Volume 84 — Nebraska Reports

<p>Trial: Instructions. It is not error to refuse an instruction which permits a jury to base any of its findings on their belief, unless such belief is required to be founded upon a consideration of the evidence.</p>

<p>1. Ejectment: Equitable Defenses: Trial to Court. In ejectment, when the defendant prays for affirmative equitable relief and pleads facts entitling him thereto, such issues are triable to the court without a jury.</p> <p>2. -: Landlord and Tenant: Defenses. The general rule that plaintiff in ejectment must recover on the strength of his own title is not applicable when the defendant obtained possession as tenant of the plaintiff and refuses to vacate at the expiration of his lease. In such case the defendant cannot acquire and set up a superior outstanding title against his landlord until he has first surrendered possession, unless such purchase was necessary to protect his leasehold possession.</p> <p>3. Guardian and Ward: Sale of Land: Oath. A sale of real estate by a guardian is void, if he does not take and subscribe the oath prescribed by section 55,, ch. 23, Comp. St. 1907, before he fixes upon the time and place of sale.</p>

<p>I. Pleading: Construction. In an action against a railroad company, plaintiff alleged the purchase and possession of a mileage ticket, the possession of a freight train permit, and that defendant, disregarding its duties as a common carrier of passengers, wrongfully ejected him from a caboose attached to one of its freight trains, but did not allege any contract to carry him as a passenger or any breach thereof. Held, to state a cause of action ex delicto and not ex contractu.</p> <p>2. Carriers: Regulations. Railroad companies may properly designate on what trains passengers may be carried and may exclude passengers from unscheduled extra freight trains.</p> <p>3. -: License: Revocation. A permit issued by a railroad company without consideration, which authorized its train operatives to carry the holder of the permit on freight trains, is a mere license and may be revoked at any time when the holder is not actually a passenger under it.</p>

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

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

<p>Appeal from the district court for Boyd county: James J. Harrington, Judge.</p>

Original application for a writ of mandamus to compel respondent, as state treasurer, to countersign a warrant drawn on the university temporary fund.

<p>Rehearing of case reported in 79 Neb. 276.</p>

<p>Appeal from the district court for Howard county: James N. Paul, Judge.</p>

<p>Rehearing of case reported in 82 Neb. 315.</p>

<p>Appeal from the district court for Wayne county: Anson A. Welch, Judge.</p>

<p>Appeal from the district court for Dixon county: Guy T. Graves, Judge.</p>

<p>Appeal from tbe district court for Red Willow county: Robert C. Orb, Judge.</p>

<p>Error to tlie district court for Kearney county: Harry S. Dungan, Judge.</p>

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

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

<p>Appeal from the district court for Thurston county: Guy T. Graves, Judge.</p>

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

<p>Appeal: Evidence. “Questions of fact, and upon conflicting testimony, are to be decided by the trial jury, and a verdict will not be set aside on the ground of want of sufficient evidence to support it unless the want is so great as to show that the verdict is manifestly wrong.” Sycamore Marsh Harvester Go. v. Grunctrad, 16 Neb. 529.</p>

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

<p>Replevin: Action on Supersedeas Bond: Defenses. In. an action of replevin, judgment went against the plaintiff for a return of the property, for damages for wrongfully withholding the same, and for costs. Plaintiff executed a supersedeas bond intending to appeal to the supreme court, but no appeal was perfected. In a suit on the bond against the surety, he pleaded and proved an offer to return the property in substantially the same condition as when taken. Held, That this was a good defense to the extent of the value of the property fixed by the judgment in the replevin action.</p>

<p>Insurance: Transfer of Title: Notice. In a suit on fire insurance policies covering certain personal property, and conditioned that a change in the title of the property should avoid the policy, notice to the company of a hill of sale made hy the insured to a bank was attempted to he shown from the knowledge of such hill of sale possessed hy the agent of the company, who at the time was also assistant cashier of the hank. Held,, That, while notice to an agent will generally he imputed to his principal, the rule does not apply where the agent’s duty to his principal is opposed to his own interest or conflicts with the interest of another party for whom he acts in the transaction where knowledge is obtained.</p>

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

<p>Appeal from the district court for Douglas county: Howard Kennedy, Judge.</p>

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

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

<p>1. Master and Servant: Injury: Sudden Danger. An accident caused by the caving in of the wall of a deep trench cannot be said to be the result of a sudden danger when the defects in the wall were recognized by all persons acquainted therewith, including the plaintiff, as a continuing threatening danger.</p> <p>2. Trial: Instructions. It is error to instruct that the burden is upon plaintiff to prove “all the material allegations of his petition”; but such error is cured by further instructions in which the jury are properly told to find for the plaintiff if they believe from the evidence that the necessary facts pointed out by the instruction have been established.</p>

<p>Deeds: Delivery: Evidence. The evidence relating to the delivery of a deed being conflicting, consideration is given to the conduct of the grantees in surreptitiously recording the deed, in order to determine the weight to be given to the evidence.</p>

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

<p>Intoxicating' Liquors: Pleading. In an action to recover the price of liquors sold under a contract, the plaintiff need not allege that he is a licensed liquor dealer.</p>

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

<p>Contract: Construction. Defendant agreed to pay plaintiff the difference between a certain sum and the amount of rental for which plaintiff would procure for defendant a lease on certain lands belonging to another. Held, That the contract was one to pay for services, and not to pay rent.</p>

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

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

<p>Carriers: Liability. A railroad company shipping stock accompanied by the owner is not liable for loss occasioned by excessive heat in transit, in the absence of competent evidence of negligence.</p>

<p>1. Appeal: Pleading: Review. Where both, parties to an action treated the case as though affirmative defenses in the answer were denied by a reply and tried the case upon that theory, this court on appeal will treat the case as though such reply had been filed.</p> <p>2. Parol Evidence: Written Contracts. A written contract cannot be varied or contradicted by parol evidence of a prior or contemporaneous oral agreement between the parties.</p> <p>3. Joint and Several Contracts: Release. Where a contract, joint and several in its form, provides that each of the obligors shall perform certain specific obligations, a release of one of the obligors will not discharge the others from liability on their separate obligations contained in the contract.</p> <p>4. Contracts: Limitation op Actions. Where a written contract provides that the obligors shall furnish certain items annually during the lifetime of the obligee, in an action on such contract the statute of limitations may be pleaded as a defense to all items which should by the terms of the contract have been furnished more than five years previous to the commencement of the action.</p> <p>5. Infants: Conte acts: Disaebtrmxnce. In order to avoid liability upon his contract, an infant must disaffirm within a reasonable time after becoming of age.</p>

<p>1. Appeal: Final Judgment. A cause is not reviewaWe in this court on appeal unless a final order or judgment has been rendered and entered in the district court.</p> <p>2.-: -. A final judgment is not disclosed by a journal entry which merely recites the submission of the cause to the court and concludes in the following language: “The court finds for the defendant and judgment of dismissal. 'Plaintiff excepts to findings and judgment.”</p>

<p>Appeal from tbe district court for Dawson county: Bruno O. Hostetler, Judge.</p>

<p>County Courts: Jurisdiction: Title to Realty. Under section 16, art. VI of the constitution, denying to county courts jurisdiction in actions in which title to real estate is sought to be recovered, or may be drawn in question, a county court does not have jurisdiction in an action to recover damages for a breach of covenants of warranty and against incumbrances, where the breach complained of consists of removal of buildings and fences by a tenant of the covenantor under a paramount title.</p>

<p>1. Appeal: Findings. A finding of tbe district court based on conflicting evidence in a law action will not be disturbed on appeal unless such finding is manifestly wrong.</p> <p>2. Broker’s Contract: Description. A broker’s contract for tbe sale of land is not void for uncertainty of description, if the contract contains data from which the land may be identified and ascertained with certainty.</p> <p>3. Estoppel. Where a party gives a reason for his conduct and decision touching anything involved in a controversy, he cannot after litigation has begun change his ground and put his conduct upon another and different consideration. He is not permitted thus to mend his hold.</p>

<p>Appeal from the district court for Douglas county: Howard Kennedy, Judge.</p>

<p>Appeal from the district court for Keya Palm county: James J. Harrington, Judge.</p>

<p>1. Cities: Claims: Allowance: Reconsideration. The mayor and council of a city of the second class under 5,000 inhabitants, if not restricted by any rule adopted by them, may reconsider their action in allowing a claim against the city at any time before the claimant has, in reliance upon their action in allowing such claim, changed his position to his own disadvantage.</p> <p>2. -: -: -. Section 80 of the charter act of cities of the second class under 5,000 inhabitants (Comp. St. 1905, ch. 14, art. I), providing that costs shall not be recovered in an action against the city upon an unliquidated claim unless the same is first presented to the mayor and council for audit, does not operate to make their action upon such claim judicial, nor to give their decision the effect of a judgment.</p>

<p>1. Notes: Defenses: Unlawful Consideration: Evidence. In an action upon a note given for the benefit of a girl 15 years old, ostensibly to compromise bastardy proceedings instituted by her against the defendant’s son, a defense that a written agreement was signed by her, in which she unlawfully contracted not to testify in a possible prosecution for statutory rape, is overcome by evidence that the plaintiff did not understand the meaning and effect of the written contract, but signed the same upon the assurance of the defendant’s attorney that it settled nothing but the bastardy proceeding.</p> <p>2. -: -: -. The settlement of bastardy proceedings, brought by an infant pregnant with an illegitimate child, is a sufficient consideration for a promissory note; and it is no defense to such note that the mother and guardian of such infant made an unlawful agreement not to prosecute the putative father for statutory rape, unless such infant knowingly participated in such unlawful agreement.</p>

<p>1. Appeal: Motion foe New Trial. Where a motion for a new trial does not include a complaint that any error was committed during the trial, this court will not review errors alleged to have been committed in the rejection of relevant testimony.</p> <p>2. Replevin: Question for Jury. Where the evidence establishes title in the plaintiff to the property replevied, and the temporary right of possession in the defendant, the court should submit to the jury the value of defendant’s right of possession.</p> <p>3. Appeal: Instructions: Motion fob New Trial. Where an instruction given by the court might have been conveniently divided into two paragraphs, but the district judge failed to number the same separately, the party excepting to such instruction will not be required to separately object to the different paragraphs thereof in the motion for a new trial as a condition of his right to have , error committed in giving the same reviewed by this court.</p> <p>4. Partnership. The sharing of gross returns, with or without a common interest in property from which the returns come, does not of itself create a partnership.</p>

<p>1. Divorce: Pleading: Res Judicata. Where a wife brings a suit for divorce on the ground of cruelty, and such suit is finally determined against her on the merits, she cannot afterwards, in a suit for divorce brought by her husband charging her with desertion, plead the facts upon which she depended to establish the charge of cruelty as an excuse for such desertion.</p> <p>2. -: Alimony: Review. Where a wife was the recipient of an income sufficient for her support, and much larger than could be derived from the property of the husband, and the husband shortly before their separation accounted and paid to her the entire amount of the income derived from her property during the existence of the marriage relation, a judgment of the district court granting a divorce to the husband for the wife’s desertion will not be reversed nor modified because such court refuses to allow the wife alimony.</p> <p>3.-: Custody ox Child. An award of the custody of an infant child made upon granting a divorce, where neither parent is shown to be disqualified, should be made subject to the further order of the court.</p> <p>4. --: Suit Money. The amount of money to be allowed a wife to pay the expenses of defending a suit for divorce is largely within the discretion of the district court, and its action will not be reviewed where it does not appear that the wife has been hampered in making her defense, or is financially unable to pay expenses necessarily incurred.</p>

<p>1. Executors and Administrators: Sale op Land: Assumption op Mortgage. A purchaser at an administrator’s sale who assumes a prior mortgage on the land does not thereby incur ahy obligation to an heir who repudiates the sale on the ground that the property was the homestead of the deceased.</p> <p>2. Remainders: Incumbrances: Purchase by Third Person. A party who sustains no fiduciary relation to nor privity of estate with a remainderman may lawfully purchase a mortgage which is a paramount lien upon the property and have .the same foreclosed with the purpose of obtaining a title good as against such remainderman.</p>

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

<p>Appeal from the district court for Dakota county: Anson A. Welch, Judge.</p>

<p>1. Master and Servant: Fellow Servants. An employee who is entrusted hy his master with power to direct and control the work of other servants, and to whom is committed the duty of seeing that the appliances to be used and with which such other servants are to work are kept in safe condition, is not as to such duties a fellow servant.</p> <p>2.-: Duty op Master: Instructions. Under the circumstances as developed by the issues and evidence in this case, an instruction is not erroneous which informs the jury that it was the duty of the master to furnish a reasonably safe working place for Ms servants.</p> <p>3. Appeal: Affirmance. Where instructions of the court fairly submitted the issues of fact and the law to be applied to the jury, the verdict, if supported by the evidence, will be sustained.</p>

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

<p>1. Tax Sale: Validitt. A county treasurer cannot make a valid public or private sale of real estate for the nonpayment of delinquent taxes due thereon, unless in such sale are included all taxes, with interest and costs, then delinquent against such real estate. Adams v. Osgood, 42 Neb. 450.</p> <p>2. -: Effect. A sale of real estate for delinquent taxes for less than the amount of taxes, interest and costs due thereon is not a sale of the land. It is only a sale of the taxes, and its only effect is to transfer the lien of the county to the purchaser, who may enforce his lien by proper foreclosure proceedings.</p> <p>3. Taxation: Void Sale: Foreclosure of Lien: Redemption. Where the purchaser at a void administrative sale of real estate for taxes brings an action to foreclose the tax lien and obtains a decree under which the land is sold, the sale so made is a judicial sale, and does not become final and Complete until confirmation thereof by the court. In such a case the two years given the owner to redeem dates from such confirmation, and an action to redeem may be brought at any time within said period.</p>

<p>1. Judgment: Revivor: Defenses. Upon proceedings to revive a dormant judgment -which is valid upon the face of the record, no objections will be heard which seek to go behind the original judgment.</p> <p>2.-: -: Defenses on Appeal. On an appeal to a reviewing court from an order reviving a dormant judgment, where neither the transcript nor the bill of exceptions contain the pleadings in the case in which the judgment sought to be revived was rendered, it will be presumed that they were sufficient to sustain the original judgment, and a defense of coverture interposed for the first time in the revivor proceedings cannot be considered.</p> <p>3. Appeal: Judgment : Revi von: Issues. Where, on the trial of an application to revive a dormant judgment, the proceeding has been treated by the parties and the action tried as though the matters of defense were properly put in issue by a reply, it will be so treated by a reviewing court.</p>

<p>1. Libel: Ambiguous Language: Question por Jury. In civil actions for libel, the court usually decides whether tbe words are actionable per se, but where they are ambiguous or are susceptible to two interpretations, and there is any reasonable doubt as to their true construction, it is for the jury to say what meaning such words would have fairly conveyed to their minds.</p> <p>2. Pleading: Construction on Appeal. Where an answer is not attached either by motion or demurrer, but is treated by the plain.tiff as sufficient, and a trial is bad without objection on the issues raised thereby, it cannot be successfully attached for the first time1 on appeal to the supreme court.</p> <p>3. Evidence examined, and found' sufficient to sustain the judgment of the district court.</p>

<p>Pure Food Law: Violation. S. &> Company, a corporation, cured hams and sides of bacon for food at its packing house in South Omaha. . To preserve their value as food products, prevent shrinking by evaporation, and protect them from dust, dirt and insects, part of them were wrapped with cloth and paper, and each package was correctly branded as to contents. The packages were shipped to Lincoln, Lancaster county, Nebraska, and a ham and side of bacon were there sold by a distributing agent at their actual gross weight to a customer, who purchased them in that form in preference to purchasing unwrapped meats., which were also on sale at the same place, and for the same price. Held, That the transaction was not a violation of the provisions of chapter 63, laws 1907, commonly known as the “Pure Food Law,” as it stood prior to the amendment of 1909.</p>

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

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

<p>1. Forfeitures are not looked upon with favor by the courts, and will not be enforced beyond the strict letter of the agreement.</p> <p>2. School Lands: Lease: Formittjbe: Redemption. A lessee of state school lands whose lease was executed irarsuant to the act of February 24, 1883, agreed in writing that, “if default is made' in the semiannual payments, in said lease described, I agree that this lease may be forfeited by said board without further notice to me or an action at law.” Held, That the lessee did not thereby waive his right under the statute to redeem from the forfeiture.</p>

<p>Guardian and Ward: Accounting : Attorney’s Fees. The unlawful carnal knowledge of a feeble-minded or insane woman by an adult male person constitutes a felony, if the man has knowledge of the mental condition of the woman. If by virtue of such criminal intimacy the woman becomes pregnant and a suit in filiation is instituted, neither the county attorney nor his deputy is entitled to receive a fee for representing the woman therein, and the good faith of the attorney will not justify the guardian of the woman in paying such fee.</p>

<p>1. Bills and Notes: Alteration. A written agreement modifying tlie terms of an accepted bill of exchange and securely glued thereto is a part thereof, and cannot be lawfully detached therefrom without the maker’s consent.</p> <p>2. -: -. If such contract be unlawfully detached from the note, 'an innocent holder of the bill in due course, may, under section 9322, Ann. St. 1907, recover according to the import of the entire contract, but no further.</p>

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

<p>1. Principal and Agent: Profits. All profits made or advantage gained by an agent in the execution of his agency belong prima facie to his principal.</p> <p>2. -: -: Burden of Proof. And if the agent justifies the retention thereof on the theory that his principal agreed thereto, the burden is on the agent to prove said defense.</p> <p>3.-: Sale of Property: Burden of Proof. An agent cannot, directly or indirectly, lawfully have an interest in the sale of the property of his principal without the latter’s consent freely given after full knowledge of all facts known to the former; and, if a contract is made in regard thereto after said agency is created, the burden of proof is on the agent to show the knowledge and consent of his principal.</p> <p>4. Appeal: New Trial: Discretion of Court. The order of a district court granting a new trial at the same term a verdict is rendered will not be set aside, unless it clearly and unequivocally appears that there did not exist any tenable ground to support said order, but that the court thereby abused its discretion.</p>

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

Original action by the state to restrain defendant from making any contract in violation of the statute as to rebates, the giving of passes, or the two-cent fare act. Defendant demurred.

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

<p>Appeal from the district court for Sarpy county: Howard Kennedy, Judge.</p>

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

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

<p>1. Appeal: Submission op Case. It is error to submit a cause of action to the jury when there is no evidence to sustain it.</p> <p>2. Evidence of Value. A farmer who is engaged in raising farm crops and live stock is competent to testify to the value of such crops and live stock.</p> <p>3. -. A farmer who has resided upon his farm for many years, and is actively engaged in agriculture, is competent to testify as to the value of his land and the crops raised thereon by him.</p> <p>4. -. ' A farmer actively engaged in agriculture, and who is acquainted with a particular tract of land, and has a knowledge of the value of lands in its vicinity, is competent to give an opinion as to the value of the particular tract.</p>

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

<p>Opinion on motion for rehearing.</p>

<p>Taxation. The decision of the supreme court in the1 case of Nebraska Telephone Co. v. City of Lincoln, 82 Neb. 59, involving principles similar to those involved in this ease, approved and followed.</p>

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

Original application in the nature of quo warranto to determine the right of respondent to the office of judge of the supreme court.

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

<p>1. Cities: Void Contracts: Liability. A municipal corporation by contract obtained tbe use of an asphalt plant for the purpose of repairing its paved streets. In making the contract the provisions of the city charter were not complied with, and the contract was therefore void. Held, notwithstanding that fact, thac the city was liable for the reasonable value of the use of the plant while making such repairs.</p> <p>2. Evidence examined, and found sufficient to sustain the judgment of the district court.</p>

<p>Rehearing of case reported in 82 Neb. 298.</p>

<p>1. Appeal in Equity. While it is the duty of this court upon appeal in an equity case to pass upon the evidence and reach its own conclusion thereon, still, in ordinary cases, where the evidence is entirely oral and the trial court may he presumed to have had a general local knowledge of the parties, the witnesses and the subjects of controversy, the finding of the trial court is entitled to careful consideration.</p> <p>2. Evidence examined, and held to sustain the judgment of the trial . court.</p>

<p>1. Appeal: Evidence. A verdict upon conflicting evidence will not be set aside, where there is sufficient evidence to support it.</p> <p>2. Street Railways: Negligence: Question fob Just. Where there is evidence tending to show that the plaintiff was negligently driving at a trot across a street intersection without observing a street ear which was approaching at a right angle, that the motorman saw that the car would strike plaintiffs team unless stopped, and that he might have stopped the car by the exercise of ordinary care, it is not error to submit to the jury the question of the existence of negligence in thus failing to stop the car.</p>

<p>1. Evidence: Admissibility. In an action to recover the contract price of a steam heating plant, where the defense is that the apparatus is worthless and not according to contract, hearsay testimony of an opinion expressed by a workman on the job, after the completion of the plant and its surrender to the defendant, held to he inadmissible.</p> <p>2. Sales: Wabeanties: Instructions. In such an action, the rule as to substantial performance applies, and the instruction set forth in the opinion is a correct statement of the law.</p>

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

<p>1. Insurance: Payment of Premiums. A by-law of a mutual hail insurance company organized by virtue of the laws of Nebraska providing that, if a member does not pay the premium on his policy by November 1 of the year in which he is insured, he will not be entitled to participate in the fund provided that year for the payment of losses, is a reasonable provision and will be enforced.</p> <p>2.-: -. With such a by-law in force, if a member executes a promissory note for his premium, and before it becomes due the crops described in his policy are damaged by hail, he will not be permitted to withhold payment of his premium, even though his loss exceeds the amount of his note; and, if he fails during the entire year for which he is insured to pay said premium, the company will be released from all obligation on said policy, and he cannot two years later, by tendering payment of the note, create a liability on the policy.</p>

<p>1. Appeal: Evidence. Where evidence is conflicting but fairly submitted to the jury, a new trial will not be granted if there is sufficient evidence to sustain the verdict, even though this court may differ with the jury as to the weight of that evidence.</p> <p>2. -: Harmless Ekkob. If the evidence of a witness is erroneously excluded, but subsequently admitted, the cause will not be reversed because of said error.</p>

<p>1. Criminal Law: Instructions. If the court in its instructions purports to copy a section of the criminal code, the quotation should be correct; but if one word only of the statute is omitted, and the court in other instructions makes a correct concrete application of the law to the facts in the case, and it is apparent that the jury could not have been misled by the omission referred to, the error is without prejudice.</p> <p>2. Homicide: Instructions. If, in a case of homicide, the court instructs the jury to consider whether defendant “struck the fatal blow unlawfully,” the adjective “fatal” precludes the idea that the. jury are to consider merely the blow, and not its consequences.</p> <p>3. -: -. If a defendant in a homicide case testifies and ■does not state that he apprehended any serious injury fr.om the deceased, it is not error for the court to refuse to instruct that apprehension of such injury need not be well founded in fact t.o justify one assailed or threatened in acting upon appearances, if all of the facts and circumstances produced a reasonable apprehension in defendant’s mind of serious bodily injury from the deceased. Nor will this court in that state of the record scrutinize closely instructions submitting the law of self-defense to the jury.</p> <p>4. Criminal Law: Instructions. It is not error to refuse an instruction where the proposition of law therein contained is substantially covered in an instruction given by the court on its own motion.</p>

<p>1. Cities: Defective Sidewalks: Notice. A dangerous accumulation of snow and ice on a sidewalk was a defect therein within the meaning of section 107, art. II, ch. 13, Comp. St. 1905, exempting South Omaha from liability for damages arising from a defective sidewalk, unless notice of the accident was filed with the city clerk within 20 days.</p> <p>2. -: --: -. The charter of South Omaha as it existed in 1906 exempted the city from liability for damages arising from a defective sidewalk, unless notice of the accident was filed with the city clerk within 20 days, and the fact that an injury deprived a person of consciousness during that time did not create an exception to the provisions of the statute or excuse him for noneompliance with its terms. Schmidt v. Oity of Fremont, 70 Neb. 577.</p>

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

<p>1. Mechanics’ Liens: Materialmen. A materialman who, in good faith, furnishes material to a contractor, which is delivered to one of the owners upon the premises where the building is in course of construction, and upon representations' by the contractor that the material so furnished is to be used in the construction of such building, is protected in the filing of his itemized and verified account of material so furnished fop 60 days from the delivery of the last item furnished, and the filing and recording thereof in the proper office establishes his lien.</p> <p>2. -: Good Faith: Evidence. The evidence examined and discussed in the opinion held to establish the lona fldes of the materialman in the sale to the contractor and delivery of building material to the owner of the premises involved in the suit.</p> <p>3. Fraud is never presumed. Its existence must be clearly established by competent proof.</p> <p>4. Contracts: Construction. Statutes, ■ with reference to which contracts are made, enter into and become part of the contract. Sessions v. Irwin, 8 Neb. 5.</p>

<p>Appeal from tbe district court for Cedar county: Guy T. Graves, Judge.</p>

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

<p>1. Telegraphs: Failure to Deliver: Action: Evidence. Where the plaintiff had decided to consign a shipment of cattle to Chicago upon the receipt of a telegram regarding that market, which telegram the defendant negligently failed to deliver, he may, in an action against the defendant for such negligence, he permitted to testify that the effect upon his mind of the failure to receive the telegram was to cause him to divert a part of such shipment to another market.</p> <p>2. --: -: Notice. Knowledge of tlie probable result of a failure to deliver a telegraph message may be imparted to the telegraph company as well by circumstances as by formal or explicit notice or by the language of the message itself.</p> <p>3.-: -: Damages. Where the failure of the defendant to deliver a message caused the plaintiff to divert 'a shipment of stock to an unfavorable market, the measure of damages in an action against the defendant for such failure is the difference between the net sum the plaintiff received in such unfavorable market and what he would‘have realized in the market to which he would have shipped the stock except for defendant’s said failure.</p>

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

<p>Mandamus: Criminal Law: Stipulation. In an application for a mandamus to the police judge of the city of W. to compel him to strike out certain recitals in his, docket in a case wherein the relator was prosecuted on a charge of having committed a misdemeanor, such recitals being to the effect that a trial was had and certain witnesses sworn on behalf of the state, and also to insert in the docket a recital that no plea was entered to the complaint and no trial had, it was shown that three persons were jointly charged with similar offenses, that they entered their pleas of not guilty and demanded' separate trials, that one was tried, but before judgment it was agreed that the evidence would be the - same, from the same witnesses, and as to the same material facts, and that the evidence so introduced might be considered and treated as the evidence against relator, and on which a finding and judgment should be entered, the docket entry to contain a recital that the same witnesses were sworn, etc. The court found the defendant guilty and sentenced him to pay a fine, from which he appealed to the district court. Held, That there was no error in the judgment of the district court refusing the writ and dismissing the action.</p>

<p>1. Pleading: Suiticienct: Objections to Jurisdiction. Ordinarily the question as to whether a petition contains averments sufficient to state a cause of action will not he considered on a challenge to the jurisdiction of the court.</p> <p>2. -: -: -. But where an action is brought against a defendant in a county other than that in which he resides, and the summons which is served upon him is directed to and is served by the sheriff of the county of his residence, a challenge to the jurisdiction requires the court to examine the petition in order, to ascertain whether the action is one which can only he maintained in the county from which the summons was issued.</p> <p>3.-: -: Jurisdiction. If upon such examination it appears that the petition is insufficient to state such a cause of action, the court is without jurisdiction, and the objection should be sustained.</p>

<p>1. Sales: Contbaot: Remedies. Where the written contract for the sale of a horse, entered into without fraud, misrepresentation or deceit of any kind, contains all of the agreement between the parties thereto, including the remedy of the vendee in case the horse should fail to reach a certain standard as a foal getter, the court should not by implication extend to him another remedy, or make for the parties another and different contract.</p> <p>2. -: -: -. Where the only remedy provided by the contract in ease of failure is the right to return the horse and receive another in his place of equal value, the death of the horse, without fault on the part of the vendor, before there is any offer to return him, or demand that he be replaced by another, of equal value, does not entitle the vendee to maintain an action on the contract for damages for an implied breach of warranty.</p>

<p>1. Trial: Instructions: Reference to Pleadings. After instructing the jury as to the issues presented for their determination, it is not error for the court to refer them to the pleadings for a more specific statement, and allow them to take the pleadings when they retire to consider their verdict.</p> <p>2. -: -. The court in paragraph two of his instructions told the jury what the plaintiff was required to pro.ve in order to recover, and in another, paragraph informed them what would he a complete defense to the matters mentioned in the former paragraph. Held, That this did not render the paragraphs inconsistent with each other, and that when considered together they properly stated the law applicable to the facts of the case.</p> <p>3. Appeal: Instructions. An instruction not technically correct, but which is more favorable to the complaining party than to his opponent, affords him no ground of reversal.</p> <p>4. Libel and Slander: Malice: Evidence. In an action for slander, it is proper for the plaintiff to introduce evidence of the speaking of slanderous words other than those set out in the petition, but of similar, import, both before and after the commencement of the suit, when malice is a fact in issue, and to show the extent of the publication, but pot in aggravation of damages.</p> <p>5. Appeal: Instructions: Harmless Error. An instruction by which the jury were told that they might consider such statements for the purpose of showing malice, or in aggravation of damages, is not technically correct; but where it is apparent from the whole record, including the amount of the recovery, that the jury were not influenced by the use of the words, “or in aggravation of damages,” in arriving at their verdict, the giving of such an instruction is error without prejudice.</p> <p>6. Libel and Slander: Instructions: Damages. It is proper in such a casé for. the court to instruct the jury that in fixing the amount of damages they may take into consideration the present and future injury to the plaintiff.</p> <p>7. Trial: Special Findings: Estoppel. Where a party has requested the submission of special questions to the jury to be answered by them, and the answers returned are sustained by the evidence, he cannot be heard to complain of such answers.</p> <p>8. Libel and Slander: Damages. Held, upon the facts disclosed by the record, that^the verdict in this case is not excessive.</p>

<p>Appeal: Estoppel. A party, -who by execution collects and receives so much of a judgment for costs as is in his favor, waives his right to prosecute error from the part thereof which is against him.</p>

<p>Railroads: Destruction oe Crops: Damages. Ordinarily the measure of damages for the destruction of growing crops is their value at the time and place of destruction, but in case of the destruction of a permanent or perennial crop, such as alfalfa, the measure of damages is the difference between the value of the land before and after the destruction of the crop.</p>

<p>Appeal: Evidence: Discretion of Coubt. The admission or exclusion of collateral evidence is ordinarily within the sound discretion of the trial court, and, unless there has been an abuse of this discretion to the prejudice of a party, its action in this regard will be upheld.</p>

<p>1. Drainage Districts: Organization. A majority in interest of the owners resident in this state of any contiguous body of swamp or overflowed l^nds in one or. more counties in this state may sign articles of association for the formation of a drainage district under section 5561, Ann. St. 1907.</p> <p>2. -: -: Resident Owners. The words “resident owners,” as used in said section, held to mean “owners resident in this state.”</p> <p>3. -: -. The district court may refuse to order the formation of such a district if none of the petitioners for the district reside within the county or counties in which the proposed district lies.</p>

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

<p>Appeal from the district court for Scott’s Bluff county: Hanson M. Grimes, Judge.</p>

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

<p>1. Mortgages: Fobeclosube oe Junios Mortgage. In an action By a junior mortgagee to foreclose Bis lien, a senior mortgagee whose mortgage is past due is a proper party, hut, if the latter mortgage was given to secure the payment of negotiable promissory notes which were sold and transferred Before the commencement of said action, the transferee will not ordinarily he precluded By the foreclosure from .asserting his lien in an independent action.-</p> <p>2.-: Foreclosure: Redemption. If a junior lienor is not made a party to the foreclosure of a superior lien, he may redeem from the decree.</p> <p>3. -: -: Priorities. If a lienor holds a first and third lien on real estate, and forecloses without making the holder of an intermediate lien a party, the latter, after offering to redeem from the first lien, may prosecute an action in foreclosure, making the first named lienor, as well as the holder of the equity of redemption, a party, and the court in said action should settle the rights and priorities of all the parties, and, if all parties in interest are before the court, the first decree will be merged in the later one, and a recitation vacating the first decree will not he reviewed in this court where it is apparent that the parties thereto were not prejudiced thereby.</p>

<p>1. Vendor and Purchaser; Failure or Title: Remedy. If a vendee in possession of real estate, because of his vendor’s inability to convey a good title, sues to recover, back partial payments made upon the contract and money expended for improvements made by him on said real estate, and for taxes paid; and does not allege nor prove that defendant is insolvent, nor claim any other equity sufficient to overcome the general rule, he is not entitled to an unconditional money judgment.</p> <p>2. --: -: Damages. In an action by a vendee fon breach of a contract to sell real estate because defendant cannot convey a good title, if the former prevails, he is entitled to recover for all money paid by him, -whether interest or principal, upon said contract, the money paid by him for taxes on the land, for the reasonable value of the improvements that he in good faith placed upon the premises, with interest from the date of each expenditure made by him as aforesaid, and also such a sum as will indemnify him for the loss of his bargain.</p> <p>3. -: -: --. In such an action plaintiff will not be permitted to recover for premiums paid to insure such property while he had possession thereof.</p> <p>4. -: -: -: Set-Ore. As against the aforesaid items of damage, the vendor is entitled to set off the reasonable rental value of the premises while held by plaintiff, with interest thereon from the close of each year’s possession by the vendee. .</p>

<p>1. Statute of Frauds: Sale of Lands. The contract of an agent in the name of his principal, for the sale of lands in Nebraska, is void under the statute of frauds unless the former’s authority is in writing.</p> <p>2. -: -. A letter written by a landowner to a real estate broker, stating the terms upon which the former, is willing to sell his land, does not clothe the latter with authority to execute a contract in the former’s name for the sale of such real estate.</p> <p>3. Vendor and Purchaser: Offer: Acceptance. An acceptance of a written offer to sell land must conform strictly to the terms of such offer to create a contract.</p> <p>4. Statute of Frauds: Pleading. If plaintiff’s case is based upon a contract which he claims was executed by defendant’s authorized agent for the sale of real.estate in Nebraska, and the answer is a general denial of all allegations in the petition other than those relating to defendant’s title to said land, defendant is entitled to the protection of the statute of frauds.</p>

<p>1. Conditional Sales: Validity. “A condition in a contract of sale, whereby the title is to remain in the vendor until the full amount of the contract price is paid, is void as against purchasers and judgment creditors of the vendee in actual possession, unless reduced to writing, signed by the vendee, and a copy thereof filed with the county clerk or register of deeds of the proper county.” Johns & Bandy v. Reed, 77 Neb. 492.</p> <p>2. Evidence examined and set out in the opinion held sufficient to sustain the verdict of the jury and judgment of the court.</p>

<p>1. Cities: Streets and Sidewalks: Leasing. The charter of the city of Lincoln, giving the mayor and council supervision and control of all public highways and. public ground within the city, does not authorize them to enact ordinances for the leasing of space on the streets or sidewalks in front of business houses fon use by produce dealers or other merchants; such use of the streets and sidewalks being unlawful and constituting a nuisance per se.</p> <p>2- -• -: Obstructions. Whatever space in a public street of a city is set apart for the use of the public as a sidewalk, the public have a right to use in its entirety, free from any and all unauthorized obstructions, and it is the duty of the mayor and city council to see that it is kept in that condition.</p> <p>3. -; -: -: Action: Defenses. It is no defense to a party who is being proceeded against by a city for unlawfully obstructing a sidewalk that others are obstructing the walks in like manner.</p> <p>4. -: -: -: Estoppel. Nor is the city estopped by reason of its past failure to enfprce its ordinances against the obstruction of sidewalks from subsequently removing all obstructions therefrom.</p>

<p>Personal Injury: Negligence': Question fok Just. "Issues as to the existence of negligence and contributory negligence, and as to tbe proximate cause of an injury, are for the jury to determine, when the evidence as to the facts is conflicting, and where different minds might reasonably draw different conclusions as to these questions from the facts established.” City of Omaha v. Houlihan, 72 Neb. 326.</p>

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

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

<p>Fines: Collection. A police judge in cities of the second class having a population of more than 1,000 and less than 5,000 is authorized hy law to issue execution against the property of one who has been fined for a violation of city ordinances for the collection of such fine and accrued costs.</p>

<p>1. Cities: Defective Sidewalks: Liability. The. making, improving, repairing, keeping in repair and in a safe condition, of streets and sidewalks by a municipal corporation relate to its corporate interests only, and it is liable for. the wrongful or negligent acts of its agents in performing such duties. Burke v. City of South Omaha, 79 Neb. 793.</p> <p>2. -: -: Injury: Notice. Where a sidewalk is rendered temporarily dangerous by the positive negligent act of a city of the first class, and a person in passing over it, immediately or within less than 5 days thereafter, and in the absence of contributory negligence, receives a personal injury, the provisions of section 110 of the charter (Comp. St. 1907, ch. 13, art. I), requiring five days’ notice of the dangerous condition of the walk to be given the city before the accident, cannot be applied, and the city will be held liable for damages sustained by the person injured.</p> <p>3. --: - — : -: Contributory Negligence. Evidence examined and it is not found as a matter of law that plaintiff was guilty of contributory negligence.</p> <p>4. Appeal: Affirmance. There being no specific objections offered to instructions given, nor to the refusal of the trial court to give an instruction asked, and upon an examination of the whole record it appearing that the case was fairly submitted to the jury, and no prejudicial error is found to have been committed, the judgment of the district court will be affirmed.</p>

<p>1. Judgment: Validity: Collateral Attack. Where a court having jurisdiction of the subject matter of an action obtains jurisdiction of the parties by due service of process, or upon appeal, and after issue joined renders judgment upon an agreement made in court, the insufficiency of such agreement, or the want of authority of the attorneys making the same, will, at most, make the judgment erroneous, but not void and subject to collateral attack.</p> <p>2. Appeal: Appeal Bond: Liability oe Surety. The liability of a surety upon an appeal bond is not enlarged because the appellate court adds to the amount of the judgment below interest at the legal rate from the date of its entry.</p> <p>3.--: Discharge of Surety. An agreement between the parties to an appeal pending in the district court, without the knowledge or consent of the surety on the appeal bond, to the effect that judgment be entered against the appellant for a specified sum, with costs, based upon valuable considerations moving to each of the parties outside of the matters involved in the appeal, operates as a release of the surety on the appeal bond.</p>

<p>1. Sales: Warranty. Where a vendee induces a dealer in agricultural implements to order for him- a machine which the dealer has never previously sold or. handled, and as to which he neither has nor professes to have any knowledge as to whether it will answer the purpose for which it is purchased, except certain statements made hy an agent of the manufacturer, which statements he communicates to the vendee, at the same time expressly informing him that he has no personal knowledge in regard to the qualities of the machine and that it is sold without any warranty, and these facts are within the vendee’s knowledge at the time of the purchase, there is no implied warranty that the machine is reasonably fitted for the purpose for-which it is purchased. ,</p> <p>2. -: -. Where a known, described and definite article is ordered of a dealer, although it is-required for a particular purpose, still if the known, described and definite article be actually supplied, there is no implied warranty that it will answer the purpose of the buyer.</p> <p>3. Evidence examined, and held insufficient to sustain the verdict.</p>

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

<p>Appeal from the district court for Clay county: T.usr.m, G-. Hurd, Judge.</p>

<p>Appeal: Review. To justify a reversal of the judgment of the district court, error must affirmatively appear.</p>

<p>Appeal from the district court for Garfield county: James N. Paul, Judge.</p>

<p>Carriers: Delay in Shipment. Sections 10606 and 10607, Ann. St 1907, are valid, and in an action thereunder, where plaintiff fully proves all of the allegations of his petition, and defendant does not controvert said proof or establish any defense to the action, the judgment of the district court will be affirmed.</p>

<p>Appeal from the district court for Saline county: Leslie Gf. Hurd, Judge.</p>

<p>1. Garnishment: Rights of Assignee. Service of summons in garnishment upon a debtor of a solvent attachment defendant will not revoke an authority theretofore given by said defendant to his debtor to pay a part of said debt to a person not a party to the attachment suit.</p> <p>2. -: -. And in such a case the debtor will be justified in acting upon said instructions, if he retains in his hands twice the amount of the attaching creditor’s demand.</p> <p>3. Judgment: Parties. The mere fact that a person not a party to a pending suit employs counsel to assist in the defense thereof will not make him a party or privy to such proceedings, non estop him from questioning the issues determined therein.</p> <p>4. Pleading: Variance. “There can be no recovery if there is a material variance between the allegations and the proof. The allegata et probata must agree.” Elliott v. Carter White-Lead Co., 53 Neb. 458.</p>

<p>Appeal from the district court for Scott’s Bluff county: Hanson M. Grimes, Judge.</p>

<p>Appeal from the district court for Antelope county: Anson A. Welch, Judge.</p>

<p>1. Criminal Law: Selecting Jury. A judgment of conviction will not be set aside because of alleged error in overruling defendant’s challenges for cause to veniremen, where none of said persons sat upon the jury, and it does not affirmatively appear that they were peremptorily challenged hy him.</p> <p>2. -: -: Discretion of Court. The trial court is vested with great discretion in excluding veniremen or talesmen from a jury, and its rulings in that particular are not subject to review unless a fair jury was not obtained.</p> <p>3. Homicide committed in the perpetration of a robbery is murder in the first degree, and in such a case the turpitude of the act supplies the element of deliberate and premeditated malice.</p> <p>-1. Criminal Law: Opening Statement: Review. In a prosecution for the alleged commission of a crime, the defendant may waive his opening statement to the jury,, but if the court compels counsel, over, their objections, to make that statement, the error is without prejudice, unless it affirmatively appears from the record that defendant suffered some disadvantage thereby.</p> <p>5. Witnesses: Oath: Competency. An adult citizen of the empire of Japan is prima facie competent to take an oath and testify in the courts of this state. If a litigant conceives that such a witness does not understand, or will not give heed to, the oath administered, he may interrogate the witness before he is sworn, op prove his incompetency by other relevant evidence. If he fails to do so, the relevant testimony of the witness should be received.</p> <p>6. Criminal Law: "Witnesses: Examination. The trial judge in his discretion may refuse to permit a witness to testify in narrative form, and his ruling will not be reviewed unless that discretion was clearly abused.</p> <p>7. -: Evidence: Review. It is the province of a jury in a criminal case to try the issue joined by a plea of not guilty, and, if the evidence of the state uncontradicted will support a conviction, this court will not ordinarily interfere with a verdict against the defendant.</p>

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

<p>1. Appeal: Review. AVbere a jury in passing on issues of fact properly submitted by instructions renders a verdict supported by sufficient evidence, it will not be disturbed on appeal, unless manifestly wrong.</p> <p>2. --: -. On appeal a judgment should not he reversed for a ruling which is in no way prejudicial to the rights of appellant.</p>

<p>1. Highways: Dedication. “Where adjoining landowners place fences -and plant trees along the line between their lands in such a way as to leave an intervening space for public travel, and with the intention that it be used for that purpose, and the public enter upon and use the intervening space as a highway and continue in such use and enjoyment thereof for almost 20 years, it will be regarded as a highway by dedication.” Gassidy v. Sullivan, 75 Neb. 847.</p> <p>2. -: Prescription. Deviations of 20 feet from the line of public travel to avoid mud, pools, obstructions or encroachments will not necessarily prevent the establishment of a highway by prescription where the roadway has been used without interruption or substantial change for more than ten years.</p> <p>3. -: Prescriptive Rights. Prescriptive rights of the public in a road are not necessarily limited to the beaten track.</p>

<p>Replevin: Evidence. Where a sheriff seizes personal property under an execution, and a stranger to the process deprives him of his possession by a writ of replevin, the execution, though produced by the officer; at the trial of the suit in replevin, is not competent evidence of the officer’s possessory rights without proof of the judgment on which such execution was issued.</p>

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

<p>1. Evidence: Hypothetical Questions. The rule announced in Ham-Win v. State, 81 Neb. 148, that, “in propounding hypothetical questions to expert witnesses, it is allowable for each party to the controversy to submit such questions upon the theory of the case contended for by the side propounding them” does not mean that a party propounding hypothetical questions may do so upon a theory at variance with testimony which he himself has given, either in person or through other witnesses whom he has previously introduced.</p> <p>2. -: -. In such a case the questions must be so framed as to fairly reflect the party’s theory as shown by the 'facts admitted on proved by him.</p> <p>3.-: -. And where the party’s own evidence corroborates evidence which has been introduced by the other party to the action, such questions should fairly reflect all of the facts so admitted or proved by both sides.</p>

<p>1. “Forfeitures are looked upon by tbe courts with ill-favor, and will be enforced only when the strict letter of the contract requires it; and this rule applies with full force to policies of insurance.” Connecticut Fire Ins. Co. v. Jeary, 60 Neb. 338.</p> <p>2. Contracts: Forfeiture: Construction. “A clause stipulating for the forfeiture of a contract should not be aided or given effect by construction in a case where the plain meaning of the language used does not require it.” Jensen v. Palatine Ins. Go., 81 Neb. 523.</p> <p>3. Insurance Contract: forfeiture. It has become a settled rule in the construction of contracts of insurance that policies of insurance will be liberally construed to uphold the contract, and conditions contained in them which create forfeitures will be construed most strongly against the insurer, and will never be extended beyond the strict words of the policy.</p> <p>4. Insurance Policy: Coxsteuction. A policy of life insurance is not a contract of assurance for a single year, with a privilege of renewal from year to year by paying the annual premiums. It is an entire contract of insurance for life, subject, when so stipulated, to discontinuance and forfeiture for nonpayment of any instalments of premium. Such instalments of premium are not intended as the consideration for the respective years in which they are paid, but each instalment is in fact part consideration of the entire insurance for life.</p> <p>5. -: -. ‘A life insurance policy, when once it takes effect by payment of the first year’s premium and delivery of the policy, does not terminate at the end of the year, but it is a contract for the life of the assured. If the policy contains no provision for a forfeiture thereof by reason of a failure of the assured to pay subsequent premiums annually, a failure to pay such premiums on the day named will not constitute a forfeiture of such policy. All that the company can demand in such case is the right to set off against the amount of indemnity it has bound itself to pay the amount of the premiums remaining unpaid, with interest thereon.</p>

<p>1. - Mortgages: Foreclosure: Objections to Appraisement. “Objections to the. appraisement of real property under a decree of foreclosure must be made prior to the sale by a motion to vacate the appraisement.” Mills v. Hamer, 55 Neb. 445.</p> <p>2. -: -: Sale: Confirmation. “A foreclosure sale should be confirmed, notwithstanding the order of sale, issued by the clerk of the district court to the sheriff or other officer directing him to execute the decree, be returned more than 60 days from its date.” Amoslceag Savings Banlc v. HoVbins, 53 Neb. 776.</p> <p>3. -- — :--: -: Appraisement. Where appraisers make no deductions from the total appraised value of real property in a foreclosure proceeding, a failure to separately find the value of the interest of the owner is without prejudice and will not invalidate the appraisement, as the value of such interest would necessarily be the same as the appraised value.</p>

<p>1. Criminal Law: Indictment: Separate Counts: Verdict. In a criminal prosecution upon a complaint charging both an assault upon and rape of a female child under the age of 15 years, the jury may find the defendant not guilty of rape, but guilty of an attempt to commit rape.</p> <p>2. -: -: -: -. And in such a case the omission of the word '"commit” from such latter verdict, and the omission of the name of the person' upon whom such assault was made, are immaterial, when, following the words “that the defendant is guilty of assault with intent to rape,” the verdict contains the further words, “as charged in'the information.”</p> <p>3. Rape: Evidence. In the prosecution of a party for rape upon a female child under the age of consent, testimony as to improper conduct on. the part of the defendant, at other times than that charged, with the same child and of the same character named and set out in the information is properly received.</p> <p>4. Witnesses: Competency. In this state no age is fixed by the statute below which a child is presumed to be incompetent to testify, and there is no rule of law outside of the statute that a child six years of age is incompetent. In such a case, if the opposing party challenges such witness on the sole ground of age, without requesting an examination of such child by either court or counsel touching its competency, the objection is properly overruled.</p> <p>5. Criminal Law: Misconduct oe Counsel. Where, in the trial of a case, counsel of the respective parties engage in an altercation in the presence of the jury and are properly reprimanded by the court, and no request for. a special instruction on the subject is requested, no error can be predicated thereon.</p> <p>6.-: Remarks of Judge. And where in such a case the court expresses an opinion as to improper testimony sought to be elicited from a witness upon the stand, such action on the part of the court will not be held to be reversible error, unless the appellate court can say that it probably influenced the verdict of the jury.</p> <p>7.-: Total: Infant Witness. In a prosecution for statutory rape, where the prosecuting witness, a little girl eight years of age, is attended by a lady friend, who is permitted by the court to sit upon the witness stand in close proximity to such prosecuting witness while her, testimony is being given, and the court admonishes such lady that she is not permitted to make suggestions to the witness, and the record does not show any disregard of such admonition by the court, held, not erroneous.</p> <p>8.-: Verdict: Return. In a criminal prosecution, when the jury have agreed upon their verdict and are conducted into court by the oflicer having them in charge, the procedure in receiving the verdict is governed by section 486 of. the criminal code.</p> <p>9. -: Instructions. It is not error on the part of the court to refuse an instruction tendered by the defendant in a criminal prosecution, when the substance of everything in the proposed instruction which the defendant is entitled to have submitted to the jury is given by the court in an instruction upon its own motion.</p>

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

<p>1. Tax Sale: Redemption. Where land is sold at public sale, in pursuance of a tax decree obtained under the provisions of that part of the revenue law commonly called the “Scavenger, act,” for a less amount than the decree, interest and costs, such sale is a “premium sale” within the meaning of the act, whether there be but one bid or more than one.</p> <p>2. -: -. Under the provisions of the revenue law (Comp. St. 1907, ch. 77, art. IX), an owner who seeks to redeem land from a public tax sale, which has been sold in pursuance of a decree obtained thereunder for delinquent taxes, must pay the full amount of the decree, with interest as provided by law, and all costs.</p> <p>3. -: -. Where the owner of land that has been sold at public sale under a tax decree in pursuance of the revenue law fails to redeem from such sale by the payment of the full amount of the decree, interest, and costs, the purchaser is entitled to a confirmation of the sale, whether there has been one bid or a plurality of bids.</p> <p>4. -: -. A tender by the owner of land of the amount paid by the purchaser thereof at a public tax sale, which has been held in pursuance of a decree obtained under the provisions of the revenue act, together with interest, penalties, and costs, is not a compliance with the law, and does not entitle the owner to redemption of the tract so sold.</p>

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

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

<p>Rehearing of case reported in 83 Neb. 124.</p>

<p>1. Corporations: Contracts:' Authority of Agent. The agent or manager of a corporation organized under the laws of this state for the purpose of buying grain and live stock direct from producers, and selling and shipping the same to the general markets, and the operation of grain elevators to be used incidentally for that purpose, has no apparent authority to engage in speculations in grain and mess pork upon the Chicago board of trade; and where the evidence shows that no actual authority was given the agent to engage in such transactions, and they were carried on without the knowledge or consent of any of the officers of the corporation, it will not be bound thereby.</p> <p>2. -: -: Ultra Vires. A corporation so organized, with an. authorized capital stock of $10,000, and a limitation to the amount of its indebtedness to $2,000, has no power to engage in speculative transactions in mess pork and grairi upon the Chicago board of trade amounting in a single day to more than $10,000, and such transactions are ultra vires and void.</p> <p>3. Contracts: VAUDmr. The transactions in question examined, and held to be gambling transactions within the rule announced in Rogers & Bro. v. Marriott, 59 Neb. 759.</p>

<p>1. Information: Separate Counts: Election. Where an information contains two counts charging hut one offense, the prosecutor will not be required to elect on which count he will rely for a conviction. Gandy v. State, 8 Neb. 482.</p> <p>2. Assault and Battery: Self-Defense: Evidence. Where one charged with assault and stabbing with intent to wound pleads and attempts to prove self-defense as a justification, the state may prove the relative size and physical strength of the parties, together with the weakened physical condition of the complaining witness, as tending to show that the defendant had no reason to believe himself in imminent danger of death or great bodily harm at the time he committed the assault.</p> <p>3. -: Evidence: Collateral Transactions. It is proper in such a prosecution to exclude evidence of collateral transactions which do not warrant or justify the defendant in making the assault.</p> <p>4. -: -: Extent of Injury. It is not error, to permit the physician who attended the complaining witness, and ministered to him after he was stabbed by the defendant, to testify as to the nature and extent of the wound inflicted, together with his treatment of the same.</p> <p>5. -: -: Reputation. In such a case the defendant is entitled by way of justification to prove the general reputation of the prosecuting witness in the community where he resided as a violent, quarrelsome and dangerous man; but he is not entitled to prove specific acts occurring more than ten years previous to the alleged assault, with which the defendant had no concern.</p> <p>6. Criminal Law: Instructions. It is not error to refuse an instruction which is not a correct statement of the law applicable to the theory of the defense.</p> <p>7. Assault and Battery: Evidence: Reputation. In such a prosecution, where the defendant attacks the reputation of the prosecuting witness, and introduces evidence tending to show that his reputation in the community where he resides as a peaceable and law-abiding citizen is bad, the prosecution is entitled to contradict such testimony by the evidence of competent witnesses.</p> <p>8. Instructions examined, and found to contain no ■ prejudicial error.</p>

<p>1. Constitutional Law: Eminent Domain. That part of section 8605, Ann. St. 1907, authorizing the city council of cities of the first class to appoint a second set of assessors, which reguires them to proceed on the day following their appointment to meet at the place designated for the meeting of the first board of assessors, and proceed without further notice to appraise the damages to the owners of property condemned for park purposes, is unconstitutional, because it amounts to the taking of private property for .public use without due process of law.</p> <p>2. Injunction: Eminent Domain. Proceedings for the condemnation of property under the provisions above set forth may be enjoined.</p>

<p>1. Taxation: . Investment Company. A domestic corporation formed for the purpose of buying real estate, and whose whole capital is invested in land, is not “an investment company” under section 56 of the revenue law (Ann. St. 1907, sec. 10955).</p> <p>2. —-: Shakes oe Stock: Assessment. It is the duty of the holder of shares of stock of joint-stock or other, companies to list the same for assessment, “when the capital stock of such company is not assessed in this state.” Section 28 of the revenue law (Ann. St. 1907, sec. 10927).</p>

<p>Appeal from the district court for Colfax county: Conrad Hollenbeck, Judge.</p>

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

<p>Highways: Vacating: Discretion oe County Board. “The decision of the necessity or expediency of establishing, maintaining or vacating a public road is committed exclusively to county boards and other like legislative and governmental agencies, and is not subject to judicial review.” Otto v. Oonroy, 76 Neb. 517.</p>

<p>Insurance: Contract of Indemnity: Breach of Warranty. A ■written statement made by an employer to a bonding company to the effect that the accounts of applicant’s cashier have been examined upon .a certain date and were found to be correct, with cash and securities on hand to balance, which statement is intended to and does enter into a contract between said parties indemnifying the employer against said cashier’s dishonesty, and induces the execution thereof, is in the nature of a warranty, and, if false in a material part, will defeat recovery on the bond fon the delinquency of such employee.</p>

<p>Appeal from tbe district court for Colfax county: James G. Reeder, Judge.</p>

<p>1. Garnishment: Intervener: Burden of Proof. If a garnishee answers that it is indebted to the execution defendant who does not resist the proceedings, and a third person intervenes and claims the account, the burden is upon the intervener to establish his title to the fund in litigation.</p> <p>2. Evidence: Process: Presumptions. Officers are presumed to act according to law, and where an execution was issued and returned “nulla bona” on the 25th, and a summons in garnishment sued out the same day, but the evidence fails to establish whether the first named writ was returned before the latter one was issued, it will be presumed that the summons in garnishment was sued out subsequent to said return.</p>

<p>1. Notes: Bona Fide Purchasers. The indorsee of a promissory note, which was given in consideration for a right to make, use or vend a patented invention or one claimed by the payee to be patented, takes the paper subject to all defenses between the original parties, if at the time of his purchase he had knowledge of the consideration aforesaid, and none of the parties through whom he claims were in ignorance of that fact, even though the note was not indrrsed, “Given for. a patent right,’’ and he paid value for and purchased it before maturity.</p> <p>2. Evidence: Declarations. In a suit upon such an instrument, after it has been shown that plaintiff and his predecessors in title, before or at the time they acquired title thereto, had knowledge of the consideration for which it was given, the defendant may prove by a third party declarations of the payee made while in possession of the note and tending to impeach its validity.</p> <p>3. Notes: Validity: Intoxication. A promissory note, signed while the maker is intoxicated so that he is incapable of knowing or understanding the nature or quality of his act, if not thereafter ratified by him, but, on the contrary, promptly repudiated after he had recovered his senses and appreciated what had been done, is voidable, at his election, in the hands of an indorsee who is not an innocent holder thereof.</p> <p>4. -: Bona Fide Purchasers. Section 9255, Ann. St. 1907, has , not changed the law as announced in Dobbins v. Oberman, 17 Neb. 163.</p> <p>5. “Parol evidence is inadmissible to establish an oral agreement contemporaneous with the making of a negotiable instrument whereby said instrument was not to be negotiated.” Waddle v. Owen, 43 Neb. 489.</p> <p>6. Notes: Collateral: Rights oe Indorsee. If a note is valid between the original parties, an indorsee who holds it as collateral may recover, the face thereof with accrued interest, retaining any surplus as trustee for the party beneficially entitled thereto after his own claim is satisfied; but, if the note is invalid between the immediate parties, one who holds it as collateral security may only recover the amount of his claim to which said note is collateral.</p>

Original application for writ of mandamus to compel respondent to issue a warrant in payment of wages dm; employees of tlie Home for the Friendless.

<p>1. Contracts: Correspondence. By means of letters exchanged In due course of mail, parties may make a contract in writing without inserting all of its terms in a single instrument, and a receipt describing a definite, printed agreement and accepting its provisions may perform the office of a letter in that respect.</p> <p>2. Sales: Contract: Evidence. A special finding of a jury that a contract printed in the back of a book containing a cipher code and embodying uniform conditions of sale was executed by an importer of tropical fruits and a wholesale dealer therein, held to be sustained by the evidence in the record.</p> <p>3. Principal and Agent: Scope as Authority. An agent acting within the scope of his apparent authority, though outside of his actual authority, may bind his principal by acts affecting innocent third parties.</p> <p>4. Statute of Erauds: Statute of Another State. Where the Iowa statute of frauds is pleaded in Nebraska to defeat an Iowa contract, the law of that state controls as to such defense.</p> <p>5. Sales: Deuveby. Subject to exceptions, a general rule applicable to sales is that a delivery to a carrier is a delivery to the purchaser and consignee.</p> <p>6. -: Transfer of Title: Delivery. On a record showing that a wholesale dealer in tropical fruits at Council Bluffs ordered a can of bananas from an importer, knowing it was being shipped northward from the seaport at New Orleans under a bill of lading not disclosing a destination or consignee, the trial court prop erly held that the title was transferred in the hands of the carrier and the bananas delivered to the purchaser as soon as his name as consignee and the proper destination were inserted in the bill o" 'iding by order of the consignor after he accepted the order, , . being no contrary agreement, and the proof showing that :'.ie bananas at the time complied with the order as to quality and condition.</p>

<p>Appeal from the district court for Cuming county: Guy T. Graves, Judge.</p>

<p>Appeal from the district court for Nemaha county: John B. Raper, Judge.</p>

<p>Error to the district court for Madison county: Anson A. Welch, Judge.</p>

<p>1. Evidence: Experts. The opinion, of expert witnesses in a case involving the value of the services of an architect, based upon facts in evidence before the jury, need not be substituted by such jury for its own deliberate judgment.</p> <p>2. -: -: Value of Services. Where a witness skilled in architecture testifies solely as an expert regarding the value of the services of an architect, the same rule will be applied to his testimony that is ordinarily applied to the testimony of expert witnesses in other professional employments.</p> <p>3. -: -: -. A jury may decline to accept the opinion of expert witnesses upon the value of an architect’s services, even though uncontradicted, and in the light of their own experience and general knowledge, and in the exercise of their independent judgment, may base their verdict as to the value of such services upon their own deductions from all of the evidence before them of services performed.</p>

<p>1. Insurance: Place of Contract. Where the parties to an insurance contract are in different jurisdictions, the place where the last act is done which is necessary to the validity of the contract is the place where the contract is entered into.</p> <p>2. -: Local Contracts: Laws of Foreign States. Insurance business transacted in this state by New York insurance companies without any prevision that the New York laws shall govern is not subject to the provision of the New York statute requiring a notice to be mailed to the policy holder in that state as a condition of forfeiture for nonpayment of premiums.</p> <p>3. -: Premiums: Authority of Agent. The agent of an insurance company cannot by oral contract with the assured waiVe the express terms of the policy and extend the time of payment of a premium, when the policy provides that none of its terms can be varied or modified, nor any forfeiture waived nor premiums in arrears received, except by agreement in writing signed by the president, vice-president, secretary or assistant secretary.</p>