Volume 196 — Iowa Reports

<p>Appeal from Polk District Court. — Lester L. Thompson, Judge.</p> <p>This is an appeal from the judgment of the court below remanding plaintiff to the sheriff of Ramsey County, North Dakota, in a habeas corpus proceeding.</p>

<p>ATTORNEY AND CLIENT: Compensation — Quantum Meruit. One who knowingly avails himself of the services of an attorney in his "behalf must-pay therefor.</p>

<p>Appeal from Webster District Court. — R. M. Wright, Judge.</p> <p>Action on a promissory note executed in payment for stock in plaintiff company. Jury was waived, and case was tided to the court. Facts appear in the opinion.</p>

<p>MUNICIPAL CORPORATIONS: Public Improvements — Assessments— Waiver of Limitations. A city council may order tlie construction of a street improvement on the basis of an agreement by property owners to submit to assessments for the entire cost, regardless of statutory limitation; and such assessments are valid against subsequent purchasers who become such after the assessment becomes a lien on the property.</p>

— D. W. Hamilton, Judge. Action to recover the value of a farm. Verdict in favor of the plaintiff for $1.00, which was set aside, and a new trial granted, upon a motion filed 'by plaintiff. The defendant appeals. —

<p>EASEMENTS: Extent of Right — Nonrevocability. A landowner who causes his adjoining landowner to purchase an inaccessible tract of land, under the promise that the latter may have a passageway over the land of the former to said inaccessible tract, and later</p> <p>acquiesces for many years in the use of such passageway by said purchaser, may not recall or revoke the license so long as the purchaser retains title to both tracts of land.</p>

<p>Appeal from Polio District Court. — James C. Hume, Judge.</p> <p>' Suit in equity, to compel defendant, a home-finding association for children, to disclose to plaintiffs the whereabouts of three minor children of plaintiffs’, who had been taken from them by order of a mayor’s court, committed to defendant, and by defendant placed in- private homes. A demurrer to petition was overruled, and defendant stood on its demurrer. Decree was entered as prayed, from, which decree this appeal is taken.—</p>

<p>Appeal from Story District Court. — R. M. Wright, Judge.</p> <p>Action by tbe trustee in bankruptcy, to have a sale by tbe bankrupt of an entire stock of goods and fixtures adjudged void, under tbe Bulk Sales Act. Tbe trial court granted tbe intervener relief to tbe extent of $300, and denied all other relief prayed for. Tbe intervener appeals. —</p>

<p>1 CRIMINAL LAW: Judgment — Indefiniteness. A sentence which. specifies the length of time of imprisonment is all-sufficient, even though it does not specify the -specific time when the imprisonment shall commence.</p> <p>2 JURY: Waiver in Criminal Cases. An accused indieted for the crime of gambling nuisance may not waive a jury.</p>

<p>1 CRIMINAL LAW: Accomplices — Duty to Peremptorily Instruct. The court must not, on a record limited almost exclusively to the testimony of parties who arc manifest accomplices, with questionable corroboration, direct the jury to convict defendant if it is satisfied of his guilt beyond a reasonable doubt, and at the same time avoid the necessity for corroboration by permitting the jury to find that said parties were not, in fact, accomplices.</p> <p>2 CONSPIRACY: Declarations — Inadmissibility. It is wholly irrelevant and prejudicial, in the trial of an indictment charging conspiracy, to instruct the jury that, if it finds the conspiracy proved, it may consider the declarations of the coconspirators, made in the absence of the accused.</p>

— F. M. Hunter, Judge. Defendant was tried without demand for a jury before a district judge sitting as a juvenile court on an information charging him with delinquency and incorrigibility in conformity to Chapter 5-B, Title III, of the Supplement to the Code, 1913. He was found guilty and sentenced to the industrial school for boys until he reached his majority. Defendant appeals.—

- — James W. Willett, Judge. Action for divorce on the grounds of cruel and inhuman treatment. A decree was entered .for the plaintiff, and defendant appeals.

<p>1 ELECTRICITY: Negligence — Spliced Wire. Testimony reviewed, and held to present a jury question on the issue of negligently maintaining a spliced wire carrying a high electric voltage.</p> <p>2 NEGLIGENCE: Electricity — Broken Wire. Failure for a very brief period of time after' knowledge or warning to turn off the electricity on a broken line carrying a high voltage, in a public place, may constitute negligence.</p> <p>3 NEGLIGENCE: Electricity — Automatic Break Indicator. Negligence in the maintenance of high-tension lines may consist in the absence of some device which will automatically indicate breaks in the lines. *</p> <p>4 NEGLIGENCE: Acts Constituting — Use of Alley. It is not negligent for a pedestrian to walk through a public alley.</p> <p>5 NEW TRIAL: Verdict — Excessiveness—$10,000. Verdict for $10,000 for personal injury resulting in the death of a young man 18 years of age held nonexcessive.</p>

<p>1 SPECIFIC PERFORMANCE: Contracts Enforcible — Nonmaterial Mistake. No material mistake is revealed in a contract which describes the incumbrance on land as “$47,000, bearing 5% per cent interest,” when the incumbrance in fact consisted of two mortgages of $18,000 and $29,000, each bearing 5% per cent interest.</p> <p>2 SPECIFIC PERFORMANCE: Contracts Enforcible. Though a contract mistakenly describes a mortgage as providing for optional payments, yet the court may, in an action for specific performance, disregard the error, when it is made to appear that plaintiff has legally procured the consent of the mortgagee to such optional payments.</p> <p>3 ACTIONS: Commencement — Premature Commencement — Waiver. An action for specific performance is premature if brought prior to the contract date for performance, even though defendant, prior to said date, gives notice that he will not perform; but the action will not be abated when defendant, after the date when performance is due, proceeds to trial on the merits.</p>

— H. E. Fry, Judge. Suit in equity by the vendors, for specific performance of a contract of sale and purchase of real estate. By way of defense, the defendants pleaded that the contract was one of option only, and that the plaintiffs had thereunder only the remedy of forfeiture. The defendants pleaded also that enforcement of the contract would.be unconscionable and inequitable. The decree was awarded to the plaintiffs, and the defendants appeal.

<p>Appeal from Marion .District Court. — J. H. Applegate, Judge.</p> <p>Proceeding, by supplemental petition in the original divorce action, to modify the decree as to the custody of and right and privilege of visitation by plaintiff with the child of plaintiff and defendant. The court dismissed the petition on its merits, from which order this appeal is taken.</p>

— E. B. Woodruee, Judge. Action by administratrix of the estate of John E. Zellmer, deceased, to recover damages on account of the death of said decedent, and the destruction of an automobile belonging to him. Decedent was driving his automobile across the tracks of the Chicago, Eock Island & Pacific Eailway Company, at the intersection of Linn Street, in the city of Atlantic, Iowa, with said tracks, and was struck by a train and. instantly killed.

— George W. Cullison, Judge. The defendant was 'indicted for the crime of receiving stolen property, and was also charged with being a habitual criminal. He was convicted, and sentenced to the penitentiary for a term of 25 years. From this judgment he appeals.—

G. Albert, Judge. Action to recover on certificate of deposit issued by defendant bank. Defendant counterclaimed on a promissory note indorsed by plaintiff. Jury was waived, and the ease tried to the court, and judgment rendered in favor of plaintiff. Defendant appeals. —

— F. 0. Ellison, Judge. Action on an account for materials furnished and labor performed on defendant’s automobile. Defendant denied any value as to all of the account except a few items, and pleaded a counterclaim for damages to his automobile in attempted repairs. The jury returned a verdict in favor of plaintiff. Defendant appeals. Facts appear in the opinion.' —

<p>1 CONSTITUTIONAL LAW: Police Power — Harmful Barberry. The state may validly authorize the destruction of a disease-breeding or disease-carrying plant, without compensation to the owner.</p> <p>2 EVIDENCE: Opinion Evidence — Competency—Disease-Breeding Plant. An expert may testify as to the manner^in which a plant carries plant disease, and how such disease is -transmitted to other plants.</p> <p>3 VENUE: Residence — Assault and Battery. An action against several resident defendants for a joint trespass upon the person may not be maintained in a county in which none of the defendants reside.</p>

<p>Appeal from Mahaska District Co'urt. — D. W. Hamilton, Judge.</p> <p>Action in partition. On trial of the cause, plaintiffs’ petition was dismissed, 'and they appeal. Facts appear in the opinion.</p>

• — TIomer A. Fuller, Judge. Action in equity, to set off the indebtedness of an heir against his interest in real estate, and to quiet title. Judgment and decree as prayed. The defendants J. F. Knotts and Anna Knotts appeal.

<p>DAMAGES: Measure of Damages — Loss of Interstate Shipment. The "full actual loss,” under the Cummins Amendment (38 Stat. at Large 1196) to the Interstate Commerce Act, and consequently the "measure of damages” to a wholesale and retail dealer in coal for the loss, during an interstate shipment, of a portion of a ear of coal which was intended for storage, and sale as occasion might arise, is the fair market value of the undelivered coal at the initial point of shipment, plus freight thereon, if any paid, and plus the war tax.</p>

<p>Appeal from Palo Alto District Cowrt. — N. J. Lee, Judge.</p> <p>Action to recover damages for delay in the shipment of certain carloads of stock. Verdict for the plaintiff, and defendant appeals.</p>

<p>1 NEGLIGENCE: Acts Constituting — Animals Running at Large. Aetionable negligence results from allowing hogs to run at large upon the public highway, with injury proximately resulting to a person lawfully on the highway; and this is true irrespective of the statutes relative to the distraint of animals running at large. -</p> <p>2 NEGLIGENCE: Pleading — General Allegation. A general allegation to the effect that a defendant "negligently permitted his hogs to run at largo upon the public highway” is all-sufficient, in the absence of a motion for more specific statement.</p> <p>3 ANIMALS: Distraint — Independent Action for Damages. The statutory provision for the distraint of animals running at large upon a X>ublie highway does not abridge the right of a traveler upon the X>ublie highway to maintain an action at law for damages x>roximately resulting from the running at large of such animals. (Sec. 2314, Code, 1897.)</p> <p>4 PLEADING: Demurrers — Speaking Demurrer. The court may not, on demurrer, consider matter which is purely defensive.</p>

— Lester L. Thompson, Judge. Ti-ie defendant was indicted, charged with murder in the first degree, was tried, and was convicted of the crime of murder of Joe ITayes by striking him on the. head, with a wooden club. The jury fixed the death penalty, and judgment was entered in conformity with the Verdict. Defendant appeals.

<p>1 GARNISHMENT: Property Subject — Contingent Liability. An obligation based on an agreement to pay for a- farm ‘ ‘ on delivery of deed and merchantable abstract of title” is not subject to garnishment at a time when said conditions have not been performed.</p> <p>2 GARNISHMENT: Property Subject — Contingent Liability. An obligation based on an agreement to pay a stated price per acre for a farm of unknown acreage, said acreage determinable by either vendor or purchaser, is subject to garnishment.</p> <p>3 APPEAL AND ERROR: Parties — Garnishment Proceedings — Judgment Defendant as Necessary Party. A judgment defendant is not a necessary party to an appeal by a garnishee when said defendant has received full payment of the obligation which 'is sought to be subjected to garnishment.</p>

<p>PRINCIPAL AND AGENT: The Relation — When Agent’s Knowledge Not Principal’s Knowledge. The knowledge of an agent will not be imputed to the principal when it is manifest that the agent, by reason of his adverse interest, would not communicate his knowledge to his principal.</p>

<p>Appeal from Page District Court. — George W. Cullison, Judge.</p> <p>Proceedings on motion of the defendant Elmer Hamilton and the defendants John Irwin, Jr., and John Kendall, sureties on a bail bond, to have the forfeiture which was entered upon the failure of the defendant Hamilton to appear, set aside, and the bond exonerated. The motion was overruled, and all the defendants appeal.</p>

<p>Appeal from Polk District Court. — Lester L. Thompson, Judge.</p> <p>Defendant was convicted of rape, and appeals.</p>

— J. B. Rockaeellow, Judge. Action upon three promissory notes. A defense of fraud in the inception of the notes was interposed, and plaintiff claims to be a bona-fide purchaser in due course. At the conclusion of the testimony, the court directed a verdict for plaintiff, and the defendant appeals.

— George W. Wood, Judge. Suit in equity, to enjoin an action to obtain possession of leasehold premises occupied by plaintiff, and to reform a written lease of said premises. Decree was entered, granting the relief prayed. Defendant appeals.

<p>1 BILLS AND NOTES: Delivery — Conditional Delivery. It is a fraud— a breach of faith — for the payee of notes given to an assumed agent of a landowner for the purchase price of the land to transfer the notes, when the contract was made conditional on the approval of the owner, and such approval was never given.</p> <p>2 BILLS AND NOTES: Negotiability — Executory Agreement. The negotiability of a negotiable promissory note is not affected by the mere fact that it is given pursuant to an unperformed executory agreement.</p> <p>3 BILLS AND NOTES: Actions — Directed Verdict. A directed verdict should not be ordered when the evidence presents a jury question on the issue as to whether the transferee is a holder in due course.</p>

— F. F. Dawley, Judge. Applications for.allowance of executor’s compensation in estates of John B. Leigh and Elizabeth A. Leigh, deceased. These two cases were tried and submitted on the same evidence, and are here submitted together. The court allowed compensation in the total amount of $9,693.96. Defendant in each case appeals from the order of allowance.

— Till. E. Hutchison, Judge. Appeal from an order overruling objections to the final report of the administrator in one ease and the executor in the other. The two cases were consolidated, and submitted together. Two of the residuary legatees under the will, objectors, appeal.—

— N. J. Lee, Judge. Action in equity for specific performance. The defendant Olaf M. Twedt filed a cross-petition, praying reformation of the contract so as to incorporate a clause therein relieving him from liability for the payment of the past due installment to compel the payment of which this action was commenced, and from all further liability on the contract. The court dismissed plaintiff’s petition, and entered a decree in harmony with the prayer of the cross-petition.

— N. J. Lee, Judge. Action to recover damages for personal injuries by a minor plaintiff alleged to have been caused by the negligence of the defendant in driving a Ford automobile in which plaintiff was riding with her mother. Cause tried to a jury and damages atvarded in the sum of $3,250 which was reduced by the trial court to $3,000. On plaintiff’s election judgment was entered for $3,000. Defendant appeals.

— E. M. McCall, Judge. Action by assignee of a note executed by defendant for $1,250, as an initial or cash payment on a subscription contract for stock in the Des Moines Union Stock Yards Company. Defense of fraud, inducing execution of the note, was pleaded, without rescission. At the close of defendant’s testimony, verdict was directed for plaintiff. Defendant appeals.

<p>HUSBAND AND WIFE: Duty to Support Minor. A wife who has been granted a divorce without alimony may not recover of her former husband sums of money expended by her for the subsequent support of their minor child.</p>

— John T. Moefit, Judge. Defendant was indicted, tried, and convicted of the crime of manslaughter, for the alleged willful, unlawful, felonious, and reckless operation of an automobile, resulting iir the death of Edna Morgan, in Linn County, Iowa, August 12, 1922. Judgment was entered committing the defendant to the reformatory of Iowa for an indeterminate sentence, not to exceed eight years. Defendant appeals.-

— James W. Willett, Judge. Defendant appeals from the judgment of the court below, overruling its demurrer to plaintiff’s petition.

<p>Appeal from Fayette District Court. — W. J. Springer, Judge.</p> <p>Action at law to recover damages for personal injuries. Trial to jury. Verdict and judgment for plaintiff and defendant appeals.</p>

<p>Appeal from Calhoun District Court. — E. G-. Albert, Judge.</p> <p>Action to recover public funds. Appeal from the ruling of the court sustaining a demurrer to portions of the separate answers of Wright, Gouger, and Colby, and from the ruling of the court striking from the answer the affirmative allegations of Minnie B. Haag and W. W. Anderson. The parties named appeal.</p>

<p>1 DEEDS: Validity. Evidence reviewed, and held insufficient to show that a deed was a forgery.</p> <p>2 DEEDS: Delivery — Acts' Unknown, to Grantee. The act of a grantor of real estate in placing the deed, without the knowledge of the grantee, in a private "box kept by grantee as a receptacle for her private papers, with the intent to vest the title in grantee, constitutes a sufficient delivery.</p> <p>3 EXECUTORS AND ADMINISTRATORS: Allowance — Estoppel. The act Of a widow in qualifying as executrix under the will of her husband and proceeding to execute the testamentary trust and obtaining an allowance to herself for a year’s support works no estoppel on her to assert her right on subsequently discovered deeds in her favor.</p>

<p>1, 3 CHATTEL MORTGAGES: Validity — After-Acquired Property Lien for After-Incurred Debts. A chattel mortgage on after-acquired property to secure after-incurred indebtedness is valid, provided that the intention so to do is clear and explicit.</p> <p>2 CHATTEL MORTGAGES: Index — Description of Property. An index to the registration of a chattel mortgage need not describe the incumbered property.</p> <p>4 CHATTEL MORTGAGES: Poreclosure — Nonwaiver. An action to enjoin the foreclosure of a chattel mortgage does not ipso facto transfer the foreclosure to the district court.</p>

— E. B. Woodruff, Judge. Proceedings upon claim for compensation of employee under the Workmen’s Compensation Act. Plaintiff was a laborer in the employ of James Salter, doing business as the Iowa & Missouri Granite Works, and the casualty association above named is its insurer under the statute. The question for consideration is stated in the opinion.

— Earl Peters, Judge. Suits in equity, to rescind certain subscription contracts for corporation stock and certain promissory notes given in payment therefor, and to recover from the defendant money previously paid on such contracts, and to recover from all the defendants the damages thus sustained, on the ground that all participated in a fraudulent conspiracy to defraud the respective plaintiffs. The defendants answered severally, in general denial.