Volume 188 — Iowa Reports

<p>Appeal from Polk Distriot Court. — Joseph E. Meyer, Judge.</p> <p>The opinion sufficiently states tbe case.</p>

<p>1 DRAINS: Assessment — Deference to Action of Board. Th'e rule of deference to the action of the hoard of supervisors in adjusting assessments presupposes that the board has, with reasonably painstaking care, availed itself of all available and material information bearing on an approximately just distribution of burdens. The rule ceases when its presupposed basis is shown not to exist. Record reviewed, and held to show that the assessments fixed by the court were more accurate than those fixed by the board.</p> <p>2 DRAINS: Assessments — Approximate Accuracy. Principle recognized that an approximately correct assessment is the best that the court may hope to arrive at in threading its way through the ordinary maze of conflicting estimates bearing on the relative amount of swamp, wet, and dry land in the various tracts.</p> <p>3 DRAINS: Appeal — Decree Irrevocably Fixing Classification. The district court, on appeal from assessments, may not decree that the classification found by it to be correct shall be the basis “for 'future assessments by way of improvements." (See Sec. 1939-al2, Code Supp., 1913.)</p>

<p>Appeal from Jackson District Court. — F. D. Letts, Judge.</p> <p>The trial court decreed appellant was, in law, a trustee, to pay appellee a sum of money given appellee by an, ineffective codicil, and, therefore, defendant and appellant appeals.</p>

<p>1 HIGHWAYS: Obstructions — 'Standpipes of Water Company — Negligence. A standpipe, connected with a mechanism for controlling the supply of water, which is erected in a public street, with the consent of the city and the private water company, and at the expense of the benefited property owner, but which, after erection, is within the arbitrary control of the water company, becomes a part of the equipment of the water company, with consequent primary liability on its part to maintain the pipe in such manner that the public will not suffer injury therefrom.</p> <p>2 NEGLIGENCE: Protruding Water Pipe in Sidewalk. The act of a water company in allowing a water pipe, originally flush with the sidewalk, to remain for two years some 2 or 3 inches above the sidewalk, owing to the gradual sinking of the walk, presents a jury question on the issue of the company’s negligence.</p> <p>3 MUNICIPAL CORPORATIONS: Primary and Secondary Negligence —Recovery. A city which has paid damages consequent on its neglect to compel a public utility licensee to perform its implied primary duty to maintain its street equipment in a safe condition, may recover over against such licensee. Such facts do not present a case of joint tort-feasors.</p> <p>4 MUNICIPAL CORPORATIONS: Sunken Walk. Negligence is not established by a showing that a public walk was allowed, for several years, to remain in a slightly sunken condition, when it was not shown that such condition materially affected its solidity, safety, or usefulness.</p>

<p>Appeal from Dickinson District Court. — James DeLand, Judge.</p> <p>Action at law to recover damages for personal injury. There was a directed verdict and judgment for the defendant, and plaintiff appeals.</p>

<p>1 NEGLIGENCE: Contributory Negligence — Insulated Electric Wires. A jury question is presented on the issue of contributory negligence when the jury might find that the deceased unnecessarily took hold of an insulated electric wire, with knowledge, and after being warned, of its dangerous condition.</p> <p>2 TRIAL: Instructions — ¡Pleadings Control. Error may not be predicated on lack of clearness in instructions, when they are fully as broad as the pleadings, and are in harmony with the statements of counsel to the court. So held where the pleading and counsel’s statements to the court rested the question of negligence on the original setting of a pole, and not on its subsequent • maintenance.</p>

<p>1 CORPORATIONS: Sale of Unauthorized Stock — Personal Liability. The sale of corporate shares of stock which, without the knowledge of the purchaser, have been issued for unappraised property other than money, is a fraud, and the corporate officers participating in such sale are personally liable for the return of the consideration paid, even though they derived no personal advantage from the sale. (Sec. 1641-b, Code Supp., 1913.)</p> <p>2 ACTIONS: Joinder — Joint Wrongdoers. Parties liable for the same wrong and in the same sum are properly joined in one action.</p> <p>3 TRIAL: Disputed Fact Issue — Directed Verdict. Verdict must not be directed when the evidence on a material issue is fairly in dispute.</p>

<p>1 EVIDENCE: Parol as Affecting Writing — Conditional Delivery. Parol evidence is admissible between tbe original parties to an unconditional negotiable promissory note, to show that the delivery was on the agreement that the payment of the annual interest during the lifetime of the payee should work a full discharge of the note. (Sec. 3060-al6, Code Supp., 1913.)</p> <p>2 CONTRACTS: Parol to Show Conditional Delivery and Want of Consideration. Principle recognized that, as between the parties, parol evidence may be admissible to show (a) want of consideration and (b) conditional delivery.</p> <p>3 CONTRACTS: Mutuality — ‘Interdependent Promises. An agreement that one party will furnish the funds for a home, in return for annual interest on the funds advanced during the lifetime of the person so advancing, is enforcible after both parties have acted thereon.</p> <p>4 WILLS: Admissible to Prove Contract. A will devising a promissory note to the maker is admissible as an item of evidence on the issue whether the note was given on the condition that the payment of the annual interest during the lifetime of the payee should work a full discharge of the note.</p> <p>5 PLEADING-: Matters of Inducement. Matters explanatory of the circumstances under which a contract was made are proper: e. g., the family relationship existing between the parties,</p>

<p>1 JUDGMENT: Vacation — Denial of Probate — Affirmative Fraud. An affirmative showing of fraud is necessary in order to justify the setting aside of an order denying prohate of a will. Evidence reviewed in detail, and held insufficient to show fraud (a) in the conduct of the attorneys, (b) in the manner in which the guardian ad litem acted, (c) in the waiver of a jury, (d) in the failure to object to incompetent testimony, (e) in the belated filing of objections, and (f) in the agreement of beneficiaries under a former will personally to pay certain bequests contained in the will which was denied probate.</p> <p>2 JUDGMENT: Vacation — Judgment Against Minors. Principle recognized that a minor may have a regular judgment set aside only on the same showing required of an adult. (Sec. 4091, Code, 1897.)</p>

<p>1 TRIAL: Instructions — Applicability to Evidence. Instructions not applicable to the evidence are erroneous. So held where the court directed the jury to consider the adulterous relations between the parties" during a time when no such relations were shown.</p> <p>2 EVIDENCE: Relevancy and Materiality — Unidentified Letter. Testimony winch, is without probative force, and which can serve no purpose other than to enable the jury to make a bold guess at the existence of a material and issuable fact, is wholly incompetent.</p> <p>3 WITNESSES: Cross-Examination — Unjustifiable Latitude. A cross-examination over matters which have no relevancy whatever to the direct examination, nor to any fact in issue, is wholly un-allowable. !¶!¶|</p>

<p>APPEAL AMI) ERROR: Bill of Exceptions — Preservation of Evi: dence. In an equitable action, it is essential to the preservation of the evidence as a part of the record on appeal that, under Sec. 3652, Code Supp., 1913, it should he certified, either in shorthand or transcript, and filed with the clerk of the district court within six months from the entry of the decree. This statutory method is exclusive, and evidence was not preserved, when not so certified and filed, although there was a proceeding in the trial court, seeking a correction of the record, in which appellee set forth a transcript of the testimony in question, which was admitted by appellant.</p>

<p>1 WILLS: Sanity — Burden of Proof. Sanity is presumed. Burden of proof to show the contrary rests on him who so alleges.</p> <p>2 WILLS: Undue Influence — Will Contrary to Attempted Influence. Conceding, arguendo, that testator was easily influenced by reason of certain delusions, yet undue influence may not be predicated on the fact that testator was advised to make an unequal distribution, when an analysis of the will reveals a distribution of his entire estate by a series of devises practically equal.</p> <p>3 EVIDENCE: Opinion Evidence — Sanity. Nonexpert witnesses may testify to the sanity of a person on no other showing than that they had never, during long acquaintance with the person, observed anything strange, unusual, or unnatural about him.</p>

<p>1 APPEAL AND ERROR: Harmless Error — Dismissal of Codefendant. Where the appellant was not entitled to recover, in an action to redeem land from a foreclosure sale, any error in dismissing a party who was made such merely in aid of an auxiliary accounting was harmless.</p> <p>2 VENUE: Rights of Nonresident Third Party. In an action to redeem from a foreclosure sale, wherein a third party, who was a nonresident of the county, was brought into an auxiliary accounting, where it appeared that plaintiff was not entitled to . redeem, such third party had a right to demand that he he dismissed as a party, on the ground that the action for accounting was purely a personal suit, and that he had a right to have it tried in the county of his residence.</p> <p>3 MORTGAGES: Foreclosure and Redemption — Appeal from Foreclosure Judgment. The right to redemption of land sold under a mortgage foreclosure is, under Sec. 4045, Code, 1897, cut off by an appeal from the foreclosure judgment.</p> <p>4 MORTGAGES: Foreclosure and Redemption — Presumption of Regularity of Sale. A recital in a sheriff’s deed that the sale was made in accordance with the order of the court, and in pursuance of the statute in such case made and provided, in a case where it is claimed that the sale should have been made without right of redemption, did not show that it was made subject to right of redemption within a year, as there would be a presumption in favor of the regularity of official conduct, and such recital tended to establish that the sale was, in all respects, regular.</p> <p>5 MORTGAGES: Foreclosure and Redemption — Premature Issuance of Deed. The premature issuance of a sheriff’s deed, before the expiration of time of redemption, is a mere irregularity, and does not invalidate the sale or deprive the judgment debtor of the right to redeem, and the title remains in him until the expiration of the time allowed for redemption. Secs. 4044, 4045, Code, 1897.</p>

<p>Appeal from Warren District Court. — George B. Lynch., Judge.</p> <p>Action for indemnity stipulated in fire insurance policy resulted in a directed verdict for defendant and judgment thereon. The plaintiff appeals.</p>

— F. F. Dawley, Judge. This is a proceeding under Section '4099 of the Code for additional judgment for damages resulting from the delay in proceedings by reason of the vacation of a judgment. The trial court found for Palumbo, and declined to assess against him the penalty or additional judgment asked by the lumber company. The lumber company appeals.

<p>Appeal from Pottawattamie District Court. — Earl Peters, Judge.</p> <p>Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and the defendant appeals.</p>

— J. W. Anderson, Judge. Action in equity for specific performance of a contract for tbe sale of real estate. There was a decree for plaintiff, and the defendants appeal.

— Shelby Cul-lison, Judge. The defendant was convicted of the crime of robbery, and appeals. The facts, so far as necessary to an understanding of the case, are stated in the opinion.

<p>Appeal from Hw'rison District Court. — R B. Woodruff, Judge.</p> <p>Action at law upon a promissory note. Judgment for plaintiff against the defendant Davis, who appeals.</p>

<p>1 NEGLIGENCE: Imputed Negligence — Riding on Invitation. A person riding with another on invitation is not chargeable with the negligence of the driver on the mere showing that they are engaged in a “common” enterprise. It must appear that the invited party Had the right or assumed to have the right to control the movements of the driver.</p> <p>2 HIGHWAYS: Excessive Speed hy Automobile. Negligence may be presumed from the operation of a motor vehicle at a speed exceeding 25 miles per hour. (Sec. 1571-ml9, • Code Supp., 1913.)</p> <p>3 HIGHWAYS: Law of Road — Crossing Intersections. Principle recognized that travelers passing each other at right angles at intersections are not controlled by the statute which requires them to turn to the right when meeting. (Sec. 1569, Code Supp., 1913.)</p> <p>4 TRIAL: Instructions — Correct But Not Explicit. Lack of explieitness in a correct instruction is waived by failure to request a more explicit one.</p>

— Joseph J. Clark, ' Judge. A certificate of insurance was issued, January 16, 1905, by defendant, a fraternal society organized under the laws of Michigan, with indemnity of $1,000 in event of death of William Nuhn, payable to Lillian I. Ingalls, described therein as a dependent. The assured died, May 24, 1913. Proofs of loss were furnished, and the indemnity paid to the beneficiary named.

<p>1 PRINCIPAL AND AGENT: Liability of Agent — Nonfeasance. An agent is not personally liable to a third person for mere non-feasance.</p> <p>2 PRINCIPAL AND AGENT: Liability of Agent — Rental of Defective Premises. Agents who rented real property to a tenant were not liable for an accident resulting from the giving away . of a filled well, where, although they knew that the well had been filled, they knew nothing which would, cause them to believe there was any danger, and where there was no duty of inspecting the same, even as between them and their principal.</p>

<p>1 INJUNCTION: Bond — Dismissal of Suit. In an action to vacate a judgment charged to have been wrongfully obtained, where the injunctive relief asked is merely auxiliary and incidental, the dismissal of the suit is not, in an action on the injunction .bond, an adjudication that the injunction should not have been granted, although it would have been such an adjudication, had the suit been solely for injunctive relief.</p> <p>2 INJUNCTION: Bond — Inability for Costs. It is only under bonds. executed under the general injunction statute, Secs. 4354 to 4376, inclusive, Code, 1897, that recovery for expenses in dissolving the injunction has no limit save what is reasonably expended for that purpose; and in a proceeding under Secs. 4097 to 4099, inclusive, Code, 1897, the liability is restricted to the payment of any penalty assessed, and there is no liability on the part of defendants for expenses in dissolving the injunction.</p> <p>3 APPEAL AND ERROR: Reversal — Nominal Damages. The Supreme Court will not reverse for refusal of alleged purely nominal damages; but that rule does,not avail where it is held, in a case where a verdict was directed, that, if the obligee of an injunction bond was entitled to recover anything, the jury might have allowed a substantial sum.</p> <p>4 INJUNCTION: Bond — Premature Suit. Where an injunction bond was given in a suit to vacate a judgment wherein auxiliary in-junctive relief was sought, and the said action was dismissed, and the main suit and an application therein for an injunction were pending at the time suit was brought on the bond given in the auxiliary proceedings, the suit on that bond was prematurely brought; as, until the main case was decided, it could ' not be adjudged that the injunction was wrongful in its inception.</p> <p>5 APPEAL AND ERROR: Reversal — Directed Verdict. Even if a motion for a directed verdict was assigned on untenable grounds, and sustained by the court on inadequate grounds, yet, if the direction of the verdict was right under the law, the Supreme Court will not reverse the same. -</p>

<p>1 APPEAL AND ERROR: Notice of Appeal — Sufficiency. A notice of appeal is all-sufficient, wlien it recites tlie title as in the trial court, specifies the date of the judgment appealed from, and is signed by a party in his individual name, with undisputed showing, by amended abstract, that such signer was the attorney for appellant in both the trial and appellate court. (See Sec. 4139, Code Supp., 1913.)</p> <p>2 APPEAL AND ERROR: Notice of Appeal — Irregular Recital. A recital in the abstract that the notice of appeal was fjled in the office “of said court,” instead of “in the office of the clerk of the court,” is a harmless irregularity.</p> <p>3 BONDS: Actions — Beneficiary by Reference. A subcontractor who has furnished material to a public contractor may maintain an action on the.performance bond given to the public corporation:</p> <p>1. When the bond by reference makes the contract a part thereof.</p> <p>. 2. When the contract by reference makes certain instructions to bidders a part thereof.</p> <p>3. When the instructions to bidders require a bond to protect subcontractors.</p> <p>4 PRINCIPAL AND SURETY: Liability of Surety — Unnamed Beneficiary. A subcontractor may maintain an action on the performance bond of a public contractor, when such bond is conditioned “to discharge all lienable claims that may be due to any person,” even though such brad runs ónly to the public corporation.</p> <p>5 BONDS: Actions — Subsequent Bond Affecting Prior Bond. Rights of a. subcontractor fully vested under one bond cannot be affected by the giving of a subsequent bond less comprehensive in its conditions.</p>

<p>Appeal from Harrison District Court. — J. B. Rockafellow, Judge.</p> <p>Action in equity for the specific performance of a written contract. The action was originally brought at law, and a writ of attachment issued. On hearing, the court found against the plaintiff and for the defendant upon his counterclaims. Plaintiff appeals. The opinion states the facts.</p>

<p>1 APPEAL AND ERROR: Review — Questions of Pact, Verdicts, and Findings — Directed Verdict — “Most Favorable Construction” Rule. In considering tbe question whether the evidence was such that a directed verdict was improper, the Supreme Court will, on appeal, give the evidence the most favorable construction of which it is fairly capable in behalf of the party against whom a verdict has been directed; and if, when thus considered, it appears sufficient, if true, to sustain a verdict in his favor, the ruling will be reversed.</p> <p>2 MUNICIPAL CORPORATIONS: Streets and Alleys — Snow and Ice —Non-Liability for Natural Conditions. No legal duty rests upon a city to remove snow and ice from a sidewalk, so long as it remains unchanged by the interference of man or other artificial cause; and such duty arises only when, by reason of interference with natural conditions, the coating snow and ice becomes rigid or rounded or uneven, or is made, to assume some other form, or to present some other danger than results solely from natural causes.</p> <p>3 MUNICIPAL CORPORATIONS: Streets ana Alleys — Icy Sidewalks. Evidence reviewed, in an action against a town by a pedestrian injured by falling on an icy sidewalk, and held sufficient to go to the jury on the question of the negligence of the town in permitting natural deposits of snow and ice to become rough, rounded, and slanting, so as to make it unsafe for travel.</p> <p>4 NEGLIGENCE: Contributory Negligence — Reasonable Care. Plaintiff is not guilty of contributory negligence if, under all the circumstances, it can reasonably be found that he is exercising the reasonable care of an ordinarily prudent person. Direct, affirmative proof of particular acts is not required.</p> <p>5 MUNICIPAL CORPORATIONS: Streets and Alleys — Notice as to Icy Sidewalk. Evidence reviewed, in an action against a town by a pedestrian injured by a fall on an icy sidewalk, where the rough condition of the ice had existed three weeks or more before the injury, and held sufficient to go to the jury on the question whether, in the reasonable exercise of its duty, the town knew of such condition, or should have discovered and remedied it before the injury.</p>

<p>MUNICIPAL CORPORATIONS: Streets and Alleys — -Obstructions— Negligence. Evidence reviewed, in an action for damages for personal injuries from wires placed across the street, and held sufficient to go to the jury on the question of the town’s negligence in permitting the stretching of wires across a street between telegraph and electric light poles on either side, and the placing of a banner thereon, and in not guarding against the effect of the wind, which caused the poles to lean towards the street and the wires to slip down.</p>

<p>HIGHWAYS: Obstructions — Action by Private Citizen. A private citizen may not enjoin the obstruction of a public highway and recover resulting damages when his injury is not different in hind from that suffered by every other citizen. It is not sufficient that he may suffer in a greater degree. So held where the obstruction inconvenienced plaintiff in carrying on his business.</p>

<p>Appeal from Woodbury District Court. — George Jepson, Judge.</p> <p>Plaintiff appeals from a judgment dismissing bis petition praying that the defendant Miller be permanently enjoined from maintaining a liquor nuisance in Sioux City.—</p>

<p>Appeal from Emmet District Oov/rt. — N. J. Lee, Judge.</p> <p>Appeal from a decree canceling certain drainage assessments.</p>

— OscaR Hale, Judge. IN tbe district court, this was an appeal by the plaintiffs from a special assessment against their street railway for ■ the reconstruction of the flooring between its rails on Cascade Bridge in the city of Burlington. After trial of the appeal on the merits, the district court dismissed the same. From such order, the plaintiffs have appealed.

— P. O. Winters, Judge. Suit in equity by the plaintiff city against the township trustees of Osceola Township as a board of equalization. The purpose of the suit was to adjudicate the question of exemption from taxation of certain real estate owned by the municipality, and to cancel an alleged assessment thereon. There was a decree granting the relief prayed, and defendant appeals.

— William Ti-ieopi-iilus, Judge. This ease is a special proceeding, brought by plaintiff under Chapter 5, Title XXI, of the Code, to establish the boundary line between the lands of the parties hereto, and for judgment against defendant for damages on account of trespass. The case was tried to the court as in equity.

<p>Appeal from Woodbury District Court. — W. G, Sears, Judge.</p> <p>ACtion upon a policy of fire insurance, covering a home a.nd its contents. There was a verdict for the plaintiff, and the defendant appeals.</p>

<p>1 TAXATION: Distress and Sale — Limitation. Taxes may be collected by distress and sale under execution, even after the lapse of five years from the entry on the treasurer’s books.</p> <p>2 TAXATION: Cancellation of Interest and Penalties. Failure to pay taxes within four years after the close of the year in which the books are first turned over to the treasurer ipso facto cancels all interest and penalties. [But now see Ch. 79, Acts 36 G. A. (1915).]</p>

<p>Appeal from Marion District Court. — George B. Lynch, Judge.</p> <p>Action in equity to recover money set apart or donated to defendant by Curtis & Barker. The action was brought by the heirs and representatives, who claim that the money reverts to them, because of a breach of the conditions of the contract. The trial court gave plaintiffs judgment for $13,693.56, with interest from April 20, 1916, that being the amount still remaining in tlie hands of the defendant on that date. Defendant appeals.</p>

<p>1 LANDLORD AND TENANT: Relief from Forfeiture. Equity will relieve from the forfeiture of a lease for doing exactly what the parties had agreed on, hut which, by mutual oversight, had been omitted from the lease.</p> <p>2 EVIDENCE: Parol as Affecting Writing — Avoidance of Forfeiture. Parol evidence is admissible, on the issue of the forfeiture of a lease, to show what matters were, by mutual mistake, omitted from the written lease.</p> <p>3 LANDLORD AND TENANT: Waiver of Forfeiture. A lessor who agrees with his tenant as to -the amount of damages which will fully compensate him for a breach of the lease by the tenant, and accepts payment from the tenant, with the express or implied understanding that such payment settles all their difficulties, may not thereafter base a forfeiture of the lease on such breach.</p>

<p>Appeal from Iowa District (Jourt. — R. P. Howell, Judge.</p> <p>Suit upon a promissory note against the two defendants as joint makers. The only defense interposed was by the defendant Murphy. The defense was that he was surety only, and that, after he had attached his signature to the note, the name of the payee was inserted therein, without his consent or authority. There was trial to a jury, and a verdict and judgment for the plaintiff. The defendant Murphy appeals.</p>

<p>1 APPEAL AND ERROR,: Interrogatories In Re Undisputed Questions. Error may not be predicated on the submission of interrogatories -and the answering thereof in full accord with complainant’s theory of the facts.</p> <p>il TRIAL: Contradictory Instructions. Instructions are not contradictory simply because they separately and independently present plaintiff’s theory of the facts and defendant’s defensive matter thereto.</p>

<p>Appeal from Dallas District Gowrt. — Lorin N. Hays, Judge.</p> <p>This action was brought at law on a promissory note, executed by appellant, J. E. Davis, and endorsed by Dilen-beck. Equitable answers were filed, and the cause was tried as in equity. There was a judgment in favor of plaintiff and against defendants for the amount claimed. The defendant J. E. Davis appeals.</p>

<p>Appeal from Taylor District Court. — HomeR A. Fuller, Judge.</p> <p>This was an application in the district court to modify provision in a former decree of divorce pertaining to the custody of the child. The application as made was, in effect, denied, and plaintiff has appealed.</p>

<p>Appeal from Wayne District Court. — Homer A. Fuller, Judge.</p> <p>Action by plaintiff on a bond executed by sureties, and conditioned upon the performance of a contract for the conveyance of real estate by their principal. The failure to convey is alleged as a breach of the condition of the bond. The defense was that such provision of the contract as was not performed had been inserted in the contract by mutual mistake. By cross-petition of the defendant sureties, one Denburger was impleaded as a defendant. The principal or maker of the contract was Heidelbaugh. He, being deceased, was not made a party defendant by the^ plaintiff. However, his administrator appeared as an in-tervener, joining with the defendant sureties both in their defense against the plaintiff and in their cross-petition against Denburger. Denburger filed a motion to strike the cross-petition against him, and likewise the petition of intervention, so far as it related to him, on the ground that the alleged cause of action set up by the defendants, as against him, was in no legal sense connected with the subject-matter of the plaintiff’s cause of action; that no relief was asked against him ¡except an ¡alternativeper-sonal judgment; that he was a resident of Mahaska County, whereas the suit was pending in Wayne County; and that this alleged personal action could be maintained against him only in Mahaska County.</p> <p>His motions to strike were both overruled, and he has appealed.</p>

<p>rNSURANCE: Partial and Total Disability — Submission of Issues. Under tbe terms of a policy providing for partial and total disability, tbe court need not submit tbe issue of partial disability on evidence wbicb simply shows that tbe insured might perform some isolated and indefinitely defined duties of bis profession.</p>

<p>1 PLEADING: Voluntary Issues. Parties are bound by material, non-paper issues, voluntarily litigated by them.</p> <p>2 DIVORCE: Residence — Sufficiency. Residence is not -wholly a matter of expressed intention. Acts and conduct must harmonize with intention. Evidence held sufficient to justify the court in setting aside a decree, on the grounds of want of residence and good faith.</p> <p>3 APPEAL AND ERROR: Abstract — Questions and Answers. Questions and answers may be of such a nature as to justify a literal copying of them into the abstract, in order to properly scrutinize them.</p>

— W. G. Sears, Judge. Suit in equity to adjudicate and enforce a written award of arbitrators under a common-law arbitration. The answer was, in substance, a general denial. The trial court dismissed the petition, and taxed the costs equally to each party. The plaintiff has appealed.

<p>1 MECHANICS ’ HEN: Eight to Lien — 'Perfecting of Lien hy Mate-rialman. Where an owner has knowledge that materials were furnished on credit, or has knowledge of such circumstances as would put him on inquiry, and where payment was not made strictly in accordance with the terms of the contract, the ma-terialman had the right, under the law, to perfect his lien hy complying with the statute.</p> <p>2 APPEAL AND EEEOE: Eeservation of Grounds — Constitutional Questions Not Kaised Below. A constitutional question may not be raised for the first time in the Supreme Court.</p>

<p>Appeal from Woodbury District Court. — W. G. Sears, Judge.</p> <p>Action in equity by plaintiff, on behalf of himself and other gas consumers, to enjoin defendant from putting into effect and collecting increased rates for gas, under an amended or new ordinance, contrary to the rates fixed in the ordinance granting the franchise in 1902, which franchise ordinance, the defendant contends, was repealed as to rates by the new or amended ordinance. There was a demurrer to the petition, which was sustained; and, plaintiff electing to stand thereon, the petition was dismissed, and judgment rendered against plaintiff for costs. Plaintiff appeals.</p>

— H. E. Fry, Judge. Action at law to recover a commission on the sale or exchange of real property. There was a trial to a jury, and a verdict and judgment for plaintiff, and the defendant appeals. The plaintiff has also appealed from the action of the trial court in instructing the jury to allow interest, in case of recovery, from the commencement of the suit, instead of from the date plaintiff claims his service was completed.

— E. B. Wood-ruff, Judge. Action to enjoin tbe obstruction of what is claimed to be a public and private road. Opinion states the facts. Judgment for the plaintiffs in the court below. Defendants appeal.

<p>Appeal from Mahaska District Court. — K. E. Willcockson, Judge.</p> <p>Suit to restrain defendant from erecting Ms portion of a division fence on the plaintiff’s land, instead of at the line as surveyed in pursuance of an agreement between the parties, resulted in a decree as prayed. The defendant appeals.</p>

<p>Appeal from Dubuque District Court. — J. W. Kintzinger, Judge.</p> <p>Action to recover upon three policies of insurance. Verdict for the defendant. On application of the plaintiff, a new trial was granted. Defendant appeals.</p>

<p>1 MORTGAGES: Transfers Subject to Mortgage — Duty of Vendee to Pay. A vendee wbo takes conveyances of land subject to specified existing mortgages tbereon must pay such mortgages if tbe amount thereof was retained by him out of the purchase price, and parol evidence is admissible to show the actual consideration paid.</p> <p>2 EVIDENCE: Parol as Affecting Writing — True Consideration Paid. Parol evidence is admissible to show the true consideration paid by a vendee for incumbered land, — to show that the amount of existing incumbrances was deducted from the purchase price, —and thereby to indicate an implied promise by vendee to pay such incumbrances.</p> <p>3 CONTRACTS: Express Not Excluding Implied. There may be an implied- contract on a point not covered by an express written contract.</p> <p>4 MORTGAGES: Discharge by Vendor — Recovery Over Against Ven-dee. A vendor of land who, subsequent to the conveyance, has been compelled to discharge an incumbrance on the land because of the vendee’s failure to perform his implied promise to discharge it, may not recover of the vendee more than he paid to effect the discharge — may not compromise the claim, and then charge the vendee with the full face of the claim.</p>

<p>1 DRAIN’S: Purchase of State Lake Bed under Order for Drainage— Damages. One who purchases of the state the ted of a meandered lake, with necessarily imputed knowledge that the sale was being made under a legally authorized finding, by the executive council, that the lake was detrimental to the public health and welfare, and should he drained, may not, upon the establishment of a drainage improvement, claim damages for the drainage of the lake, based solely on the claim that he was an abutting landowner.</p> <p>2 EMINENT DOMAIN: Acts Not Constituting a “Taking.” Princi-pie recognized that an act done in -the proper exercise of governmental powers, and not directly encroaching upon private property, though impairing its use, is not a “taking” of property in a constitutional sense.</p>

• — J. W. Anderson, Judge. Contestants filed objections to the probating of the will of Henry Bresler, deceased, claiming that he was not of sound mind, and that there was undue influence used by the widow and a son, who is the proponent. The ease was tried to a jury, and, at the conclusion of the testimony of both proponent and contestants, proponent moved for a directed verdict in his favor, which was sustained. The contestants appeal.

— George Jepson, Judge. This is a will contest. At the close of contestants’ evidence, the trial court directed a verdict for the proponents. The contestants appeal.

Appeal pom Johnson District Court. — Ralph Otto, Judge. Suit by plaintiff, duly appointed administrator of the estate of Peter Kladivo, deceased, by the district court of Linn County, to cancel the appointment of defendant as administrator of the same estate by the district court of Johnson County, resulted in the dismissal of the petition. The plaintiff appeals.

<p>Appeal from Lyon District Court. — William Hutchinson, Judge.</p> <p>Accounting in pursuance of an order therefor in McGuire v. Halloran, 182 Iowa 209, resulted in a decree fixing the amount owed by the plaintiff to defendants, March 1, 1919, at $8,500, including the interest on a first mortgage of $2,500, up to September 11, 1918, and directing the payment thereof prior to February 1, 1919, without interest, and, if not paid, directing special execution to be issued against the land. It was also ordered that the defendants support and maintain Maggie Cotter until March 1, 1919. Both parties appeal, plaintiff perfecting her appeal first.—</p>

<p>Appeal from Mahaslca District Court. — H. F. Wagner, Judge.</p> <p>Plaintipe appeals from an order allowing temporary alimony.'</p>

— D. W. Hamilton, Judge. Dependant was indicted on the charge of assault with intent to commit rape, tried, and convicted of simple assault. He appeals. Opinion states the facts.

<p>Appeal from Guthrie District Court. — G-eorge B. Lynch, Judge.</p> <p>Action on a certificate of insurance resulted in judgment against the defendant, from which it appeals.</p>

— Shelby Cullison, Judge. ActioN to enjoin the city from carrying out a contract for street paving, on the ground that the city had no jurisdiction, and that, by its act, an indebtedness was created in excess of the statutory limitation. The district court dismissed plaintiffs’ petition. Plaintiffs appeal.

— O. D. Wheeler, Judge. Action to recover on notes. Defendant pleads counterclaim. Plaintiffs reply that matters set up in counterclaim have been adjudicated in a former action. Judgment for the plaintiffs for the amount of notes in suit. Defendant’s counterclaim dismissed, as having been adjudicated in a former action adversely to the defendant. Defendant appeals.

— H. B. Boies, Judge. Action for damages against tbe defendant railway company and its engineer on account of injuries received by a passenger as a result of a collision. There was a verdict in favor of the engineer and against the railway company. The latter appeals.

<p>Appeal from Taylor Dlistrict Gowrt. — H. K. Evans, Judge.</p> <p>Action of replevin, based on a mortgage. Opinion s states tbe facts. Judgment for tbe plaintiff. Appeal by tbe defendant.</p>

— R. M. WRIgi-it, Judge. Suit brought in equity to establish a claim for rent, and for foreclosure of a chattel mortgage. The defendants were held to be in default for want, of answer, and decree entered as prayed. Thereafter, the defendant C. C. Taft Company appeared, and filed motion to set aside decree and default. Motion overruled, and defendant appeals.

— H. F. Wagner, Judge. Suit in equity, for the establishment of a lien upon real property, and to foreclose the same. • The court below dismissed plaintiff’s petition, and she appeals.

— O. D. Wheel-, er, Judge. Action at law to recover damages. The facts on which the claim is founded are stated in the opinion.

— George B. Lynch, Judge. Suit on a promissory note resulted in judgment against the defendant Workman and foreclosure of lien on collateral security, as prayed, and the dismissal thereof as against the Globe Manufacturing Company. The plaintiff appeals.

<p>Appeal from Boone District Cowrt. — E. M. Wright, Judge.</p> <p>The defendant was indicted upon charge of maliciously threatening to injure the property of one Anna Carson, with intent thereby to extort money from the said Anna Carson, against her will. To the charge, the defendant pleaded “not guilty,” and, upon trial to a jury, was convicted. From the judgment entered on the verdict, he appeals.</p>

<p>Appeal from Plymouth District Court. — O. 0. Bradley, Judge.</p> <p>Action on account for merchandise sold and delivered by plaintiff to defendant. Defendant pleaded rescission of the contract as to a part of the machinery, and claimed damages on account of defects in a part thereof. There was a directed verdict for plaintiff, and defendant appeals.</p>

— Thomas J. Guthrie, Judge. Emma Alcorn, in writing, guaranteed a promissory-note made by L. O.-Alcorn. She defends that her guarantee was not to be effective until it was approved by L. O. Al-corn, and that no such approval was had. The plaintiff urges that Emma is estopped to make this defense. Judgment went against the guarantor, and she appeals.-

— Lorin N. Hays, Judge. The plaintiff complained of an alleged injury caused him by a diversion of water on part of defendant. He prayed injunctive relief, and the relief prayed was, in part, granted. Defendant appeals.

<p>1 BILLS AND NOTES: Maturity — -Happening of Contingency. A promissory note, concededly given for a valuable consideration, and clearly contemplating payment at some time, but payable “when the present indebtedness of Highland, Parle Gompariy is paid,” becomes absolutely due immediately after tbe lapse of a reasonable time in which to pay such debts, even though they are not- then paid.</p> <p>2 ESTOPPEL: . Profiting from One’s Own Wrong. One who prevents the happening of an event which would fix liability upon him may not, when sued, allege the non-happening of such event. So held where a note was payable on the happening oí a contingency, and the maker prevented the happening of the same.</p>

<p>Appeal from Buena Vlista District Court. — Jambs DioLand, Judge.</p> <p>Habeas corpus proceeding, which involves the right to the custody of a child. After a hearing upon the merits, the trial court discharged the writ and dismissed the petition. The plaintiff appeals.</p>

— D. F. Coyle, Judge. After a full trial on the merits, Andrews, the Drug Company, and the owner of the premises, were enjoined from maintaining a liquor nuisance. They appeal.-

<p>1 NEW TRIAL: Insufficient Evidence — Conflict—When Properly Raised. Insufficiency of evidence to support a verdict, or inconsistency between evidence and verdict, may be raised for the first time in a motion for new trial..</p> <p>2 BURGLARY: Possession in Lieu of. Ownership — Evidence. “Use, possession, and control” of a railway car in a named company is not established by evidence that an employee of such company sealed it while it stood on a track, the ownership of which is not affirmatively shown.</p> <p>3 BURGLARY: Purpose to Which Railway Car Is Put. The purpose for which merchandise is put and kept in a railway car must be shown, in order to meet the statutory elements of the offense. The naked presence of merchandise in a car at the time of a breaking and entering is insufficient to show that the car was one in which goods were kept for “use, sale, or deposit.”</p>

<p>Certiorari from Pollc District Court. — Joseph E. Meyer, Judge.</p> <p>Dependant was accused and found guilty of contempt for the violation of a liquor injunction, and he brings this proceeding.</p>

<p>Appeal from Polk District Gourt. — Lawrence De Grape, Judge.</p> <p>Proceeding to recover compensation under the Iowa Workmen’s Compensation Act. The committee of arbitration made an award. Upon review, this award was confirmed by the industrial commissioner. Upon appeal to the Polk County district court, the order of the industrial commissioner was affirmed, and judgment was entered for the claimants. From such order and judgment of the district court, the defendants have appealed.</p>

Apjoeal from PolJc District Court. — George A. Wilson, J udge. Action for damages for personal injuries sustained by plaintiff through the alleged negligence of the defendant. At the close of plaintiff’s evidence, ¡there was a directed verdict for the defendant.

— F. F. Dawley, Judge. Action iu equity to foreclose a trust deed, executed April 21, 1913, and duly recorded, April 29, 1913, securing an issue of $25,000 of bonds of J. A. Green & Sons, a corporation. Tlie appellant, Novak, one of the defendants’ answered, claiming a superior lien upon a steam shovel and some dump cars owned by the corporation Green & Sons, which last-mentioned property was included in the trust deed.

<p>1 DAMAGES: Nonfraudulent Failure of Consideration. The non-fraudulent failure of consideration, following an exchange of properties, is compensated by returning to the injured party the value of that which he paid for that which he did not receive, and, perhaps, expenses reasonably incurred. Especially is this the proper measure when the pleadings were framed on such theory.</p> <p>2 PLEADING: Amendments — Belated and Inconsistent Amendments. Amendments bearing on the measure of damages, and offered at the close of movent’s evidence, are properly rejected (1) when they do not enlarge the measure of damages, and (2) when they are contradictory of record stipulations.</p>

— Seneca Cornell, Judge. The defendant was indicted, tried, and found guilty on charge of attempting to break and enter a dwelling house in the nighttime, with intent to commit larceny, and from this judgment he appeals.

— Hubert Utterbacb:, Judge. In the district court, this was an appeal from an order of the city council of Des Moines as a board of review, whereby such board confirmed an assessment against the appellant of $461,381. The district court confirmed the action of the board of review. From such order of the district court, the taxpayer has appealed.

<p>Appeal from Hamilton District Court. — H. E. Fry, Judge.</p> <p>The nature of tbe action, the issues, and the decision, as stated by appellant, and which appellees concede to be correct, are stated thus:</p> <p>“This is a suit in equity, to restrain the defendants from entering on the plaintiff’s land and destroying his fences and obstructing- the free use thereof by the plaintiff. A temporary injunction issued.</p> <p>“The plaintiff claims to be the owner of the east half of the west half of Section 15 in Township 88, Range 23 West of the 5th P. M., Iowa, and has been in the absolute, peaceful, adverse, and undisturbed possession of the same, and every parcel thereof, for more than 18 years last past, continuously, under claim of right and color of title; that, during his possession, he has constructed fences and made valuable improvements on said land; that defendants have threatened and are about to enter upon the said premises and cut down the fences surrounding said land, and they are attempting to erect another fence upon the land; that said fence will be placed on plaintiff’s land, if erected, and over his growing crops, and cause him irfeparable injury, and plaintiff will be deprived of the free use and possession of his land. That, unless prevented by the mandate of this court, the defendants will enter upon plaintiff’s premises, and will destroy his fences and growing crops thereon, and deprive the plaintiff of the possession of a portion thereof, and plaintiff is without adequate remedy at law.</p> <p>“Wherefore, he asks a writ of temporary injunction, to restrain defendants and each of them from entering on the premises or destroying plaintiff’s crops, and from erecting any fence thereon, or obstructing or interfering with the plaintiff’s free use and possession of the premises or any part thereof, and that, upon final hearing, said injunction be made perpetual, and for such other relief as may be found equitable in the premises.</p> <p>“The defendants filed an answer and cross-bill, containing a general denial, and stating that the defendants Hoyer and Schulze are, subject to a contract of sale to defendant Christianson, the owners in fee of certain premises specifically described, setting out in detail a chain of title, and claiming that the plaintiff is a trespasser on said land. They also plead prior adjudication.</p> <p>“They ask that they have a writ of injunction against the plaintiff from interfering with the possession of the defendants; they ask a decree quieting title in them, and damages in the sum of $1,000 for the use of said land. [Appellant says that the plaintiff filed a reply, denying the allegations of the cross-bill, but we do not find' it in the abstract.]</p> <p>“The court dismissed the plaintiff’s petition at his costs, and held that defendant was entitled to a decree quieting his title against the plaintiff on his cross-bill, and also that defendant have judgment against the plaintiff for the rental value of the land for three years, amounting to the sum of $289.68.”</p> <p>The plaintiff appeals.</p>

<p>Appeal from Muscatine District Court. — M. F. Donegan, Judge.</p> <p>Action to recover damages for the death of plaintiff’s intestate. Trial to a jury. The trial court overruled defendant’s motion for a directed verdict, made at the close of plaintiff’s testimony, and again at the close of all the testimony. The jury returned a verdict for plaintiff for $1,000. Defendant’s motion for new trial was overruled, and judgment entered on the verdict. Defendant appeals.</p>

<p>1 PARENT AND CHILD: Right to Custody of Child. Evidence reviewed, and held to show that the interests of the child in question would best be conserved by remaining with its grandparents.</p> <p>2 HABEAS CORPUS: Findings Equal to Jury Finding. Findings of the trial court in habeas corpus have the standing of findings by a jury.</p>

<p>Appeal from Hamilton District Gourt. — H. E. Fry, Judge.</p> <p>Action in equity to restrain defendants from building a fence and obstructing the free use by plaintiff of his land. A temporary injunction was issued. On the final hearing, the court decided that plaintiff has a good title by adverse possession to tbe land in dispute, dismissed defendant’s cross-petition, claiming - title, and made the temporary injunction permanent against the- defendants. The defendants appeal.</p>

<p>HOMESTEAD: In Lieu of Distributive Share — Election. Evidence of acts, conduct, and declarations attending long-continued possession of a homestead, following the death of the owner, reviewed, and held to establish an election to take homestead occupancy, in lieu of distributive share.'</p>

<p>1 DIVORCE: Cruelty — Coarseness of Language and Conduct. Profane and abusive language towards a frail woman, untrue and repulsive accusations concerning ber conduct, neglect of ber common comfort, witb consequent injury to ber health, may constitute cruel and inhuman conduct.</p> <p>2 DIVORCE: Condonation. Condonation of cruelty is necessarily attended with the condition that the cruelty shall cease; and especially is this true when the wife is the condoning party.</p>

<p>Appeal from Linn District Court. — John T. Moppit, Judge.</p> <p>This is a will contest.. The testator was Matt Fousek. He left surviving him a widow and ten children. The children were seven sons and three daughters. The seven sons are the proponents of the will. Two of the daughters appeared as contestants. The grounds of the contest were undue influence and mental incompetency. At the close of all the evidence, the trial court dismissed the contest, and directed a verdict for the proponents. The contestants appealed.</p>

<p>WATERS AND WATERCOURSES: Uncertain Record. Record reviewed, and held too uncertain to justify the court in reviewing the findings of fact by the trial court.</p>

<p>1 TELEGRAPHS AND TELEPHONES: Delayed Delivery — Written Notice of Claim. Written notices of claim for damages because of delayed delivery of messages must show on their face that they make claim on behalf of plaintiff. (See. 2164, Code, 1897.)</p> <p>2 PLEADING: Demurrer — Admission of Legal Conclusion. Demurrers do not admit averments which put constructions on exhibited writings contrary to what the writings necessarily show on their face.</p>

<p>1 HIGHWAYS: Duty of Guest to Exercise Care. While a mere guest must exercise care commensurate with the circumstances, and might, in the interest of safety, he under a duty to make suggestions to the driver, or otherwise interfere with the management of the vehicle, yet such guest is not, per se, bound to anticipate a violation of law, either on the part of another driver in keeping to the wrong side of the road, or on the part of her own driver in not sounding his horn.. (Sec. 1571-ml8, Code Supp., 1913.)</p> <p>2 TRIAL: Unsuccessful Motion for Directed Verdict — Nonwaiver. The sufficiency of the evidence to sustain the verdict may be raised (a) in requested instructions, or (b) in a motion for a new trial, even though the complaining party unsuccessfully moved for a directed verdict at the close of plaintiff’s evidence, and did not repeat the motion at the close of all the evidence.</p> <p>3 TRIAD: Argument — Reading Extracts from Testimony. Extracts from the evidence of witnesses may be read 'to the jury.</p> <p>4 NEGLIGENCE: Pleading — Paraphrase by the Court. A paraphrase by the court, in its instructions, of the negligence pleaded, examined, and held to be within the pleadings.</p> <p>NEGLIGENCE: Contributory Negligence — Unusual Definition. It is error to define contributory negligence as negligence which “helps” to produce an injury.</p> <p>6 TRIAL: Instructions — Exceptions. An exception to an instruction on the ground that “it is not a correct statement of the law” is wholly insufficient. (Sec. 3705-a, Code Supp., 1913.)</p> <p>7 DAMAGES: Permanent Injury — Life Tables Not Essential. The introduction of life tables is not essential to the recovery of damages for permanent injury.</p> <p>8 DAMAGES: Permanent Injury and Loss of Earning Capacity. An allegation of permanent injury, with claim for damages, is sufficient basis, if proven, to warrant recovery for depreciation in earning capacity.</p> <p>9 DAMAGES: Permanent Injuries and Mental and Physical Pain. Recovery may be had for mental and physical pain, under allegations of severe, permanent injury.</p> <p>10 NEW TRIAL: Verdict — Excessiveness—$1,150. Verdict for $1,150 for personal injury held not excessive.</p>

<p>Appeal from OUnton District Court. — M. F. Donkgan, J udge.</p> <p>Action to replevin stock distrained under the .authority of Section 2314 of the Code of 1897. Judgment for the plaintiff. Defendant appeals.</p>

<p>Appeal from Worth District Court. — M. F. Edwards, Judge.</p> <p>The claimant was awarded by the industrial commissioner an allowance for total disability during 44 weeks, and this was approved, on appeal by the railway company to the district court, and it has appealed to this court. — •</p>

<p>Appeal from Guthrie District Court. — J. H. Applegate, Judge.</p> <p>AotioN to enforce a claim against an estate. Opinion states the facts. Yerdict and judgment for the plaintiff. The administrator de honis non appeals.</p>

<p>1 WILLS: Foreign Probate of Domestic Will. The will of a domiciled resident of this state will not be admitted to probate in this state on a duly authenticated record of probate in a foreign state. (Sec. 3294, Code, 1897.)</p> <p>2 CONSTITUTIONAL LAW: Full Faith and Credit Clause — Foreign Probate of Domestic Will. The “full faith and credit” clause of the Federal Constitution imposes no obligation on the courts of this state to recognize the foreign probate of a domestic will.</p>

<p>Appeal from Des Moines Municipal Court. — T. L. Sellers; Judge.</p> <p>Defendant appeals from an order of the court overruling a motion to require plaintiff to elect upon which of two counts of his petition he relies, and to strike Count 2 thereof.</p>

<p>Appeal from Greene District Cowrt. — M. E. Hutchison, Judge.</p> <p>The Independent School District of Jefferson undertook the erection of a new high school building, and bonds were voted and issued for that purpose.' A controversy arose over the location of the site for such building, and in that controversy this litigation had its origin. One faction of the citizens of the district favored the site of the old building, while others favored the selection of a new site. At the time this suit was begun, in May, 1917, the board of directors had decided in favor of a new location, and had begun proceedings to condemn for that purpose certain grounds known in the record as Block 31. Thereupon, this action was begun by several residents and taxpayers to enjoin the condemnation proceedings, and for temporary and permanent injunction restraining the district and its board of directors from locating the new building at any place other than the site of the old one, or ground immediately adjoining. A temporary injunction was issued, as prayed, but, within a few days thereafter, the court vacated and dissolved the writ, on motion of the defendants. From such order plaintiffs appealed to this court, and applied for an order staying proceedings and continuing the injunction in force, pending the disposition of said appeal. The application was denied, and the order of the district court dissolving the injunction was affirmed. The issues joined between the parties were thereafter tried to the district court, which, after a full hearing upon the merits of the case, found for the defendants, denied the prayer for an injunction, and dismissed the petition. From that decree, appeal has been taken by four of the ten plaintiffs, and it is this appeal which now calls for our consideration. The facts, so far as they may be necessary to a decision, are stated in the opinion.</p>

<p>Appeal from Polk District Court. — George A. Wilson, Judge.</p> <p>Appeal from the action of the court in setting aside a default. Opinion states the facts. Plaintiff appeals.</p>

<p>Appeal from Dallas District Gourt. — George B. Lynch, Judge.</p> <p>Action against a deceased person, father of claimant, for services rendered. Judgment was rendered in favor of plaintiff. The administrator appeals.</p>

<p>1 TRUSTS: Consideration Paid by Non-Title Holder. One who holds the legal title to land which has been paid for by another, holds as trustee of the latter, no gift being intended.</p> <p>2 EVIDENCE: Allowable Conclusion. Whether one received anything for a conveyance is an allowable conclusion.</p> <p>3 FRAUDS, STATUTE OP: Paying Purchase Price and Taking Possession. An agreement under which one pays the purchase price of land and takes possession is not within the statute of frauds.</p>

— A. N. Hobson and C. N. Houck, Judges. Action on promissory note. The issues of fraud in its inception, and bad faith on the part of the plaintiff in acquiring it, were raised by the pleadings. The jury returned a verdict for defendants, which, on motion for new trial, was set aside, and another trial ordered. The defendants appeal.

<p>Appeal from Fremont District Court. — J. B. Rockafedlow, Judge.</p> <p>Action on an alleged breach of contract in the sale of corn resulted in a verdict for plaintiff and judgment thereon. The defendant appeals.-</p>

— George Jepson, Judge.- Action on a written contract, to recover the agreed purchase price of certain lambs delivered by the plaintiff to the defendant, pursuant to such contract.

<p>1 CONVERSION’: Equitable Conversion — -Extent to Which Doctrine Carried. The doctrine of equitable conversion of realty into personalty will not be carried further than is imperatively necessary in order to carry out a testator’s intent.</p> <p>2 TAXATION: Collateral Inheritance — Proceeds of Foreign Real Estate. The proceeds of foreign real estate belonging to a resident testator are subject to the succession tax of this state when such real estate has, from imperative necessity, been converted into personalty, in order to pay legacies to collateral heirs, even though such proceeds have not been manually brought into this state, and are subject to a succession tax under the laws of the foreign state. (Sec. 1481-a, Code Supp., 1913.)</p> <p>3 EXECUTORS AND ADMINISTRATORS: Ancillary Administration Turning Over Funds. It will be presumed that the courts of a sister state will promptly order its ancillary administrator to turn over funds to the principal administrator in this state when such action is necessary to pay debts.</p> <p>4 TAXATION: Collateral Inheritance — Equitable. Conversion of Foreign Lands — Limitation. The doctrine of equitable conversion of realty into personalty will not, in an estate consisting of both domestic and foreign realty, be carried so far in the interest of the succession tax of this state, and to the detriment of general residuary legatees, as to compel the conversion of all such foreign lands into personalty and the application of the entire proceeds to the discharge, in this state, of money legacies. To so do might bring the entire estate under our succession tax, though part of the estate might be foreign realty passing in fee. In the instant case, held that the transfer of the residuary estate should be here taxed in the proportion that the total net value of the estate in the foreign state bears to the total net value of the entire estate.</p> <p>5 TAXATION': Collateral Inheritance — “Debts”—Federal and Succession Taxes. Neither succession taxes nor Federal inheritance taxes are “debts” against an estate in such sense that they may be deducted in the computation of the state succession tax. (Sec. 1481-a2, Code Supp., 1913.)</p> <p>6 TAXATION: Collateral Inheritance — “Debts”—Income and Current Taxes. Accrued Federal income taxes, and current general taxes lienable at the death of decedent, are proper deductions in computing state succession taxes. (Sec. 1481-a2, Code Supp., 1913.)</p>

<p>Appeal from, Dubuque District Court. — J. W. Kintzinger, Judge.</p> <p>Appeal from tbe action of tbe district court in refusing to set aside a default judgment for want of service upon the defendant tbe New York Central Railroad Company, it appearing that the service relied on to give jurisdiction was made on tbe ticket agent of the Illinois Central Railroad Company at Dubuque, Iowa, by whom the ticket, with coupon connection over the New York Central, was sold. The court refused to set aside the default, held the service sufficient, and the New York Central appeals.</p>

<p>Appeal from Shelby District Court. — J. B. Rockafellow, Judge.</p> <p>Action to enjoin the defendant from obstructing a public highway, and to require him to remove from the public highway obstructions wrongfully placed by him therein. Decree dismissing plaintiff’s petition. Plaintiff appeals.—</p>

<p>1 HIGHWAYS: Dedication — Strict Limitation. The public rights in a dedicated highway will be strictly confined to the limits of the dedication, as clearly marked out and designated by the visible monuments erected by the dedicator.</p> <p>2 HIGHWAYS: Consent Roads — Failure to Secure Consent of All Owners. Principle recognized that the establishment of a consent road, without the consent of all the owners, affected, is a nullity. (Sec. 1512, Code, 1897.) •</p>

<p>1 EVIDENCE: Res Gestae — Test for Admission. The test whether declarations are res gestae is: Were the facts talking through the party, or the party talking about the facts? Instinctiveness —spontaneity—is the ever-present requisite. Precise 'coincidence in point of time is not necessarily requisite.</p> <p>2 TRIAL: Conflicting Res Gestae — Effect. Evidence which is part of the res gestae may stand in the record for what it is worth, even though, after its introduction, the opposite party introduces res gestae which are prior in time to the first, and inconsistent therewith.</p> <p>3 NEGLIGENCE: Elevator Accident. Evidence reviewed, and held sufficient to sustain a verdict for negligence in the operation of a freight elevator.</p> <p>4 NEGLIGENCE: No Eyewitness Rule. Principle recognized that, in the absence of any eyewitness to. an accident, the law will presume due care.</p>

<p>Appeal from Warren District Gowrt. — Lorin N. Hays, Judge.</p> <p>Action by one member , of a firm to recover from his former partner contribution for expenses incurred in -defending a suit against himself for fraud practiced in the sale of land for the firm. Demurrer to petition sustained. Petition dismissed. Plaintiff appeals.-</p>

<p>CHATTEL MORTGAGES: Destruction of Note — Effect on Lien. Whether a transaction constitutes a purchase or payment of a ■ note is a matter of intention. Evidence reviewed, relative to the unauthorized destruction of a note by a surety and the execution of a new note by the principal debtor, and held to show a purchase, and not a cancellation, and that the chattel mortgage lien was, therefore, preserved.</p>

<p>Appeal from Johnson District Court. — Balpi-i Otto, Judge.</p> <p>The opinion states the case. The plaintiff appeals.—</p>

<p>Appeal from Jasper District Court. — K. E. Willcockson, Judge.</p> <p>Suit in equity by a creditor of a South Dakota corporation against certain stockholders, who, it is alleged, have paid only a portion of the face value of the stock held by them. There was judgment and decree in the court below in favor of plaintiff. Defendants appeal.</p>

<p>Appeal from Polh District Court. — George A. Wilson, Judge.</p> <p>Suit for divorce. The facts are stated in the opinion.</p>

<p>Appeal from Lee District Court. — W, S. Hamilton, Judge.</p> <p>The appeal is from conviction of violating a city ordinance, enacted by a city under special charter.</p>

<p>Appeal from Mahaska District Court. — Henry Silwold, Judge.</p> <p>The trial court refused to modify an allowance of alimony. Therefore, defendant appeals.</p>

— D. M. Anderson, Judge. The tribunals below held that appellee Emma Hoover, the mother of a deceased employee, was entitled to compensation under the act; also, that intervener Esther May Hoover, a minor child of said employee, and less than 16 years old, was not entitled to recover as a dependent, because, while the deceased employee was her father, at the time of his death intervener was' a member of the family of her stepfather. Hence, intervener appeals.

— O. D. Wheeler, Judge. Action a.t law upon a sight draft drawn on the defendant and delivered to plaintiff by the alleged agent of the defendant, the same being for money paid by the plaintiff to a third party for the alleged use of the defendant, and at the' request of tbe alleged agent.

— George A. Wilson, Judge. Action at law to recover for labor performed and material furnished pursuant to a contract. The answer was, in legal effect, a general denial. There was a trial to a jury, and a verdict for the plaintiff for the full amount of his claim. Judgment was rendered thereon, and defendant appeals.

— Milo P. Smith, Judge. The trial court dissolved said district. The question is whether, upon the consideration of such ballots as were legal, there was, in fact, a majority for dissolution.

— J. B. Bockafel-low, Judge.' Originally, this was an action of partition. Later, it became, in fact, an action to construe a contract, and to determine the ultimate rights of the parties thereunder. The decree construed the contract in accord with plaintiff’s contention, and the defendants have appealed.

— E. B. Woodruff, Judge. Suit to recover on a contract of subscription for corporate stock, the plaintiff being tbe assignee of the corporation. Held: in substance, that such statutory provisions were for the public benefit only, and were not available to a party to the transaction, as a defense against the performance of his contract. Judgment was accordingly entered for the plaintiff, and defendant appeals.

— E. B. Woodruff, Judge. Action against the treasurer of state to recover an excess charge made and collected upon a collateral inheritance or devise. The action is prosecuted under the provision of Section 148ll-a43, .Code Supplement, 1918. The trial court entered judgment for the excess, and the defendant has. appealed.

— O. D. Wheeler, Judge. Action to recover from defendant county $280.SO, for services rendered defendant in transcribing and extending into typewriting all the testimony of witnesses testifying before the grand jury of said county, whose testimony plaintiff bad taken in shorthand, while acting as clerk of the grand jury of said county.

— C. C. Bradley, Judge. Action at law, to recover damages for an alleged violation of contract. There was a directed verdict and judgment for defendant, and the plaintiff appeals.

— G. D. Thompson, Judge. In the district court, this was an appeal from an assessment of benefits. Two appeals were consolidated, and tried as one. On trial in the district court, a reduction was allowed to the plaintiffs to the extent of 33^ per cent. Both parties appealed. The defendant board of supervisors, having first perfected its appeal, appears in this record as appellant.

— H. B. Boies, Judge. Plaintiff’s intestate, after alighting from a car, was struck by a passing automobile, and received injuries from which he died. This action is to recover for such injuries. The district court sustained a motion for a directed verdict. Plaintiff appeals.

<p>1 MUNICIPAL CORPORATIONS: Excavations in Street — Jury Question. A jury question on the issue of negligence and contributory negligence is presented by testimony tending to show that, in the sidewalk part of a street, an unguarded excavation, from 6 to 10 feet long, and from 3 to 10 inches deep, had ex- . isted for many months, and that plaintiff, unfamiliar with such condition, fell into such excavation on a dark night.</p> <p>2 MUNICIPAL CORPORATIONS: Defective Street — Service of Notice of Injury. Service on a city of notice of injury by reason of defective street may be made by taking from the mayor an acknowledgment of service of such notice.</p> <p>3 MUNICIPAL CORPORATIONS: Notice of Injury — Jury Issue as to Sufficiency. Evidence reviewed, and held to present a jury question on the issue whether the date of an injury was stated in a notice at the time it was acknowledged by the mayor.</p> <p>4 APPEAL AND ERROR: Reservation of Grounds — Sufficiency. The point that testimony was erroneously withdrawn is properly presented by raising the issue in the pleadings, and by entering a specific exception to the instruction.</p> <p>5 APPEAL AND ERROR: Review — Insufficient Record. Refused instructions may not be the basis for error, unless such instructions are embraced in the appeal record.</p>

<p>1 CONTRACTS: Construction — Agreement toi Pay “Taxes” and Assessments. An agreement by a tenant to pay “all taxes or assessments, special or otherwise, and public charges of every kind and nature that shall or may be taxed or assessed against the owner or his property,” is not so all-embracing and sweeping as to include Federal income or excise taxes, levied under subsequently enacted statutes.</p> <p>Salinger, J., dissents.</p> <p>2 CONTRACTS: All-Embracing Words Limited by Context and Circumstances. Words which are all-embracing and sweeping in their possible meaning may reveal a much lesser meaning when the natural import of such words is kept in mind, and when they are read in the light of the context and the attending facts and circumstances. So held where an agreement by a tenant to pay “taxes” and “assessments” was held not to include the payment of income or excise taxes, levied under laws passed subsequent to the agreement.</p> <p>3 TAXATION: “Tax” Defined. The term “tax” ordinarily embraces no more than the customary and annual taxes. So held where an agreement by a tenant to pay all “taxes and assessments” was held not to include Federal income or excise taxes.</p>

— John T. Moffit, Judge. Action for damages on account of certain alleged slanderous and libelous statements of the defendant concerning the plaintiff. There was a directed verdict for defendant, and plaintiff appeals.

N. Birdsall, Judge. Action at law to recover commission alleged to have been earned by the plaintiff in the sale of defendant’s farm. There was a jury trial, and verdict and judgment for plaintiff. Defendant appeals.

— W. S. Ayres, Judge. Action by plaintiffs, a partnership, to recover advancements alleged to bave been made by plaintiffs for tbe defendant as a customer, in the purchase of grain on the Chicago board of trade. The amount claimed was $4,100. There was a verdict for the plaintiffs. Upon defendant’s motion, a new trial was ordered. From such order the plaintiffs have appealed.

— John T. Moffit, Judge. Proceedings for certiorari to test the authority of the court to order the imprisonment of a witness who refused to give testimony before the grand jury, upon the ground that the evidence sought was immaterial, and not germane to any matter at the time the subject of proper inquiry by that body.

— T. L. Sellers, Judge. Action at law to recover damages for alleged personal injury. Trial to a jury, and verdict for defendant. On motion of plaintiff, the verdict was set .aside, and new trial granted. Defendant appeals.

— R. P. Howell, Judge. Action at law to recover damages upon a claim which is sufficiently stated in the opinion. There was a trial to a jury. At the close of the testimony, the court directed a verdict for the defendant, and plaintiff appeals.

- — D. M. Anderson, Judge. J. W. Gilchrist died on February 6, 1915. There was a paper, purporting to be a deed, of date August 1, 1908, in which he reserved a life estate, and made Anna Eckles Ketchum grantee. The trial court holds this deed was not delivered, and therefore canceled it. The grantee appeals.—

— Thomas J. Guthrie, Judge. Action at law, to recover damages on account of personal injuries. At the conclusion of the evidence on the part of plaintiff, the court sustained a motion by defendant for a directed verdict in its favor, and plaintiff appeals.—

— B. F. Cummings, Judge. Action in equity to establish a trust in real estate and for an accounting. The facts are fully stated in the opinion. The court below dismissed plaintiff’s, petition, and he appeals.

— JOHN T. Mofpit, Judge. ActioN to recover upon a foreign judgment, entered against the defendants James E. Siver and Elizabeth Siver. In connection with such claim, it is further alleged that such defendants, having property liable to be subjected to the payment of such debt, are about to convey it to their two sons, Frank Siver and Ed Siver, for the fraudulent purpose of cheating, hindering, and delaying creditors.

— Hubert Utterback, Judge. Suit to restrain the city of Des Moines and its officers from appropriating funds derived from bridge bonds to meet the expenses of grading, curbing, paving, and building sidewalks on streets near to and approaching University Avenue Bridge from the east. On hearing, temporary injunction was denied, and plaintiffs appeal.

— J. W. Kintzinger, Judge. Indictment for murder in the second degree. There was a verdict of guilty, and judgment entered thereon. The defendant has appealed.

— E. M. McCall, Judge. Suit in equity, to restrain the defendants from pre-renting the agents and officers of plaintiff from removing obstructions from a highway. Decree dismissing plaintiff’s petition, from which it appeals.

— E. G-. Albert, Judge. PlaiNtiffs appeal from a judgment of the court below, dismissing their petition praying the specific performance of a contract for the sale and exchange of properties.—

— O. S. Franklin, Judge. Appellant moved to set aside a default judgment, entered against ber on the ground that she had not been legally served with notice. This is an appeal from the overruling of that motion.

— D. M. Anderson, Judge. Action at law, brought July 28, 1917, to recover damages for personal injuries sustained February 24, 1915, in an entry of defendant’s mine; Trial to a jury and verdict and judgment for plaintiff for $500. Defendant appeals.—

— J. W. Kintzinger, Judge. Action in equity, asking an injunction against defendant. There was a decree entered in October, 1918, for the plaintiff, restraining defendant from operating its street cars over and upon the loop, as laid and constructed, upon Grandview Avenue, and enjoining defendant from using said loop as a part of its street car lines. There was a judgment against defendant for costs. The defendant appeals.

<p>1 LANDLORD AND TENANT: Excessive Levy for Intermingled Claims — Remedy. In an action for a definite amount of rent, to Which is added a claim for a definite amount of money loaned, defendant’s remedy for an excessive levy under the landlord’s attachment is not hy motion for a dissolution and discharge of the attachment'in toto."</p> <p>2 MOTIONS: Must Be Ruled On as Presented. Courts must pass on motions as presented — may not so recast an excessive motion as to give to movent that to which he is entitled. So held as to a motion to dissolve an attachment in toto, when movent’s right was limited to a dissolution of attachment of part of the property.</p>

<p>Appeal from WmnesMek District Court. — H. E. TayloR, Judge.</p> <p>The appellant demands a reversal because certain testimony offered by him was excluded.</p>

<p>Appeal from GMoJcasaw District Court. — W. J. SpriNGEr, Judge.</p> <p>Suit in equity for the partition of real estate. A demurrer to the petition was overruled, and the defendants appeal. The material facts are stated in the opinion.—</p>

— D. M. Anderson, Judge. Action in equity to foreclose a combined real estate and chattel mortgage on a coal mining property, given to plaintiffs. In connection with the foreclosure, plaintiffs applied for and had appointed a receiver, to take charge of the property pending the foreclosure and sale thereof. The action was begun and the receiver appointed September 29, 1916. Judgment and decree was entered in favor of plaintiffs, December 2d thereafter.

<p>Appeal from -Fayette District Court. — W. J. Springer, Judge.</p> <p>Action on two promissory notes, given as a combination paper. The opinion states tbe facts, and the defenses urged. Judgment for tlie plaintiff in the district court. Defendant appeals.</p>

<p>Appeal from Muscatine District Gourt. — A. P. Barker, Judge,</p> <p>After the plaintiff dismissed his divorce petition, defendant obtained a (divorce from him on her cross-petition. She complains of certain orders made by the court in the allowance of alimony.</p>

— Thos. A. Guthrie, Judge. Suit in equity for specific performance. The defense was predicated upon various grounds. There was a decree for the defendants, dismissing the petition*. The plaintiff has appealed.

<p>1 "PRINCIPAL AND AGENT: Fraud "by Agent of Corporation. A corporation which concedes that, in the making of a land sale contract, it was represented by a named person, may not say that such person had no authority to make representations in regard to the land.</p> <p>2 FRAUD: Examination Excluding Reliance on Representations. An examination of property prior to purchase does not necessarily exclude reliance or right to rely on representations relative to the property. Such issue is ordinarily for the jury. So held as to representations as to the tillability and nonoverflow nature of the land.</p>

<p>1 NEGLIGENCE: Violation of Law — Effect. Failure to give the law-required signals of the approach of a car which was moving up behind an injured party presents a jury question on the issue of defendant’s negligence.</p> <p>2 NEGLIGENCE: Distracted Attention. One who has his attention diverted, in a place of danger, presents a jury question on the issue of contributory negligence, if his conduct was such as to be in harmony with what reasonably careful men would have done, under like circumstances. Held, such question was presented in the case of one who, with a pane of glass in his hands, was running ■ in the mud after his hat, in the presence of a smoke-enshrouded train, which was approaching without signal.</p>

— E. Gr. Albert, Judge. Suit in equity for an accounting under an alleged partnership. The fact of-partnership was specially denied by the defendant. There was also a general denial of all liability. There was a decree finding the existence of a partnership between plaintiff and defendant, and adjudging the defendant liable to the plaintiff under an accounting thereunder for a large amount. The defendant appeals.

— Homer A. Fuller, •Judge. In the district court, this was an appeal by plaintiff from an order of the board of supervisors of Adams County,' establishing a drainage district. Trial being had on the merits, the district court confirmed the action of the super visors. From such order of the district court, the plaintiff has appealed.

<p>Appeal from Jefferson District Court. — C. W. YermilioN, Judge.</p> <p>DefendaNts were tried, and found guilty of the crime of robbery. Judgment was pronounced that one of them be imprisoned in the penitentiary at Fort Madison, and the other in the reformatory at Anamosa. The defendants appeal.</p>

<p>Appeal from Mahaska District Court. — H. F. Wagner, Judge.</p> <p>The defendant was indicted upon the charge of assault with intent to commit murder, and pleaded not guilty. On trial to a jury, he was convicted of the lesser included offense of assault with intent to inflict great bodily injury, and from th'e judgment entered on the verdict, he appeals.</p>

1). Wheeler, Judge. ON December 19, 1917, tbe relator filed a complaint against the defendant, charging him with being the father of her illegitimate child. Trial to a jury. Defendant was found guilty, and judgment entered against him, from which he appeals.

<p>Appeal from Linm District Court. — Milo P. Smith, Judge.</p> <p>Suit to set aside deed, and decree plaintiffs and defendant Elmer E. Prosser owners, as tenants in common, of a certain tract of land. Decree was entered as prayed. Defendants appeal.</p>

<p>Appeal from Marshall District Court. — B. F. Cummings. Judge.,</p> <p>From judgment against it on a life insurance policy, the defendant appeals.</p>

<p>FORCIBLE ENTRY AND DETAINER: Enforcement of Order Against Stranger. A judgment of removal in forcible entry and detainer proceedings may not be enforced against one wbo, at the time of the commencement of the proceeding, and at the time of the attempted enforcement of the judgment, was in actual possession of the property, and had never been made a party to the proceedings.</p>

<p>Appeal from. Floyd District Court. — C. H. Kelley, Judge.</p> <p>Action in equity to cancel certain shares of stock issued to the defendant, on the ground that they were fraudulently obtained. Decree for the plaintiff in the court below. Defendant appeals.</p>

<p>Appeal from Grundy District Court. — Charles W. Mullan, Judge.</p> <p>Action to probate a will. The sole question presented is whether or not a devise of property to an alien enemy is in contravention of the public law and the act of Congress referred to in the opinion. The invalidity of the devise was raised by heirs residing in this country. The court held the devise invalid. Appeal to this court. The opinion states the facts.</p>

<p>Appeal from Floyd District .Court. — (X H. Kelley, Judge.</p> <p>Suit in equity for an accounting. The material facts will be-referred to in the course of the opinion. There was a decree finding the defendant indebted to plaintiff in the sum of $17,267.76, for which amount judgment was entered against him. The defendant appeals.</p>