Volume 197 — Iowa Reports

— H. S. Dugan, Judge. Aotion to recover damages for the alleged wrongful seizure and sale of a Ford touring car under a writ of execution by the sheriff, who ivas acting under the direction of the defendant herein. The opinion states the essential facts. Upon the conclusion of the testimony, plaintiff’s motion for a directed verdict Was sustained, and judgment was entered accordingly. Defendant appeals. —

<p>1 ATTACHMENT: Discharge on Motion — Finding. A finding by tlie court that an interstate shipment was represented by an outstanding negotiable bill.of lading and that the same had neither been impounded nor its negotiation enjoined, and that, as a consequence, the property was not subject to attachment, will, on appeal, be given the foree and effect of a jury verdict.</p> <p>2 AFFIDAVITS: Use in Evidence — Discharge of Attachment. Principle recognized that affidavits are properly receivable to prove the grounds of a motion for the discharge of an attachment.</p>

<p>Appeal from Dallas District Court. — H. S. Dugan, Judge.</p> <p>This is an action at law to recover an alleged balance of the purchase price of certain bonds. . Verdict and judgment for the defendant. Plaintiff appeals.- —</p>

<p>Appeal from Iowa District Court. — It. G. Popham, Judge.</p> <p>The plaintiff appealed from an assessment made by the board of supervisors upon its property lying within a drainage district. From a judgment dismissing the appeal, this appeal is prosecuted. —</p>

— R. M. Wright, Judge. This is an appeal by the landowners from the action of the district court in confirming certain drainage assessments. The facts are stated in the opinion. —

— Harry S. Dugan,' Judge. Suit in equity, to- correct a statement in application for a fire insurance policy, and praying that the application be so reformed as to recite the true-intent of the parties and insure both plaintiffs Den Hartog and Neal Jabaai as owners of the property, instead of insuring only Gerrit Den Hartog. .Decree was entered reforming the contract, and judgment was entered under the reformed contract for damages sustained by destruction of a dwelling…

— Lorin N. Hays, Judge. Action at law by plaintiff, to recover from tlie defendant bank the sum of $2,049, with interest, predicated on the claim that the defendant wrongfully converted the amount from the account of one Leo Foust, who deposited said moneys with the bank as a special deposit in favor of the plaintiff. Cause tried to a jury, which returned a verdict in favor of the plaintiff, and judgment was entered in conformity thereto. Defendant appeals. —

<p>1 INSURANCE: Construction and Operation of Policy. The general rule that a policy of insurance must he construed most favorably to the insured applies only when there is a real ambiguity in the language used. If the words used are plain and unambiguous, a court may not make a new contract by construing them otherwise than according to their usual and ordinary meaning. Accordingly, a policy insuring against accident “by reason and in consequence of the burning of a building while the insured is therein" cannot be construed as meaning accident resulting from the burning of the contents of a building, and not of the building itself.</p> <p>2 INSURANCE: Extent of Loss and Liability of Insurer — Accident Insurance. A plaintiff suing for double indemnity for the death of the insured under a policy providing for such indemnity in case of death “by reason or in consequence of the burning of a building while the insured is therein" must prove that the accident causing the death resulted from the burning of the building itself, and not from the burning of merely the contents of the building.</p> <p>3 INSURANCE: Extent of Loss and Liability of Insurer — Accident Insurance. Under the rule that, in ease of a directed verdict, the evidence should "be construed most favorably towards the party against whom the verdict is directed, evidence reviewed, and held to present a jury question whether the injuries to insured, which caused his death, were occasioned by the burning of parts of the building (in which case the benefiei'ary would be entitled to double indemnity, under the terms of the policy in suit) or by the burning of the contents of the building, in which ease the directed verdict for only the principal sum, with interest and costs, would have been proper.</p>

District Court. — W. G. Vander Ploeg, ■ ■ . ■ Judge. .. Action to establish a claim against the estate of decedent. The opinion states the facts. Jury was waived with consent of the parties, and the cause tried to the court. Plaintiff’s petition was dismissed, and judgment entered against plaintiff for costs. Plaintiff appeals. —

— H. S. Dugan, Judge. Proceedings for • the establishment of a claim in probate. Trial to a jury. Verdict and judgment for plaintiff, and defendant executor appeals. —

— J. H. Applegate, Judge. This is an action to recover for the death of plaintiff’s intestate, caused by her being struck by an automobile driven by defendant. There was a verdict and judgment for plaintiff, and defendant appeals. The facts are stated in the opinion.—

<p>Appeal from Van Burén District Court. — C. W. Vermilion, Judge.</p> <p>Aotion in equity, to enjoin the defendant from occupying and obstructing certain 'streets in Bentonsport, Iowa. A demurrer to defendant’s answer was sustained, and the defendant elected to stand upon his answer; and from the judgment entered, perpetually enjoining defendant from obstructing or occupying the streets in controversy, defendant appeals.—</p>

— W. M. Walker, Judge. Aotion in equity, to restrain the defendant city from closing an areaway from the street into the basement of an office building owned by plaintiff. Judgment and decree dismissing plaintiff’s petition, and he appeals. —

— W. G. Vander Ploeg, Judge. ACTION to enjoin the auditor of Warren County, Iowa, from issuing a warrant in favor of the defendant school district for tuition of two pupils who, as alleged by plaintiff, are not residents of the plaintiff district. The trial court dismissed plaintiff’s petition, and entered judgment for costs. Plaintiff appeals. —

<p>1 CONTRACTS: Requisites and Validity—Jury Question. Whether an alleged oral contract for the cancellation of a promissory note given for the purchase of land was established by the evidence, held a qú'éstion for the jury.</p> <p>2' PLEADING-: Matters Specially Pleadable. The defense of homestead ‘ right -to the land in controversy must be specially pleaded, and cannot be alleged for the first time in a motion for new trial.</p>

<p>Appeal from Guthrie District Court. — Lorin N. Hays, Judge.</p> <p>Action upon a promissory note. Verdict and judgment for plaintiff. Defendant appeals. The opinion states the facts.—</p>

<p>Appeal from Marion District Court. — H. S. Dugan, Judge.</p> <p>Plaintiee appeals from tbe' judgment of tbe court dismissing its appeal from tbe action of tbe-city council of tbe-city of Pella in tbe matter of paving assessment. —</p>

<p>Appeal from Johnson District Court. — Ralph Otto, Judge.</p> <p>The defendant was indicted, charged with maintaining a liquor nuisance. He was convicted, upon a trial. From a judgment imposing a fine of $800 and costs, including an attorney fee of $80, and providing for his imprisonment in the county jail until the fine and costs are paid, the defendant appeals.—</p>

<p>Appeal from Linn District Court. — F. L. Anderson, Judge.</p> <p>■ PROCEEDINGS in garnishment. The facts are fully stated in the opinion. —</p>

— Henry F. Wagner, Judge. Suit upon promissory notes bought by an indorsee thereof. The defendant pleaded many affirmative defenses, the chief of which was that the notes were obtained by fraudulent representations and were without consideration, and that they were negotiated in breach of faith. The plaintiff, by way of reply, pleaded an estoppel. It also produced evidence which tended to show that it was a holder in due course without notice.

—D. W. Hamilton, Judge. Action at law, to recover a sum of money claimed to belong to plaintiff and to be in tbe hands of the defendant. The cause was-tried to the court without the intervention of a jury, and judgment was rendered for the defendant. Plaintiff appeals.'—

— Miles W. Newby, Judge. This is an action in equity, to impress a trust upon funds which it is alleged were deposited in the defendant bank by the Ward Commission Company, as plaintiffs’ agents, to its own credit. The facts are fully stated in the opinion. There was a decree dismissing plaintiffs’ petition, and they appeal.—

<p>1 WORDS AND PHRASES: “Trade-mark.”</p> <p>2 TRADE-MARKS AND TRADE NAMES: Generic Terms. Tlie term “auto market” may not be exclusively appropriated as a trademark.</p> <p>3 TRADE-MARKS AND TRADE NAMES: Unfair Competition. The corporate names “Iowa Auto Market” and “Auto Market and Exchange” are not so similar that the use of them constitutes unfair competition, in the absence of some showing of fraudulent purpose.</p>

— D. W. HamiltoN, Judge. Action in equity, to vacate a judgment and decree, upon tbe ground that no service of tbe original notice bad been made on tbe defendant therein. From a decree as prayed, defendants appeal. —

— D. W. HamiltoN, J udge. DEFENDANT was indicted for the crime of lewdness, as defined by Section 4938-a, Code Supplement, 1913. Upon a plea of ‘ ‘ not guilty, ’ ’ trial was had to a jury, and upon a verdict of “guilty,” judgment was entered, in conformity to law. Defendant appeals. —

— D. W. HamiltON, Judge. Suit to enjoin a liquor nuisance. Action was dismissed against Fischer & Spencer, owners of the building. Decree was entered as prayed against defendant Schauenberg, who appeals —

<p>1 CONTRACTS: Actions for Breach — -Written Unsigned Obligation. A plaintiff who brings action on a written contract which does not import a consideration, i. e., on an assumption clause in a deed not signed by the assumptor, and pleads a specified consideration for said assumption, must, if met by a denial, establish such consideration.</p> <p>2 DAMAGES: Agreement to Discharge Lien — Breach. One who breaches his agreement to discharge an incumbrance upon the property of another party may be liable for the full value of the property, or only for the amount of the incumbrance. If he knows that the owner entered into the contract to save his property because the owner had no means to effect the discharge, and the defaulting party has such means, but fails to so employ them, and gives the oilier no reasonable opportunity to save his property, then the larger liability attaches; otherwise the smaller.</p> <p>3 DAMAGES: Agreement to Redeem — Evidence. On the issue of damages for failure to redeem as per agreement, evidence as to the property possessed hy the owner of the property is material.</p> <p>4 EVIDENCE: Conclusions — Nature of Location of Property. A statement by a witness who is testifying as to the value of property, to the effect that the "location is good,” is an allowable conclusion.</p>

<p>Appeal from, Fayette District Court — W. J. Springer, Judge. ■</p> <p>Defendant was convicted oí tbe crime of stealing chickens from a coop. • He appeals. —</p>

— H. B. Boies, Judge. AppellaNT filed bis petition for a writ of babeas corpus, alleging, in substance, that be was committed to defendant hospital by tbe commissioners of insanity of Linn County, Iowa, April. 10, 1922; that he is illegally restrained of bis liberty; that said illegality consists in this: that be is not now and never has been insane; that be is normal both mentally and physically, except that at periods be is afflicted with epileptic attacks.

<p>Appeal from Franklin District Court. — R. M. Wright, Judge.</p> <p>Three parties appeal to the district court from the assessment of benefits in a drainage district. The court reduced the amount of assessment as made by the board of supervisors. From the decree so entered, the board of supervisors and the drainage district prosecute this appeal. —</p>

qo District Cowt.-M. H. KEPLER, Judgb. SUIT on a note, aided by attachment. Appellee bank intervened, claiming a prior lien on the attached personal property, under a mortgage. The contest is between plaintiff and inter-vener. Trial to a jury. Verdict and judgment for intervener. Plaintiff appeals.-

<p>1 MORTGAGES: Transfer of Property — Assumption of Debt by Unnamed Grantee. The purchaser of land who accepts a deed which is blank as to grantee, and which provides that the grantee assumes and agrees to pay, as part of the purchase price, specified mortgage incumbrances on the land, becomes personally bound to pay said incumbrances, even though he conveys the land to a subsequent purchaser by inserting the latter’s name therein. Especially is this true when the amount of such incumbrances accurately measures the contract obligation assumed by the assumptor in his contract of purchase.</p> <p>2 TRIAL: Reception of Evidence — Nonnecessity to Make Formal Offer. Formal offer of a pleaded copy of a deed need not be made (1) when the original was in the possession of the opposing party; (2) when the original had not been produced, on demand; and (3) when the opposing counsel had very clearly led the other counsel to understand that the correctness of the copy was admitted.</p> <p>3 TRIAL: Calendar — Refusal to Transfer. No prejudice results from refusing to transfer to the law calendar an action properly brought in equity and involving a law question only.</p>

<p>Certiorari to Polk District Court. — Herman Zeuoh, Judge. *</p> <p>The facts appear in tbe opinion. The writ is dismissed and judgment affirmed. —</p>

<p>1 EVIDENCE: Opinion Evidence—Competency. One who lias a general knowledge of the selling price of automobiles of a certain make, is qualified to testify as to the value thereof.</p> <p>2 INSURANCE: Proof of Loss — Waiver. Evidence reviewed, and held to present a jury question on the issue of waiver of proof of loss by a denial of liability.</p>

<p>MARRIAGE: Antenuptial Contract — Construction. Antenuptial contracts are not under the han of the law, hut are entitled to the same consideration as other contracts. A provision in an antenup-tial contract obligating the husband to “maintain” the wife “in a decent and becoming manner,” has no relation to later provisions specifically enumerating what property the wife should take after the death of the husband.</p>

— M. F. Edwards, Judge. ACTION to recover rent. Tbe suit was aided by a landlord’s attachment. The answer was a plea of payment. The cause was submitted to a jury, that returned a verdict for the plaintiff, and the defendant appeals. —

<p>Appeal from Clinton District Court. — D. V. JacksoN, Judge.</p> <p>Suit in equity to establish right of way across' land of defendant, and to restrain interference with use of the claimed right of way. On trial, the court dismissed the plaintiff’s petition, from which judgment he appeals. —</p>

<p>BANKRUPTCY: Preference — Evidence. Evidence held sufficient to show that a mortgagee, when he took his mortgage, had such knowledge of the insolvency of the mortgagor as to constitute the mortgage an unlawful preference.</p>

<p>LIBEL AND SLANDER: Nonpublication. A plaintiff who shows that the slanderous charge hurled at him was not heard by anyone except the plaintiff, successfully shows that he has no cause of action.</p>

- — G-. D. THOMPSON, Judge. The defendant was indicted for buying, receiving, and aiding in concealing stolen property of a value in excess of $20. He entered a plea of not guilty, and upon trial was convicted.—

<p>Appeal from Cerro Gordo District Court.—M. H. Kepler, Judge.</p> <p>The defendant was indicted for the crime of lewd, immoral, and lascivious conduct with a child. The jury returned a verdict of guilty.—.</p>

— W. G-. BoNner, Judge. The defendant was indicted for tbe crime of operating a motor vehicle while intoxicated. The court sustained the defendant’s motion for a directed verdict, and the State appeals.

— Sherwood A. Clooe,. Judge. The defendant was indicted and found guilty of the crime of knowingly receiving and concealing stolen goods, and appeals. —

— Joseph E. Meyer, Judge. The plaintiff, as legatee under a will, claims from defendants, as executors thereof, interest upon its legacy. The defendants denied its right thereto, under the terms of the will. The trial court sustained the position of the defendants, and entered order accordingly. Plaintiff appeals. —

<p>RAILROADS: Accidents at Crossings — Negligence. Evidence reviewed, and held to show negligence per se on the part of the driver of an automobile in driving into a street intersection ahead of a street car.</p>

G. Albert, Judge. Aotion for damages for false representátions in the sale of land. The defense was a general denial. There was a verdict for the plaintiff for $1,750. From the judgment entered thereon, the defendant has appealed. —

— James C. Hume, Judge. Suit in equity, to set aside a purported judgment at law, entered against tbe plaintiffs herein at the suit of the defendant herein. The ground of relief alleged is that no notice of suit was served on either of the plaintiffs herein (being the defendants therein), and that the court was, therefore, without jurisdiction to enter such judgment.

— O. D. Wheeler, Judge. Aotion for- damages for personal injuries resulting from a collision upon a street railway crossing in the country. The defense was a general denial. At the close of the evidence, the trial court directed a verdict on the ground of contributory negligence of the plaintiff. The plaintiff has appealed. —

— E. B. Woodruff, • Judge. Aotion at law, to recover upon an insurance policy. There was a directed verdict for the plaintiff for a part of the amount claimed by plaintiff, which defendant admitted to be due, and for which tender was made. Plaintiff appeals. —

<p>1 GRAND JURY: Waiver of Irregularity. The fact that a grand jury is composed of two members from the same civil township is an irregularity that may he waived by the accused.</p> <p>2 INDICTMENT AND INFORMATION: Allowable Amendment. An in-dietment may be amended by inserting a verb which had manifestly been inadvertently omitted.</p> <p>3 WITNESSES: Incrimination — Who Entitled to Claim Privilege. An accused may not predicate error on the fact that a witness against him was compelled to incriminate himself.</p> <p>4 WITNESSES: Incrimination — Insufficient Record. An accused may not predicate error on the general assertion that he had been involuntarily taken before the grand jury and compelled to incriminate himself.</p>

— Joseph E. Meyer, Judge. Action to recover the purchase price of certain hogs claimed to have been sold by plaintiff and his assignors to the defendants. The court directed a verdict in behalf of the defendants, and plaintiff appeals. —

— D. Y. JacesoN and William Theophilus, Judges. Appeal from an order by tbe district court affirming tbe. finding and order of tbe industrial commissioner in a Workmen’s Compensation case.

- — H. K. EvaNS, Judge. The defendant appeals from a judgment of conviction on an indictment charging him with obtaining property by false pretenses. —

<p>Appeal from Shelly District Cotvrt. — E. B. Woodruee, Judge.</p> <p>Indiotment for murder in the first degree. The verdict was, “Guilty of murder in the second degree.” From a judgment thereon, the defendant has. appealed. —</p>

- — F. 0. EllisoN, Judge. Aotion in equity, by a corporation engaged in the manufacture of electric current, to recover from a municipal corporation an amount claimed to be due for electric current furnished to said corporation, and to fix a rate for the current to be furnished in the future. The relief prayed for was granted, except an allowance of interest.

<p>JUDGMENT: Adjudication — Fraud in Purchase of Stock. A compromise and settlement of an action against the president of a hank for fraudulently inducing the purchase of the stock of the bank precludes the relitigation of such issue in an action by the bank against the purchaser on the notes given for the stock.</p>

— Hubert Utterbaok, Judge. Original proceedings in certiorari, to review tbe action' of tbe respondent, judge of tbe district court of Polk County, in two eases wherein tbe petitioner was adjudged guilty of contempt in having violated a temporary injunction restraining him from keeping for sale or selling intoxicating liquor. Tbe original judgments are affirmed, tbe petitions dismissed, and tbe writs discharged. —

— James C. Hume, Judge. Petition in equity, filed by tbe executor and trustee, for the construction of the will of William H. Langan, deceased. The trial court ruled in favor of the contentions of the executor and trustee and certain of the legatees, and against certain legatees, the heirs at law of the decedent, who appeal. —

— F. D. Letts, Judge. An assessment of benefits in amount of $2,000 was made against the right of way of plaintiff in Drainage District No. 19, of Clinton County. On appeal to the] district court, the assessment was confirmed. From the decree of the district court, plaintiff appeals. —

— JoHN T. Moeeit, Judge. Aotion for damages for personal injuries received by the plaintiff while in the employ of the defendant. Verdict for the plaintiff, and the defendant appeals. —

— E. B. Stiles, Judge. Action to recover damages for injuries received by a fall upon one of defendant’s sidewalks. At the close of plaintiff’s evidence, there was a directed verdict for defendant, and plaintiff appeals. —

— H. E. Tayloe, Judge. AotioN at law, to recover $50,000 for alleged fraud and deceit in the sale to plaintiff of $50,000 of stock in the North American Fire Insurance Company. Trial to a jury. At the close of plaintiff’s evidence, the court sustained defendants’ motion for a directed verdict as to the bank. The jury returned a verdict for plaintiff for $50,000, with interest at 6 per cent from July 15, 1919.

— G-. D. THOMPSON, Judge. By agreement, these two cases were consolidated and submitted together in this court. They are claims against the estate, and were not filed within twelve months from the giving of notice by the executor. The trial court held that they were fourth-class claims, and that there were no peculiar circumstances which entitled claimants to equitable relief. The claims were not allowed. Claimants appeal.- —

-F. 0. ELLISON, Judge. SUIT Ofl two promissory notes; Defense pleaded was fraud and conspiracy in obtaining same, and. that the maker was incompetent. Verdict for the defendants. Plaintiff's motion for a new trial was sustained, and defendants apjDeal.

— E. B. Woodruff, Judge. Aotion to recover on a policy of tbeft insurance issued by defendant. The policy was for $1,000. The jury returned a verdict'in favor of plaintiffs for $1,000, with interest. Judgment was entered on the verdict. Defendant appeals. —

<p>WITNESSES: Competency-Waiver of Incompetency. Objection to 1 the mental competency of a witness is waived by allowing the witness to testify at length without objection. Especially is this true when the objecting party knew that such witness would be called.</p> <p>2 WITNESSES: Cross-examination — Discretion. The scope of ■ eross-sx-amination is largely a matter of discretion with the court.</p> <p>3 CRIMINAL LAW: Sentence — Reference to Other Statute. A criminal statute which provides that the punishment thereunder shall be the same as provided in another section of the statute, in effect writes the punishment of the adopted statute into the adopting statute, and it matters not that the adopted statute is thereafter repealed and a new statute enaeted.</p> <p>4 APPEAL AND ERROR: Exceptions — Insufficiency. An exception to an instruction to the effect that a witness was a competent witness, which instruction was correct as far as it went, will not be considered, in the absence of any request for elaboration. So held in a case in which the party entering the exception had waived the competency of the witness by failure to objeet when the witness was offered.</p> <p>5 CRIMINAL LAW: Evidence — Silence of Accused When Charged With Crime. The law does not presume that a person who remains silent when he is accused of a speeifie erime is guilty, and reversible error • results from so instructing.</p>

<p>Appeal from Cedar District Court. — John T. Moeeit, Judge.</p> <p>The defendant was convicted of the crime of embezzlement, and appeals. —</p>

— James DeLaND, Judge. Suit in equity for an accounting. Tbe defendant was fisb • and game warden of tbe state, and tbe suit is to recover funds claimed to bave been received by defendant and belonging to tbe state. Tbe trial court dismissed tbe petition, and tbe State appeals. —

<p>Appeal from Allamakee District Court. — H. E. Taylor, Judge.</p> <p>The defendant was indicted for tbe crime of deserting his wife and minor child under sixteen years of age. He appeals from a conviction and sentence thereon. —</p>

<p>CONTRACTS: Construction — Commission Payable Weekly — Failure to Earn Any Commission. An engineer who contracts to prepare the plans and specifications for, and to supervise the construction of, contemplated buildings, and as compensation therefor contracts for a percentage commission on the total cost of the work, payable in weekly payments of $100, which weekly payments were to be charged against said commissions, is not entitled to recover the weekly payments unless plans and specifications are drawn or unless buildings are ereeted. In other words, no weekly payment accrues unless a commission accrues.</p>

— Lorin N. Hays, Judge. The Taber Lumber Company brought an action to foreclose a'mechanics’ lien against Robert C. Converse and his wife, as principal defendants and owners of the real estate involved, and against other defendants having mortgage liens against said real estate.

<p>Appeal from Grundy District Court. — H. B. Boies, Judge.</p> <p>Appeal from an assessment for benefits for the construction of a sewer. —</p>

<p>Appeal from Linn District Court.- — Atherton B. Clark, Judge.</p> <p>Action on a fire insurance policy. Judgment for the plaintiff, and the defendant appeals. —</p>

<p>Appeal from Fayette District Court. — W. J. Springer, Judge.</p> <p>Action against a sheriff for damages for levying an execution upon and selling property claimed to be exempt. Judgment for the plaintiff, and the defendant appeals. —</p>

— Joseph E. Meyer, Judge: PROSECUTION for seduction. There was a plea of not guilty. The jury rendered a verdict of guilty, and sentence was pronounced thereon. The defendant has appealed.

<p>Appeal from Polk D'istrict Court. — J. C. Hume, Judge.</p> <p>Suit in equity, to enjoin the city of Des Moines and its officers from removal of a track laid by plaintiff across one of its streets. Relief prayed was refused, and plaintiff's petition dismissed. Plaintiff appeals. —</p>