Volume 76 — Nebraska Reports

<p>ERROR to the district court for Red Willow county: Robert 0. Orr, Judge.</p>

<p>ERROR to the district court for Dakota county: Guy T. Graves, Judge.</p>

<p>Error to the district court for Lancaster county: Edward P. Holmes, Judge.'</p>

<p>Insurance Policy: Breach: Waiver. A policy of tornado insurance, containing a provision that if the buildings insured be or become vacant or unoccupied the policy shall be null and void, does not become absolutely void upon a violation of such condition, unless the insurer chooses to take advantage of the forfeiture; and where, after loss under such a policy, the company issuing the same, being informed of the loss as well as the breach of condition, cancels the policy and retains the premium up to and including the time of the loss, it will be held to be a waiver of the breach of condition.</p> <p>1. Insurance Contract: Construction. A stipulation in a contract for tornado, cyclone and windstorm insurance that the policy shall he void in case the buildings insured become vacant is material to the hazard and will he enforced.</p> <p>2. -: Waiver. The cancelation of a policy of insurance after . loss and notice of facts occurring before loss constituting a forfeiture, coupled with the return of unearned premium from date of forfeiture, does not constitute a waiver of the forfeiture.</p>

<p>Error to the district court for Gage county: William H. Kelligar, Judge.</p>

<p>Error to the district court for Boone county: James N. Paul, Judge.</p>

<p>Error to the district court for Pierce county: John F. Boyd, Judge.</p>

<p>Continuing Trespass: Injunction. Concerning simple acts of trespass equity has, in most cases, no jurisdiction, but, if the nature and frequency of trespasses are such as to prevent or threaten the substantial enjoyment of the rights of possession and property in land, an injunction will he granted.</p>

<p>Evidence examined, and held insufficient to support the verdict.</p>

<p>Error to the district court for Buffalo county: Bruno O. Hostetler, Judge.</p>

<p>1. Writ of Assistance: Laches. An objection that an application for a writ of assistance to put a purchaser at a judicial sale into possession has been too long delayed, is addressed to the sound discretion of the court, and where it is not made to appear that new rights have intervened, or that the defendants have been prejudiced by the delay, such an objection will not be upheld.</p> <p>2. -: Discretion of Court. The grantee of a purchaser at a judicial sale is not necessarily incompetent to prosecute an application for a writ of assistance to put him into possession, and whether he shall be permitted so to do or not is a matter dependent upon circumstances and resting largely in the discretion of the court.</p>

<p>1. False representations as the basis of an action, whether for damages or for the rescission of a contract, are such only as in some manner actually mislead the party to his damage. American Building & Loan Ass’n v. Bear, 48 Neb. 455, followed and approved.</p> <p>2. Prejudicial Error. Action of the trial court in excluding testimony offered by the defendant examined, and held prejudicial.</p> <p>3. Instructions examined, and held prejudicial.</p> <p>1. Contract: Fraud: Rescission. A purchaser of real or personal property is entitled to- the benefit of his bargain, in other words, to receive the identical property purchased; and where the vendor by fraud or false representations has conveyed to him or induced him to accept something not contemplated by his contract, he may rescind the sale and recover what he has paid, without showing that he has sustained any pecuniary injury or damage thereby,</p> <p>2.-: Rescission: Evidence. Where, however, a purchaser receives what he actually purchased, and bases his right to rescind on some false representation as to its quality, condition, or matter affecting its value, he must show that such representation was material, and that he was misled thereby to his injury and damage. •</p> <p>3. Former conclusion, Jakway v. Proudfit, ante, p. 62, adhered to.</p>

<p>1. Evidence examined, and held sufficient to sustain the judgment of the district court.</p> <p>2. Instructions examined, and held not prejudicial.</p>

<p>1. Instructions: Review. Rulings of the court upon objections to instructions given and refused examined, and field without error.</p> <p>2. Misconduct of Juror. Proof of mere indiscretion in the conduct of a juror is not sufficient to avoid a verdict, but the proof must show that his conduct is of such a character that prejudice maybe presumed.</p>

<p>Appeal from the district court for Grant county: John R. Hanna, Judge.</p>

<p>1. Chattel Mortgage: Sale by Mortgagor. The making oí a written contract hy a mortgagor of chattels in possession, providing for the sale and future disposition of the property, and providing for the payment or satisfaction of the mortgage indebtedness, is neither malum in se nor malum prohibitum.</p> <p>2. Instructions: Review. The giving of instructions set out in the opinion held error.</p>

<p>Appeal from the district court for Red Willow county: Robert C. Orr,- Judge.</p>

<p>Corporation: Taking Assets of Firm: Liability. A corporation organized for the sole purpose of continuing the business of a partnership firm, which takes over to itself the ownership and control of the assets thereof, thereby assumes the debts of such firm to the extent of the property so received.</p> <p>1. Corporation: Succeeding to Assets of Firm: Liability. To render a newly organized corporation liable for the debts of an established Corporation or firm to whose business and property it has succeeded, it should, in the absence of a special agreement to assume such liabilities, affirmatively appear from the pleadings and proofs that the transaction in question is fraudulent as to creditors, or that the circumstances attending the creation of the new and its succession to the business and property of the old corporation or partnership are of such character as to warrant the finding that it is a mere continuation of the old firm or corporation.</p> <p>2. - — : -. Where a corporation is organized by the members-of an existing partnership and a third person, who contributes the funds necessary to properly finance the new enterprise, and receives therefor his agreed proportionate share of its capital - stock, the partners contributing thereto the stock in trade, bills receivable and real estate of the firm, for which they receive their proportionate share of such capital stock, in the absence of fraud, the new corporation cannot be said to be a mere continuation of the old firm.</p> <p>3. —'-: -- — : Good Faith. If the new corporation takes all of the property of the old corporation or partnership, and pays for same entirely in its stock issued to the stockholders of the old corporation or members of the former partnership, the creditors of the former partnership or corporation may enforce their Claims in equity against the interests of the former partners or stockholders, and a court of equity will seize such property rights in the hands of fraudulent grantees, as in other cases of fraudulent transfer of property, but an innocent purchaser in good faith, without notice, will be protected. A stockholder in the new corporation may be an innocent purchaser.</p>

<p>Error to the district court for Nemaha county: Albert H. Babcock, Judge.</p>

<p>Error to the district court for Clay county: Leslie G. Hurd,, Judge.</p>

<p>Appeal from the district court for Knox county. John P. Boyd, Judge.</p>

<p>1. Service by publication was attempted on three defendants. Two of the defendants were residents of the state, and the third, a nonresident, had died previous to the publication of the notice. Held, That a decree entered on such attempted service was void.</p> <p>• 2. Estates: Merger. There can he no merger unless a greater and a a 'less estate meet in the same person holding in the same right, nor where intervening rights or estates interfere, nor where the intention to keep the estates distinct may be inferred or has been expressed.</p> <p>3. Proof of the statute of a sister state and of a judicial record appointing trustees examined, and held sufficient.</p> <p>4. Tax Sale: Title Acquired. The title conveyed under a tax sale is not derivative, but a new title, and the purchaser, if his deed is valid, takes free from any incumbrance, claims or equities connected with the prior title.</p> <p>5. Judicial Sale: Incumbbances: Estoppel. One purchasing at judicial sale is estopped from questioning the validity of an in-cumbrance shown by the appraisement and deducted from the appraised value of the estate sold, where' he makes no objection to the validity of the incumbrance prior to the sale.</p>

<p>Appeal from the district court for Lancaster county: EdwaRd P. Holmes, Judge.</p>

<p>1. Pleading: Motion to Strike: Harmless Error. A plea in abatement was stricken on plaintiff’s motion. The defendants then ' incorporated the same matter, with a plea to the merits, in the answer and fully litigated such matter. Held, That they were not prejudiced by the ruling on the motion to strike.</p> <p>2. Mental Capacity: Expert Testimony. Where the mental capacity of the plaintiff to maintain the suit is in issue, her disposition, aside from the question of her mental integrity, is not involved, and is not a subject of expert investigation.</p> <p>3. -. Where the plaintiff reasonably understands the nature and purpose of her suit, the effect of her acts with reference thereto, and has the will to decide for herself whether it shall be brought and prosecuted, she has sufficient mental capacity to maintain it.</p> <p>4. Contracts: Consideration. The dismissal, by a child, of proceedings instituted by her for the appointment of a guardian for her mother on the ground of the incompetency of the latter, is not a valid consideration for a promise made by the mother to such child.</p> <p>5. Public Policy will not permit one who institutes such proceedings to make the prosecution or the abandonment thereof a source of profit to herself.</p> <p>6. Contracts: Undue Influence. Evidence examined, and held sufficient to sustain a finding that plaintiff’s assent to a contract was obtained by undue means and without consideration.</p>

<p>Appeal from the district court for Washington county: T.ee S. EsteLle, Judge.</p>

<p>Appeal from the district court for Washington county: Lee S. Estelle, Judge.</p>

<p>Appeal from the district court for Washington county: Lee S. Estelle, Judge.</p>

<p>. Appeal from the district court for Washington county: Lee S. Estelle, Judge.</p>

<p>Appeal from the district court for Washington county : Lee S. Estelle, Judge.</p>

<p>Error to the district court for Furnas county: Robert 0. Orr, Judge.</p>

<p>Appeal from the district court for Dundy county: Robert 0. Orr, Judge.</p>

<p>1. Corporations: Venue. The fact that an agent is temporarily employed in transacting the business of a domestic corporation in a county other than the one where the corporation has its principal place of business does not subject such corporation to the jurisdiction of the courts of that county under the provisions of section 55 of the code.</p> <p>2.-: -. The residence of a person who is employed as the agent of a domestic corporation is personal, and is immaterial in an inquiry as to whether a domestic corporation is situated in a county within the meaning of said section.</p>

<p>1. Rape: Evidence. In a trial for statutory rape, admissions by the defendant showing that he planned and procured an opportunity to commit the act charged, with evidence of familarities between them, furnishes sufficient corroboration of the girl’s positive testimony to support a judgment of conviction.</p> <p>2. Review: Record. Affidavits found in the files of the case or attached to the transcript cannot be considered as having been used in support of a motion for new trial, unless they are included in and shown by the certificate of the proper officer to be a part of the bill of exceptions, and to have been actually used in evidence upon the hearing of the motion.</p>

<p>Error to the district court for Douglas county: George A. Day and Howard Kennedy, Jr., Judges.</p>

<p>Appeal from the district court for Lancaster county: Lincoln Frost, Judge.</p>

<p>Error to the district court for Douglas county: George A. Day, Judge.</p>

<p>Error to the district court for Thayer county: Leslie G. Hurd, Judge.</p>

<p>Process: Amendment: Election. Where a plaintiff in an action is given leave to amend a defective affidavit for service by publication and a defective return of a service of summons, but fails to mate such amendment, be will be deemed to have elected to stand on the original affidavit of publication and the original return of summons.</p>

<p>Specific performance oi a contract for the sale of real estate will not be awarded at the suit of the vendee or his assignee, where the evidence discloses gross laches in making the payments stipulated for in the contract, where time is made of the essence of the contract-by the agreement of the parties.</p>

<p>Appeal from the district court for Douglas county: Alexander 0. Troup, Judge.</p>

<p>Error to tlie district court for Douglas county: Howard Kennedy, Jr., Judge.</p>

<p>1. Contract: Tender: Waiver. When no other place is specified in a contract for a tender, the law will presume that the tender should be made at the place of the contract; but an unconditional refusal ' to accept the tender at any place waives the necessity for a technical tender at the place of the contract.</p> <p>2. Tender, Withdrawal of. Where a tender other than money is made, the tenderer must, if possible, keep the property in condition to make the tender good while an action for rescission is pending. If, after making the tender, he exercises acts of ownership. over the property tendered, inconsistent with the theory that he is holding the property for delivery to the party to whom it was tendered, such conduct amounts to a withdrawal of the tender.</p>

<p>Appeal from the district court for Douglas county: Willis G. Sears, Judge.</p>

<p>Highway: Peesceietion. “To establish a highway by prescription there must be a user by the general public under a claim of right, and which is adverse to-the occupancy of the owner of the land, of some particular or defined way or track, uninterruptedly, without substantial change, for a period of time necessary to bar an action to recover the land.” Engle v. Bunt, 50 Neb. 358; Blech v. Keller, 73 Neb. 826.</p>

<p>Appeal from the district court for Richardson county: William H. Kblligar, Judge.</p>

<p>Evidence examined, and held to support the decree entered.</p>

<p>Appeal from the district court for Hayes county: Hanson M. Grimes, Judge.</p>

<p>Appeal from the district court for Hayes county: Hanson M. Crimes, Judge.</p>

<p>1. Compromise: Consideration. A compromise, whereby one party agrees to pay and the other to receive a certain sum in satisfaction of a doubtful claim, rests upon a sufficient consideration.</p> <p>2. -: -. But if the claimant, knowing that his claim is groundless, forces the other party to a compromise by threats of suit, there is no consideration and the compromise will not be enforced.</p> <p>3.-: :-. Forbearance to prosecute proceedings for the reversal of a judgment is a sufficient consideration for a compromise, and, unless the good faith of the claimant in pressing his claim is put in issue, whether he intended to prosecute such proceedings is immaterial.</p> <p>4. Judgment: Res Judicata. One of the essentials of a judgment offered in support of a technical plea in bar is that it was rendered in a suit involving the same subject matter as that in which the plea is interposed, and, lacking that element, it is not available in support of such plea.</p> <p>5.-: -. Where the second action is on a different claim or demand, the judgment in the former operates as an estoppel only as to those matters in issue upon the determination of which the judgment was rendered.</p> <p>6.-: -: Burden of Proof. In such cases the rule is that, if there he any uncertainty in the record as to the issues actually tried or adjudicated in the former suit, the whole subject matter of the action will be at large, unless the uncertainty he removed by extrinsic evidence, and the burden of proof is upon the party relying upon the estoppel to show that a question raised in the present suit was litigated and determined in that in which the judgment was rendered.</p> <p>7. Action: Compromise; Intimidation: Evidence. In an action upon the promise of a school district to pay a certain amount in composition of a doubtful claim, one of the defenses was that the., claimant secured the adoption of a resolution for the compromise by threats and intimidation, and there is evidence tending to support such defense. Held, That evidence as to his reputation in the vicinity, as to being peaceable or otherwise) was properly received.</p> <p>8. Declarations of parties made at a meeting where such resolution was adopted, tending to show that they were intimidated and for that reason left the meeting and refrained from voting on the resolution, are properly receivable in evidence as a part of the res gestee.</p>

<p>1. Marriage Contract. While our law defines marriage as a civil contract, it differs from all other contracts in its consequences, -to the body politic, and for that reason in dealing with it or with the status resulting therefrom the state never stands indifferent, but is always a party whose interest must be taken into account.</p> <p>2. Marriage: Validity. A marriage, where one of the parties is under age of consent, but who is competent by the common law, is not void, but merely voidable, and until annulled by a court of competent jurisdiction is valid for all civil purposes.</p> <p>3. —--: Annulment: Support op Offspring.' A court annulling a marriage at the suit of a husband who was under the age of consent when the marriage was solemnized may require him to pay a reasonable amount for the support and nurture of the issue of such marriage.</p> <p>4. Suit Money: Expenditures. In such case the court may also require the husband, if the circumstances of the party warrant it, to pay reasonable suit money to enable the wife to mate a defense, and to reimburse her for expenditures on behalf of the family during the existence of the marriage relation.</p> <p>5. Suit money may be allowed, in the sound discretion of the court, at any stage in the litigation and may be included in the final decree.</p>

<p>1. Principal and Agent: Evidence. The declarations of an alleged agent are not admissible in evidence for the purpose of establishing or enlarging his authority.</p> <p>2. Contract: Evidence. The authority of an agent to execute a contract cannot be established by evidence of his declarations as to the nature of a conversation carried on between him and his alleged principal by telephone during the negotiations.</p> <p>3. -: Ratification. Knowledge by the principal of the material facts is an essential element of an effective ratification by him of the unauthorized act of his agent. O’Shea v. Rice, 49 Neb. 893.</p> <p>4. Evidence examined, and held, insufficient to sustain a finding that the alleged agent had authority to bind the defendant by the contract in suit.</p>

<p>Appeal from the district court for Sarpy county: Alexander 0. Troup, Judge.</p>

<p>Appeal from the district court for Harlan county: Ed L. Adams, Judge.</p>

<p>Evidence examined, and held to sustain the conclusions of the trial court.</p>

<p>Original application for a writ of habeas corpus.</p>

<p>Original application for a writ of mandamus to compel respondent to register certain bonds.</p>

<p>1. Attachment: Objection to Jurisdiction. Where the only ground alleged for the issuance of an attachment is that the defendant is a nonresident, he is not entitled to make a special appearance or to answer, attacking the jurisdiction of the court upon the sole ground that he is not the owner of the property seized under the writ.</p> <p>2. Welch, v. Ayres, 43 Neb. 326, modified.</p>

<p>Appeal from the district court for Douglas county: Willis G. Sears, Judge.</p>

<p>Error to the district court for Lancaster county: Edward P. Holmes, Judge.</p>

<p>1. Judgment: Res Judicata. The rule is well settled, both in this state and elsewhere, that a judgment is an estoppel only as to those matters actually in issue and tried and determined in the action in which it is rendered.</p> <p>2. Limitation of Actions. Section 16 of the code, is applicable to ordinary civil actions only.</p> <p>3. Cities: Assessment: Relevy. The Omaha charter of 1897 (Comp. St. 1897, eh. 12a, sec. 192) contained sufficient authority for the re-levy of a special assessment which was attempted to be levied under a former act, but failed because of irregularity in procedure.</p>

<p>Appeal from the district court for Douglas county: Willis G. Sears, Judge.</p>

<p>Appeal from the district court for Douglas county.: Willis G. Sears, Judge.</p>

<p>Appeal from the district court for Douglas county: William A. Redick, Judge.</p>

<p>Error to the district court for Douglas county: William A. Rediok, Judge.</p>

<p>Error: Review. Where an examination of the pleadings filed and the evidence offered in support thereof shows that the party complaining procured a judgment more favorable to him than the law and the evidence warranted, we will not, at his request, examine alleged errors of the trial court in receiving testimony and in giving and refusing instructions.</p>

<p>Official Bonds: Construction. A bond given for tbe faithful discharge of the duties of one legally entrusted with state and county funds is an official bond, and the statutory provisions relative thereto enter into and become a part of the contract.</p> <p>1. Official Bonds: Estoppel. In an action on a bond, given to tbe county treasurer by one in bis employ, to recover for a default in tbe transaction, as deputy, in the name of the treasurer, of . business pertaining to the treasurer’s office, a recital in the bond that the principal is deputy treasurer in the service of the treas- • urer of tbe county will estop the sureties on the bond to deny that he was in fact such deputy treasurer and that the bond was an official bond.</p> <p>• Construction. A clause in the bond of a deputy county treasurer, which limits the right of action thereon, for default of the deputy treasurer, to such default as shall be discovered during the continuance of the bond or within six months thereafter, cannot be enforced.</p>

<p>Error to the district court for Cass county: Paul Jes-sen, Judge.</p>

<p>Appeal from the district court for Phelps county: Leslie G-. Hurd, Judge.</p>

<p>1. Cities: Sidewalks: Notice: Evidence. Proof by affidavit required by a city ordinance of the publication of a notice to nonresident property owners to construct sidewalks is not conclusive; but the fact of publication may be proven by other evidence.</p> <p>2. Sidewalks: Assessments: Defective Notice. Under a city ordinance providing that the city council may cause the construction of certain sidewalks along the street line of lots belonging to nonresidents and assess the costs thereof to the property, if the same were not constructed by the owner within 15 days after the publication of a notice to him, the city council obtained the right to construct such improvements and assess the costs thereof, even though the notice named a date for the construction thereof by the owner less than 15 days subsequent to the last publication. The provisions of the city charter and ordinances become a part of the notice, and the property owner is bound thereby.</p>

<p>1. Lands: Sale: Contract: Evidence. The written contract re- ■ quired by section 74, cb. 73, Comp. St. 1905, may be evidenced by letters passing between tbe parties.</p> <p>2.-; Description. Where such letters contain data from which a description of the land placed with an agent for sale or barter can be ascertained with certainty, the contract may be enforced.</p>

<p>Error to the district court for Harlan county: Ed L. Adams, Judge.</p>

<p>1. Instructions: Procedure. All instructions should be read to the jury in open court, and where, after retiring, the jury desire further instructions on the law of the case, they should be brought into court, there to receive such instructions. If, in answer to a request, further insructions are sent to the jury room by the bailiff in charge, the record should show the consent of the parties to this procedure.</p> <p>2. Adverse Possession. One who has acquired absolute title to land by adverse possession for the statutory period does not impair his title by thereafter paying rent to the owner of the paper title.</p> <p>3. Deed: Acknowledgment. As between the parties a deed of real estate, not a homestead, is good without being acknowledged.</p> <p>4. -: Delivery. A delivery of a deed by the grantor to a third person for the grantee, with directions to deliver it to such grantee, constitutes a sufficient delivery of a deed of conveyance.</p>

<p>Error to the district court for Pierce county: Guy T. Graves, Judge.</p>

<p>Contract: Abandonment. A contract will be treated as abandoned, where the acts of one party, inconsistent with its existence, are acquiesced in by the other.</p> <p>1. Lease: Covenant. Ordinarily there is an implied covenant in a ■lease that the demised premises shall he open to entry hy the lessee at the time fixed in the lease as the beginning of the term.</p> <p>2. The measure of damages for a breach of this implied covenant is the difference between the rental value of the premises and the rent reserved in the lease. The lessee may also recover suth special damages as he pleads and proves to have necessarily resulted from the breach of the agreement.</p> <p>3. Question for Jury. Under the evidence in this ease, held that the question whether the plaintiff rescinded the contract and abandoned the claim to damages should be submitted to the jury.</p>

<p>Judgment: Revivor. Proceedings to revive a judgment should not be had in the name of an administrator, except where the administrator has succeeded to the rights of the decedent.</p>

<p>Error to the district court for Douglas county: Lee S. Estelle, Judge.</p>

<p>Erroe to the district court for Custer county: Bruno O. Hostetler, Judge.</p>

<p>Eebob to the district court for Antelope county: John P. Boyd, Judge.</p>

<p>Error to the district court for Deuel county: Hanson M. Grimes, Judge.</p>

<p>1. Railroads: Crossings at Highways. Under section 110, ch. 78, Comp. St., it is the duty of a railroad company to make and keep in repair suitable crossings with approaches, notwithstanding the highway was laid out after the railroad was built. The public authorities are required to build that part of the highway within the right of way which they would have been required to make had the railroad not been constructed. State v. Chicago, B. d Q. B. Go., 29 Neb. 412, followed and approved.</p> <p>2. -: -: Liability op Counties. Under the provisions of this section of the statute, a railroad company cannot recover damages from a county for the cost of putting in cattle-guards, erecting sign-posts, building wing-febces, planting the track, and constructing the necessary approaches at a public crossing.</p> <p>3. Compensatory damages should be allowed for the land taken from the right of way for a public road.</p> <p>4. Measure of Damages. Where, in making the proper approaches to the railroad track, it is necessary to grade through all, or nearly all, the width of the right of way on either side of the track, the railroad company should be allowed such sum for damages as the county would have been compelled to expend in grading the public road had the railroad never been built.</p>

<p>1. Vendor and Purchaser: Fraud. Every contracting party has an absolute right to rely on the express statement of an existing fact, the truth of which is known to the opposite party, and unknown to him, as a basis of a mutual agreement.</p> <p>2. Instructions examined, and held not prejudicial.</p>

<p>1. Beplevin: Partees: Substitution. In a replevin suit, where the plaintiff has taken the property, .it is error to permit a stranger to be substituted for the original plaintiff. Flanders v. Lyon & Mealy, 51 Neb. 102, followed and approved.</p> <p>2. Statute: Construction. The provisions of section 24 of the code are special in their character, to be strictly construed, and the prescribed mode of procedure must .be closely followed. Church ■». Callihan & Co., 49 Neb. 542, followed and approved.</p> <p>3. Petition: Capacity to Sue: Demurrer. An objection to a petition in which the requirements of section 24 of the code are not strictly followed, in alleging plaintiff’s capacity to sue, can be raised by a demurrer which sets forth that the petition fails to show that plaintiff has the legal capacity to sue.</p>

<p>Bastardy: Evidence: Variance: Instruction: Review. "Where there is a variance between the testimony of the complaining witness given at the preliminary and her testimony at the trial in a bastardy proceeding, if the defendant requests the court to instruct the jury on this variance as affecting the credibility of the complainant, it is error to refuse such instruction.</p>

<p>1. Interlocutory Order: Appeal. An order setting aside a judgment under the provisions of section 602 of the code is an interlocutory and not a final order, and cannot be reviewed by this court on appeal.</p> <p>2. Corporation as-Administrator. A corporation cannot act as an administrator of the estate of a deceased person under the laws of this state.</p> <p>X. Final Order: Review. An order to be final and reviewable on error or appeal must dispose of the merits of the case, and leave nothing for the further judicial determination of the court.</p> <p>2. Corporation as Administrator: Collatehal Attack. The appointment of a corporation as executor or administrator is not contemplated or authorized by the laws of this state, but whether such appointment can be collaterally attached is not determined.</p> <p>3. Former opinion herein, ante, p. 411, as modified, adhered to.</p>

<p>Watercourses: Obstruction: Liability. In the absence of negligence in the construction of its roadbed across a natural watercourse, a railroad company is not liable for damages done to property on adjacent lands by reason of a flood so unprecedented that it amounts in law to an act of God.</p>

<p>ERROR to the district court for Lancaster county: Albert J. Cornish, Judge.</p>

<p>Appeal from the district court for Cass county: Benjamin F. Good, Judge.</p>

<p>Error to the district court for Thayer county: Leslie G. Hurd, Judge.</p>

<p>Error ,to the district court for Keya Paha county: William H. Westover, Judge.</p>

<p>1. Railroads: Side-Tbacks: Highways. A side-track constructed and used by a railroad company, and wbiclx connects with its main line and occupies a portion of the public streets of a city under a grant from the city to such company, will be presumed, in the absence of evidence to the contrary, to be a part of the public highway system of such company, and a public highway within the meaning of section 4, art. XI of the constitution.</p> <p>2. The term railroad includes all side-tracks necessary or convenient for the transaction of the company’s business.</p> <p>3. Evidence examined, and held sufficient to sustain the finding and order of the trial court.</p>

<p>Appeal from the district court for Oass county: Paul Jessen, Judge.</p>

<p>ERROR to the district court for Boone county: James E. Hanna, Judge.</p>

<p>Error to the district court for Nuckolls county: Leslie G. Hurd, Judge.</p>

<p>1. Foreign Corporations: Contracts. A contract with, a foreign building and loan association authorized to transact business in this state at the time the contract is made does not become unenforceable by reason cf the failure of the association to renew its authority to transact business in "the state.</p> <p>2. Contracts: Usury. In determining whether a contract with a foreign building and loan association is usuriohs, it is proper to consider only such payments contracted for as are in the nature of. interest and premiums on the loan.</p>

<p>Error to the district court for Lancaster county: Albert J. Cornish, Judge.</p>

<p>1. Attorneys: Disbarment. If proceedings for disbarment are begun against an attorney at law based solely upon a charge of crime against the laws of this state, which is not admitted by the accused, this court will not, ordinarily, investigate the facts constituting the alleged crime while the matter is pending upon indictment in the district court.</p> <p>2. — -: -. If the charge upon which disbarment proceedings are based involves professional misconduct in the relations of an attorney at law with the court in which he practices, that court may, upon satisfactory proof, disbar the attorney from practicing before it.</p> <p>3. - —: -. This court alone can pass upon the qualifications of applicants for admission to the bar, and has sole power to annul such admission.</p>

<p>Error to tbe district court for Wayne county: John F. Boyd, Judge.</p>

<p>ERROR to the district court for Dawson county: Bruno O. Hostetler, Judge.</p>

<p>Error to tlie district court for Boone county: James N. Paul, Judge.</p>

<p>Supersedeas Bonds: Liability of Surety. In the absence of fraud or mistake, or of some circumstances working an estoppel, a surety upon a supersedeas bond can be held only for consequences of the proceeding in which the instrument was given.</p>

<p>ERROR to the district court for Gage county: Albert H. Babcock, Judge.</p>

<p>Error to the district court for Buffalo county: Bruno O. Hostetler, Judge.</p>

<p>Error to the district court for Douglas county: Lee S. Estelle, Judge.</p>

<p>Appeal: Review. The mere printing of an assignment 'of error in a brief without comment, and without' statement attempting to show why or for what reason or in what respect the trial court erred, is not sufficient to require this court to discuss the errors complained of.</p>

<p>Error to the district court for Lancaster county: Lincoln Frost, Judge.</p>

<p>Appeal from the district court for Sarpy county: George A. Day, Judge.</p>

<p>Master and Servant: Torts of Coemployees. The master is not liable for an injury inflicted upon one of his employees by the tortious act of another outside of the course of his employment, and this is true even though the coemployees are not fellow servants.</p> <p>1. Master and Servant: Touts of Servants. A master is not responsible for tbe tortious or wrongful acts of his servant, when such acts are not directly authorized by him, nor done in the course or within the scope of the servant’s employment.</p> <p>2. Former opinion,- ante, p. 528, adhered to.</p>

<p>Counties: Pkisoners: Maintenance. Where a prisoner is convicted in the first instance of a felony, and the judgment of conviction is suspended by the supreme court and he is remanded to the custody of the sheriff of the county in which the offense is alleged to have been committed, and the judgment of co'nviction is reversed by this court, and at a new trial the defendant is acquitted, the county in which the offense is alleged to have been committed, and not the state of Nebraska, must pay the cost of keeping and maintaining such prisoner between the time of his first conviction and the time of his final acquittal.</p>

<p>. 1. Appeal. “Th.e time within which an appeal may he taken from a decree of the district court does not begin to run until such decree has been entered of record, so that' it is within the power of the appellant to comply with the statute regulating appeals by filing in this court a certified transcript of the proceedings of the district court.” Biekel v. Butcher, 35 Neb. 761.</p> <p>2. Statute of Frauds: Quieting Title. Part performance on the part of a vendor, including the surrender of possession, and full'performance on the part of the vendee, is sufficient to remove a parol agreement for the sale of real estate from the operation of the statute of frauds, and the vendee in possession may maintain, an action to quiet title.</p>

<p>ERROR to the district court for Dawson county: Bruno O. Hostetler, Judge.</p>

<p>1. Evidence examined, and field sufficient to sustain the verdict.</p> <p>2. Refusal to Instruct: Review. This court is not bound to review the action of the trial court in refusing to instruct the jury as requested, when no exception is taken to such refusal.</p> <p>3. Action: Pabties. A bailee of property having-an interest therein under express contract may maintain an action to recover the value thereof against one through whose negligence or failure of duty it is lost.</p>

<p>Appeal from the district court for Douglas county: Alexander O. Troup, Judge.</p>

<p>1. Second Appeal. This court on a second appeal of the same case will not reexamine questions of law presented and determined on the first appeal unless the opinion first expressed, is-manifestly erroneous.</p> <p>2. Remand: Amendment. A party cannot try his case by piecemeal; and where a case has been tried and appealed to this court and remanded to the district court, with directions to enter a specified decree, the defendant will not be allowed to amend Ms answer by alleging facts which existed and of which he had knowledge prior to the trial first had.</p>

<p>Beneficial Associations: Membership. WTiere it appears from the constitution of a benefit society which insures the lives of its members that initiation and the payment of one advance assessment is indispensable to membership, the fact that the person’s applica-cation has been accepted and his petition fee paid will not entitle his beneficiary to any insurance in the event of his death before he has been initiated and paid the one advance assessment required.</p>

<p>Tax Title: Setting Aside. A party who seeks the aid of the court to contest and invalidate the claim of one claiming title and possession of land under a sale for delinquent taxes must show that all taxes justly thereon have been paid either by himself or the party through whom he claims.</p>

<p>The instructions of the court should direct the attention of the jury only to facts in support of which evidence has been introduced upon the trial. When an instruction is not founded upon the evidence, and is calculated to mislead the jury in considering the facts of the case, the judgment must be reversed.</p>

<p>Sale: Action. Before a seller can maintain an action on the contract for the agreed price of a chattel, there must he such a delivery, actual or constructive, as will pass the title and vest the ownership of the property in the purchaser. If the possession and the title remain in the seller, and the purchaser renounces his contract, the law requires the seller to treat the property as his own, and to sue, if at all, for the damages he has sustained.</p>

<p>1. Probate Court: Appealable Obdee. An order of a probate court requiring one who had formerly been administrator of an estate to turn over to his successor certain money, claimed by the former to have been given to him as a gift from the intestate; but by the latter, that it came to him as administrator of the estate, is ap-pealable to the district court.</p> <p>2. Decedents: Gift. Evidence examined, and held sufficient to sustain a finding that the money in question had come into the hands of the former administrator personally as a gift by the intestate, and not as a part of the assets of the estate.</p> <p>3. Witnesses: Competency. The interest of the former administrator’s wife in the result of such contest is not a direct legal interest within the meaning of the statute which prohibits a p'erson from testifying to any transaction or conversation had with a deceased person, where the adverse party is the representative of such deceased person.</p> <p>4. Gift. The indorsement and delivery of a certificate of deposit, with the intention of making a gift of the deposit thereby represented to the party to whom the certificate is thus delivered, operates as a gift of the fund itself.</p>

<p>ERROR to the district court for Hitchcock county: Robert C. Orr, Judge.</p>

<p>Error to the district court for Red Willow county: Robert C, Orr, Judge.</p>

<p>Error to tlie district court for Douglas county: Edmund M. Bartlett, Judge.</p>

<p>Contract: Construction. A contract will ordinarily tie construed as it was understood and construed by the contracting parties.</p>

<p>1. Section Line: Action: Instruction. In an action to establish a controverted section line, where the trial is conducted by both parties on the theory that the corner established by the government surveyors was not a lost corner, it is not error to charge the jury that they are to determine the location of the original boundary line, even though evidence was admitted that a corner had been established by the county surveyor who proceeded on the theory that the original corner was lost.</p> <p>2. Adverse Possession: Isstbuotion. It is not error to charge the jury that the title to land becomes complete in the adverse occupant when he and his grantors have maintained an actual, continued, notorious and adverse possession thereof, claiming title to the same against all persons, for ten years.</p>

<p>Error to the district court for Polk county: Arthur J. Evans, Judge.</p>

<p>Decedent’s Estate: Attoeney’s Fee. A decedent’s estate !s properly . chargeable with fees paid to counsel for services rendered in successfully defending the will against attack, and this rule ordinarily should not be departed from in a case where the contest is instituted by the person named in the will as executor, and the defense is conducted by counsel employed on behalf of a legatee.</p> <p>1. Decendent’s Estate: Attorney’s Fee. The estate of a decedent is not ordinarily liable to an attorney for services rendered by him for and at the request of a legatee under decedent’s will, in a contest thereof. AtHnson v. May’s Estate, 57 Neb. 137.</p> <p>2. Eormer opinion, ante, p. 625, overruled.</p>

<p>Appeal from the district court for Webster county: Ed L. Adams, Judge.</p>

<p>Inebriates: Commitment: Peocedube. The statute providing for the commitment of inebriates to the state hospital for the insane requires that an application “in the nature of an information” be filed with the commissioners of insanity, alleging that the person in whose behalf the application is made is a dipsomaniac or inebriate and a fit subject for treatment in the hospital. There must be a hearing upon the information, and a finding by the commissioners that the information is true. A commitment without such information and finding is void.</p>

<p>1. Beneficial Associations: Assessments. Where the constitution and laws of a fraternal-heneficiary association provide that the members shall pay one assessment each month, unless certain designated officers determine its payment unnecessary, the payment of such assessment, when called, cannot he resisted on the ground that it was not lawfully made.</p> <p>2. -: Action on Certificate: Answer. An answer in an.action on a beneficiary certificate, which sets forth the delinquency of the member in the payment of his assessments, the constitution and laws of the association which expressly declare a suspension of membership and a forfeiture of the beneficiary certificate therefor, together with the proceedings of the association constituting a valid call for the delinquent assessment, states a valid defense to such action. Chappie v. Sovereign Camp, W. O. W., 64 Neb. 55, followed. •</p>

<p>Appeal from the district court for Douglas county: Abraham L. Sutton, Judge.</p>

<p>ERROR to the district court for Cass county: Paul Jes-sen, Judge.</p>

<p>Appeal from the district court for Douglas county: Abraham L. Sutton, Judge.</p>

<p>Error to the district court for Washington county: Lee S. Estelle, Judge.</p>

<p>1. Taxation: Exemptions. A commercial college, teaching such branches as arithmetic, reading, penmanship, spelling, bookkeeping, geography, history, etc., is a school within the meaning of section 13, art. I, ch. 77, Comp. St. 1905.</p> <p>2. School Property: Assessment. In assessing property for taxation, which is used partly for school purposes and partly for purposes not exempt from taxation, the value of the part of the property used exclusively for school purposes should be deducted from the total value of the entire property.</p>

<p>Appeal from the district court for Pawnee bounty : AlbeRt H. Babcock, Judge.</p>

<p>Contracts: Evidence. To establish as a contract a proposition made by letter, proof of its acceptance is necessary.</p>

<p>1. Evidence of Value;. Harmless Eeeoe. Where both competent and incompetent evidence is received as to the value of property, the latter placing the valuation no higher than the former, and 1 neither is contradicted, and the value as found t>y the jury is less than that warranted by the competent testimony, the admission of the incompetent evidence is harmless error.</p> <p>2. Harmless Error. Where a litigant relies upon the common law of a sister state, he is not prejudiced by the rejection of evidence to prove such law, where the court embodies such law in an instruction to the jury as a part of the law of the case.</p> <p>3. Evidence examined, and held sufficient to sustain the verdict.</p>

<p>Error to the district court for Sarpy county: Alexander C, Troup, Judge.</p>

<p>1. Instructions. A party is entitled to have the jury instructed with reference to his theory of the case, when such theory is presented and supported by competent evidence</p> <p>2. Contracts: Competence. In order to make a valid contract the minds of the parties must meet; and if one mind is so weak, unsound or diseased that the party is incapable of understanding the nature and quality of the act to be performed, or its consequences, he is incompetent to make a valid contract, whether such state of his mind be the result of sickness, accident or voluntary intoxication. Johnson v. Harmon, 94 U. S. 371.</p>

<p>Contracts: Validity. An appropriation by the legislature of $80,000 for “240 steel cells and sewerage” for the penitentiary does not necessarily require that sewerage must be put in all cells contracted for, but leaves a discretion in the board of public lands and buildings so that a contract to construct the 240 cells will not be held void because it provides that six of such cells may be without sewerage.</p>

<p>Error to tbe district court for Douglas county : Willis G-. Sears, Judge.</p>

<p>Error to the district court for Hall county: James N Paul, Judge.</p>

<p>1. Possession of real estate is some evidence of title, but evidence of possession is not sufficient of itself to establish a freehold estate.</p> <p>2. Intoxicating Liquors: License: Evidence. In a hearing upon a remonstrance against granting a license for the sale of liquor, a witness who testifies that the petitioners told him they were freeholders, and that he examined a list of freeholders of a village prepared by the county clerk, does not thereby qualify himself to testify who the freeholders of the village are.</p>

<p>Appeal from the district court for Douglas county: 1~.ee S. Estelle, Judge.</p>

<p>1. Indemnity School Lands: Rights oe Occupants. By the act of 1875, entitled “An act authorizing parties living on school lands selected in lieu of sections 16 and 36 to purchase the same when the state acquires title” (Comp. St. 1897, ch. 80, art. IV, sec. 4), persons who complied with the act had a preference right of purchase or lease of land known as indemnity school land, and had title to the improvements made by them thereon.</p> <p>2. -: -. Occupants of indemnity school lands who had complied with the act of 1875 before the repeal thereof were entitled to have the land appraised separately from the improvements, and to be given an opportunity to lease the land upon such appraisement before being ejected therefrom.</p> <p>3. -: Estoppel. The fact that the occupant of indemnity school land has attempted to make entry thereof under the homestead laws of the United States, and has, in good faith, contested the right of the state to the same as indemnity school lands, will not estop him to assert his right under the act of 1875 relating to the improvements of actual settlers upon lands so obtained by the state.</p>

<p>• Appeal from the district court for Douglas , county: AbRaham L. Sutton, Judge.</p>

<p>ORIGINAL application for a writ of mandamus to compel respondents to admit children of relators to the public schools.</p>

<p>Application of Eugene Burton for admission to the bar.</p>

<p>ERROR to the district court for Lancaster county: Edward P. Holmes, Judge.</p>

<p>Appeal from the district court for Lancaster county: Edward P. Holmes, Judge.</p>

<p>ERROR to the district court for Thurston county: Gut T. Graves, Judge.</p>

<p>Penal Statute: Construction. The provisions of a penal statute will not he extended by construction so as to. apply to persons not clearly within its terms.</p>

<p>1. Dipsomaniac law: CoMn'ifUOxrow. The provisions of chapter 82, laws 1905 (Comp. St. 1905, ch. 40, secs. 62-69), known as the “Dipsomaniac Law,” are in vari materia with other laws providing for the detention, coro and discharge of persons committed to the hospital for tho insane, and must be construed in connection therewith,</p> <p>2. Discharged Patient. A person who has been confined in the hospital for the insane under the provisions of said act until he has been cured may not be subjected to further restraint without new cause.</p> <p>3. Constitutional Daw. Section 7, ch. 82, laws 1905, held unconstitutional, as in violation of the right to personal liberty.</p>

<p>Appeal from the district court for Hamilton county: Benjamin F. Good, Judge.</p>

<p>Election of Remedies. A suit by an administrator of a deceased employee of tbe Chicago, Burlington & Quincy Railroad Company, who was a member of the relief department of that company] to recover damages, under the statute, for wrongfully or negligently causing the death of such employee, is a bar to a subsequent action upon the membership certificate in said department, when the administrator is the same person named as beneficiary in the contract.</p> <p>1. Contracts: Remedies. Under a contract of membership in the relief department of the Chicago, Burlington & Quincy Railroad Company, which provided that the receipt of benefits by the beneficiary should bar all actions for damages arising from the death of the member, the beneficiary, after receiving the benefit provided for in the certificate of membership, cannot maintain an action to recover damage for herself caused by such death; but the receipt of such benefit will not bar her action as adminis-tratrix of the estate of the deceased for the benefit of her minor children.</p> <p>2.-: Forfeiture: Public Policy. The provision in a contract of membership in the relief department that, “if any suit at law shall be brought against said company for damages arising from or growing out of” the death of the member, the benefit otherwise payable shall thereby be' forfeited, is against public policy and will not be enforced.</p>

<p>Principal and Surety: Discharge. If a creditor to whom two persons are obligated, one as principal and the other as surety, release the former he also discharges the latter, and the same principle is applicable when the person released is, as to the creditor, a surety only, if he is known to be ultimately liable to the party not formally discharged. The creditor cannot intentionally deprive his debtor of his indemnity, and still hold him to his obligation.</p>

<p>1. Trial: Reply. A trial judge does not commit prejudicial error by refusing to strike from a reply allegations of new matter already embraced in tbe issues raised by tbe petition and answer, and therefore admissible in, evidence without further pleading.</p> <p>2. Issues: Verdict: Indemnity. Where the issue is as to whether a certificate of deposit was issued against a deposit in a bank, and the general verdict is for the plaintiff, based upon his denial that such instrument ever existed, the court need not require indemnity against such alleged outstanding instrument</p> <p>3. A cross-examination should be confined to the subject matter of the examination in chief.</p>

<p>ERROR to the district court for Lancaster county: Albert J. Cornish, Judge.</p>

<p>1. Vendor and Purchaser: Quitclaim. A purchaser of real estate, who takes by quitclaim deed, takes subject to all existing equities against the grantor.</p> <p>2. Wills: Probate. The county court has original jurisdiction in the probate of a will, and its order admitting a will to probate is conclusive, unless by a direct proceeding, by appeal, or otherwise, it is reversed. Loosemore v. Smith, 12 Neb. 343, followed and approved.</p> <p>3. Trusts: Power to Mortgage. Where a trust is created for the support and maintenance of the beneficiary, neither the trustee nor the beneficiary bas tbe power to assign or mortgage tbe trust estate, without sucb power is expressly conferred in tbe instrument creating tbe trust.</p>

<p>Instructions examined, and held erroneous.</p>

<p>Error to the district court for Douglas county: Howard Kennedy, Jr., Judge.</p>

<p>Error to tbe district court for Lancaster county: Lincoln Frost, Judge.</p>

<p>Trial: Question for Jury. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether or not there was negligence, the determination of the matter is for the jury.</p>

<p>' Appeal from tbe district court for Polk county: Arthur J. Evans, Judge.</p>

<p>1. Wills: Sion atuse. A testator, being unable to write his own name, said to the draftsman of his will, in the presence of two witnesses: “You know I cannot write. You will have to sign it for me.” Held, That this was a sufficient request to authorize the draftsman to sign the testator’s name.</p> <p>2. Nonexpert witnesses called upon the question of the mental capacity of a testator must state the facts upon which their opinion of incapacity is based.</p> <p>3. Evidence examined, and held insufficient to show either mental incapacity or undue influence.</p>

<p>Appeal from tbe district court for Richardson county: William H. Kelligar, Judge.</p>

<p>Appeal from tbe district court for Lancaster county: Edward P. Holmes, Judge.</p>

<p>Appeal from the district court for Holt county: James J. HARRINGTON, JUDGE.</p>

<p>Appeal from the district court for Lancaster county: Edward P. Holmes, Judge.</p>

<p>Cities: Public Works: Liabilities. Where a city in the erection of a public work exercises reasonable care and judgment, and adopts plans approved and recommended by engineers having all the knowledge that skill' and experience in such work would naturally give them, it should not be held liable in damages on account of an alleged defect in the plan, unless the construction is so manifestly dangerous that all reasonable minds must agree that it was unsafe.</p>

<p>Appeal from the district court for Kearney county: Ed L. Adams, Judge.</p>

<p>Banks: Drafts: Limitations. Where the holder of a bank draft neither demands payment of the bank cn which it is drawn nor takes any other step to secure payment within five years from the time it came into his possession, his right of action against the bank issuing the draft because of the failure of the bank on which it was drawn to pay the same when it was presented is barred by the statute of limitations.</p>