Volume 190 — Iowa Reports

— William Hutchinson, Judge. Action at law to recover upon two promissory notes, and for the enforcement of a landlord’s lien for rent.

<p>BURGLARY: Elements of Statutory Offense. The element of "sealing 1 or locking” is essential to the statutory crime of burglary described in Sec. 4794, Code, 1897, but is not an element of the other form described in Sec. 4791, Code, 1897. On the other hand, an "intent to commit a public offense” is vital under said See. 4791 but not under said See. 4794.</p> <p>INDICTMENT AND INFORMATION: Motion for Acquittal in Lieu of 2 Demurrer, etc. When an indictment is demurrable, the accused:</p> <p>1. May demur, and, if unsuccessful, and convicted, may repeat his grounds of demurrer in a motion in arrest of judgment; or</p> <p>2. May omit the demurrer, and, if convicted, may move in arrest of judgment on the same grounds on which he might have demurred.</p> <p> The accused may not omit to demur, and, at the close of the State’s testimony, move for a verdict of acquittal on grounds which he might have presented by demurrer, or which will be available to him in a motion i/n arrest of judgment. </p> <p>BURGLARY: Breaking and Entering — Evidence. Evidence held suffi3 eient to present a jury question on the issue whether an accused who was found in possession of goods stolen by means of a felonious breaking and entering was the person who did said breaking and entering.</p> <p>TRIAL: Directed Verdict. On the question whether a 'verdict was & properly directed, the appellate court must determine whether testimony offered by the defeated party was properly rejected.</p> <p>EVIDENCE: Weight and Sufficiency — Nonpositive Identification. Fail-5 ure of a witness to positively identify an object does not necessarily deprive the witness’s testimony of all probative force.</p>

— Hubert Utterback, Judge. Action in replevin to reeover possession of a Ford automobile or tbe value thereof. Plaintiff claimed that defendant disposed of or concealed tbe car before service of tbe writ could be bad. Trial to a jury, and a verdict for plaintiff for $450. Thereafter, plaintiff remitted $25 of tbe recovery, and elected to take a money judgment, with interest. Judgment was entered for $425 and interest, and tbe defendant appeals. —

— D. M. Anderson, Judge. Action to recover royalty on coal alleged to have been removed from plaintiff’s land under a lease, resulted in a verdict for plaintiff. Motion for new trial sustained. Plaintiffs appeal. —

— J. J. Clark, Judge. Suit in equity to recover upon an order from the defendant the Independent School District, as drawee, and from H. F. .Jones, as drawer of the same, a balance on hand of moneys otherwise due defendant Jones. Jones was a contractor, who had constructed a public building for the Independent School District.

<p>VENDOR AND PURCHASER: Mental Incapacity and Undue Influence. 1 Evidence reviewed, and held quite insufficient to establish mental incompetency on the part of a vendor, or the exercise of undue influence on him.</p> <p>JUDGMENT: Defensive Answer as Cross-Bill. Plaintiff may not eom2 plain of the granting of affirmative relief to defendant on a defensive answer and prayer for such relief, when the court, without objection, treated the answer as a cross-bill, and gave to defendant practically nothing more than he received ipso facto, by the dismissal of plaintiff’s petition.</p>

<p>Appeal from Cerro Gordo District Court. — M. F. Edwards, Judge.</p> <p>Action on account. Trial to a jury, and verdict and judgment for plaintiff. Defendant appeals. —</p>

— J. D. Wallingford, Judge. This appeal complains that a policy for $1,000 on the life of William Long was subjected to unwarranted deductions, by means of sustaining a motion to direct verdict for defendant. Hence, plaintiff is the appellant. —

— E. M. McCall, Judge. Suit in equity to enjoin a purported special assessment against the property of plaintiffs for cost of a street extension. A trial was had on the merits, which resulted in a decree for the plaintiffs, and the defendant appeals. —

<p>Appeal from Polk District Court. — Lawrence De Graff, Judge.</p> <p>Lizzie John and Caleb John complain of allowances made in an accounting. —</p>

<p>SALES: Evidence. Evidence reviewed, and held insufficient to show a sale of corporate stock.</p>

— H. E. Taylor, Judge. Action in equity, in wbieb plaintiff asks that her claim in tbe sum of $1,800 be established as of the date in 1901 when it “was allowed as a claim against her father’s estate; that the probate record in said estate be corrected; that 40 acres of land heretofore conveyed to defendants be sold to satisfy plaintiff’s said claim; that plaintiff have personal judgment against certain of the defendants for that amount; that a legacy of $200 left her in her…

— H. B. Boies, Judge. The appeals in these cases present different phases of a controversy over the same subject-matter, the nature of which and the facts material to its consideration being stated in the following opinion. The appeals have been submitted together in this court, and are disposed of in one opinion. —

<p>Appeal from Polk District Court. — Lawrence De Grape, Judge.</p> <p>This is an action at law, to recover the value of plaintiff’s services for a period of 23 years. The defense was a general denial, and plea of full payment. There was a trial to a jury, and a verdict for the defendant. From a judgment entered thereon, the plaintiff appeals. —</p>

— George A. Wilson, Judge. Action to recover a minimum royalty stipulated for in a mining lease. The answer contains a general denial and an affirmative defense. The affirmative defense was that the min-able coal under plaintiff’s land had become wholly exhausted, whereby the defendant became absolved from the payment of a minimum royalty in excess of the royalty per ton actually mined. The trial court directed a verdict for the plaintiff, and the defendant appeals. —

— F. D. Letts, Judge. The plaintiff, widow of Wm. P. Bettendorf, recovered judgment against Joseph W. Bettendorf for $522,392.34, from which judgment he appeals. As her demand was for judgment in the sum of $3,000,000, she subsequently perfected an appeal, and may be referred to as appellee. Other parties were in the case, but nothing is now claimed against them. —

— Earl Peters, Judge. Action upon two promissory notes, bearing date February 27, 1914, for $814.18 and $58.50, respectively, payable to plaintiff and signed by F. N. and M. J. Van Ness, husband and wife. Trial was had to a jury, which resulted in a verdict for the defendant, and plaintiff appeals. —

<p>FRAUD: Nonerror in Refusing to Submit Supported Fraud. When the 1 evidence is sufficient to show that a conveyance by a debtor husband to his nondebtor wife is fraudulent as to an attaching creditor, and insufficient to eharge an intervener with fraud in taking a conveyance of the same property from the wife, then the -court will not commit prejudicial error if it wholly excludes from the jury all issues of fraud.</p> <p>PLEADING: Amendment After Reversal. An intervener who lays claim 2 to attached property, under a plea that he took conveyance from plaintiff’s debtor and the latter’s wife, may, after reversal in the Supreme Court, amend, and plead that the property in question was first conveyed by plaintiff’s debtor to said debtor’s wife, and that said wife later conveyed to him (intervener).</p> <p>DKATTD: Declarations of Grantor. Declarations of a grantor tending 3 to show fraud, not made in the presence of the grantee, are inadmissible.</p>

<p>Appeal from Harrison District Court. — Earl Peters, Judge.</p> <p>Action in equity against the board of supervisors, the county auditor, and the treasurer of Harrison County and the Mosquito Drainage District, to enjoin the collection of certain drainage taxes assessed against the defendant. The petition was dismissed by the court, and plaintiff appeals. —</p>

— Thos. J. Guthrie, Judge. Plaintiff brought action asking for a writ of mandamus against defendants as the board of supervisors, to require the board to issue directions to the treasurer of Polk County to refund to plaintiff the sum of $6,457.57, and for judgment for costs. The relief asked was granted by the district court, and the defendants appeal. —

<p>JUDGMENT: Avoidance of Unindexed Judgment. An unindexed judg1 ment is a lien on the defendant ’a realty from the date of rendition. A subsequent creditor who seeks priority over such a judgment must allege and prove: (1) That he had no knowledge of such judgment, and (2) that, by reason of such lack of knowledge, he has, to his detriment, changed his financial condition.</p> <p>JUDGMENT: Erroneous Index. A judgment against C. C. Berry, 2 though indexed as against C» JE. Berry, is a lien on the realty of C. C. Berry from the date of rendition.</p>

— PI. K. Evans, Judge. Action for damages consequent on a collision of an automobile -with a railway train, resulted in judgment for plaintiff. The defendant appeals. —

<p>Appeal from Johnson District Court. — R. G. Popham, Judge.</p> <p>On application, Joseph A. Helmer, on February 21, 1920, was appointed guardian of the minor children of Harry and Mary Frances Waite, deceased. Thereafter, and on March 5th of the same year, Ida I. Waite prayed that he be removed, and that she be appointed guardian in his stead. On hearing, six days later, the previous order was so modified that Helmer was continued as guardian of the property, and Mrs. Waite appointed guardian of the persons. From this order, Helmer appeals. —</p>

<p>MUNICIPAL CORPORATIONS: Nonowner May Not Enjoin Special 1 Assessment. Injunction will not lie to restrain all enforcement of a special assessment for paving, at the instance of one who eoneededly has no interest in the property against which the levy is made, and whose only ground for complaint is that the assessing authorities have, in making up the assessment, erroneously indicated him as the owner.</p> <p>MUNICIPAL CORPORATIONS: Personal Liability for Assessment. 2 The personal liability of railway companies for special assessments necessarily rests on the company which owns the property assessed— not on the company which is indicated in the schedule of assessments, as t'he owner. (See. 840, Code, 1897.)</p>

— George W. Dunham, Judge. Suit on two promissory notes for $771.83 each, dated April 12, 1917, made by defendants to plaintiffs. Defendants claim that the notes are void because of noncompliance with a contract which they claim was entered into when the notes were given. At the close of the evidence, the court directed a verdict for plaintiffs. Defendants appeal. —

<p>JUDGMENT: Setting Aside Default. A finding by the trial court, on supporting testimony, that defendant was duly served with the original notiee, is necessarily conclusive.</p>

<p>HUSBAND AND WIFE: Family Expense — Attorney Fees for Defending Husband. Attorney fees for legal services and expenditures in connection therewith, accruing in defending the husband from a criminal charge, do not constitute an “expense of the family,” for which the wife is liable. (Sec. 3165, Oode Supp., 1913.)</p>

<p>CRIMINAL LAW: Argument and Conduct of Counsel — Designedly Injecting Improper Testimony. It is gross misconduct and necessarily prejudicial error for the county attorney to designedly inject into the record and before the jury the fact that the accused had, prior to the charge in question, been convicted of a penitentiary offense wholly foreign to the charge on trial.</p>

— Homer A. Fuller, Judge. The Crestón, Winterset & Des Moines Railroad Company was organized in 1911, with its principal place of business at Crestón. Its railroad was constructed nearly parallel with the Chicago, Burlington & Quincy Railroad from Crestón through Spaulding, and then in a northeasterly direction through Zion and two other stations to Macksburg, a distance of 21 y2 miles.

<p>Appeal from Polk District Court. — Lawrence DeGraee, Judge.</p> <p>Action on breach of covenant of warranty in a deed of conveyance of land by defendants to plaintiff’s remote grantor. Judgment for plaintiff. Defendants appeal. —</p>

<p>MUNICIPAL CORPORATIONS: Title of Ordinance, An ordinance which, in its title, expresses one subject-matter, and in its enacted, sections deals with a different subject-matter, is necessarily invalid. So held where the title was stated as “requiring the vac’eination of school children, and providing for rules, regulations, and penalties for its violation,” while the body of the ordinance simply (1) penalized school teachers for admitting unvaccinated children to the school, and (2) required the local board of health to prescribe rules for enforcing the ordinance.</p>

— O. D. Wheeler, Judge. Action by a guest of the lessee of an ordinary dwelling house, against the lessor, for damages received by' the falling of steps leading up to the front porch. The demurrer to plaintiff’s petition was sustained, and she appeals.- —

— Thomas Arthur, Judge. The controlling controversy is over the existence of a partnership. The verdict found there was no partnership, and plaintiff appeals. —

— C. H. Kelley, Judge. Action in equity to foreclose a mechanics’ lien. Plaintiff’s petition was dismissed after a trial, and the plaintiff appeals.—

<p>Appeal from O’Brien District Oourt. — William Hutchinson, Judge.</p> <p>The plaintiff, appellee, demanded of the defendant the rental value of land occupied by defendant. The defendant contended that he was liable for not more than five years of use and possession of the premises. The trial court held him liable for the value of the use during the entire period of occupancy. Defendant appeals. —</p>

<p>HUSBAND AND WIFE: Partnership Agreement That Survivor Shall 1 Have Property — Subsequent Will. Partnership agreements between a husband and wife are recognized as valid, but a clause in such agreement to the effect that, on the death of one of the parties, "the one living shall fulfill all contracts, pay all debts, and have all property left or owned by either party or in the firm’s name,” will prevail over a will (subsequently executed by the one first deceased! only as to the partnership property and its accumulations.</p> <p>ATTORNEY AND CLIENT: Nonprivileged Transaction. The testi2 mony of an attorney as to a transaction on which two parties consult him for their mutual benefit is not privileged, in an action between said parties or their personal representatives, involving such transaction.</p> <p>WILLS: Nonestoppel to Deny Validity. A husband who fails to eon-3 test the probate of his wife’s will, and even files his election not to take thereunder, does not estop himself from subsequently setting up a prior and superior right to the property by virtue of a valid contract of partnership with the wife, under whieh contract the survivor was to have all the property.</p>

— A. N. Hobson, Judge. Action at law to recover damages for assault and battery claimed to have been committed by defendants upon the plaintiff. Trial to a jury, which returned a verdict in favor of plaintiff against both defendants for $5,000, which included $1,500 exemplary damages. The amount of the exemplary damages was shown by the answer to a special interrogatory, as to how much exemplary damages were included in the general verdict.

— W. H. Fahey, Judge. Verdict and judgment for plaintiff, on the claim that plaintiff was damaged by the negligence of defendant, in furnishing him impure serum and virus for inoculation as a preventative of hog cholera. Defendant appeals. —

<p>INSURANCE: Accident Insurance — Proximate Cause of Death. Bvi1 dence held to present a jury question on the issue whether death was caused by accident or by disease; and consequently a directed verdict was .erroneous;</p> <p>TRIAL: Directed Verdict — Jury Question Once Made Remains. A jury 2 question once made by plaintiff ordinarily survives any amount of testimony by defendant. Evidence on the issue of death by accident or by disease reviewed, and held not to be in equipoise.</p>

— Charles A. Dewey, Judge. Appeal by cross-petitioner because, though it was decreed foreclosure of its mortgage against tbe Berrys, its application for a receiver was denied. —

— H. B. Boies, Judge. The appellant obtained judgment against tbe Lamsons and tbe Equitable Surety Company, on account of materials furnished as subcontractor in the construction of a hotel building owned by the Lamsons’. It appeals because it was not also given judgment against the defendant Maryland Casualty Company. The Lamsons and the Surety Company cross-appeal, asserting that plaintiff should have had no judgment against them. —

<p>Appeal from, Linn District Court. — Milo P. Smith, Judge.</p> <p>The defendant was indicted, tried, and convicted of the crime of conspiracy to commit criminal syndicalism, under Chapter 382, Acts of the Thirty-Eighth General Assembly. He was sentenced, March 2, 1920, for an indeterminate period, not exceeding three years, in the penitentiary at Fort Madison. On the same day, defendant perfected an appeal to the Supreme Court, and made an application and showing, under oath, that he was without means to pay for a transcript of the evidence. This application was resisted by the.county attorney. By an amendment to the resistance, the county attorney asked that the court be furnished with certain information as to the amount of available funds in the defense fund of the I. W. W., an organization to which defendant belonged, and other matters of that nature. The court made an order, as requested; and thereafter, an affidavit by W. D. Haywood, secretary of the defense committee of such organization, was made and sworn to in Cook County, Illinois, setting out at considerable length the matters referred to in the order. Thereafter, and on April 21, 1920, the court, after a full hearing, made an order, based upon the showing made by the defendant, that the transcript be made at the expense of Linn County, Iowa. On May 18th thereafter, the county attorney made an application to set aside the order o£ April 21st, and in the application asked for an order from the court to require the party in Chicago who made the affidavit before referred to, to appear for cross-examination upon said affidavit, and to produce any books and papers designated by the county attorney to properly cross-examine said affiant; ox*, in the event that said affiant should refuse-to appear before the district court, that he be required to submit to cross-examination in the city of Chicago, at such time and place as the county attorney in this case should designate; and that he be ordered to then and there produce any books and papers deemed necessary, and designated by the county attorxxey, for the pixrpose of said cross-examination. The said motion was sustained on the same day, and the ox-der of April 21st was vacated, and the order for cross-examination was granted, as prayed. The State did not ask to cross-examine the defendant upon his affidavit. On July 21st thereafter, the defendant filed a motion to set aside and vacate the order of May 18th, which was overruled on July 19th. The defendant has appealed from the order of the court of July 19th and the order of May 18th, which last vacated the order of April 21st. —</p>

<p>Appeal from Linn District Court. — F. F. Dawley, Judge.</p> <p>No preliminary statement is necessary. —</p>

<p>Appeal from Scott District Court. — A. P. Barker, Judge.</p> <p>Verdict and judgment for personal injuries sustained by the appellee, plaintiff. Defendant appeals. —</p>

— William Hutchinson, Judge. Suit in equity by five plaintiffs to enjoin tbe board of directors of a rural school district from selling to others than the plaintiffs five certain schoolhouse sites, in violation of the rights of the respective plaintiffs under the provisions of Section 2816 of the Code.

<p>Appeal from Iowa District Court. — Ralph Otto, Judge.</p> <p>A demurrer to a motion to retax costs was sustained and the mov.ent appeals. —</p>

- — James De Land, Judge. Action to recover damages for the breach of an alleged verbal agreement to improve premises leased by the defendant to plaintiff. Judgment was entered in the court below upon the verdict of the jury by direction of the court in favor of the defendant, and against the plaintiff for costs. Plaintiff appeals.—

— James De Land, Judge. Action to recover the consideration paid by plaintiff for a tractor engine, together with the expense of repairs and freight. There was a verdict for plaintiff, and defendant appeals from a judgment thereon against it for $1,920.98 and costs. —

— Hubert Utterback, Judge. Action by plaintiff to recover from defendant on account of money claimed to have been loaned by him to the defendant. Defendant appeals from judgment entered against him. —

<p>SALES: Transfer of Title — Sales Under “Trade Acceptance.” When 1 it is shown that a purchase under “trade acceptance” means, hy custom, the delivery of goods to the purchaser with an agreement that, before title shall pass, the purchaser will either (1) pay cash, or (2) sign and have accepted a draft for the purchase price, no title passes until such terms are fully complied with. Such a transaction does not constitute a “conditional sale,” under See. 2905, Code, 1897.</p> <p>REPLEVIN: ' Money Judgment in Lieu of Specific Article. A claim for 2 a money judgment for articles which the writ does not reach, may not be stricken out on the theory that sueh claim is an unallowable action for damages in replevin. (SeeJ»4178, Code, 1897.)</p>

<p>REPLEVIN: Burden of Proof. The mere fact that defendant in replevin introduces testimony tending to impeach plaintiff’s showing of title, does not throw upon defendant the burden to prove such impeaching fact by a preponderance of the testimony, and enable plaintiff to recover in ease defendant fails to so prove.</p>

— H. B. Boies, Judge. Action on insurance policy. Jury was waived, and cause submitted on a stipulation of facts. Petition was dismissed, and plaintiff appeals. —

<p>ATTORNEY AND CLIENT: Improper Retainer. The fact that an 1 attorney is consulted "by a litigating party with a view to employment-, and thereby becomes familiar, in a degree, with the litigant’s theory of the facts, does not necessarily prevent other members of the attorney’s firm, in the event that the attorney is not employed, from accepting a retainer on the other side of the controversy.</p> <p>WITNESSES: Competency Tinder “Dead Man’s Statute” — Denial of 2 Transaction. A devisee under a will is a competent witness to deny an alleged transaction between said devisee and the deceased testator, as testified to by a contesting heir.</p> <p>WITNESSES: Competency Under “Dead Man’s Statute” — Facts 3 Otherwise Shown. Error without prejudice results from allowing a devisee to testify to a fact which involves a personal transaction with a deceased testator, when such fact is clearly established by the testimony of other competent witnesses.</p> <p>WITNESSES: Impeachment — Contradictory Statements Out of Court. 4 Contradictory statements by a witness out-of court are admissible for the purpose of impeachment of his statements in court.</p> <p>TRIAL: Instructions — Applicability to Evidence. No occasion arises 5 in a will contest to instruct that a mental condition of a permanent character, once shown to exist, is presumed to continue, when the record reveals that thq party in question had no mental infirmity, and died from heart disease.</p> <p>WILLS: Undue Influence — Declarations. Principle affirmed that 6 declarations by a testator before and after the execution of a will may be of such a nature that they will be admissible on the issue of undue influence.</p> <p>TRIAL: Refusal of Requested Instructions — Failure to Except. Failure 7 to except to the refusal to give requested instructions precludes review of the refusal on appeal.</p> <p>TRIAL: Instructions — Urging Verdict. No ground for reversal is fur-8 nished by the fact that the court, some hours after the jury had retired, further instructed'the jury “to lay aside pride of opinion and get together, if they could conscientiously do so.”</p>

— H. B. Boies, Judge. Action in replevin. Verdict for defendant, and judgment for the value of the property in controversy. Plaintiff appeals.

— D. W. Hamilton, Judge. Action for an accounting. The court held that no partnership existed, and denied accounting, and dismissed plaintiff’s petition. —

Black Eawk District Court. — H. B. Boies, Judge. Action at law to recover salary which plaintiff alleges is due her as police matron of the defendant city. Trial was to the court, upon an agreed statement of facts, the material portions of which will be referred to in the course of the opinion. There was a judgment dismissing plaintiff’s petition, and she appeals. —

<p>NEW TRIAL: Wide Discretion of Court. On appeal from an order granting a new trial, appellant must affirmatively show that the record is free from error as against appellee; and, where there are many rulings, no one of which constitutes reversible error, nevertheless, from all sueh rulings, the trial court may very justifiably conclude that the movent for a new trial has not had a fair trial.</p>

<p>Appeal from Polk District Court. — Joseph E. Meyer, Judge.</p> <p>Dependant appeals from the verdict and judgment against him on a charge of assault with intent to rob. —</p>

— Earl Peters, Judge. The defendant was convicted of the crime of embezzlement, and sentenced to an indeterminate term in the reformatory, at Anamosa, and appeals. The necessary facts are referred to in the opinion. —

— H. K. Evans, Judge. Foreclosure proceedings. No defense was interposed to the foreclosure proceeding proper. A receiver was appointed to take charge of the premises during the year of redemption and collect the rental of the premises; and from the order appointing a receiver, this appeal is taken. —

<p>STATUTES: Retroactive Operation — Justifiable Impairment of Contract. A statute whieh renders a railway company liable, in tbe operation of its railway, for negligently injuring property situated on its right of way, notwithstanding any “ contract to the contrary, ’ ’ ■ is clearly within the police power of the state, and validly applies to such a contract, even though it was executed prior to the passage of the statute. So held as to Sec. 2110-m, Code Supp., 1913.</p>

— George Jepson, Judge. The parties were at one time husband and wife. A petition of the husband, seeking divorce, was dismissed. The cross-petition of the wife was sustained, and she was granted a divorce on the ground of cruel and inhuman treatment. ‘ The decree allowed her $1,500 alimony, gave her the care and custody of the child Sidney, with an allowance of $20 a month for his support and maintenance. It awarded the custody of the child Dresmond to the father.

— J. W. Willett, Judge. An action for damages consequent on a collision of a train with an automobile, resulted in a verdict for plaintiff and judgment thereon. The defendant appeals. —

<p>PRINCIPAL AND SURETY: Consideration as to Maker — Sufficient 1 as to Surety. If a note rests on lawful consideration as to the principal maker, it will not avail that the surety received nothing for signing.</p> <p>CONTRACTS: Consideration — Benefit and Disadvantage. A contract 2 is supported by ample consideration when the maker is thereby enabled to discharge a prior legal obligation for less money after the contract was made than prior to its making, and when the maker acquires new and advantageous legal rights.</p>

— H. B. Boies, Judge. This is stated to be an action in equity, under a supplemental petition to recover a money judgment for certain shares of stock in the IVI. & S. Gear Company, which the trial court had previously ordered transferred to the plaintiffs, appellees.

<p>Appeal from Dubuque District Court. — D. E. Maguire, Judge.</p> <p>The plaintiff suing on notes confessedly made by the defendant, the latter urged, in answer, that he should be relieved from all liability, because of certain alleged misconduct of the plaintiff in foreclosing a mortgage given to secure the note sued on. Demurrer to the answer was overruled. There was judgment for costs against the plaintiff, and it appeals. —</p>

<p>COURTS: .“Recess” Does Not Terminate Term. A term of court 1 continues until an adjournment sine die, or until a new term commences.</p> <p>JUDGMENT: “Timely” Motion to Set Aside. A motion to set aside 2 a default, made after a “recess,” but before the final adjournment of the term, is timely. JUDGMENT: Default Judgment — Power to Set Aside. A default 3 judgment in a divorce action, equally with any other proceeding, may be set aside on proper showing.</p> <p>JUDGMENT: Setting Aside Default. A timely application to set aside i a default may be ruled on at a later term, and by a presiding judge other than the judge who rendered the judgment.</p> <p>JUDGMENT: Setting Aside Default — Effect. An order setting aside 5 a default ipso faeto sets aside the judgment rendered on the default. JUDGMENT: By Default — Effect. A plaintiff who obtains a judgment 6 by default may not “take his hat and withdraw himself from the jurisdiction of the court ’ ’ until the end of the term, and not then if, in the meantime, a motion to set aside the default be filed.</p> <p>JUDGMENT: Excusing Default. The exeuse for a default must be 7 established by affidavit. Record reviewed, and held to sufficiently exeuse a default in divorce proceeding.</p>

— J. B. Rockaeellow, Judge. The plaintiff, having been convicted of contempt of court in violating a writ of injunction, brought this action in certiorari to review the- proceedings. —

— E. B. Woodruff, Judge. A demurrer to an amended and substituted petition was sustained, on the ground that it stated a new cause of action, and was, therefore, barred by limitations. Plaintiff elected to stand upon her petition and said ruling, and now appeals from the ruling. —

<p>Appeal from Palo Alto District Gourt. — James De Land, Judge.</p> <p>The defendants acquired land adjoining tbat of plaintiff on tbe east, and, shortly thereafter, tore down tbe fence apparently between tbe tracts, and erected another, about 16 feet east of it. Plaintiff sued out a writ of injunction, praying for a decree fixing the boundary where the fence removed had stood. Decree was entered denying this relief, but rendering judgment for damages. The plaintiff appeals. —</p>

— H. K. Evans, Judge. Action by the incorporated town of Conway and its treasurer against a former treasurer and the sureties on his bond, for the funds of said town not accounted for. The sureties on the bond answered, and, among other things, interposed a plea in abatement.

— P. C. Winter, Judge. Action ag_ainst the administrator with will annexed to construe a will, and to have certain funds in his possession declared to pass, under the residuary clause of the will, to plaintiff, and asking an order for the payment thereof to it.

<p>WILLS: Construction — Withholding Legacy to Hay Debt to Estate. 1 A provision in a will that certain named legatees shall not receive their legacies until they have discharged their indebtedness to a named party, does not impliedly deprive the executor of the right to withhold from the share of another legatee a sum which the executor has been compelled to pay from the funds of the estate to the same named party, on a debt on which testator and said latter legatee were cosureties.</p> <p>EXECUTORS AND ADMINISTRATORS: Distribution of Estate— 2 Deduction in re Suretyship. An executor who has paid a duly filed, allowed, and unchallenged claim against the estate may, in order to reimburse the estate, withhold from the legacy of one who was cosurety with testator on said claim one half of the amount so paid, even though the plea of the statute of limitation would have defeated an ordinary action on said claim.</p> <p>DESCENT AND DISTRIBUTION: Deducting Barred Claim from 3 Legacy. An executor, in making distribution of the estate, may deduct from a legacy the amount equitably owed by the legatee to the estate, even though an ordinary action on such claim would be defeated by a plea of the statute of limitation.</p> <p>APPEAL AND ERROR: Probate Proceeding not Reviewable De Novo. 4 Probate proceedings are not reviewable de novo on appeal. It follows that a fairly supported finding by the trial court that a legatee was not a principal in a note filed against the estate, but was a cosurety with the testator, is final.</p>

<p>WILLS: Testamentary Capacity — Expert Versus Nonexpert Testimony. 1 Exclusively nonexpert testimony tending to show testamentary capacity may generate a jury question against expert and non-expert testimony tending to show the contrary.</p> <p>WILLS: Undue Influence — Mental Characteristics. A witness qualified 21 by acquaintance or association with a deceased may, on the issue of undue influence, testify to the mental characteristics of such person, i. e., that deceased was a person of strong will and fixed opinions.</p> <p>WILLS: Contest — Inconsequential Testimony. Inconsequential testimony 3 relative to who should be appointed executor under a will, had with one who subsequently instituted a contest of the will, reviewed, and held quite insufficient as a basis for reversible error.</p> <p>APPEAL AND ERROR: Harmless Error — Conclusion Without State-4 ment of Fact. Error may not be predicated on a conclusion statement without a detail of the facts, when the missing facts were later brought out in detail.</p> <p>WILLS: Testamentary Capacity — Manner of Talk. A witness qualified 5 by acquaintance and association with a deceased may be permitted to testify that the statements and answers of deceased in conversation “were responsive, and in conformity with the matter talked about. ’ ’</p>

— M. E. Hutchison, Judge. Appellee has judgment on verdict for commissions alleged by him to be due him from the defendants. The defendants urge several complaints against the action of the trial court. One of them is that the claim for which a recovery was allowed below had been fully settled. —

— O. D. Wheeler, Judge. Suit for an accounting of partnership assets and earnings. Batekin Seed House, Incorporated, filed cross-petition, praying that the portion apparently belonging to plaintiff be decreed the property of J. W. Batekin, and subjected to the payment of any judgment cross-petitioners may recover against said J. W. Ratekin. The district court found $3,485.15 to be plaintiff’s share of the partnership funds, and dismissed the cross-petition.

<p>CARRIERS: Undervaluation, for Purpose of Rate. The rule of law that 1 a shipper may not undervalue his shipment in order to obtain a low-rate, and, after loss, demand the true value, is wholly immaterial when the aetion for loss is for the identical sum on which he obtained the shipping rate. Necessarily this is true when the carrier’s own evidence suggests graVp misconduct.</p> <p>TRIAL: Rejection of Nonexplanatory Exhibit. The total exclusion of 2 an exhibit as irrelevant will be sustained when the record is barren of any showing of relevancy.</p> <p>APPEAL AND ERROR: Scope of Review — Unassigned Point. Failure 3 on appeal to raise the specific point that plaintiff is not the real party in interest, works a waiver of such point, even though such point was belatedly raised in the trial court, especially when the trial was on the tacit assumption that plaintiff was such real party.</p> <p>APPEAL AND ERROR: Insufficient Reservation of Grounds. Error 4 may not be based, on appeal, upon the refusal to give instructions, when the exceptions in the trial court and the error point on appeal are confined solely to the giving of instructions.</p> <p>APPEAL AND ERROR: Harmless Error — Failure to Specify Negli5 gence. One charged with negligence may not complain that the court did not set forth in the instructions the specific negligence and misbehavior with which he was charged.</p> <p>CARRIERS: Instruction to Disregard. Contract — Harmless Error. 6 Harmless error-results from directing the jury to wholly disregard a shipping contract, in so far as it exempted the shipper from liability for injury to stock caused solely by the nature or propensities of the animals, and directing the jury that the carrier was exempt from liability for such injury, irrespective of contract.</p> <p>CARRIERS: Nonallowable Contract Exemption. Principle reaffirmed 7 that a common carrier may not exempt itself from liability for the nonperformance of its public duties.</p> <p>CARRIERS: Burden of Proof. On an undisputed showing that an ani8 mal was shipped in good condition, and in the sole charge of the carrier, and died en route, the court may very properly tell the jury that it has but one question to decide, to wit: “Has the defendant proven by a preponderance of the evidence that the death was caused (I) by an act of God, or (2) by the public enemies, or (3) by the disposition, nature, or propensities of the animal itself?”'</p> <p>CARRIERS: Overthrowing Prima-Facie Cause of Action. The prima9 facie cause of action resulting from a showing that stock was. shipped in good condition and in the exclusive custody of the carrier, and died en route, is not overcome, as a matter of law, by affirmative evidence that the carrier at all times exercised due care.</p> <p>CARRIERS: Presumption of Negligence Versus Evidence of Care — Re-10 quest for Instructions. On a reeord showing delivery in good condition and into the exclusive custody of a carrier, with death en route, ■ met by testimony of due care on the part of the carrier, the latter, on request, is entitled to have the jury told that it must determine whether, on the whole case, plaintiff has made out his ease by a preponderance of the testimony.</p>

<p>Appeal from Ida District Court. — E. G. Albert, Judge.</p> <p>The defendant appeals from conviction of the crime of rape.</p>

Appeal ftfom Butter District Court. — M: F. Edwards, Judge. Action at law to recover $612, with interest, evidenced by a certificate of deposit, alleged to have been paid by the bank to a person not authorized to redeem the certificate. Verdict and judgment for plaintiff. Defendant appeals. —

— B. F. Cummings, Judge. Suit upon a note given for rent of real estate, upon which concededly there was due $650, unless defendant prevailed in his counterclaim in some amount. The execution of the note was admitted by the defendant, who pleaded a counterclaim for damages because of the alleged eviction of defendant by plaintiff before the expiration of the lease.

<p>QUIETING TITLE: Proper Party Defendant. In an action by a pur1 chaser for speeifie performance and to quiet title, a third person who has, under contract with the vendor, acquired an interest in the subject-matter and in the method of payment, and caused the purchaser to consent thereto, is a proper party defendant.</p> <p>WILLS: Misdescribed Devise. A devise of “our 22-acre farm north 2 of town” may be aided by oral testimony that testator did own such a farm and no other, even though the devise also described the farm as in a named township which was south of said town.</p> <p>VENDOR AND PURCHASER: Dual Capacity of Agent. The validity 3 of a contract of purchase is not affected by the fact that the agent of the vendor, in good faith, and with the full knowledge of vendor, agreed to advance for the purchaser the initial payment, and, in carrying out such agreement, assumed to sign the same as agent for the purchaser.</p> <p>APPEAL AND ERROR: Judgment on Supersedeas. Judgment may be 4 had on the supersedeas bond on appeal for costs and for the rental value of the premises from which appellee has been wrongfully excluded pending the appeal.</p>

<p>FRAUD: Fact (?) or Opinion (?) In an action for fraud in the ex-1 change of properties, the following representations are matters of fact, and not of conclusion or opinion:</p> <p>1. That the property was of a stated value.</p> <p>2. That a certain amount had been offered for the property.</p> <p>3. That the earning power, past and present, of the business was a certain sum.</p> <p>4. That the business was rapidly increasing.</p> <p>5. That the rentals amounted to a stated sum.</p> <p>6. That the business was completely organized.</p> <p>FRAUD: Nonactionable Representations as Evidence. In an action for 2 damages for fraudulent representations, assertions which might not be sufficient in themselves to constitute a cause of action may, nevertheless, be admissible as a part of the entire transaction.</p> <p>LIMITATION OF ACTIONS: Fraud as Injury to “Person.” An 3 action for damages for fraudulent representations is not an action to recover for an injury “to the person,” within the meaning of the statute of limitations, Sec. 3447, Par. 3, Oode Supp., 1913.</p> <p>LIMITATION OF ACTIONS: Allegation in re Discovery of Fraud. 4 Plaintiff in an action for fraud need not allege that the fraud was discovered within 5 years of the commencement of the action, when the action shows on its face that it was commenced within 5 years from the accrual of the causé of action.</p>

— O. D. Wheeler, Judge. Action by plaintiff to recover damages for an alleged assault, with a coimterclaim by defendant for damages for malicious prosecution. Trial to a jury. Verdict for plaintiff for $4,500, $2,900 of which was actual damages, and $1,600 was exemplary damages. Nothing was allowed on defendant’s counterclaim. The above matters are shown by the answers to five special interrogatories.

— Thomas Arthur, Judge. Action in equity, to enjoin defendant road superintendent from opening a.highway through plaintiff’s land. Petition dismissed at plaintiff’s costs. Plaintiff appeals. —

<p>Appeal from Tama District Court. — James W. Willett, Judge.</p> <p>The appellant filed objections in tbe probate court to tbe report of the executor of the will of decedent. The objections were overruled, and the objector has appealed. —</p>

<p>Appeal from Jones District Court. — F. F. Dawley, Judge.</p> <p>This is a will contest. The testatrix was Gladys M. Lathrop. The contestants are her three brothers and only heirs at law. At the close of contestants’ evidence, the trial court directed a verdict sustaining the will. The contestants appeal. —</p>

— Hubert Utterback, Judge. Certiorari proceeding in the nature of an appeal from an order of the district court adjudging the petitioner to be in contempt for violation of an injunction enjoining him from selling intoxicatin g liquors. —

— Henry Bank, Judge. Action at law to recover damages for personal injury. Trial to a jury, verdict and judgment for plaintiff, and defendant appeals. The material facts are stated in the opinion.—

<p>Appeal from Dubuque District Court. — J. W. Kintzinger, Judge.</p> <p>In the district court, this was an appeal by the claimant under the Workmen’s Compensation Act from a finding by the industrial commissioner adverse to the claimant. The trial court reversed the order of the industrial commissioner, and fixed the compensation of the claimant. The defendant has appealed.—</p>

<p>Appeal from Polk District Court. — Hubert Utterback, Judge.</p> <p>Suit to quiet title, and to remove the cloud of a purported lien of a special -assessment against a city lot for street improvements. There was a decree as prayed, and the defendants ap- * peal. —</p>

— Truman S. Stevens, Judge. Suit on promissory note. Fraud was pleaded as a defense, but plaintiff claimed to be a bolder in due course. Verdict of jury, finding for defendant. Plaintiff appeals. —

— F. F. Dawley, Judge. This is an action of mandamus, to compel the return of taxes paid under protest, as being illegally exacted. There was a judgment dismissing the petition, and the plaintiff appeals.' — -

<p>APPEAL AND ERROR: Belated Objection to Petition. It is too late 1 to object on appeal for the first time to the sufficiency of a, petition.</p> <p>MUNICIPAL CORPORATIONS: Conflicting Evidence in re Condition 2 of Street. A jury finding on conflicting evidence on the issue as to the condition of a street at the time of an accident, is conclusive on appeal.</p> <p>NEGLIGENCE: Known Defective Sidewalk. Mere knowledge that a 3 sidewalk is defective at one time does not render a party who passes over it 10 days later guilty of contributory negligence per se.</p> <p>EVIDENCE: Ordinance in fe Removal of Obstructions. On the issue 4 whether a sidewalk was dangerous because of the accumulation of snow and ice, it is not prejudicial error to receive in evidence an ordinance which prescribes the duties of the street commissioner, in case property owners fail to remove such accumulations on the walk.</p>

<p>MASTER AND SERVANT: Duty to Care Eor Injured Servant. A 1 master, though entirely without fault, is under legal obligation to extend reasonable eare to his servant who, in the master’s presence, % is rendered helpless by sudden and unloolced-for sickness. Especially t will the master be liable in damages if he assumes to eare for such servant, but leaves him in an exposed condition which proves to bo the proximate cause of an injury.</p> <p>EVIDENCE: Judicial Notice — Period of Sunstroke. The court will not 2 assume to say judicially just what degree of heat is necessary in order to produce a sunstroke.</p>

— Milo P. Smith, Judge. Action by the plaintiff, as trustee in bankruptcy, to recover the possession or the value of a certain stock of goods sold by the bankrupt to the defendant. There was a directed verdict for the plaintiff, and the defendant appeals. —

<p>Appeal from Jefferson District Court. — C. W. Vermilion, Judge.</p> <p>Action in quo warranto, to test the legality of the formation of the consolidated independent school district of Pack-wood, Iowa. It is claimed that the election was invalid. The incorporated town of Packwood has about 250 population, 200 of them in the south part of town, in one school corporation, and the others in another. Two ballot boxes were used. The voters residing in the south part of town voted with a part of the voters residing outside the town limits, and those living in the north part voted with others in outside territory. The specific complaint is that the strictly rural voters, or farmers, residing outside of the town limits were not permitted to vote by themselves, and entirely separate from all the voters residing in the town. Defendants’ demurrer to the petition was sustained, and the petition, dismissed, with judgment against plaintiff for costs. Plaintiff appeals. —</p>

<p>RAILROADS: “Construction and Operation’’ Defined — Private Spur 1 Track. The construction by an interurban electric railway company of a spur track from its main line and across a public street, and to the private property of another, and the operation of cars there-over, constitute the “construction and operation’ ’ of a railway, within See. 2054, Code, 1897, which requires the construction by such company of safe crossings; and this is true even though the cost of construction and maintenance (except electrical equipment) of all that part of the tract in the street is borne by the said private party.</p> <p>NEGLIGENCE: Contributory Negligence — Excusing Factors. The fact 2 that an injured person was wholly unacquainted with the walk on which he was injured, and had his mind momentarily diverted by the car which he was intending to enter, may be sufficient to save him from the imputation of negligence per se in stumbling into a depression in the crossing.</p> <p>TRIAL: Instructions — Ambiguous Modification. An ambiguous modifi3 cation of a requested instruction may,- when the instructions are viewed as a whole, demonstrate that the complainant suffered no prejudice.</p> <p>RAILROADS: Negligence — Tracks Across Sidewalks. It is not error 4 for the court to instruct, in substance, that a railway company, in laying its track across an existing brick sidewalk, was under duty to so construct the crossing that the completed work would be practically on a level with the adjacent sidewalk.</p>

— F. 0. Ellison, Judge. Action at law by plaintiff, a Kansas City bank, against defendant bank, upon a check executed by W. J. Croke, August 1, 1919, in the sum of $1,350. The check was payable to the order of The Texas Coast Irrigated Land Co. The check was indorsed by the land company and delivered to plaintiff. The cheek was accepted by the defendant bank by telegram, but afterwards, payment was refused, and the check protested.

— G. D. Thompson, Judge. Plaintiff filed his claim against the estate. Trial to a jury. At the close of all the evidence, interveners moved the court to direct a verdict for them, and the motion was sustained. The court dismissed and disallowed the claim, and rendered judgment against the claimant for costs. He appeals. —

<p>Appeal from Black Hawk District Court. — H. B. Boies, Judge.</p> <p>Suit by the plaintiff, as a life insurance corporation organized under tbe laws of the state of Iowa, to recover taxes erroneously and illegally exacted from it by the defendant county, as alleged. There was a demurrer to the petition, which was overruled. The defendant, standing thereon, has appealed.</p> <p>H. M. Havner, Attorney General, and E. J. Wenner, County Attorney, for appellants.</p> <p>Alfred W. Mullen and Courtright & ArbueJde, for appellee.</p>

<p>Appeal from Polk District Court.- — Lawrence DeGrapp, Judge.</p> <p>Appeal from the action of the board of supervisors in levying special assessments against the lands of the appellant for the cost of repairing a drainage ditch. —</p>

<p>Appeal from Marshall District Court. — James W. Willett, Judge.</p> <p>The nature of the action and the material facts are stated •in the opinion. —</p>

<p>ASSAULT AND BATTERY: Self-Defense — Assumption of Fact. A de1 fendant wlio admits that he struck the prosecuting witness, but pleads self-defense, is prejudiced by an instruction which tells the jury that defendant “admits that he committed an assault and assault and battery on the prosecuting witness.” Correct instructions as to the law of self-defense will not cure the error.</p> <p>EVIDENCE: Opinion- — -How Wound Was Made. A witness may not 2 testify that different wounds on the same person might have been made by one stroke of a named weapon.</p>

<p>NEGLIGENCE: Identity of Wrongdoer. Evidence held sufficient to 1 present a jury question on the issue whether defendant was the driver of a vehicle at the time of an accident.</p> <p>TRIAL: Instructions — Justifiable Assumption of Negligence. TJndis2 puted evidence that the driver of a vehicle, going north, drove rapidly and without excuse along the left-hand side of the highway, and into the vehicle of another party, who was slowly driving south on the extreme right-hand side of the highway, justifies the court in assuming negligence upon the part of the driver who was on the prohibited side, and nonnegligence on the part of the driver who was on the proper side of the highway.</p>

<p>ACCORD AND SATISFACTION: Insufficient Evidence. Record im 1 volving a trust bill of sale reviewed, and held wholly insufficient to show that the grantors were released from liability to their creditors by reason of the execution of such bill of sale.</p> <p>PRINCIPAL AND AGENT: Agent Acting Outside Scope of Agency. 2 An agent charged with the collection of the accounts of his principal may not bind his principal by accepting and executing a trusteeship for the benefit of creditors generally, even though his principal is one of the creditors.</p>

<p>REFORMATION OF INSTRUMENTS: Degree of Proof Required. Mutual mistake, in order to justify tke reformation of a written contract, must be proven by clear, satisfactory, and convincing testimony. Evidence relative to a contract for commissions on tke sale of automobiles reviewed, and held insufficient to establish mutual mistake.</p>

<p>Appeal from Bes Moines Municipal Court. — T. L. Sellers; Judge.</p> <p>Action in detinue for the possession of a ring, or its value. Judgment for the plaintiff. Defendant appeals. —</p>

<p>Appeal from Page District Court. — Thomas Arthur, Judge.</p> <p>Plaintepe appeals from a judgment upon a verdict of the jury returned by direction of the court. —</p>

<p>Appeal from Shelby District Court. — A. B. Rockapellow, Judge.</p> <p>Action at law to recover amount claimed to be due plaintiff under contract of rescission. The opinion states the facts.—</p>

<p>Appeal from Des Momes Municipal Court. — O. S. Franklin, Judge.</p> <p>The trial court allowed the appellee a recovery for certain extras. -Defendant, Brown, appeals. —</p>

<p>INSURANCE: Prohibited Occupation — Waiver. An insurer who, on 1 a truthful application, issues a policy, with knowledge, express or implied, that the insured is then engaged in, and expects to continue in, a prohibited occupation, must be held to have agreed that the insured might, wheresoever employed, perform any service properly required of him in said occupation, and to have waived all policy provisions exempting the insurer from liability in ease of death while engaged in such occupation.</p> <p>INSURANCE: Burden of Proof. An insurer who affirmatively pleads, 2 in defense of an action on a life policy, that the insured was, at the time of death, engaged in a prohibited occupation, has the burden to so prove. Especially must the insurer assume the burden to show that what the insured did was not within the seope of his employment.</p>

<p>Appeal from Iowa District Court. — R. P. Howell, Judge.</p> <p>The suit of the plaintiff, brought to quiet title, was based on an alleged gift of lands made to her by her grandfather, Michael Shriver. In addition to joining issue generally, the appellees affirmatively defended with accord and satisfaction. The petition of the plaintiff was dismissed, and she appeals.—</p>

<p>TRUSTS: Overcoming Presumption of Resulting Trust. The presump1 tion of a resulting trust which arises from the fact that the purchaser of realty pays the purchase price, and causes the deed to be taken in the name of a brother, is wholly overeóme by a further showing, by oral testimony, that the grantee was impecunious, and that the purchaser, in causing the deed to be so taken, intended thereby to make financial provision for his brother, in case the latter survived the purchaser.</p> <p>ADVERSE POSSESSION: Ootenants. One cotenant may not be said 2 to hold adversely to other cotenants, in the absence of an ouster.</p>

<p>j Appeal from Lyon District Court. — C. C. Bradley, Judge.</p> <p>Action in partition, wherein plaintiff claims a one-third share of the real estate in controversy which his deceased wife, Mary A. Murphy, would have inherited from her father, James Mulhall, had she outlived him. Demurrers to the petition were sustained; and, plaintiff electing to stand upon his petition, the petition was dismissed, and judgment rendered against plaintiff for costs. He appeals. —</p>

<p>VENUE: Change of Venue — Nontimely Motion. A motion for change 1 of venue is not timely, when made for a cause known from a time prior to the appearance term, but not asserted until after several continuances had been ordered. (See. 3506, Code, 1897.)</p> <p>TRIAL: Gambling on Answer of Witness. Objectionable testimony re-2 sponsive to an objectionable question may be allowed to remain in the record when no objection was lodged against the question. So held where the question not objected to called for a consideration of benefits received by the land sought to be condemned for public purposes.</p> <p>TRIAL: Motion to Strike — Record Necessary for Review — Refusal. 3 Complaint that the court refused to strike objectionable testimony will not be considered, unless complainant affirmatively shows that he did not gamble on the answer to a question improper in form. He may do so by showing that the question was proper in form, but that the answer was in such form as to conceal its inadmissibility until cross-examination was had.</p> <p>EVIDENCE: Opinion Evidence — Weight and Sufficiency. Instructions 4 reviewed, relative to the right of jurors to use their own judgment as to values, in connection with expert testimony as to values, and held correct.</p> <p>DAMAGES: Instructions — Damages “Necessarily” Suffered. Instrue5 tions may not be condemned because the court inferentially stated that the damages would be confined to those “necessarily” suffered by plaintiff.</p>

<p>TRIAL: When Jury Question Arises. If reasonable minds may differ 1 on the evidence relative to the issue whether a contract has been so modified, abrogated, or substituted for as to no longer be in existence, or whether all matters growing out of it have been settled, then, of necessity, a jury question is presented.</p> <p>EVIDENCE: Intent, Purpose, and Understanding of Party. Unambigu2 ous written correspondence may not be supplemented by the oral testimony of a party thereto, as to wliat he intended, purposed, or understood, in preparing his part thereof, when such intent, purpose, and understanding presented the identical issue before the jury.</p> <p>SALES: Damages for Nondelivery — Substitute Goods. Tbe measure of 3 damages for the nondelivery of goods as per contract, in those eases where the goods .Cannot be purchased at the time and place of delivery, is the difference between the contract price and the market price at the nearest available market, plus the added increased expense necessarily incurred in being compelled to use a substitute.</p>

<p>SCHOOLS AND SCHOOL DISTRICTS: Consolidated Districts — Juris1 diction to Divide Districts. The county superintendent has no jurisdiction to “fix and determine” the boundary lines of a proposed consolidated independent school district, when the petition therefor proposes to divide existing sehool corporations. Under such circumstances, the petition should be passed on to the county board of education, which has sole jurisdiction to fix boundaries in such cases. (See. 2794-a, Code Suppl. Supp., 1915; 38 G-. A., Ch. 149.)</p> <p>SCHOOLS AND SCHOOL DISTRICTS: Consolidated Districts — Sep2 arate Vote. On the proposition to merge several sehool corporations into a consolidated independent sehool district, no separate ballot is authorized in a sehool corporation which has a population in excess of 200, but no town of 200 population. (Sec. 2794-a, Code Suppl. Supp., 1915; 38 G-. A., Ch. 149.)</p>

<p>NEGLIGENCE: Street Car Accident — Jury Question. Evidence rela1 tive to an occurrence in which plaintiff drove out of his course, in order to avoid a standing vehicle, and was hit by a passing street car, reviewed, and held to present a jury question on the issue of negligence.</p> <p>NEGLIGENCE: Imputed Negligence — Guest. General rule reaffirmed 2 that a guest is not liable for the negligence of a driver over whom the guest has no control.</p>

<p>Appeal from Adair District Court. — J. H. Applegate, Judge.</p> <p>Action for damages to plaintiff’s tractor, resulting thereto from an alleged defective bridge or culvert. There was a verdict and judgment for plaintiff, and defendant appeals. —</p>

<p>Appeal from Wapello District Court. — F. M. Hunter, Judge.</p> <p>The opinion sufficiently states the nature of the proceeding and material facts-. The petition having been dismissed, plaintiff appeals. —</p>

<p>Appeal from Polls; District Court. — Lawrence DeGraee, Judge.</p> <p>Suit to quiet title in plaintiff to certain property used by it for school purposes. The defendants named were the original grantors of the property. The petition and notice were also addressed to unknown defendants and to unknown minor defendants. A guardian ad liten*, duly appointed by the court, defended for the unknown minor defendants. A taxpayer also intervened, resisting the claim of the plaintiff. The trial court entered decree finding the plaintiff to be the absolute owner of the real estate described in the petition. The intervener and guardian ad litem have appealed. —</p>

<p>Appeal from Madison District Gowrt. — H. S. Dugan, Judge.</p> <p>The opinion sufficiently states tbe case. —</p>

<p>NEW TRIAL: Irrelevant and Inflammatory Statements to Jury. Irrele1 vant assertions in opening statement to the jury, though highly inflammatory, do not necessarily constitute reversible error.</p> <p>NEW TRIAL: Irrelevant Cross-Examination. A cross-examination 2 which, over the protest of the other litigant, deals in irrelevant and highly inflammatory matters, constitutes reversible error, especially when the court permits such matters to be traversed.</p> <p>EVIDENCE: Relevancy, Materiality, and. Competency. In an action 3 for damages to plaintiff’s nervous system, consequent on a physical encounter between plaintiff’s husband and the defendant, testimony of defendant’s violent conduct and profane and indecent language on a separate occasion and toward strangers to the action is wholly incompetent (1) to prove damage to plaintiff, or (2) to furnish basis for impeachment of the defendant.</p> <p>TRIAL: Instructions — Abstractly Correct But Erroneous Under Record. i An instruction which is free from error as an abstract proposition may be highly prejudicial when read and applied in the light of a record containing highly inflammatory and incompetent evidence. So held as to instructions relative to punitive damages.</p>

<p>Appeal from Story District Court. — G, D. Thompson, Judge.</p> <p>Action by plaintiffs against defendant Chicago Bonding & Surety Company and against 61 claimants and mechanics’ lien-holders who had, or claimed to have, liens against the property, for the purpose of holding the Bonding Company liable for loss which plaintiffs sustained because of the alleged violation of two building contracts with the contractor, W. D. Lewis & Company, and to have the two building contracts and surety bonds treated and enforced as one contract and one bond a,s to the Surety Company. An accounting with all defendants was asked, and that the valid liens against the property be ascertained and the liability of the Bonding Company fixed, and for damages arising out of the contracts for construction, and for judgment against the Bonding Company for the amount of all claims provable against the plaintiffs or the property in excess of the amount owed by plaintiffs, after deducting all proper credits, and to quiet plaintiffs’ title to the building and the real estate. The controversy arises out of the construction of a four-story hotel building upon Lots 27 and 28, in Block 10, owned by the Munns, and Lots 29 and 30, owned by Sheldon. Some of the defendants made default. The trial court considered and passed upon all the claims of the contesting parties; fixed the contract price, with extras; and, after allowing credits and striking a balance, decreed that plaintiffs together had been damaged by the default of "W. D. Lewis & Company, the contractor, and its surety, the Chicago Bonding & Surety Company, in the sum of $12,-879.02, and awarded a recovery in favor of plaintiff Parley Sheldon in the sum of $6,890, and in favor of the Munns for $5,988.74, for which amounts judgment was rendered against the said Surety Company. The court also found that the defendant and cross-petitioner, American Fire- Proofing Company, failed to file its mechanics ’ lien within 30 days from the furnishing of the last material or labor under its contract with the Lewis Company, and, as 'there were no funds in the hands of the owners, after satisfying the liens that were properly filed, its cross-petition was dismissed. As to the claim of the Concrete Engineering Company, the court found for plaintiffs, allowing a deduction from tbe. amount claimed by said engineering company of $500 for defective work, and found that whatever labor and materials were furnished within 30 days prior to the date of the filing of the lien were furnished or performed on account of improper performance of the contract originally, and that the lien of said engineering company was not filed in time. Plaintiffs have also appealed from the allowance of the claim of the Loetscher-Burch Manufacturing Company. Since the entering of the decree, the judgments and liens allowed, with the exception of that of the Loetscher-Burch Manufacturing Company, have been paid by plaintiffs, and all rights thereunder against the Bonding Company assigned to the plaintiffs. The Bonding Company, the Fire Proofing Company, and the Concrete Engineering Company have all appealed. Plaintiffs have also appealed, claiming that the trial court should have allowed them $9,200 for delay in the construction of the building, instead of the $6,000 which the trial court did allow therefor, and that the court erred in limiting plaintiffs to $500 attorneys’ fees for defending against the liens; whereas, as they claim, such allowance should have been $1,500. —</p>

<p>Appeal from Lee District Court. — W. S. Hamilton, Judge.</p> <p>Suit by plaintiff as a creditor of a corporation, the Baker-Dodge Theatre Company, to recover from the individual defendants, as stockholders of such corporation, on the ground of their statutory liability as such because of'the failure of the officials of the corporation to publish the statutory notice required by Section 1613 of the Code. An affirmative defense was pleaded, to wit: that a curative act had been passed by the legislature, which wholly legalized and cured the failure of the corporation to publish notice. The trial court dismissed the petition, and plaintiff appeals.' —</p>

<p>Appeal from Jefferson District Court. — D. M. Anderson, Judge.</p> <p>Action to recover damages to cattle sliipped over defendant’s line of railway, while it was in the hands of a receiver. The action was brought after the property of defendant had been returned, and the receiver discharged. Trial to a jury, which resulted in a verdict and judgment for plaintiff for $249.75. Defendant appeals. —</p>

<p>BILLS AND NOTES: Validity — Authority of President. A showing that a promissory note was signed with the name of a corporation by one who was president, general manager, and a director of the corporation, and that the note was given for an obligation on the part of the corporation, creates a presumption that the note was authorized by the corporation. Especially is this true 'when the president and his wife constitute a majority of the board of directors.</p>

<p>Appeal from Buchanan District Court. — G. W. Dunham and H. B. Boies, Judges.</p> <p>Action at law to determine ownership of a fund of $736 resulting from a sale of corn grown on leased premises, as between plaintiff grantee in sheriff’s deed and defendant landlord, against whom execution had issued on prior judgment, and upon which the sheriff’s sale and deed to plaintiff were based. The opinion states the facts. First case —</p>

<p>RECEIVERS: Sale — Right of High Bidder. The high bidder at a receiver’s sale, which is made without right to. redeem, and subject to the court’s approval, acquires no vested right to have his bid confirmed, notwithstanding a subsequent and more advantageous bid filed with the receiver and duly reported to the court; and especially may not such high bidder complain, when he made no effort to have his bid confirmed until after the court had confirmed the subsequent bid.</p>

— George A. Wilson, Judge. Plaintiff brought this suit in equity for a divorce, charging his wife with cruel and inhuman treatment. After the cause had been pending a year, he amended his petition by adding thereto a second count, asking that the marriage between the parties be annulled, on the ground that, at the time of such marriage, the defendant was already married to one Johnson, who was still living, and from whom she had never been divorced.

<p>Appeal from Polk District Court. — Hubert Utterback, Judge.</p> <p>Action at law to recover damages for personal injury. There was a directed verdict for the defendant, and judgment against plaintiff for costs. Plaintiff appeals. —</p>

<p>Appeal from Polk District Court. — Lawrence De Graee, Judge.</p> <p>Action for damages for personal injuries sustained from a fall upon an icy sidewalk. At the close of plaintiff’s evidence, there was a directed verdict for the defendant, and the plaintiff has appealed. —</p>

<p>Appeal from Franklin District Court. — R. M. Wright, Judge.</p> <p>Two cases involving the same subject-matter were tried at the same time in the court below, and are presented here upon the same arguments. They involve a controversy between mortgagees of real estate as to the present priority of their mortgages. The mortgage of the Franklin County State Bank was originally a first mortgage, and that of Myers, trustee, was a second mortgage. There was a foreclosure suit brought upon the first mortgage. A decree was entered for all past-due interest, and the cause was continued as to the principal sum, which was not yet due. The decree entered contained reservations intended to protect the first mortgage against the claim of adjudication, and a special execution was ordered for the sale of'the mortgaged premises, to pay the judgment for past-due interest. Sale on special execution was had, such sale purporting to be made subject to the lien of the principal sum not yet due. The question presented is whether the first mortgage thereby lost its priority, and whether Myers, who purported to redeem from the execution sale, was thereby entitled to take priority over the principal sum of the first mortgage. The trial court held that the second mortgage did not, upon these facts,, take priority over the first mortgage, and Myers has appealed. —</p>

— Joseph J. Clark, Judge. Action in equity for authority on behalf of the receiver to make a 100 per cent assessment against the stockholders of the Buffalo Center State Bank, proportionate to their holdings of the capital stock thereof, to pay creditor’s claims previously approved by the receiver herein. Decree entered dismissing petition, and taxing costs to F. D. Peet, receiver, who appeals.—

— E. M. McCall, Judge. Claim filed against the estate of L. S. Coffin, deceased, upon a promissory note for $6,000. The administratrix denied the delivery, and pleaded “no consideration.” At the close of the evidence, there was a directed verdict for the defendant. Plaintiff appeals. —

<p>Appeal from Harrison District Court. — Shelby Cullison, Judge.</p> <p>Action at law to recover damages for an alleged breach of contract. Trial to a jury. Verdict and judgment for defendant.</p>

— F. F. Dawley, Judge. Action for damages for personal injuries resulting from an automobile accident, upon or near one of tbe highways of defendant, and at or near the former location of an alleged county bridge. At the close of plaintiff’s evidence, there was a directed verdict for the defendant, and the plaintiff has appealed.—

— G. H. Kelley, Judge. Verdict of jury on defendants’ counterclaim, awarding damages for the alleged wrongful and malicious dispossession of defendants of certain real estate. Plaintiff appeals. —

<p>Appeal from, Davis District Court. — C. W. Vermilion, Judge.</p> <p>Action in equity, in which plaintiff seeks to have the rights and priorities of the parties in and to the proceeds of a sale de- • termined. The trial court held that the Steekels, interveners, had no lien on the.funds. The decree gave A. J. Bond priority on the proceeds of sale for the amount of his debt, and also the unpaid debt of the Moulton Bank against P. C. Bond. P. C. Bond was given the proceeds of sale of the exempt property and priority thereto as against plaintiff bank. The amounts of the debts of P. C. and A. J. Bond, the Moulton Bank, plaintiff, and the Steekels, interveners, were fixed by the decree, and the application of the proceeds of the sale was specifically directed, and judgments for the same were entered, as set out in the decree. The Steekels did not agree to the sale of the mortgaged property, and the court denied their claim for a lien on the proceeds of the sale. The court, as to them, simply fixed the amount of the indebtedness of P. C. Bond to them. Neither P. C. Bond nor the Steckels, interveners, appeal, and the adjustment of the amount of the indebtedness of P. C. Bond to the Steckels is not questioned by appellant. The plaintiff appeals. The facts will be more fully stated in the opinion. —</p>

<p>Appeal from Van Burén District Court. — C. W. Vermilion, Judge.</p> <p>Action on promissory note for $9,000. Defendants, by answer and counterclaim, pleaded fraud. Verdict of jury for defendants, which was remitted, and judgment entered against plaintiff for costs. Plaintiff appeals. —</p>

<p>Appeal from Grinnell Superior Court. — P. G. Norris, Judge.</p> <p>Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals.' —</p>

<p>Appeal from Wapello District Court. — D. M. Anderson, Judge.</p> <p>Suit upon promissory notes, the plaintiff being- an alleged holder in due course, and not the payee thereof. The defense was that the notes were obtained from the defendant by the payee by false and fraudulent representations, and that the plaintiff was not a good-faith holder in due course. There was a trial to a jury and a verdict for the plaintiff. Judgment being entered thereon, the defendant has appealed. —</p>

<p>TRIAL: Verdict — Nonsupported Special Findings. When portions of 1 the respective claims of the parties are admitted, conclusively proven, or in dispute, a return by the jury that they had not allowed either party anything on their claims may not be said to be contrary to the evidence when it is evident from the record that the jury did, in fact, make an allowance, and simply offset one allowance against the other.</p> <p>TRIAL: Instructions — Nonnecessity to Define Terms. The court need 2 not, in an ordinary action on a money claim, define “preponderance of evidence” or “burden of proof.”</p> <p>LANDLORD AND TENANT: Presumption in re Holding Over. A ten-3 ant who, after holding for one year under a written lease, continues in possession for an additional year, is presumed, nothing appearing to the contrary, to be holding under the terms of said written lease.</p>

<p>BILLS AND NOTES: Negotiability — Nonpayment of Interest. A 1 promissory note is not rendered nonnegotiable by a provision that “a failure to pay any of said interest within thirty days after due” matures the entire note.</p> <p>BILLS AND NOTES: Negotiability — Resort to Law Merchant. The 2 Negotiable Instrument Aet does not declare what effeet shall be given to a provision in a note that “nonpayment of interest shall mature the entire note,” and therefore such effect must be determined from the law merchant.</p> <p>BILLS AND NOTES: Holder in Due Course — Effect of Renewal. A 3 holder in due course of collateral notes does not cease to be such by the naked aet of renewing the principal note, even though, at the time of such renewal, the collateral holder has acquired knowledge of a defense to the note.</p>

<p>Appeal from, Polk District Court. — Hubert Utterback, Judge.</p> <p>Action by plaintiff, judgment creditor of the Granite Brick Company, former owner of the land in controversy, to set aside a tax deed and redeem from tax sale. From a decree permitting redemption, defendants appeal. —</p>

<p>DRAINS: Reletting Contract on Default — Payment. One who, on do-1 fault of the original contractor, has contracted to complete a drain•age improvement, with full knowledge that the funds originally provided will bo insufficient to pay him, is under no obligation, on completion of his work, to defer his demand for payment until the liability on the bond of the original contractor may bo adjudicated. Sueli new contractor is entitled to demand a prompt relevy on the lands of the district, sufficient to pay his legal claim. (See. 1989-a30, Code Supp., 1913.)</p> <p>JUDGMENT: Abatement — Effect. Principle reaffirmed that a judgment 2 in abatement does not have the effect to prevent the prosecution óf a future action based on the same subject-matter; further, that a judgment will be treated as in abatement when the answer tenders no issue but one in abatement.</p>

<p>INTOXICATING LIQUORS: Injunction — Unusual Quantity in Private Dwelling. The finding of 120 pint bottles of beer in cases in a private dwelling, with a machine for capping such bottles, along with testimony that the accused had not sold any liquor, but with no denial of intent to sell, and no showing whether the accused himself used such liquor, or the extent of his family, if they used it, is sufficient to demand the issuance of an injunction.</p>

<p>CARRIERS: Bill of Lading — Transferee Not Subject to Warranty. A collecting bank which receives from the indorsee, for value, a draft with bill of lading attached, and, contrary to instructions, delivers the bill of lading without payment of the draft; is guilty of a conversion of the goods covered by the bill, and may not plead, against the indorsee’s action for such conversion, a breach of the original holder’s warranty as to the quality of the goods.</p>

<p>Appeal from Cherokee District Court. — William Hutchinson, Judge.</p> <p>An action to set aside the conveyance of certain real property, and to subject the same to execution. Decree in the court below, as prayed. Defendant appeals.- —</p>

<p>Appeal from Carroll District Court. — E. G-. Albert, Judge.</p> <p>Action for divorce. Plaintiff’s petition was dismissed, and an order made awarding the custody of the minor children to the plaintiff. From said order the defendant appealed. —</p>

<p>BROKERS: Noninducing Cause. Evidence reviewed, and Reid to sliow affirmatively that plaintiff in an action to recover a broker’s commission was not the inducing cause of the sale, even though plaintiff had, in a former attempt to make a sale of a different farm, introduced the latter purchaser to the defendant.</p>

- — -George Jepson, Judge. Action in equity to reform a’ fire insurance policy. Plaintiff’s petition was dismissed by the court, and it appeals. —

<p>Appeal from Plymouth District Court. — C. C. Bradley, Judge.</p> <p>The defendant was convicted of the crime of seduction, and appeals. —</p>

<p>Appeal from Plymouth District Court. — C. C. Bradley, Judge.</p> <p>Suit against the surety on a bail bond. Judgment for the defendant, on motion for a directed verdict. The State appeals.</p>

<p>Appeal from Jefferson District Court. — C. W. Vermilion, Judge.</p> <p>Quo warranto to test the validity of the organization of a consolidated independent school district. A demurrer to plaintiff’s petition was sustained, and plaintiff appeals. —</p>

• — M. F. Edwards, Judge. Action in quo warranto, to test the right of the defendants to act as school directors of the Consolidated Independent School District of Carpenter. The lower court found in favor of the defendants, and the relators and interveners appeal. The facts are stated in the opinion. —

— J. W. Anderson, Judge. Action at law to recover the purchase price paid for shares of stock in the North American Hotel Company. At the close of plaintiff’s evidence, defendant’s motion for a directed verdict was sustained. The plaintiff appeals. —

— James DeLand, Judge. Appeal from decree approving and confirming order of board of supervisors levying assessments upon the land of plaintiff in drainage district, and for amount allowed plaintiff for private drainage system taken over by the district. —

— M. F. Donegan, Judge. Action upon a policy of accident insurance for the loss of life of the insured. Tbe policy was set out in the petition. There was a demurrer to the petition, predicated upon the terms of the policy. The demurrer was overruled. The defendant electing to stand thereon, judgment was entered for the plaintiff. The defendant appeals, both from the ruling upon the demurrer and from the judgment.- —

— Hubert Utterback, Judge. Action at law to recover certain commissions claimed to be due plaintiff as the agent of defendant, and also to recover the proceeds of certain land which plaintiff claims he had purchased from defendant on written contract, and which defendant after-wards sold to another. Trial to the court, without the intervention of a jury. Judgment for plaintiff on certain of his claims, and against him on others. Both parties appeal. —

— W. G. Sears, Judge. Action iu equity to enjoin the trustees of Grant Township, Monona County, Iowa, from opening and enlarging a natural watercourse located wholly upon the land of plaintiff. A demurrer to plaintiff’s petition was sustained. Plaintiff elected of record to stand upon the petition, and appeals from a judgment dismissing same. —

<p>JUDGMENT: Setting Aside Paper Decree. Whether an agreed paper decree, entered into in good faith by all the parties and signed by the court, should be withheld from filing because one of the parties became dissatisfied therewith, rests in the legal discretion of the court.</p>

— Ti-iomas Arthur, Judge. Action by an agent employed to sell goods on commission, for damages for breach of the contract on the part of the principal. The petition was in three counts. Count 1 was dismissed by plaintiff. The court directed a verdict in favor of defendant on Counts 2 and 3, and the plaintiff appeals. —

— W. G. Sears, Judge. A writ of certiorari was issued on application of the plaintiff, to which return was duly made and a hearing had, and the record is before us for review. —

— George W. Dunham, Judge. Action in equity to set aside a written contract and several deeds conveying real property in Iowa and South Dakota. Both parties appeal from adverse rulings of the court. The material facts are fully stated in the opinion. —

— C. C. Bradley, Judge. Action in equity for the partition of real estate. Separate demurrers by defendants to plaintiff’s petition were sustained. Plaintiff, electing of record to stand upon the ruling, and refusing to plead further, appeals. —

Willett, Judge. Appeal from order of Hon. James W. Willett, judge of the district court, whereby a previous order made by the same judge, ordering the sale of attached property, was vacated, the sale stayed, and the property held in the hands of the sheriff, to await the result of the litigation. —

— W. G. Sears, Judge. Plaintiff brought suit, as beneficiary under a certificate of membership in the defendant society, a fraternal beneficiary association, to recover the sum of $790, which she alleged to be due her by reason of the death of her husband.

— George W. Dunham, Judge. Action for damages to plaintiff’s automobile and to himself, caused by a collision with one of defendant’s cars. There was a directed verdict for defendant, and plaintiff appeals. — •

— Joseph J. Clark, Judge. Suit in equity for an accounting. Plaintiff’s petition was dismissed by the court as to the defendant Bowles, and a decree entered against the defendant Cummings, who alone appeals.—

— Homer A. Fuller, Judge. Claim on account was established against the estate of C. C. Perdue, deceased, and from such order the executor of the estate appeals. —

— D. M. Anderson, Judge. Action upon two promissory notes for $500 each. Verdict in favor of plaintiff for the full amount thereof, and judgment thereon. Defendants appeal. —

— D. W. Hamilton, Judge. Action for damages consequent on the alleged alienation of the affections of plaintiff’s husband by his sister, the defendant, resulted in a verdict for plaintiff, and judgment thereon. The defendant appeals. —

— Thomas J. Guthrie, Judge. Appeal from a judgment based upon the report and award of arbitrators in an alleged statutory arbitration proceeding.—

<p>Appeal from Clarke District Court. — P. C. Winter, Judge.</p> <p>Recovery on a promissory note was, denied because barred by the statute of limitations. The plaintiff appeals. —</p>

<p>Appeal from Appanoose District Court. — Seneca Cornell, Judge.</p> <p>Action to recover damages for injury received in the employment of defendant. Verdict and judgment for plaintiff, from which defendant appeals. —</p>

<p>Appeal from Wapello District Court. — O. W. Vermilion, Judge.</p> <p>Proceeding for the collection of collateral inheritance taxes. The material facts are stated in the opinion. The State appeals.</p>

— F. F. Dawley, Judge. Action in quo warranto. The petition alleges that defendants are assuming to act as school officers of a consolidated school district, and that the organization of it is illegal and void. The court sustained defendants’ demurrer to the petition, and plaintiffs appeal. —

<p>Appeal from Chickasaw District Court. — H. E. Taylor, Judge.</p> <p>Action for damages, resulting in a judgment in favor of plaintiff for nominal damages. She appeals. —</p>

<p>Appeal from Marion District Court. — J. H. Applegate, Judge.</p> <p>Action by plaintiffs on two counts. On the first count, they claim to recover money paid to the defendant upon a contract which was afterwards abandoned by the defendant. In the second count, they claim damages for breach of an alleged oral contract, contemporaneous with the written contract set forth in their petition. There was a directed verdict for the defendant on the second count. The first count was submitted to the jury, and a verdict rendered for the plaintiffs. From the order directing verdict for the defendant on the second count, the plaintiffs appealed. Thereafter, the defendant appealed from the refusal of the court to direct a verdict in its favor upon the first count. The defendant appears in the record, therefore, as the appellee. —</p>

<p>HUSBAND AND WIFE: Contracts In Be Domestic Duties. Agreements that, upon marriage, a woman shall perform for her husband duties which are inherent in the marriage relation, and shall, in return for such services, have all the husband’s property upon his • death, are without consideration and contrary to public policy.</p>

— H. E. Fry, Judge. Action in equity by interveners, to recover $810 on a bond furnished by a contractor, as principal, and the - defendant bonding company, as surety, by virtue of claimed subrogation to the rights of laborers, whose wages interveners had advanced. Judgment and decree dismissing the petition, and taxing costs to interveners. Interveners appeal. —

<p>Appeal fromPblk District Court. — Lawrence De Graee, Judge.</p> <p>Suit in equity to enjoin the removal of alleged trade fixtures from a building owned by the plaintiff and occupied by defendant as a tenant. There was a decree granting partial relief to the plaintiff, and the defendant appeals. —</p>

— H. K. Evans, Judge. Action brought at law to recover damages because of the alleged breach of a contract in the sale of wool, which defendants refused to accept. During the trial, plaintiff asked a reformation of the contract; and, by agreement of parties, the cause was transferred to the equity docket, the jury was discharged, and, by agreement, the case was tried to the court without a jury.

<p>Certiorari from Fremont District Court. — Thomas Arthur, Judge.</p> <p>Certiorari proceedings to test the validity of the action of the board of supervisors of Fremont County, Iowa, in the relocation of a certain highway through the real estate of plaintiff. Petition dismissed, and action of the board of supervisors confirmed. Plaintiff appeals. —</p>

<p>Appeal from Dallas District Court. — Lorin N. Hays, Judge.</p> <p>Action by an administrator to recover from tbe defendants the possession of a certain promissory note and certain liberty bonds owned in his lifetime by the decedent. The defendants answered with a general denial and an affirmative defense to the effect that the decedent had made a gift of the property to the defendant F. B. Morse. There was a verdict for the plaintiff and judgment thereon. The defendants appeal. —</p>

<p>FRAUDS, STATUTE OF: What Constitutes Delivery. Delivery of 1,3 personal property sufficient to take a sale out of the statute of frauds does not imply a physical change of location. A delivery may be found from a sale, with direction by the seller that the buyer must immediately remove the property, and the buyer’s promise so to do — all with the intent that title shall pass at the time of such agreement. Instructions held correct.</p> <p>APPEAL AND ERROR: Harmless Error — Unjustifiable Chance for 2 Verdict. A litigant may not complain of an error which gave him an unjustifiable chance for a verdict. So held where the court submitted to the jury the question whether there had been a delivery of property sold, when the court might justifiably have assumed that there had been a delivery.</p>

<p>Appeal from Guthrie District Court. — -Lorin N. Hays, Judge.</p> <p>Action in equity by injunction to restrain the city of Stuart, Iowa, from disconnecting pipes from its steam plant, thereby cutting off heat from buildings owned by appellees, which buildings were being heated by the city under contract with appellees. Decree entered, making the temporary injunction permanent for the time covered by the contracts. Defendants appeal.—</p>

<p>DEEDS: Fraud — Undue Influence — Mental Incompetency. Evidence 1 reviewed in detail, and held wholly insufficient to justify the setting aside of deeds from a mother to her sons, on the ground of fraud and undue influence of the sons and of the mental incompetency of the mother.</p> <p>FRAUD: Confidential Relations. Principle recognized that the doctrine. 2 of confidential relations does not exist between a parent and adult children to the extent that it will prevent either from dealing with the other, or per se cause a transaction between them to be under suspicion.</p>

<p>Appeal from Scott District Court. — F. D. Letts, Judge.</p> <p>Action for damages predicated on the alleged negligence of the defendant railway company, resulting in injuries to plaintiff. A verdict was entered in favor of defendant, on motion of the defendant, at the close of plaintiff’s testimony. Judgment entered, taxing costs to plaintiff. Plaintiff appeals. —</p>

— P. C. Winter, Judge. Action to recover loss on a fire insurance policy issued by the defendant company. Verdict of jury, finding for plaintiff. Judgment entered thereon in favor of plaintiff in the sum of $2,877.34, with interest and costs. Defendant appeals. —

<p>TRUSTS: Burden of Proof in re Sale. A trustee wlio sells the subject-1 matter of the trust to his own son thereby easts upon himself the burden to show, when his act is questioned, that the sale was just and fair to the cestui que trust. Evidence held not to meet this burden.</p> <p>TAXATION: Inheritance Taxes — Scope of Remedy for Collection. The 2 total collateral inheritance tax accruing on the passage of an estate is not an indivisible lien on all the property passing to all the collateral heirs or beneficiaries. In eaeh case, there are as many "taxes” as there are takers. The sole obligation of each taker is to respond for his particular tax, either personally or by sequestration of any of the property so taken by him.</p>

<p>Appeal from .Poweshiek District Court. — Henry Silwold, Judge.</p> <p>There is involved the construction of a trust, granted by will. Tbe will of L. N. Sherman set aside a sum of money to be held in trust for his son. Of this fund, the trustees invested $2,200 in the stock of a bank. The book and market value of the stock was, at the time of the purchase by the trustees, $110 the share. The bank prospered exceedingly, and, when the son died, the value of this stock had risen from $110 to about $225 the share. This rise in value was due to the fact that the bank paid but relatively small dividends. If it had been willing to let the shares remain at the price they were worth when the trustees bought them, a much larger dividend than was paid to the life tenant could have been paid to him. The appellees claim, and the trial court held, that nothing was due the life tenant except the dividends actually declared, and that said accretions in value were an addition to the corpus, and were the property of the remaindermen. It is from this holding that the administrator of the estate of the deceased son appeals. —</p>

<p>Appeal from Polk District Court. — Joseph Meyer, Judge.</p> <p>Appellee began proceedings before the Iowa industrial commissioner, alleging that he was injured while in the employ of appellant, and asking compensation for a period of 40 weeks, at $10 per week, under the compensation law. The arbitration committee decided that appellee had received an injury resulting in 13% weeks’ disability, and that, this having been paid by the defendant, there was nothing due plaintiff. This finding was confirmed on review before the industrial commissioner. Appellee appealed to the district court, which reviewed the testimony certified to it, which had been taken before the committee, and which included additional testimony received by the commissioner. On the appeal, the district court set aside the prior findings, because the facts found do not support the findings, and because there was not sufficient competent evidence in the record to warrant th$ commissioner in making the order complained of, and found that the appellee had been incapacitated for a period of 28% weeks, from which it deducted the 13% weeks for which appellee had been paid, and entered judgment for 15 weeks’ disability, $157.50. The $140 was paid by the defendant under a plan of compensation of its own, which it claims is more liberal to its employees than the compensation allowed by statute. This question was presented to the commissioner, who held against the appellant on that proposition, and the company did not appeal therefrom. From the judgment of the district court, the defendant has appealed to this court. —</p>