Volume 193 — Iowa Reports

— William Hutchinson, Judge. Action upon a policy of fire insurance, to recover thereunder damages caused by smoke and soot. At the close of plaintiff’s evidence, there was a directed verdict for the defendant. The plaintiff appeals. —

— F. D. Letts, Judge. Action on a policy of insurance. Defense of fraud in the procuring of the insurance. Verdict for plaintiff, and defendant appeals.' —

■ — D. V. Jackson, Judge. Action for balance due on account. The defendant filed a counterclaim, comprising two items. This counterclaim, being denied by the plaintiff, presents the only controversy made on the trial. There was a verdict for the plaintiff for the full amount of the claim, and judgment entered thereon. The defendant has appealed. —

<p>Appeal from Woodbury District Court. — C. C. Hamilton, Judge.</p> <p>Appeal from an application modifying a decree of alimony. —</p>

— George Jepson, Judge. Action to recover for damages caused by an automobile collision. The jury returned a verdict for the defendants, and the plaintiff appeals. —

- — W. G. Sears, Judge. Action for damages for breach of a contract for tbe purchase of 1,000 bushels of oats, to be delivered by plaintiff to defendant in the month of August, at 80 cents per bushel. Defendant admits the contract, but denies the breach, and by way of counterclaim avers that the contract was breached by the plaintiff, and asks judgment against the plaintiff for $100 damages for such breach, and also for $100 purchase money paid when the contract was made.

— William Hutchinson, Judge. Action in equity, to compel the specific performance of a contract to convey real estate. Decree granting specific performance, but plaintiff appeals from certain provisions thereof.

— F. D. Letts, Judge. Action in equity, tó set aside a deed. The petition alleged mental incapacity, undue influence, and nondelivery. Plaintiffs’ petition was dismissed, and they appeal. The facts appear in the opinion. —

— George Jepson, Judge. One Patrick O’Neill was killed while employed as a switch-man by the Sioux City Terminal Railway Company. His surviving widow seeks to recover compensation under the Workmen’s Compensation Law. From judgment denying her claim, this appeal is prosecuted. The facts appear in the opinion.—

— William Hutchinson, Judge. Suit in equity by the plaintiffs, as the only children of W. P. Lawrence, deceased, to cancel and set aside two deeds made in his lifetime by said Lawrence to his wife, the defendant herein, on the ground that the grantor was mentally incompetent to make the same, and that the deeds were obtained by undue influence. The answer, in effect, denied mental incompetency and the alleged undue influence.

— W. Gr. Sears, Judge. Action for damages resulting from a collision of plaintiff’s automobile with a train operated by the defendant. There was a verdict and judgment thereon for the plaintiff, and the defendant appeals. —

<p>HOMICIDE: Murder — Evidence. Evidence held to amply sustain a 1 verdict of murder in the second degree.</p> <p>HOMICIDE: Evidence — Other Offense Not Connected With. Accused. 2 Testimony tending to show the commission of an assault on the deceased, and received on the unfulfilled promise that the accused will be connected therewith, will not constitute reversible error, (1) when no motion is made to exclude it, and (2) when said' testimony has material bearing on other issues in the cause.</p> <p>CRIMINAL LAW: Trial — Improper Opening Statement. Tlie act of the 3 court in sustaining, in the presence of the jury, objections to portions, of a noninflammatory opening statement by the public prosecutor, must be held to efface the error in the original making of the statements.</p> <p>CRIMINAL LAW: Trial — Harmless Error. An erroneous statement by 4 the county attorney as to -what a witness had testified to is harmless when other portions of the record demonstrate that the essential fact in controversy was as contended by the county attorney.</p>

<p>Appeal from Johnson District Court. — Frank F. Dawley, Judge.</p> <p>The defendant was indicted for the crime of larceny. The court directed a verdict in favor of the defendant, and the State appeals. —</p>

— C. C. Bradley, Judge. Suit in partition of lands. The parties to the suit all take their title under the will of Klaas Walterman, deceased, and the only issue presented is a question of construction of the will. The construction adopted' by the trial court was adverse to the claims of some of the parties, and they have appealed.' —

— W. G. Sears, Judge. Joint action against a municipal corporation and a private corporation, to recover damages for failure on the part of said corporations to properly light the public streets of the city where the plaintiff was employed as policeman.

<p>NEGLIGENCE: Automobile Driven by Member of Family. Proof of ownership of an automobile and proof that, at the time in question, the automobile was being operated by the minor child of the owner create a rebuttable presumption that it was being operated under the authority of the owner.</p>

<p>Appeal from Polk District Court. — George A. Wilson, Judge.</p> <p>Appeal from supplemental deei’ee modifying former judgment for alimony. Facts are set forth in the -opinion. —</p>

— A. J. House, Judge. Action for damages caused by tbe collision of an automobile with a bobsled upon which plaintiff and others were coasting, on Sixth Street, in the city of Clinton. Verdict and judgment for plaintiff against the defendant Grace G. Kincaid, and she appeals. —

— A. J. House, Judge. Action brought for divorce, on the grounds of cruel and inhuman treatment. Decree of divorce was granted plaintiff, and she was awarded alimony and the custody of an infant daughter. Defendant was awarded custody of their son. Defendant appeals.- —

<p>PRINCIPAL AND AGENT: Liability of Agent to Third Parties. An 1 agent, in attempting to carry out his agency, may render himself liable to a third party, with whom he has no contract relations. For instance, a refrigerator company which contracts with a common carrier to furnish ears to the carrier and to load and ice the same is liable to a shipper for the negligent manner in which it (the refrigerator company) attempts to carry out its contract with the carrier.</p> <p>EVIDENCE: Reporter’s Transcript — Different Suits Involving Same 2 Parties and Issues. A transcript of the official court reporter’s notes taken on the trial of an action is admissible on the trial of a subsequent and newly brought action between the same parties, involving the same subject-matter and the same issues. (Sec. 245-a, Code Supp., 1913.)</p> <p>DEPOSITIONS: Admissibility in Subsequent and Different Action. A 3 deposition taken, filed, and introduced in one action is 'admissible on the trial of a subsequent and newly brought action between the same parties, involving the same subject-matter and the same issues, even though said deposition is not refiled in the latter action and no preliminary leave of court is obtained for its use.</p>

— Milo P. Smith, Judge. Suit in equity, to cancel a contract which provided for the construction of a concrete wall in the channel of the Cedar River at Cedar Rapids, Iowa, and other improvements. Interveners and defendants, except the city, prayed enforcement of the contract. Facts are fully set forth in the opinion. . Decree was entered canceling the contract, from which this appeal is prosecuted. —

— R. G. Popham, Judge. Appeal from award of damages for an easement across the land of appellee, for the erection and operation of an electric line. —

— William Hutchinson, Judge. In form, this is a suit to quiet title. In fact, plaintiffs attempt to recover land formerly conveyed by their ancestor in trust, on the ground that' the purposes of the trust have failed and have been wholly abandoned by the trustee and the beneficiaries, and that such abandonment has rendered void the former conveyance, as being a breach of a condition subsequent. The defense is, in substance, a general denial.

<p>Appeal from Plymouth, District Court. — C. C. Bradley, Judge.</p> <p>Action by township trustees, to enjoin defendant from obstructing a certain • highway. The adjoining landowner was impleaded. A decree of injunction was granted as prayed, and defendant appeals. —</p>

<p>EVIDENCE: Parol as Affecting Writings — Written Trust Agreement. 1 A written trust agreement for the benefit of creditors may not be modified by a showing that, when the trustee aesepted the trust, it was orally agreed that the trustee should not be personally liable for purchases made in carrying on the business. A plea setting up such trust agreement is properly stricken.</p> <p>APPEAL AND ERROR: When Appeal Lies — Order Striking Defensive 2 Matter. An order striking a pleaded defense is appealable. So held where the stricken matter was an allegation by a trustee to the effect that, when he accepted the trust, it was agreed “that ho assumed no personal liability for purchases made.’'</p>

— Charles A. Dewey, Judge. Action for divorce. The defendant filed a cross-petition. The trial court dismissed the defendant’s cross-petition and granted the plaintiff a divorce, and awarded the defendant alimony and attorneys’ fees. The plaintiff appeals from the decree, in so far as the same awards alimony to the defendant. The defendant files a cross-appeal.

— H. F. Wagner, Judge. Action for attorneys’ fees claimed to be due plaintiffs from defendant for services rendered defendant’s wife in a divorce action brought against her by defendant. Jury returned a verdict for plaintiffs. From judgment rendered thereon, defendant appeals. —

<p>Appeal from Polk District Court. — Joseph E. Meyer, Judge.</p> <p>Action for damages. Verdict and judgment for plaintiff. Defendant appeals. —</p>

— John W. Anderson, Judge. Suit in equity brought by H. B. Whitney, contractor, against the trustees of Farmers Ditch Drainage District No. 1, Woodbury County, Iowa, to enforce one contract and recover for certain work thereunder, and to rescind and cancel another contract on account of certain acts of the trustees which the contractor claims breached the contract, and praying for judgment for the value of his services quantum meruit, and for an injunction restraining the…

— H. S. Dugan, Judge. Action at law, to recover damages resulting to plaintiff’s residence property from the alleged change in the sidewalk and street grade in front thereof. The court below instructed the jury to return a verdict for the defendant, and plaintiff appeals from a judgment entered thereon. —

— H. F. Wagner, Judge. Suit in equity, for specific performance of contract to sell land. Decree for plaintiff, and defendants appeal. Tlie opinion states the facts, so far as material. —

<p>EVIDENCE: Relevancy, Materiality, and Competency — Custom in re 1 care of Streets. Testimony tending to show that a municipality was vigilant and watchful in the care of its streets is not admissible on the issue whether a specified dangerous condition did exist.</p> <p>EVIDENCE: Documentary — Time Record of Work Done. Whether’ 2 the official record of work done on a public street is admissible on the issue of the dangerous condition of the street, quaere; but the / . exclusion of such record is harmless error when said record is wholly indefinite as to the place of work done.</p> <p>MUNICIPAL CORPORATIONS: Streets — Snow and Ice — Accumula3 tions From Adjoining Lot. The city’s obligation to avoid the accumulation on its sidewalks of snow and ice in a rough and uneven condition is not obviated by the fact that such accumulation comes from snow melting on an adjoining lot.</p> <p>MUNICIPAL CORPORATIONS: Streets — Obviating Responsibility. á The court may very properly instruct the jury that the city may not escape responsibility for the condition of its streets by merely delegating the work to competent employees.</p> <p>DAMAGES: Evidence — Impairment of Earning Capacity. , Evidence, 5 in an action for personal injury, bearing ou the existence of an independent occupation other than that of a housewife, need not be in great detail and definiteness in order to submit the item of loss of time to the jury.</p> <p>MUNICIPAL CORPORATIONS: Streets — Notice of Defect. A show-6 ing that a dangerous condition existed in a sidewalk for some 6 or 7 days is ample to support a finding that the city authorities had knowledge thereof, especially when such dangerous condition was only a few feet from the city’s administration building.</p> <p>NEW TRIAL: Verdict — Excessiveness—$7,500. Verdict for $12,000 7 for personal injury, reduced by the court to $7,500, reviewed,' and held nonexeessive.</p>

— Lorin N. Hays,- Judge. This action presents an equitable issue arising on the counterclaim of the defendant Welder for the reformation of a clause in a lease of real estate between defendant as tenant, and the plaintiff Costello, as landlord. The relief prayed for was granted and the plaintiff appeals. —

— H. E. Taylor, Judge. Action at law, to recover commission alleged to have been earned as defendant’s agent in the sale of real estate. There was trial to a jury. Verdict and judgment for plaintiff, and defendant .appeals.- —

<p>BILLS AND NOTES: Nonnegotiable Note as Renewal of Negotiable Note. A nonnegotiable promissory note, even though given in renewal of a former negotiable note, is subject, in the hands of an indorsee, to any counterclaim which the maker may have against the payee before notice of the indorsement.</p>

<p>Appeal from Boone District Court. — R. M. Wright, Judge.</p> <p>Action at law upon a policy of boiler insurance'. There was a trial to a jury. Verdict directed for the defendant, and judgment against plaintiff for costs. Plaintiff appeals. —</p>

— H. S. Dugan, Judge. Action in equity by plaintiff, judgment creditor of the defendant Walter Phillips, to set aside a deed to Lot 3 of the north half of Lot 4, Block 6, in the town of Tracy, Iowa, executed by one England to the defendant Nellie Phillips, in January, 1920, and recorded in April, 1920, for a consideration of $1,000, subject, however, to a mortgage of $750, and to subject said lots to the payment of a deficiency judgment rendered some time ago in favor .of…

— H. E. Taylor, Judge. Action to recover damages for personal injuries. Trial to a jury, and verdict and judgment for plaintiff. Defendant appeals. —

<p>Appeal from Polk District Court. — John D. Wallingford, Judge.</p> <p>Action at law to recover on a foreign judgment in favor of tbe plaintiff and against the defendant Surety Company in the sum of $2,481.03. Jury was waived and the issues were tried to the court. Judgment entered in favor of the plaintiff. Defendant appeals. —</p>

<p>Appeal from Marion District Court. — L. N. Hays, Judge.</p> <p>Action at law, to recover damages for injuries done to plaintiff’s automobile. There was a directed verdict and judgment for the defendant. Plaintiff appeals. —</p>

— D. M. Anderson, Judge. Suit in equity, for specific performance of agreement to convey land. There was a decree granting in part the relief prayed. Plaintiff appeals. —

— Lorin N. Hays, Judge. Action at law, to recover damages sustained in a collision between plaintiff’s auto car and defendant’s train. Verdict and judgment for plaintiff, and defendant appeals. —

<p>MUNICIPAL CORPORATIONS: Police Regulations — Taxicab Li-1 cense — Consent of Property Owner. The statutory power of cities and towns "to license and regulate” conveyances for hire, embraces the power to provide by ordinance that no license to operate a taxicab shall be granted when the applicant intends to use any portion of the street in front of a hotel or depot as a stand for the solicitation of business, unl.ess the application for the license have indorsed thereon the written approval of the owner, lessee, or manager of such hotel or depot. (See. 754, Code, 1897.)</p> <p>MUNICIPAL CORPORATIONS: Police Regulations — Taxicab License 2 Not “Franchise.” The granting of a license to operate a taxicab is not the granting of a “franchise,” within the meaning of See. I056-a30, Code Supp., 1913.</p>

<p>BILLS AND NOTES: Negotiability — -Maker’s Consent to Extensions. 1 Principle reaffirmed that a promissory note, otherwise negotiable, is rendered nonnegotiable by the insertion therein of an agreement by the maker for the extension of time of payment without notice.</p> <p>PLEADING: Issues, Proof, and Variance — Surplusage in Allegation. 2 A plaintiff who sues for judgment on a nonnegotiable promissory note, and alleges (1) bona-fide holdership, (2) in good faith, (3) before maturity, (4) under an assignment to plaintiff, (5) for a valuable consideration, need prove no more, in order to make a prima-faeie ease of recovery, than that he is the owner of said note.</p> <p>SALES: Praud — Nonfraudulent Promise. Fraud in the sale of goods 3 may not be predicated on the false promise of the vendor to furnish an expert salesman to assist’in the resale, there being no showing that, when vendor made the promise, he had no intention to keep it.</p>

' — Joseph E. Meter, Judge. Triad on indictment charging the defendant with the crime of seduction. Verdict of guilty and judgment entered committing the defendant to the Iowa State Reformatory for a period not to exceed five years. Defendant appeals. —

- — Lester L. Thompson, Judge. The trial court excluded certain evidence offered by tbe State, and then sustained defendant’s motion to direct a verdict of acquittal. The State appeals. —

<p>Appeal from Lee District Court. — W. S. Hamilton, Judge.</p> <p>Trial on indictment for the crime of escape from the penitentiary. Defendant was found guilty and sentenced to the penitentiary for an indeterminate period not to exceed five years and not concurring with his former sentence. Defendant appeals. —</p>

<p>SCHOOLS AND SCHOOL DISTRICTS: Districts — Parol Evidence. Whether parol evidence is competent to establish the formation of a subdistriet, in the absence of a showing that a record of such formation did exist at one time, quaere; but evidence reviewed, and held quite insufficient to show such formation.</p>

— H. S. Dugan, Judge. Action at law, to recover a sum of money claimed to be due plaintiff from the defendant on account of certain transactions growing out of the lease of a farm, and to recover damages for the wrongful and malicious filing of an information by defendant, charging plaintiff with the crime of assault with intent to commit murder. There was a verdict and judgment in favor of plaintiff for $1,003.50, from which judgment defendant appeals. —

— W. G. Sears, Judge. Action in equity, to enjoin the defendant bank from paying a check drawn by the plaintiff and made payable to bearer. The intervener claims to be an innocent holder for value of the check in question, and asks for judgment thereon against the bank. There was a decree for plaintiff, and the intervener alone appeals. —

— Hiram ~K. Evans, Judge. Action at law to recover damages for personal injury. Verdiet and judgment for the plaintiff and defendant appeals.-—

— L. N. Hays, Judge. Action at law, begun by George L. Butterfield, to recover damages for personal injury. Before the case came on for trial, Butterfield died, and Ms wife, as administratrix of Ms estate, was substituted as plaintiff. There was a verdict for plaintiff, and from the judgment entered thereon, the defendant appeals.

Appeal' from Benton District Court. — B. F. Cummings, Judge. Action at law, to recover upon written contracts for the grading of the roadbed of a railway between the cities of Waterloo and Cedar Rapids. There was a trial to a jury. At the close of the testimony, the plaintiffs on their part and the defendants on their part moved for a directed verdict.

— W. G. Sears, Judge. Action at law, to recover upon a policy of insurance issued to Sam Kascoutas, since deceased. There was a directed verdict and judgment for plaintiff, and defendant appeals. —

<p>Appeal from Madison District Court. — H. S. Dugan, Judge.</p> <p>Action in equity to have canceled quitclaim deeds executed by plaintiff, conveying his expectant interest as heir in certain real estate, and to have same construed as security for moneys advanced by defendants on behalf of plaintiff. Decree entered finding the equities in favor of plaintiff. —</p>

<p>Appeal from, Black Hawk District Court. — H. B. Boies, Judge.</p> <p>This action was begun at law, to recover rent upon lease of certain hotel property by plaintiffs to the defendants. Defendants appeared to the action, pleading several defenses to the plaintiffs’ demand. After issues joined, and after considerable evidence had been taken thereon, the defendants filed a prosspetition in equity, asking that a certain written modification of the original contract of lease be set aside’and canceled, on the ground that the minds of the parties thereto never met upon the terms of such modification, and especially upon the amount of rental to be thereafter paid by the lessee. Upon the filing of the cross-petition, trial of the law issues was suspended, and the equitable issue was tried to the court. After hearing the evidence, the trial court found for the plaintiffs, and dismissed the defendants’ demand for equitable relief. The defendants appeal. —</p>

— J. H. Applegate, Judge. Action in equity, asking for an injunction restraining defendants and intervener railway company from entering upon the premises of the plaintiff and constructing a railway track for a coal switch or road across plaintiff’s premises, and from operating the railway by carrying coal over said right of way and road from other lands.

— Hubert Utterback, Judge. Dependant was convicted of the crime of receiving and aiding in concealing stolen property, and appeals from the judgment entered on the verdict. —

<p>RAILROADS: Accidents at Crossings — Contributory Negligence. Evidence relative to a collision at a railroad crossing reviewed, and held to present a jury question on the issue of contributory negligence, and to justify an order for a new trial, to correct error in a directed verdict against plaintiff.</p>

<p>PARTY WALLS: Trespassing I-Beams. A party-wall owner who asks 1 for and obtains a mandatory injunction commanding the adjoining owner to remove his I-beams in so fax as they extend beyond the center of the wall, may not complain that the offending party was given the right to go upon the premises of the injured party and perform the acts reasonably neeefsary to effect such removal.</p> <p>PARTY WALLS: Maintenance of Window Openings. A property 2 owner may not enjoin the maintenance of window openings in .that part of a party wall which he is not using.</p> <p>PARTY WALLS: Paying Appraised Value. A property owner who pro-3 eeeds to use a line wall as one in common must pay the adjoining property owner who constructed the wall one half of the appraised value at the time of making use of the wall.</p>

— Lester L. Thompson, Judge. Action at law, for damages for breach of an oral contract for the purchase of an automobile. The answer was a general denial and a plea of prior adjudication. There was a verdict for the plaintiff and judgment thereon. The defendant has appealed.' —

— Hubert Utterback, Judge. Action at law, to recover an agent’s commission for finding a purchaser for real estate. There was a trial to a jury, and a verdict for the plaintiff, and judgment entered thereon. Defendant appeals.' —

<p>Appeal from Plymouth District Court. — William Hutchinson, , Judge.</p> <p>Suit upon a promissory note given by the defendant in payment for stock in the Alfalfa & Cereal Milling Company, of Sioux City. The defendant pleaded fraud in the inception of the note. The jury returned a verdict for the defendant, and the plaintiff appeals. —</p>

— Joseph E. Meter, Judge. Appellant brought this action against C. C. Olmsted and Earl Olmsted, to recover damages for injuries sustained by her in an automobile accident. C. O. Olmsted is the father of Earl Olmsted, and owner of the car in question. Earl Olmsted was driving the car at the time of the accident. Appellant was sitting on a bench, located on the parking between the sidewalk and the curb, near the southeast corner of Sixth and Corning Avenues, Des Moines, Iowa.

— William Hutchinson, Judge. Suit in equity. Plaintiff brings the action as next friend of Ms minor cMldren.

— J. C. Hume, Judge. This is an appeal by 52 property owners from assessments made by tbe board of supervisors upon tbeir property for paving a primary road known as the River to River Road. By agreement, all tbe appeals were consolidated. They all involve tbe same question. Tbe trial court sustained tbe assessments, and tbe property owners have appealed.- —

<p>Appeal from Clinton District Court. — F. D. Betts, Judge.</p> <p>Appeal from order dissolving a temporary injunction. The facts fully appear in the opinion. —</p>

<p>Appeal from Des Moines Municipal Court. — J. E. Mershon, Judge.</p> <p>This is a simple action on account for services. The defense was: (1) A general denial; (2) an affirmative defense that the work was worthless; (3) a counterclaim to recover money already paid upon the same account, on the ground of failure of consideration and breach of warranty, in that the work failed to produce an efficient instrument, as guaranteed. There was a trial to the court without a jury, and a judgment for the plaintiff for the amount of the account. The defendant has appealed. —</p>

— R. M. Wright, Judge. Suit by plaintiff to rescind, and a counter suit by the defendant to specifically enforce, a contract of purchase and sale of real estate. There was a decree for the plaintiff, and defendant appeals. —

<p>EMINENT DOMAIN: Compensation — Loss of Lateral Support. When, 1 in eminent domain proceedings, part of an entity of land is condemned for street purposes, the property owner may show that the remaining entity will, to its material damage, be deprived of lateral support, consequent on the fact that the city will necessarily be compelled to excavate the condemned strip of land, in order to use it as a street. (Arguendo, it appears that the property owner will conclusively waive such element of damage if he fails to interpose it in the condemnation proceedings.)</p> <p>EMINENT DOMAIN: Compensation. — Measure of Damages. Principle 2 reaffirmed that, in eminent domain proceedings, the measure of damages for the condemnation of part of an entity is the difference between the fair market value of'the entity before and after condemnation and taking, - measured in view of the purpose for which the condemned tract is to be used, — excluding, of course, all elements of benefits.</p> <p>WITNESSES: Examination — Nonresponsive Answer. A nonexamining 3 party may not object to an answer as nonresponsive.</p> <p>EVIDENCE: Opinion — Facts as Basis. A witness has a right to detail 4 the basic matters to which he gave consideration in making an estimate of damages.</p> <p>TRIAL: Reception of Evidence — Waiver of Defect. A party may not 5 .pass an objectionable question, speculate on the possible answer thereto, and then interpose a dragnet objection and base reversible error on an adverse ruling.</p> <p>TRIAL: Reception of Evidence — Failure to Object. Failure to object 6 to improper answers or to move to strike the same precludes review on appeal.</p> <p>EMINENT DOMAIN: Compensation — Present and Future Damages. 7 On the issue of compensation for part of an entity of land condemned for a street, which leaves the remaining entity without lateral support, evidence is admissible as to the extent the unsupported banks would cave or slough off.</p> <p>EMINENT DOMAIN: Compensation — Trees and Shrubbery. The value 8 of trees and shrubbery on the condemned land is a proper side light on the larger issue of the value of the entity of land before and after the condemnation and taking.</p> <p>EMINENT DOMAIN: Compensation — Present and Enture Conditions 9 of Property. On the issue of compensation for condemned lands, due consideration must be given to tlie conditions and surroundings of'the remaining lands (1) at the time of condemnation, and (2) after the condemned strip has been properly appropriated to the particular use for which taken.</p> <p>EMINENT DOMAIN: Compensation — Availability for Other Purposes. 10 On the issue of compensation for condemned lands, the landowner may show the immediate availability of his land for other purposes than those to which he is at the time devoting it.</p>

<p>Appeal from Boone District Court. — R. M. Wright, Judge.</p> <p>Action to recover damages for shortage in acreage of a farm purchased by appellee fro'm appellant., Facts are set out in the opinion. Jury returned a verdict for plaintiff in the amount of $2,745, with interest from March 1, 1920, on which judgment was rendered, and from which defendant appeals.—</p>

<p>DIVORCE: Alimony — Reasonable Allowance. Alimony in the sum of 1 $15 per month for 20 years for the support and education of an infant child, and $30 per month for the support of the wife for the same time, against a husband whose monthly income is $135, is not unreasonable.</p> <p>DIVORCE: Alimony — Unreasonable Provision Accelerating Maturity. 2 The provision of a decree, providing that the failure to pay any one of 240 substantial, monthly installments oB alimony shall mature all future installments, is unreasonable.</p>

<p>HOMESTEAD: Conveyance — Nonestoppel on Spouse. A wife is not estopped to plead her failure to join in the execution of her husband’s written contract to sell the homestead by the fact that she apparently acquiesced in the listing of the farm for sale, that she showed the premises to known prospective purchasers, and that she otherwise verbally encouraged the sale.</p>

<p>Appeal from Jones District Court. — -Milo P. Smith, Judge.</p> <p>• Action in equity, to subject property to the payment' of a judgment. The facts are stated in the opinion. There was a decree in the court below for plaintiff, and intervener appeals.—</p>

<p>CRIMINAL LAW: Accomplices — Rule as to Corroboration. The issue of corroboration of an accomplice is carried to the jury by direct or circumstantial evidence (1) which corroborates the accomplice in at least one of his material fact assertions, and (2) which tends to connect the accused with the commission of the offense charged. Record reviewed, and held that the court was in error in directing a verdict for want of corroboration of a charge of robbery.</p>

<p>DRAINS: Private Drainage — Casting Unusual Quantity of Water on Lower Owner. An 80-aere lake, liaving, in part, well defined banks, a watershed of at least 1,500 aeres, and a natural course of drainage in times of high water, may not be drained to the extent of lowering the ordinary water level ten inches, and carrying said water and the water at flood times out of their natural course of drainage and into the drainage improvement of a lower landowner, to the substantial damage of said latter owner, even though, without said improvement on the higher land, some of said water would, in time of high water, reach said lower improvement.</p>

<p>Appeal from Marshall District Court. — B. F. Cummings, Judge.</p> <p>Action to recover the proceeds of a life insurance policy. Judgment and decree for plaintiff. Defendant, Robinson, appeals. —</p>

<p>SPECIFIC PERFORMANCE: Indefinite and Incomplete Oral Contract. 1 An oral contract for tlie sale of real estate, folio-wed by partial payment, will not be specifically enforced, unless it is so certain and definite in its terms as to leave liothing to conjecture and nothing to be supplied by tlie court. Performance refused in a ease where the contract was silent (a) as to the title, (b) whether the conveyance should be by warranty or quitclaim deed, and (c) as to the time when possession would be given.</p> <p>SPECIFIC PERFORMANCE: Lack of Mutuality. An oral contract for 2 the sale of real estate will not be specifically enforced when the contract requires the purchaser, and a third party who is not a party to the contract, to sign a note and mortgage to the vendor, even though said third party subsequently oilers to execute said note and mortgage.</p>

<p>TRUSTS: Express Trusts — Oral Testimony. An express trust may not be added to an absolute conveyance by oral testimony.</p>

<p>Appeal from Fayette District Cottrt. — W. J. Springer, Judge.</p> <p>Action in the name of the administrator of the estate of Lester Boleyn, deceased, under the Federal Employers’ Liability Act, for damages. Verdict and judgment for plaintiff, and defendant appeals. —</p>

<p>APPEAL AND ERROR: Effect of Transfer — Jurisdiction to Enter 1 Alternative Judgment. The taking of an appeal without the filing of a supersedeas bond does not deprive the trial court of jurisdiction to enter an alternative judgment provided fox in the judgment entry from which appeal is taken.</p> <p>DAMAGES: Pleadings — Excessive Allowance. Damages may not ox-2 ceed the amount asked in the pleadings.</p> <p>VENDOR AND PURCHASER: Action for Breach — “Value” Defined. 3 Damages for failure to convey real estate will not be measured either by the peak or the bottom price of a speculative and fluctuating market, but rather by the fair value of the property, as between one who wants to purchase and one who wants to sell.</p>

— Tuos. L. Sellers; Judge. Action of forcible entry and detainer, pursuant to tbe forfeiture of a lease because of the failure of defendant to pay the rent. The case was tried to the court without a jury. The court made a finding of facts, and entered judgment' for the plaintiff. The defendant appeals. —

<p>NEW TRIAL: Verdict — Excessiveness—$15,000. Verdict for $15,000 1 for death of a telephone lineman, 24 years of age and earning $3.75 per day, held excessive.</p> <p>NEGLIGENCE: Acts Constituting — Universal Rule of Care. The one 2 degree of care to be exercised under the law of negligence is that degree which a person of ordinary care and prudence would exercise under the same or similar circumstances. Instructions relative to the care required in the handling of electricity reviewed and approved.</p> <p>ELECTRICITY: Care Required. Instructions relative to the duty of 3 an electric light company to guard against having its high-voltage wires come in contact with the telephone wires of another company reviewed, and held not subject to the vice of requiring the company “to inspect” without the raising of such issue in the pleadings.</p> <p>NEGLIGENCE: Contributory Negligence — Place of Known Danger. 4 Principle reaffirmed that a person is not guilty of contributory negligence per se simply because he goes into and works in a place of known danger, unless he knows that it is imprudent so to do.</p> <p>EVIDENCE: Opinion Evidence — Instructions. Instructions relative to 5 the value and utility of expert testimony reviewed, and held not to constitute reversible error.</p> <p>DEATH: Instructions — Number and Age of Children. In an action for 6 wrongful death, it is not necessarily reversible error to instruct the jury that it may "consider the number and age of the children of deceased, as bearing on the question of his incentive to industry. ’ ’</p> <p>Preston, Arthur, and De Graee, JJ., dissent.</p> <p>MASTER AND SERVANT: Workmen’s Compensation Act — Subroga7 tio'n of Employer. An employer who, under the Workmen’s Compensation Act, has paid compensation to his employee may, in order to secure reimbursement, intervene in an action by the employee or by his personal representative against a third party whose wrongful act was the proximate cause of the injury; hut it is error to permit the jury to Icnow the amount of compensation so paid.</p> <p>TRIAL: Instructions — Ineffectual Cure of Error. Positive instructions 8 to the jury to disregard improper testimony may not cure error. So held where, in an action for the wrongful death of an employee, a master intervened, and was permitted to show to the jury the amount'whieh he — the master — had paid to the employee under the Workmen’s Compensation Act.</p> <p>TRIAL: Reception of Evidence — Rebuttal. A defendant in an action 9 for wrongful death who seeks to show the general conditions of his electrical lines, without confining himself to the time of the injury, may not object to rebuttal testimony as to the condition of his lines at the time of trial. '</p>

<p>Appeal from Pottawattamie District Court. — Earl Peters, Judge.</p> <p>Action at law for damages, based upon alleged false and fraudulent representations, inducing an exchange of properties. There was a verdict in the court below for $3,500, which the court reduced to $2,000, and caused judgment to be entered therefor. Defendants appeal. —</p>

<p>CONTRACTS: Waiver — Failure to Plead Requirement. A contract re-1 quirement to the effect that till claims for damages consequent on delay in performance shall bo presented in writing is waived, unless the said requirement is pleaded against a claim not so presented.</p> <p>TRIAL: Objections — Statement of Grounds — Dragnet in Form. A gen-2 eral, dragnet objection to testimony on the ground that it is "irrelevant, incompetent, and immaterial, ’ ’ overruled in the trial court, and followed by no specification, will be given scant attention on appeal.</p>

— R. M. Wright, Judge. Certiorari to review the action of the district court of Hardin County in sustaining an application for a change of place of trial. —

<p>Appeal from Guthrie District Court. — J. PI. Applegate, Judge.</p> <p>The opinion sufficiently states the case. —</p>

<p>Appeal from Sac District Court. — E. G. Albert, Judge.</p> <p>Action in equity, to partition real estate. A demurrer to the petition was sustained. Plaintiff elected to stand upon the petition, and appeals from the judgment entered. —</p>

Appeal'from Shelby District Court. — Earl Peters, Judge. Appeal from a judgment entered on the verdict of a jury on an appeal to the district court from an award of referees in a condemnation proceeding wherein certain land of the plaintiff was appropriated by the defendant school district for school purposes. Plaintiff appeals. —

— J. B. Rockaeellow, Judge. Action to recover liquidated damages based upon an alleged breach of a real estate contract. The trial court sustained demurrers to plaintiff’s petition and entered judgment for costs Plaintiffs appeal. —

<p>Appeal from Cedar Rapids Superior Court.- — Atherton B. Clark, Judge.</p> <p>Action at law, to recover one half the value of a party wall. Verdict and judgment for plaintiffs. Defendants appeal. —</p>

<p>QUO WARRANTO: Nature and Grounds — Illegality in Corporate Organization. Quo Avarranto is the exclusive remedy to test (1) the legality of the organization of a public school corporation, and (2) the legality of the election of its officers.</p>

— H. E. Fry, Judge. Action in equity, to set aside the sale by plaintiff’s husband of 16 shares of capital stock of the First National Bank of Williams, Iowa, and to establish the title thereto in the plaintiff. The court held that the plaintiff was entitled to recover as to six shares of stock, and denied the relief sought as to the remaining ten shares. Both parties appeal. —

— J. B. Kockafellow, Judge. On May 28, 1920, defendant filed her third application, asking the court to direct plaintiff to pay $548.66, as an increase in alimony and support for herself and the minor son of the parties, and for attorney’s fees.

<p>Appeal from Carroll District Cowt. — E. G. Albert, Judge.</p> <p>The Carroll Trust & Savings Bank at Carroll went into the hands of a receiver as an insolvent on April 25, 1919. Thereafter, the Moline Plow Company presented a preferred claim, and asked that it be established as such. The receiver admitted the liability as for a debt, but denied the claimant’s right of preference. The cause was tried upon a stipulation of facts, and an order entered, establishing the preferred claim. The receiver appeals. —</p>

<p>TRIAL: Reception of Evidence — Gambling on Favorable Reply. A 1 party will not be permitted to gamble on the answer of a witness,— retain it if pleasing, move to strike if disappointing.</p> <p>TRIAL: 1 Reception of Evidence — Sufficiency of Objection. Principle 2 reaffirmed that he who employs the objection of "irrelevancy, incompetency, and immateriality ” must, when the objection is overruled, make the objection specific.</p>

— O. D. Wheeler, .Judge. Action in tort to recover damages for alleged negligence in the operation of one of the defendant’s street cars. At the close of all the testimony the court sustained a motion for directed verdict in favor of defendant and entered judgment for costs against plaintiff. Pl.aintiff appeals. —

— J. B. Rockafellow, Judge. Action to recover damages for personal injuries alleged to have been sustained by a fall on an icy sidewalk in the city of Council Bluffs, Iowa. Verdict of' the jury finding for the plaintiff in the sum of $3,500, and judgment entered accordingly. Defendant appeals. —

<p>Appeal from Warren District Court. — Lorin N. Hays, Judge.</p> <p>Appellant filed her claim against the estate of her deceased brother, C. F. Snyder, for the care of his five minor children. She claims that her services began November 1, 1892, and for one child she claims the care for 112 months, another 124 months, another 165 months, and for the child who died, 10^ months, all at the rate of $25 per month each. She claims that said services were rendered at the request of deceased, and under the agreement by and between them that the services should be paid for, and that payment should be made from the estate of deceased.</p> <p>The answer denies that there was any. agreement; denies that plaintiff expected compensation, or that deceased contemplated payment or agreed to pay; and alleges that, if any services were rendered, they were gratuitous; denies that the services sued for were ever rendered; and alleges that, if they were, the charges therefor are excessive, and that, if said services were ever performed, the right to recover is barred by the statute of limitations, and that plaintiff was remunerated by having received contributions and support. The claim is for services for caring for the five small children of deceased from about the time of his wife’s death, in 1892, until about 1905. One of the five children died a short time after his mother. Deceased, C. F. Snyder, died intestate in September, 1919, and left surviving him his widow — his second wife — and the four children by the first marriage, and five by his second marriage. He had accumulated an estate of about $150,000 or $200,000. Plaintiff’s claim was filed June 2, 1920. There ivas a trial to a jury, and a verdict for plaintiff in the sum of $13,807.50. Defendants’ motion for new trial was sustained, on the ground that the evidence was not sufficient to sustain the finding that there was such a contract as plaintiff -alleges and that it was payable at her brother’s death, so as to avoid The bar of the statute of limitations. The court did not pass upon the question as to whether the verdict was excessive, and some of the other matters raised by the motion for new trial. Claimant appeals. —</p>

<p>HOMICIDE: Murder — Rebuttal of Implied Malice. The presumption 1 of malice from the use of a deadly weapon, may be so completely' rebutted by the facts and circumstances of a homicide as to demand the withdrawal by the court of a charge of murder.</p> <p>HOMICIDE: Excusable or Justifiable — Selfi-Defense for Guest. A per-2 son has the same right, to defend his guest as he has to defend himself.</p> <p>HOMICIDE: Excusable or Justifiable — Nonduty to Retreat. A person 3 is under no duty “to retreat” when lie is in a place where he has a right to be, and is, without fault on his part, violently assaulted by another.</p> <p>HOMICIDE: Excusable or Justifiable — -Unarmed Assailant. An as-4 sault by a wholly unarmed person may be made under such circumstances as to justify resistance to the death. So held where the person so assaulted was, at the time, in an automobile, moving along the brinlc of a steep and dangerous declivity.</p> <p>HOMICIDE: Excusable or Justifiable — Provoking Encounter. Evidence ¡5 reviewed, and field insufficient to show that the accused provoked the fatal encounter.</p>

— James W. Willett, Judge. Dependant appeals from a conviction of the crime of seduction. The facts are fully stated in the opinion. —

— J. B. Rockaeellow, Judge. The defendant, Harbour, together with one August Sierk and one Blanche Sierk, was indicted upon the charge of murder in the second degree, and upon trial, was convicted of manslaughter, and sentenced to imprisonment for an indeterminate period, not exceeding eight years. From that judgment he appeals. —

<p>PARENT AND CHILD: Custody — Welfare of Child. Principle re-1 affirmed that, on the issue of custody of a minor child, the welfare of the child must control. So held where the custody was allowed to remain in a grandparent.</p> <p>PARENT AND CHILD: Custody — Confirmation of Guardianship — Ef2 feet. When the court, instead of vacating an appointment of a guardian of the person of a minor, on full hearing confirms such appointment, any after attempt by the parent to secure custody of the child must be supported by testimony bearing on conditions subsequent to said order of confirmation.</p> <p>HABEAS CORPUS: Petition — Proper Title. In habeas corpus by a 3 parent for the custody of his child, the writ should be demanded in the name of the child.</p>

<p>MORTGAGES: Foreclosure — Acceleration of Maturity. A provision in 1 a third mortgage to the effect that said mortgage shall become due and payable in case a second mortgage becomes due and unpaid, is not in the nature of a forfeiture, but is a valid provision for the acceleration of the day of maturity; and a court of equity will not grant relief against such a provision, in the absence of circumstances showing peculiar hardship, unconscionable advantage, or oppression.</p> <p>MORTGAGES: Foreclosure — Belated Tender. A tender of payment 2 after commencement of foreclosure proceedings is too late.</p>

— Milo P. Smith, Judge. Action at law against defendant partnership, to recover money paid by plaintiff on a phonograph, shipped by defendants to plaintiff on approval, which machine was returned by plaintiff to defendants» as unsatisfactory. Plaintiff gave five notes, at the time of the execution of the written contract, which notes were sold to a bank, which claimed to be an innocent purchaser of the notes. The notes were paid by plaintiff to the bank.

— John D. Wallingeord, Judge. Action to recover damages on account of personal injuries sustained by plaintiff by a collision of lier automobile with á passenger train of defendant railway company. On motion of defendant the trial court directed a verdict on its behalf and entered judgment for costs against the plaintiff. Plaintiff appeals. —

<p>VENDOR AND PURCHASER: Contradiction of Written Option. A 1 definite, complete, and unambiguous written option to purchase property may not, either by oral evidence or by 'a contemporaneously executed written instrument, signed only by the optionee, and making- no reference to the written option, be converted into a contract of employment of the optionee to sell the property on commission.</p> <p>Preston, Favikle, and De Grab?, JJ., dissent.</p> <p>CONTRACTS: Construction — Complete Contract Not Aided by Other 2 Writings. Principle recognized that the rule under which several writings are construed together, in order to determine the intent of the parties, does not apply when the writing in question, is complete and unambiguous, in and of itself.</p> <p>VENDOR AND PURCHASER: Acceptance of Option by a Stranger. 3 Principle recognized that one who grants to a particular person a written option to buy property is not bound by the acceptance of a stranger.</p> <p>VENDOR AND PURCHASER: Withdrawal of Option. Principle recog4 nized that an option to purchase property, entered into without consideration, is reseindable at any time prior to acceptance.</p> <p>CONTRACTS: Construction — In Sense Understood by Parties. The ó principle that a contract shall be construed against a party in that souse in which ho had reason to believe the other party to the eon-tract understood it,.has no application when the contract is certain and unambiguous.</p>

<p>Appeal from Uumiboldi District Court. — James De Land, Judge.</p> <p>Action upon two promissory notes, dated November 6, 1918, for $800 and $2,000 respectively. Verdict and judgment for defendant, and plaintiff appeals. —</p>

— E. B. 'Woodruff, Judge. The six above entitled cases are all of the same character, and dependent upon like statements of fact. In each, a recovery is sought of damages for personal injury; and in each case, the appeal to this court is from a ruling by the trial court sustaining’ a demurrer to the petition, as finally amended and substituted. The material allegations of the petition will be found stated in the following opinion.

<p>Appeal from Scott District Court. — F.' D. Letts, Judge.</p> <p>Action by plaintiff, under Code Section- 3471, to recover for loss of the earnings of Ms minor son, resulting from injuries received while the employee of the defendant, and through the negligence of the defendant. Medical expenses also are claimed. One defense pleaded by the defendant was that the defendant, as an employer, was operating under the "Workmen’s Compensation Act, and that its liability had been adjudicated under such act, and that the defendant had paid all installments adjudicated against it as they matured. By way of reply, the plaintiff admitted that the defendant was operating under the Workmen’s Compensation Act, and that all the liability of the defendant to the employee had been adjudicated pursuant to such act, but averred that he, as parent of the minor employee, was not bound by the provisions of such Compensation Act, and that he was entitled to recover independently thereof, by virtue of Section 3471. The defendant filed a motion for judgment on the pleadings, which was duly sustained, and judgment entered dismissing the petition. Plaintiff has appealed. —</p>

<p>Appeal from Harrison District Court. — J. B. Rockaeellow, Judge.</p> <p>Action in equity, in which plaintiff seeks to enforce a written contract for the sale of real estate by defendants to plaintiff. Plaintiff1 asked specific performance, and as alternative relief, asked damages, in case performance could not be had. Defendants were married men, and their wives did not sign the contract. The trial court found for plaintiff, and found that the contract was valid and had been delivered; that plaintiff was entitled to an order of specific performance; but that, because the wives of defendants had not signed the contract and were not parties to the action, specific performance could not be bad; that the value of the premises sold was, on March 1, 1920, the date of performance, $225 per acre, or $24 more than the contract price. Specific performance was ordered, but it was further provided in the decree that, within 20 days from its date, September 17, 1920, defendants should deliver to the clerk an abstract of title, which was to be turned over to plaintiff or his attorney for examination, and plaintiff was to have 5 days to make written objections to the title. If objections were so filed, the matter of'said objections was to be submitted to the court for determination; -if no objections were filed, defendants were, within 10 days thereafter, to deposit with the clerk a deed. If objections filed were just, defendants were to have a reasonable time in which to correct the title. When title was perfected, if necessary, as soon as abstract and deed were furnished, the deed to convey the land to plaintiff, subject to a $10,000 mortgage, as provided in the contract, with interest from tbe date such deed was furnished, was to be signed and acknowledged by defendants and their wives, and plaintiff was to pay the clerk or defendants, within 5 days, $10,000 and interest on the $1,000 earnest money check, and plaintiff was to deposit with the clerk, with the $10,000, his mortgage deed for $13,600,. as provided in the contract, and his note for that amount, the said mortgage to be subject to a mortgage on the premises of $10,000, as provided in the contract; such deposit not to be required until defendants had complied with the order on their part. Defendants were required to pay the interest on the first mortgage to the date the deed was furnished, or to allow plaintiff sufficient for that purpose out of the $10,000 cash deposit, and were to pay the 1919 taxes. It was further ordered that, if defendants should fail to comply with said orders, or any of them, at the time specified, then judgment should be entered by the court for the amount of damages specified, with interest from March 1, 1920. The cause, was held open, for the purpose of entering judgment and for the purpose of determining whether the orders had been complied with, and for determining any dispute in regard to the title, as shown by the abstract. When the orders were complied with, the $1,000 earnest money cheek given by defendants was to be left with the clerk, for plaintiff. Defendants did not comply with any of the orders of the court, and made no move to that end, nor have they done so up to this time, though they now ask this court to extend the time, and permit them to comply. As we understand the record, no appeal was taken from the first decree, and before the final judgment was entered, and no supersedeas bond was given. The record does not show when the notice of appeal was given. It simply recites that it was done within six months after the entry of said decree and the rendition of the judgment. On November 4, 1920, plaintiff filed a motion, asking for a judgment, which motion was sustained on November 20th, and judgment entered for that amount, with interest and the costs of suit. Plaintiff alleged performance and readiness to perform on his part, demand of performance on the part of defendants, and their refusal. The defendants appeal. —</p>

— R. G. Popham, Judge. Action in equity by the owner of the dominant estate, to enjoin the owner of the servient estate from obstructing the flow of surface water in a natural depression or watercourse, causing the same to overflow his estate, and to compel the defendant board of supervisors and township trustees to maintain a proper opening in the highway for the escape of the water, and to prevent the same from being held back on his premises.

— Lawrence De Grape, Judge. Action to recover damages alleged to have been caused by the negligence -of defendant in maintaining a defective and dangerous approach to a county bridge. The court, at the conclusion of plaintiff’s testimony, directed a verdict in favor of the defendant, and plaintiff appeals. —

— D. F. Coyle, Judge. Appeals from assessments of.benefits in Drainage District No. 95, in Palo Alto County, Iowa. The two cases were consolidated for trial in the district court, and by agreement of parties, are consolidated on this appeal, and presented on a single record, the same as in the court below.' —

<p>MUNICIPAL CORPORATIONS: Public Improvements — Assessments 1 Against Agricultural Lands. A municipal assessment against agricultural lands for paving may not be made on the basis of the value of the land if the land was abandoned for agricultural purposes and platted into city lots.</p> <p>MUNICIPAL CORPORATIONS: Public Improvements — Loss of Right 2 to Pay Assessment in Installments. The right of a property owner whose land has been assessed for paving, to pay his assessment in installments, is wholly lost by his failure to file, within 30 days from the date of said assessment, the statutory agreement to pay, and to waive all illegalities and irregularities, even though such failure was occasioned by the property owner’s successful effort in court to show that the assessment was substantially excessive.</p> <p>Evans, Pkeston, and Faville, JJ., dissent.</p>

— F. O. Ellison, Judge. Plaintiff brought suit upon a rent note. The defendant presented a counterclaim for damages for alleged false representations which induced the making of the note and the undertaking of the lease. There was a verdict allowing the counterclaim and a judgment thereon. The plaintiff has appealed.—

— D. E. Maguire, Judge. Action to recover damages for the death of plaintiff’s intestate, caused, as is alleged, by defendant’s negligence. Trial to a jury. At the close of plaintiff’s evidence, defendant’s motion for a directed verdict was sustained. Plaintiff appeals.—

— Jambs De Land, Judge. Action to recover damages for personal injuries sustained in an accident near a railroad crossing. The opinion states the facts. At the close of plaintiff’s evidence the court directed a verdict for the railroad company and upon this verdict a judgment was entered against plaintiff for costs. Plaintiff appeals. — •

<p>ADVERSE POSSESSION: Slight Encroachment Upon Highway. Encroachment upon a public highway by a landowner in the construction of fences, howsoever long continued, will not furnish basis for an estoppel against the public authorities to claim the full width of the legally established highway, especially when the encroachment was so inconsequential as not to fairly challenge the attention of the public.</p>

— E. B. Woodruff, Judge. Action at law to recover damages for fraud and false representations in a sale or exchange of lands. Verdict and judgment for plaintiff for $9,104. Defendant appeals. —

— Hubert Utterback, Judge. Suit in equity, to enjoin payment by the consolidated school district of Runnells for the expense of constructing a sidewalk. The material facts are stated in the opinion. On trial to the court, the petition was dismissed, and plaintiffs appeal.-—

<p>EVIDENCE: Parol as Affecting Writings — Whether Different Instru1 ments Constitute One Contract. On the issue and on the evidence tending to prove that a written release was executed as a part of the written contract sued oil, parol testimony is admissible on rebuttal to prove tlie contrary, aiid the particular purpose for the execution of said written release.</p> <p>TRIAL: Instructions — Definition of Terms — “Consideration.” Ifail2 uro to define the term “ consideration ” is not erroneous, in the absence of a request.</p> <p>' VENUE: Office or Agency. Record reviewed, and hold to sustain a 3 finding that defendant maintained an agency in the comity of suit, and that the controversy at issue grew out of such agency.</p>

<p>FRAUD: Jury Question. Evidence bold to present a jury question on 1 the issue of fraud in the sale of cattle.</p> <p>EVIDENCE: Presumptions — Failure to Testify. A presumption un2 favorable to a pleaded defense may very properly be drawn from the failure of a defendant to testify to matters as to which he has exclusive knowledge.</p> <p>FRAUD: Other Offenses — Attempt to Exclude by Plea. In actions for 3 fraud, other similar and nonremote acts of the accused are admissible on the issue of intent, notwithstanding defendant's attempt to exclude such by the plea that whatever was said and done by him was said and done designedly and Impwingly.</p>

<p>Appeal from Davis District Court. — Seneca Cornell, Judge.</p> <p>This is an appeal from the finding and order of the court below upon objections to the final report of an administrator. The facts are fully stated in the opinion. —</p>

<p>Appeal from Marion District Court.- — H. S. Dugan, Judge.</p> <p>Action at law, to recover from defendant a sum of money alleged to have been paid to or deposited with defendant for the purchase of Liberty Bonds, or to recover the value of the bonds which defendant undertook to purchase on plaintiff’s account. The material facts are stated in the opinion. There was a trial to a jury, at the close of which verdict was directed and judgment entered in favor of defendant, and plaintiff appeals. —</p>

<p>MUNICIPAL CORPORATIONS: Streets — Estoppel to Deny Notice. A 1 city which issues a formal permit to make excavations in a street may not thereafter say that it had no notice that the excavations had been made and the street left in a dangerous condition.</p> <p>NEGLIGENCE: Operation of Automobile — -Necessary .Degree of Con-2 trol. The operator of an automobile is not. necessarily guilty of negligence per se by failing to have the automobile under such control that he can stop it within the distance that he can plainly see obstructions ahead of him.</p> <p>APPEAL AND ERROR: Indefinite Assignment. An assignment to the 3 effect that a given instruction “is not a correct statement of law” , is quite insufficient to raise (any question.</p> <p>NEW TRIAL: Verdict — Excessiveness—$3,000. Verdict for $3,000 for í personal injury held nonexcessive.</p>

<p>Appeal from Clarke District Court. — Homer A. Fuller, Judge.</p> <p>Trial on indictment for the crime of larceny from, a building in the nighttime. Verdict of guilty and defendant was sentenced to the State Reformatory for an indeterminate term, not to exceed five years. Defendant appeals.' —</p>

<p>ELECTIONS: Conduct of Elections — Keeping Polls Open. Keeping the 1 polls open a short time after the legal closing time will not invalidate an election, especially when the ballots received during said time were inconsequential.</p> <p>SCHOOLS AND SCHOOL DISTRICTS: Organization — Belated Quo 2 Warranto. Quo warranto will not lie to review irregularities in the organization of a consolidated school district in favor of relators who deliberately delay their action until the district is organized, the officers elected, the taxes levied, and the school organized, and the district is on the eve of determining a bond issue.</p>

<p>INSURANCE: Fidelity Insurance — “Loss and Wrongful Abstraction.” 1 A fidelity bond conditioned to indemnify tlxe incorporated obligee against “loss * * :i of any money * * * through the * * * wrongful abstraction of” the obligee’s general manager, is not breached as to the surety by the act of the said manager in applying the funds of the said obligee to the payment of obligee’s valid pre-existing debts, oven though it be true that the general manager had individually obligated himself to the obligee to pay said debts.</p> <p>JUDGMENT: Conclusiveness — Nonidentity of Parties. A consent 2 decree which finds that certain defendants had, by a series of transactions, entered into an unlawful combination in restraint of trade, is not admissible in a subsequent action between one of said defendants and a stranger to the decree, on the duly joined issue whether the same and identical transactions constituted an unlawful combination in restraint of trade, even though the offer is made against the one who was a party to the former decree.</p>

<p>Appeal from Carroll District Court.• — M. E. Hutchison, Judge.</p> <p>Action in equity, to cancel and set aside a judgment entered against the plaintiff in the district court of Carroll County, Iowa, as siirety on.a bail bond, and to enjoin the collection of said judgment. A demurrer to plaintiff’s petition was sustained, and, the plaintiff electing to stand on his petition, judgment was entered dismissing the same, and plaintiff appeals.—</p>

<p>Appeal from Polk District Court. — J. D. Wallingford, Judge.</p> <p>Appeal from judgment of the district court in favor of policemen who sued to recover salaries they did not receive between January 23, 1915, the date of their dismissal from the force, under orders of the civil service commission, and July 1, 1917, the date of their reinstatement on the force, by decree of court, the amount of the judgment being $3,072.40. —</p>

<p>CARRIERS: Carriage of Passengers — Leaving Car Unguarded. Prin1 eiple reaffirmed that a carrier of passengers is negligent if it exposes a passenger to any danger which human foresight and care can apprehend and provide against. So held where a motorneer temporarily abandoned his car on a grade, with the result that an intermeddler released the brakes and thereby injured the passenger.</p> <p>CARRIERS: Carriage of Passengers — Proximate and Concurrent Cause. 2 An act of negligence which may fairly be found to be the proximate cause of an injury to a passenger is not rendered nonproximate by the fact that a later negligent act concurs therewith.</p> <p>APPEAL AND ERROR: Harmless Error — Evidence Without Applica3 bility. The improper reception in evidence of life tables is rendered harmless by the act of the court in specifically withdrawing from the jury the question of permanent injury.</p>

<p>Appeal from Linn District Court. — F. F. Dawley, Judge.</p> <p>Action at law for malicious prosecution. Directed verdict for defendant, and plaintiff appeals. —</p>

<p>DRAINS: Establishment and Maintenance — Petition and Notice in re 1 Repairs. No petition or notice is necessary in proceedings for the repair of an existing drainage improvement. (See. 1989-a21, Code Supp., 1913.)</p> <p>DRAINS: Assessments — Exclusion and Inclusion of Lands. In pro-2 eoodings for the repair of a drain, it seems that the act of tlio board in adding certain tracts to the district and excluding certain other tracts therefrom, and assessing accordingly, is not material, unloss the assessment of a complaining landowner was increased thereby.</p> <p>DRAINS: Repair of Intercounty Improvement. The statutory power 3 and authority to repair intraeounty drains (See. 1989-a21, Code Supp., 1913) is applicable to intercounty drains.</p> <p>DRAINS: Assessments — Reclassification for Repair. Lands may be 4 reclassified and assessments levied accordingly, whether the work be “original construction” or “repair.”</p> <p>DRAINS: Assessments — Inequitableness. It is futile to assert, on ap5 peal, that an assessment is excessive and inequitable, unless such assertion has basis in the evidence.</p> <p>DRAINS: Establishment and Maintenance — Interested But Nondecid6 ing Vote. Drainage proceedings are not rendered illegal by the nondeeiding vote of a supervisor who is financially interested in the improvement.</p>

<p>ATTORNEY AND CLIENT: Duties and Liabilities — Recovery of Fraudulently Induced Fes. A plaintiff wlio seeks to reeover tlie entire amount of a fee paid to defendant as an attorney, on the allegation that the payment was fraudulently induced, must allege and prove either (1) that the attorney performed no services, or (2) that the services performed were of no value.</p>

<p>Appeal from Des Moines Municipal Court. — T. L. Sellers, Judge.</p> <p>Action to recover damages for injury sustained by appellee in a collision of appellee’s automobile and a truck owned by appellant. Trial to a jury, resulting in a verdict in favor of plaintiff. Judgment was entered on the verdict, from which defendant appeals.- —</p>

— F. O. Ellison, Judge. Action upon two jiromissory notes. The defendant pleaded fraud in tlie transaction out of which the notes grew, and averred that the plaintiff was not a holder in due course, in that he had notice of the fraud, and in that revenue stamps were not affixed on the notes at the time of his alleged purchase.

<p>Appeal from Mahaska District Court. — D. W. Hamilton, Judge.</p> <p>Indictment charging murder in the first degree/ ' Conviction of murder in the second degree.. Defendant'• appeals.—</p>

<p>REPLEVIN: Collecting Counterclaim Under Cover of Writ. One who would he the absolute owner and entitled to the immediate possession of personal property if lie paid a certain pureliase priee, may not maintain replevin on the theory that he is such owner and entitled to sueh x>ossession because he tendered a sum of money which, when added to the damages suffered by him in another transaction between him and the seller, equaled the said purchase quice.</p>

<p>Appeal from Bes Moines Municipal Court. — O. S. Franklin, Judge.</p> <p>Action to recover a balance claimed to be due on a contract of employment. Defendant- pleaded a settlement and full payment. Verdict for plaintiff, and defendant appeals.- — •</p>

<p>Appeal from Harrison District Court. — George W. Cullison, Judge.</p> <p>Action to recover damages'to plaintiff’s automobile, caused by a collision with defendant’s automobile. At the close of plaintiff’s testimony, the court directed a verdict for the defendant, and plaintiff appeals. —</p>

<p>Appeal from Johnson District Court. — R. (I. Popi-iam, Judge.</p> <p>Action against the surety upon a delivery bond.' Verdict and judgment for the plain! iff by direction of the court. The material facts are stated in the opinion. —</p>

<p>SCHOOLS AND SCHOOL DISTRICTS: Transfer of Original Territory. School boards may not, by joint action under Section 2792, Code, 1897, detach and set off to one of the districts territory which was part of the territory of a consolidated independent district as originally formad. Whether such action is authorized by Section 2793, Code Supp., 1913, quaere.</p>

<p>Action in- habeas corpus. Petition filed in this court. The' opinion states the facts. —</p>

<p>Appeal from Sioux District Court. — William Hutchinson, Judge.</p> <p>Tras defendant was indicted, charged with the crime of murder in the first degree. The charge is that, on or about March 28, 1919, lie shot and killed one Claude Letner. The jury found defendant guilty, and fixed the penalty at death. Defendant’s motion for new trial was overruled, and the court pronounced judgment in accordance with the verdict, and fixed the date when defendant should be executed. The defendant appeals. —</p>

<p>Appeal from Appanoose District Court. — Francis M. Hunter, Judge.</p> <p>The defendant was tried in the court below upon a charge of murder. She was convicted of manslaughter, and appeals.—</p>

<p>Appeal from Hamilton District Court. — II. E. Fry, Judge.</p> <p>Dependant was tried on an indictment charging the crime of breaking and entering a building in the nighttime, the trial resulting in a verdict of guilty. Motion for ‘new trial was overruled, and judgment was entered on the verdict. Defendant appeals. —</p>

<p>RAPE: Evidence — Weight and Sufficiency. Evidence reviewed, and 1 held insufficient to support a verdict of assault with intent to rape.</p> <p>CRIMINAL LAW: Evidence — Nonvoluntary Confessions. Confessions 2 obtained by any sort of threats or violence, or by any direct or implied promise or inducement, however slight, are wholly inadmissible. If the'fact of threat or violence or inducement be substantially undisputed, the eourt must peremptorily exclude the alleged confession. If, however, the fact question bo fairly in issue, the jury may be allowed to pass thereon. Evidence held to require the absolute exclusion of an alleged confession.</p>

<p>HOMICIDE: Murder — Sufficiency of Evidence. Boeord reviewed, and 1 held to support a verdict of murder in the first degree.</p> <p>INDICTMENT AND INFORMATION: Issues, Proof, and Variance— 2 Principal and Accessory. No variance results from charging the accused as a principal, and establishing the fact that he was an accessory before the fact.</p>

<p>INSURANCE: Avoidance — Conflict Between Policy and Shipping Contract. An insured shipper of stock.who agrees in the policy that, upon payment of his loss, the insurer shall be subrogated to the insured’s right of action against the delinquent carrier, and that ho (the insured) will hot, on penalty of avoiding the policy, do any act tending to defeat such right of subrogation, does not avoid his policy or in any manner affeet it by contracting in the contract of shipment to the effect that, in case of loss on the shipment, the delinquent carrier shall have the benefit of said insurance “so far as this shall not avoid the foliay.’’</p>

— D. F. Coyle, Judge. Action in equity, to recover on a policy of insurance. The defendant company admitted liability, and interpleaded the other defendants as claimants under said policy. The defendant Boberts claims to be an assignee of said policy, and the defendant Kirby claims to have an interest in the same as the assignee of Boberts, for collateral security. The court dismissed the plaintiff’s petition. —

<p>DAMAGES: Measure of Damages — Destruction of Property. When 1 personal property is practically destroyed, the damages are measured by the difference between the value immediately before and immediately after the injury.</p> <p>RAILROADS: Accidents at Crossings — Obstructing View With Cars. 2 The placing of ears upon a sidetrack so as to obstruct the view of a crossing will not, in and of itself, constitute such negligence as will support a recovery of damages.</p>

<p>Appeal from Monona District Court. — W. G. Sears, Judge.</p> <p>Action to recover damages to residence property occupied by plaintiff, and to her personal property on the premises, and for physical suffering endured by her, and for the annoyance, inconvenience, and personal discomfort suffered by the plaintiff in her home by reason of excessive smoke, cinders, fumes, dust, and sand east upon and into her home and upon her personal property by the operation of an asphalt plant erected by defendant, situated adjacent to the residence property, and operated for a period of four months. The case was submitted to a jury, which returned a verdict for plaintiff in the amount of $910.40. Judgment was rendered on the verdict, from which defendant appeals. —</p>

<p>TAXATION: Levy and Assessment — Deduction For “Bad” Paper in re Bank Stock. In arriving, at tlie assessable value of shares of bank stock, there is no authority to deduct from the bills receivable any amount for “bad” paper, and such unauthorized allowance is correctable by the county auditor, even though it has passed the board of review. (Sees. 1322, 1385-b, Code Supp., 1913.)</p>

<p>NEGLIGENCE: Trespasser — Nonduty to Anticipate. A street railway company is under no duty, through its employees, to anticipate the presence of a private vehicle, i. e., an automobile, at a place within a public street from which private travel is wholly and necessarily excluded. ,</p>

<p>Appeal from Muscatine District Court. — D. V. Jackson, Judge.</p> <p>Action in equity, wherein plaintiff asks judgment against the Boltes and Swailes upon a note executed by the Boltes to Swailes, and by him indorsed to plaintiff. He also asks the foreclosure of a chattel mortgage given on certain automobiles to secure said note. ,The petition also asks that the claim or interest of appellants, as purchasers of the automobiles, be decreed to be inferior to plaintiff’s lien, and that special execution issue, and that the machines be delivered up and sold. There was a decree for plaintiff, as prayed, and the parties named in the caption as appellants appeal. —</p>

<p>Appeal from Mahaska District Court. — Charles A. Dewey, Judge.</p> <p>Action by the administratrix of the estate of Russell W. Hartman, deceased, to recover damages for his death caused by a city fire engine on a street of the defendant city. The trial court sustained the defendant’s motion for a directed verdict at the close of all -the testimony and entered judgment for costs against the plaintiff. Plaintiff appeals. —</p>

<p>WILLS: Construction — Life Estate (?) or Fee (?) A devise, apparently in foe, to a wife will be construed to create a life estate only, when the apparent fee is modified by a later paragraph of the will, to the effect that whatever remained of the devise at the death of the wife should pass to testator’s grandchildren, and when the will is formally consented to in writing by the wife at the time of its execution. It follows that the will carries nothing to the wife’s heirs, in case she predeceases the testator.</p>

<p>Appeal from Union District Court. — Homer A. Fuller, Judge.</p> <p>Action in equity to foreclose a contract of sale of real estate. Decree entered finding equities to be with plaintiff, and defendant-vendees app eal. —</p>

<p>Appeal from Plymouth District Court. — William Hutchinson, Judge.</p> <p>Proceedings brought under the provisions of the 'Workmen’s Compensation Act, to recover compensation on account of the death of Henry Christensen. The arbitration committee called to consider the claim rejected it. The industrial commissioner sustained the committee, and plaintiff thereupon appealed to the district court, which reversed the commissioner’s finding. Defendants appeal. The decision of the district court is reversed, and the commissioner’s finding sustained. —</p>

<p>CONSTITUTIONAL LAW: Restricted Residence Act. The Restricted 1 Residence Act and municipal ordinances enacted in harmony therewith are not subject to the constitutional objections:</p> <p>1. That the citizen is deprived of his personal liberty and property without due process of law.</p> <p>2. That private property is taken for publie use without compensation.</p> <p>3. That the privileges and immunities of the citizen are unduly abridged.</p> <p>4. That citizens are denied the equal protection of the law.</p> <p>5. That private property is taken for private use without compensation.</p> <p>6. That. legislative power is delegated to private persons.</p> <p>MUNICIPAL' CORPORATIONS: Power of Council — Rescinding Action. 2 A building permit granted by a city council may be revoked, when no one has 'materially changed his position by reason of the granting of the permit.</p> <p>CONSTITUTIONAL LAW: General Scope of Police Power. The po3 lice power of a state embraces not only matters and things which at common law constitute nuisances por se, but matters and things which are not inherently wrong, or which pertain solely to public convenience anil general prosperity, even though the regulations imposed do restrict individual rights.</p> <p>EMINENT DOMAIN: Nonrecoverable Compensation. A property 4 owner is not entitled to compensation for the incidental loss or injury which he may sustain by reason of the enforcement of a valid police regulation, e. g., the Restricted Residence Act.</p> <p>CONSTITUTIONAL LAW: Police Power — Unreasonable Regulations. 5 The restrictions upon the use of property imposed by the Restricted Residence Act and municipal ordinances in accord therewith are not unreasonable, in a constitutional sense, because said act and ordinances:</p> <p>1. Do not provide for notice to the property owner.</p> <p>2. Make no provision for compensation to the property owner.</p> <p>3. Declare an otherwise lawful act a nuisance, and impose punishment accordingly.</p> <p>4. Allow a trifling minority of residents to initiate a district.</p> <p>5. Test the council, or 60 per cent of the property owners, with power to proscribe the limits of the district.</p> <p>CONSTITUTIONAL LAW: Police Power — Use of Property. Principle 6 reaffirmed that reasonable regulation of the use of property within cities and towns is peculiarly within the range of the police power of the state. Applied in the construction of the Restricted Residence Act.</p> <p>CONSTITUTIONAL LAW: Necessary Showing of Unconstitutionality. 7 Principle recognized that a legislative act will not be declared unconstitutional unless such vice is so palpable as to leave no reasonable doubt on the subject.</p> <p>CONSTITUTIONAL LAW: Construction — In Favor of Constitution-8 ality. A constitutional grant of legislative power to a municipality will not be nullified by the presence in the same aet of an unconstitutional grant of power to a portion of the citizens of the muniei- . pality, when the latter grant can be wholly eliminated from the act.</p> <p>CONSTITUTIONAL LAW: Construction — “ShaU” as Permissive 9 Term. The term “shall” may be construed as “may,” in order to avoid unconstitutionality. So held where the Restricted Residence Act, which provided that “cities * * * may, and upon petition of 60 per cent of the owners of the real estate in the district * * * shall, * "■ i:' establish * * restricted residence districts,” was held to grant nothing more than a discretionary power.</p>

<p>Appeal from Monona District Coiort. — C. C. Hamilton, Judge.</p> <p>Suit in equity, to enjoin an alleged liquor nuisance. On trial to the court, the bill was dismissed, and plaintiff appeals.—</p>

<p>EXECUTORS AND ADMINISTRATORS: De Son Tort — Liability For Costs. One who, without desire or effort, is appointed administrator of an estate of small value, and acts in good faith, and is subsequently removed, on a showing- that the deeeased was a nonresident of the county, is not liable for costs and attorney fees incurred in effecting the removal, and especially so when the said costs exceed the value of the estate.</p>

<p>Appeal from Webster District Court. — H. E. Fry, Judge.</p> <p>Action at law, to recover damages for the death of Ora Duncan. Verdict and judgment for plaintiff, and defendant appeals.- —</p>

— E. Gr. Albert, Judge. Action for damages, actual and exemplary, for the cutting’ down of growing trees alleged to have been owned by plaintiff and defendant as tenants in common. The exemplary damages are claimed under the provisions of Code Sections 4303 to 4306, inclusive. The defendant denied that the plaintiff had any ownership or interest in the trees, and denied all malice. There was a verdict for the defendant, and the plaintiff appeals.—

— W. G-. Sears, Judge. Action at law, to recover damages for the alleged wrongful conversion of an automobile. Trial to a jury. Verdict and judgment for defendant. Plaintiff appeals.- —

<p>CORPORATIONS: Articles — Right to -Indorse as Accommodation. 1 Articles of incorporation, though broad and comprehensive, describing and having relation solely to the general business of manufacturing and dealing in agricultural implements, do not authorize the corporation to become an accommodation indorser on the notes of other corporations.</p> <p>ESTOPPEL: Equitable Estoppel — Plea of Ultra Vires. A corporation 2 is not estopped to plead ultra vires in becoming an accommodation indorser on the corporate .nonnegotiable promissory note of another, ■ when it received no benefit from the said indorsement, even though the two corporations were closely associated, and the officers of the indorsing- corporation knew that the indorsed note would be negotiated.</p>

— Thomas Guthrie, Judge. Action at law, for the recovery of life insurance. Judgment for the plaintiff, and defendant appeals. Upon the original submission of the cause, an opinion was filed affirming the judgment below. See 180 N. W. 202. A petition for rehearing was granted and resubmitted upon the original record, with further arguments by counsel.' —

— D. W. Hamilton, Judge. Action at law, wherein plaintiff seeks to recover damages from defendant for personal injuries. Trial to a jury, and at the close of plaintiff’s testimony, the court directed a verdict for the defendant. Plaintiff appeals. —

— Homer A. Fuller, Judge. Action at law, to recover a real estate commission in the sum of $1,000 for services alleged by plaintiff to have been performed for the defendants in securing a purchaser for defendants’ 400-acre farm. Trial to a jury. At the close of plaintiff’s evidence, defendants separately filed motions for a directed verdict in their behalf on several grounds, among them that the evidence did not show that defendants had an agency in Clarke County.

— John E. Craig, Judge. Action to recover damages for personal injuries sustained by reason of defendant’s negligence in failing to keep properly guarded in defendant’s place of business an entrance to an elevator shaft. Cause tried to a jury resulting iri. a verdict and judgment for the plaintiff in the sum of $1,500. Defendant appeals. —

— George Jepson, Judge. Action in equity to declare a trust in favor of plaintiffs on certain property title to which is in the defendant by virtue of an alleged oral promise' by her to her husband from whom her title is derived. The opinion states the facts. Plaintiffs’ petition was dismissed for insufficient evidence by the trial court at their costs and judgment was entered accordingly. Plaintiffs appeal. —

— Charles A. Dewey, Judge. Action at law against W. D. Seaba and Edward A. Seaba, for the recovery of damages for the death of deceased, alleged to.have been wrongfully caused by the defendants. Trial to a jury. At the close of plaintiff’s testimony, defendants moved for a directed verdict.

— Earl Peters, Judge. Action for personal injury caused to plaintiff by reason of an alleged defect in a sidewalk in the defendant city. Verdict for the plaintiff, and defendant appeals. —

Appeal .from Union District Court. — P. C. Winter, Judge. Action by tbe executrix, to require the treasurer of state to issue his receipt in full for all collateral inheritance tax due or to become due from her as such executrix. The defendant’s demurrer to the petition was overruled.

— E. G. Albert, Judge. Appellant is the owner of certain lots in the incorporated town of Odebolt. A special paving assessment’was levied against his property. He undertook to perfect an appeal to the district court of Sac County, and a motion to dismiss said appeal was sustained. From the order of dismissal, this appeal is prosecuted. —

<p>Appeal from Woodbury District Court.- — W. G. Sears, Judge.</p> <p>Contest of the will of Wilda I. Chapman, deceased. Will admitted to probate, and the contestant, William H. Chapman, appeals. —</p>

— D. W. Hamilton, Judge. Proceedings to probate tbe last will and testament of Clifford E. Evans, deceased. Tlie trial court sustained the objections filed by contestant-appellees and entered judgment for costs against the plaintiff-proponent. —

— J. B. Rockaeellow, Judge. Suit by the vendor for specific performance of a contract of sale of real estate. That is to say, the plaintiff, as vendor, tenders full performance, and sues to recover the purchase money.

— Seneca Cornell, Judge. Proceeding by guardian for authority to sell real estate. Order and decree as prayed, and the defendants Edna Clyman and Joda Clyman - appeal. —

<p>Appeal from Cass District Court. — Earl Peters, Judge.</p> <p>Action by a tenant, to recover damages from a landlord. The petition is in two counts, which are more specifically set out in the opinion. —</p>

— R. M. Wright, Judge. In a prior action, brought by Leah M. Jones for the partition of real estate, a decree was rendered granting the relief prayed, and ordering a sale of the property and partition of the proceeds. At a sale made pursuant to sueh decree, certain of the property was sold and conveyed by referee to L. W. Scliaffner. Such sale was confirmed, and the referee’s deed to Scliaffner approved.by the court.

— Lorin N. Hays, Judge. Action in equity for an accounting between the plaintiff and defendant as partners as alleged in plaintiff’s petition. A demurrer to the petition filed by defendant was sustained by the trial court, and plaintiff having elected to stand on the ruling, judgment was entered against plaintiff for costs. Plaintiff appeals. —

— Ralph Otto, Judge. Appeal in a habeas corpus proceeding from the judgment entered by the trial court dismissing the petition. The opinion states the facts. Petitioner appeals. —

<p>MASTER AND SERVANT: Workmen’s Compensation Act — Findings ■ Conclusive on Court. A finding by the industrial commissioner- tlxat injuries in tlxe form of burns to a chambermaid did not “arise out of” tlxe latter’s employment is conclusive on tlxe court, wlxen coxxflietiixg but supporting testimony jixstiiics tlie said finding tlxat said injuries were received wlxile tlxe chambermaid was in her room iix the hotel where exxxployed, but while she was off duty axid ixot subject to call, and while she was attempting to extinguish an alcohol lamp which, contrary to the orders of her employer, she was using-in a purely personal matter of curling her lxair.</p> <p>Weaver and Presión, JJ., dissent.</p>

— Atherton B. Clark, Judge. Action at law, to recover a commission for finding a purchaser of real estate. The defense was that the purchaser furnished- entered into a contract of purchase which he was not able to perform, and which he later failed to perform. Upon the same ground, the defendant also filed a counterclaim to recover a part of the commission already paid. There was a directed verdict for the plaintiff, and the defendant appeals.—

— C. W. Vermilion, Judge. Action in equity, to construe tlie will of Alvin C. Leighton, deceased. The plaintiff first appealed from the decree of the district court, and is the appellant. Others of the defendants, as indicated in the title, thereafter served notice of appeal, and will be referred to as cross-appellants. Others of the defendants have not appealed. The issues, facts, and findings of the trial court are set out in the opinion. —

<p>BILLS AND NOTES: Validity — Execution for Corporate Stock. A 1 promissory note, given for the purchase price of stock in a foreign corporation doing business in this state, is not void because of anything required or commanded by Sec. 1641-b, Code' Supp., 1913, nor is such note rendered invalid because the corporation negotiates it at a discount.</p> <p>BILLS AND NOTES: Validity — Avoidance for Fraud. Manifestly, 2 the purchaser of stock in a corporation may not avoid his promissory note given therefor, on a record showing no fraud or effort to cancel his contract.</p>

— F. D. Letts, Judge. Plaintiff, as the administratrix of the estate of her husband, brought this action to recover damages by reason of his death, through coming in contact with an electric wire,… Held: and required plaintiff to elect to take judgment for $12,000, or submit to a new trial. Plaintiff filed such election, and judgment was entered against defendant for $12,000. The defendant appeals. —

— Miles W. Newby, Judge. Action on an account. Directed verdict for all defendants except Mark Stewart, against whom judgment was entered. Plaintiff appeals.' —

— C. II. Kelley, Judge. Plaintiffs filed their petition alleging that defendant was of unsound mind, and incompetent to manage his property, and asked that a guardian be appointed. Trial to a jury. Verdict for defendant. Judgment against plaintiffs for costs, and the court adjudged that defendant’s property be restored to him. The plaintiffs appeal. —

— Ealph Otto, Judge. Action a„t law, to recover a commission for finding a purchaser for a farm. Verdict and judgment for defendant, and plaintiff appeals.' —

— C. H. Kelley, Judge. Actions at law, to recover damages on account of the death .of Kenneth Norman Nelson. There was a trial to a jury, result ing in a directed verdict and judgment for the defendant in each ease, and plaintiff appeals. The material facts are stated in the opinion. —

— C. W. Vermilion, Judge. Action in equity, to set aside a deed of conveyance of land by J. J. Gause to his son, A. E. Gause. There was a decree for the plaintiffs as prayed, and defendant appeals. —

— James W. Willett, Judge. Action for an accounting, and to enjoin defendants Mundy & Scott from disposing of plaintiff’s interest in certain notes, mortgages, and oil leases. The court awarded the plaintiff the relief prayed for, and the defendant Mundy appeals. The facts appear in the opinion. Plaintiff is referred to as appellee, and defendant Mundy as appellant. Superseding the opinion in 186 N. W.-207. —

— G. D. Thompson, Judge. The defendant pleaded guilty to murder in the first degree, and was sentenced to be banged August 11, 1922. He appeals.—

<p>APPEAL AND ERROR: Reversal — Judgment on Remand. The judgment of the trial court on a reversing mandate from the Supreme Court need not literally follow the directions of said mandate. It is sufficient if it fairly works out the essential purpose of the mandate, without the imposition of an unauthorized burden.</p>

Court. — James C. Hume, Judge. Certiorari proceeding’, instituted in this court, to review the validity of an order entered by respondent court paroling one George Willoughby from a judgment finding him guilty of contempt of an injunction in a liquor injunction cause. The facts are stated in the opinion. The order of parole is annulled. —