoun County, charging him with the offense of assault with in-, tent to inflict a great bodily injury. Upon application of the defendant, the cause was transferred to Greene County, where a trial to a jury was had, and a verdict of guilty of the crime charged was returned, and sentence and judgment pronounced. The defendant appeals.

<p>Appeal from Johnson District Court. — R. G. Popham, Judge.</p> <p>Plaintiff declares that he was induced to buy corporation stock by the promise of the defendant that defendant would rebuy the same if plaintiff became dissatisfied with the stock. He alleges he did become dissatisfied, and that defendant refused to repurchase. He has judgment and verdict for the amount paid the defendant, with interest. Defendant appeals.</p>

<p>BROKERS: Employment — Exclusive Contract — Revocation. A pow-1 er under a contract, where brokers were given the exclusive right to sell land, were to have one third of the profits of the sale, and were required to use their best efforts to find a purchaser, could be revoked, after a reasonable time had expired for the exercise of the right; and the granting of such power did not deprive the owner of the right to sell the land himself.</p> <p>CONTRACTS: Rescission — Laches of Brokers. Evidence reviewed, 2 in an action to cancel a contract giving brokers the exclusive right to sell land, and held that the brokers were guilty of laches in not making substantial efforts for more than nine years to procure a purchaser, and that the contract should be . canceled.</p> <p>LIMITATION OF ACTIONS: Computation of Period. — Misrepresen3 tations as to Option Price. A claim for the recovery of money received by brokers, by reason of their misrepresentations as to the option price, when the option price was $1 per acre less, was a claim based on tort, and not one “heretofore cognizable in equity,” although the action was one originally commenced in equity; and therefore the claim, not having been brought until nine years after the accrual of the cause of action, was barred by the statute of limitations.</p>

<p>DRAINS: Prior Drainage — Adaptability for Lateral Tiling. In determining assessments of benefits, due consideration should be given (a) to the system of drainage already provided by the landowner, (b) to the relative amount of land actually drained by the new improvement, and (c) to the lateral drainage facilities afforded by the ditch. Evidence reviewed, and held to show an excessive assessment.</p>

— G. D. Thompson, Judge. Plaintiff, claiming to be assignee of certain funds in tlie hands of the administrator, brings this action, as assignee, against the administrator, to recover the same. Opinion states the facts. At the conclusion of the evidence, the court directed a verdict for defendant. Plaintiff appeals.

<p>SPECIFIC PERFORMANCE: Non-Abuse of Discretion. The discretion of the court in refusing specific performance, and in relegating the plaintiff to an action at law, is not abused when it appears that part of the purchase price was represented by mortgages, which the parties mistakenly understood at the time of contracting were ample security for the deferred payment.</p>

<p>Appeal from Linn District Court. — F. O. Ellison, Judge.</p> <p>Suit to recover renewal premiums alleged to be due on a surety bond issued to defendant. Verdict was directed for plaintiff, and defendant appeals.</p>

— G. B. Jennings, Judge. Action for damages to a car of horses shipped in a palace horse car of defendant from Shenandoah, Iowa, to East Buffalo, New York. Verdict and judgment for plaintiff. Defendant appeals.

<p>Appeal from Dubuque District Court. — D. E. Maguire, Judge.</p> <p>Action, under Federal Employers’ Liability Act, for damages. Verdict and judgment for plaintiff. Defendant appeals.</p>

<p>Appeal from Harrison District Court. — J. B. Rock apello w, Judge.</p> <p>This is a suit on account for $1,100, had and received. The sole defendant is the copartnership firm of Olson & Longman. The members of this copartnership were Herman Olson and A. M. Longman. Neither of such members is a party defendant, the suit being against the firm alone. An attachment was sued out on July 24, 1917, and the same was levied upon two certain automobiles, as the alleged property of the firm. On the same day, Longman executed a bill of sale, covering the same property, to the intervener, who has filed a petition of intervention, claiming the property under its bill of sale, as the individual property of Longman. The one question in issue, therefore, is whether the attached property was the property of the firm, or was it the individual property of Longman? The case was tried summarily before the trial court, without a jury, under the provisions of Code Section 3928. The trial court found for the intervener. The question before us is whether this finding is fairly supported by the evidence.—</p>

<p>Appeal from Dubuque District Gou/rt. — Robert Bonson, Judge.</p> <p>Action to recover on a cyclone, tornado, and high wind policy. Verdict and judgment for the plaintiff in the court below. Defendant appeals.</p>

— F. O. Ellison, Judge. On February 14, 1919, plaintiff instituted suit against her nonresident husband for separate support and mainte.ance, and also that of their daughter, and for custody of the latter.

— B. M. Wright, Judge. Suit in equity, to abate a liquor nuisance and to enjoin the defendants from selling intoxicating liquors. There was a decree against all defendants, as prayed.

— Thomas Arthur, Judge. Action at law to recover the value of certain live stock alleged to have been lost by reason of the defendant’s failure to maintain a fence between its right of way and the farm occupied by plaintiff. A demurrer to the sufficiency of the petition having been sustained, plaintiff elected to stand upon his pleading as filed; and, as he refused to amend or plead over, judgment was entered against him for costs, and he appeals.

— Shelby Cullison, Judge. The appellees brought suit against the appellant railway company and another, in a Missouri court, at Kansas City. The appellant obtained a temporary injunction, restraining Peterson and Hess from further promoting the prosecution of said action, and from doing any act or thing in furtherance thereof. The motion to dissolve this injunction was sustained; hence this appeal.

— Thomas L. Maxwell, Judge. This is an appeal from the establishment on part of the defendant board of supervisors of the aforementioned drainage district.

<p>Appeal from Louisa District Court. — Oscar Hale and James D. Smyth, Judges.</p> <p>Action by a sendee to recover damages for a failure to deliver a telegram promptly. Opinion states the facts. Verdict and judgment for the plaintiff in the court below. Defendant appeals.</p>

<p>Appeal from Polk District Court. — Thomas J. Guthrie, J udge.</p> <p>Action for damages, resulting in a verdict for defendant and judgment thereon. The plaintiff appeals.</p>

— O. W. Vermilion, Judge. Action for damages for personal injuries sustained as the result of an explosion of kerosene. There was a verdict for the plaintiff, and the defendant appeals.

<p>DEEDS: Appurtenances — Profit á Prendre. A grant, in a deed to a 1 mill, dam, and land in connection therewith, to take gravel from other lands of the grantor to repair the said dam, creates an incorporeal hereditament, which is appurtenant to the land conveyed, and passes with it under subsequent conveyances.</p> <p>DEEDS: Construction — Profit á Prendre. The exercise of the right 2 in the grantee of land upon which is a mill and dam, to take gravel from other lands of grantor “to repair the dam now in connection with said grist mill,” will be confined to the dam existing at the time the right is granted.</p> <p>WOEDS AND PHEASES: “Eepair” and “Eeconstruction.” “To 3 repair” presupposes the existence of the thing to he repaired. “To reconstruct” presupposes the non-existence, as an entity, of the thing to be reconstructed. Where the evidence showed that a dam had never been washed out, held that the replacing of decayed timbers with sound ones, replacing gravel washed out, and the building of successive aprons of wood and cement, constitute repairs, and not reconstruction.</p> <p>DEEDS: Recording — Insufficient Index. An index which shows the 4 section, township, and range of one tract of deeded land does not constitute constructive notice to good-faith purchasers for value, without notice, of land in another section, of a right in the grantee to take gravel from the latter land. (Sec. 2935, Code, 1897.)</p> <p>DEEDS: Recording — Instrument Affecting Real Estate. A deed con-5 veying the right to take gravel from the land of another affects real estate, and must be recorded, in order to charge subsequent purchasers of the land.</p> <p>LICENSES: Real Property — Profit á Prendre. A right in a grantee 6 of a mill site and dam to enter upon other indefinitely described lands of the grantor and take gravel for repair of the dam will not be construed to contemplate the unnecessary destruction of a substantial grove.</p>