Volume 91 — Nebraska Reports

<p>Appeal from the district court for Lancaster county: Willard E. Stewart, Judge.</p>

<p>1. Mister and Servant: Injury to Third Person: Liability. To sustain a recovery for injuries caused by being run down by an automobile owned by the defendant, tbe plaintiff must show by a preponderance of tbe evidence that tbe person in charge of ' the machine was tbe defendant’s servant, and was, at tbe time of tbe accident, engaged in tbe master’s business or pleasure with the master’s knowledge and direction.</p> <p>2. Torts: Negligence: Liability. Tbe defendant agreed with a third party, for a stated monthly compensation, to take charge of his automobile, keep it at a garage, wash it, polish it, keep it ready for running at all times, and furnish a chauffeur to the defendant whenever he might desire to use his car. Defendant loaned the car to another, and the keepers of the garage sent it out in charge of their man for the use of the borrower. After such use, and while the chauffeur was returning the car to the garage, he ran into a vehicle driven by the plaintiff and her husband, and injured her. Held, That at the time of the accident no such relation of master and servant or of principal and agent existed between the defendant and the chauffeur as would render defendant liable for such injuries.</p>

<p>1. Corporations: Indebtedness: Limitations in Charter. A corporation, when sued on its promissory note executed in settlement ol a debt contracted for materials used in the erection of a building which it was the corporate purpose to construct, at á time uhen it had contracted no other debts, and had a sufficient amount of money on hand to pay for such materials, cannot defeat a recovery because of a provision contained in its charter limiting the amount of its indebtedness..</p> <p>1. -: -: -. The fact that by the action of a majority</p> <p>of the stockholders and directors of the corporation it used its funds for purposes other than paying for the materials so purchased affords no legal excuse for its refusal to pay for such materials.</p>

<p>Rehearing of case reported in 90 Neb. 154.</p>

Original application for a writ of mandamus to compel respondent to accept filing fee, to enable relator to become a candidate for city clerk of the city of Omaha.

<p>1. Limitation of Actions: Trespass Upon the Person. Section 13 of the code, providing that a civil suit for assault and battery must he commenced within a year from the time the cause of action accrues, does not apply to an action for trespass upon the person of plaintiff, resulting in her pregnancy and in the subsequent birth of a bastard child.</p> <p>2. Assault and Battery: Weight oe Evidence: Question eor Jury. In a civil action for such a trespass, the weight of evidence that plaintiff made no outcry when assaulted, and that for a time she did not complain of the assault, is for the jury, where her. testimony tends to show that she resisted defendant to the extent of her ability.</p> <p>3. Evidence: Assault. The rule that, in a civil action, a preponderance of the evidence proves any issue, applies to a civil action for such a trespass.</p>

<p>1. Appeal: Evidence. The conjectural opinion of an expert, based solely on a hypothetical question not submitting all of the material facts, is insufficient to sustain a verdict.</p> <p>2. Trial: Directing Verdict. Where the evidence is insufficient to sustain a verdict in favor of plaintiff, it is error for the trial court to overrule a motion for a peremptory instruction in favor of defendant.</p>

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

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

<p>Quieting Title: 'Evidence: Fraud. Evidence examined and partially set out in the opinion, Uriel sufficient to sustain the findings and decree of the district court.</p>

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

<p>Appeal from .the district court for Otoe county: Ueander M. Pemberton, Judge,</p>

<p>Appeal from the district court for Gage county: Leander M. Pemberton, Judge.</p>

<p>1. Master and Servant: Injury to Servant: Defective Appliances: Duty of Master. Where a hoy, between the age of 17 and 18, inexperienced in railroad work, was employed at night as a hostler helper, and a part of his duty was, when the engines were taken to the coal chutes, to go upon the top of the tender, to call up t.o the man in charge of the chute, whose station was above, and. ash from which bin the coal was to be taken, to indicate to the person moving the engine where to stop, to lower the apron in order to deliver the coal, to distribute it in the tender, and to raise the apron thus closing the chute, all being done by the light of a lantern, and it appeared that the track was defective so that the engine and the structure of the coal chute were in dangerous proximity, and that iron bolts projected from the side of the posts supporting the structure, held that it was the duty of his employer to warn him of the peculiar dangers connected with the coaling of engines at that place.</p> <p>2.--: -:--. An employee is entitled to assume that his employer has used due care to provide reasonably safe appliances for'the doing of his work. Knowledge of the increased hazard from the negligent construction or location of a structure in dangerous proximity to a defective railway track will not be imputed to a boy between 17 and 18 years of age who had been employed for about three weeks, doing his work at night by the light of a lantern, merely because he was aware of the general surrounding conditions.</p> <p>3.-: -: -: Assumption op Bisks: Questions non Jury. Unless from the undisputed facts a court can declare, as a matter of law, that the employee actually had or was chargeable with knowledge of the dangerous condition of the place whore he worked or the defective condition of the structures and appliances in connection therewith, so that he assumed the risk, those questions should b'e submitted to the jury. Tobler v. 'Onion StocJc lards Co., 85 Neb. 413.</p> <p>4.-: -: Trial: Instructions. It is not erroneous to instruct a jury, in substance, that the natural instinct and disposition of men to avoid personal harm may, in the absence of evidence, raise the presumption that a person injured or killed was at the time in the exercise of ordinary care, and that' it should, in determining this question, consider all the evidence and the circumstances proved.</p> <p>5.-: -: Negligence op Master: Evidence. Evidence examined, and held to establish the negligence of defendant in respect to the construction, maintenance and manner of operating a coal chute and the track adjacent thereto.</p>

<p>Insurance: Payment oe Pbemitjms. An 'accident insurance company received from its collector the amount of premium money due from a member for the renewal of monthly insurance. It appeared that the collector, pursuant to an agreement with the member, furnished the money on the pay-day, placed it in a separate fund with that collected from other members and remitted the whole amount to the company at the usual time. The company, having heard of the death of the insured before the receipt of the money from the collector, retained the premium money of all except the deceased member which it attempted to return to the collector by check. Held, That it was immaterial who furnished the money, and that, under these facts, the insurance was in force at the time of the death of the insured.</p>

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

<p>Aureal from the district court for Lancaster county: Willard E. Stewart, Judge.</p>

<p>1. Municipal Corporations: Obdinances: Validity: Evidence. To overturn a city ordinance on tlie ground that it is unreasonable and arbitrary or that it invades private rights, the evidence of such facts should be clear and satisfactory.</p> <p>2. -: -: -: Presumptions. In determining the validity of a city ordinance regularly passed in the exercise of police power, the court will presume that the city council acted with full knowledge of the conditions relating to the subject of municipal legislation.</p> <p>3. -: Police Regulations. In the exercise of police power dele- . gated by the state legislature to a city, the municipal legislature, within constitutional limits, is the sole judge as to what laws should be enacted for the welfare of the people, and as to when and how such police power should be exercised.</p> <p>4. -: -. Within constitutional limits, private property is held subject to proper rules regulating the common good and the general welfare of the people.</p> <p>5.--:--. In testing police regulations, the court should inquire whether they have some relation to the public health, safety or welfare, and whether such is in fact the end sought to be attained.</p> <p>6. -: -: Nuisances. While a city having authority “to define, regulate, suppress and prevent nuisances,” cannot arbitrarily prohibit harmless and inoffensive private enterprises by the exercise of such power, the acts of the city council in dealing with nuisances may be held conclusive, if the subject of legislation might or might not he a nuisance, depending upon conditions and circumstances.</p> <p>7. -: --. The passing of an ordinance forbidding the construction of brick-kilns in a city may be a valid exercise of police power.</p>

<p>Aiteae from the district court for Lancaster county: Willard E. Stewart, Judge.</p>

<p>1. Highways: Location: Damages: Waiver. “Where a landowner flies a claim for damages caused by the location of a public road over his land, he thereby waives all objections on the ground of irregularities in locating the road.” Davis■ v. Commissioners of Boone County, 28 Neb. 837.</p> <p>2. —-: -: • — -: INJUNCTION. “Before a county can appropriate lands to public use for a public road i't must provide for the payment of damages for the right of way either by the appro Xiriation of money from the proper fund for that purpose, or the levy of sufficient taxes to pay the damages upon which a warrant may be drawn. In either case the compensation must be sure, and the landowner may enjoin the use of his pioperty by the public until such compensation is made.” Zimmerman v. County of Kearney, 33 Neb. 620.</p> <p>3. -: -: Payment of Damages. By the amendment, April 5, 1909, of section 6157, Ann. St. 1907, it is required that “all damages caused by the laying out, altering, opening or discontinuing any county road shall be paid by warrant on the general fund of the county in which such road is located.” Laws 1909, ch. 115.</p>

<p>1. Petition discussed in the opinion, held to state a cause of action for damages for fraud.</p> <p>2. Evidence examined and considered in the opinion, held sufficient to sustain a verdict in favor of plaintiff for such damages.</p>

<p>1. Appeal: Motion foe New Trial. This court will not review alleged errors occurring during the trial of a cause in the district court, unless a motion for a new trial was made in that court and a ruling obtained thereon. Jones v. Hayes, 36 Neb. 526.</p> <p>2. -: Affirmance. And in such a case, where the judgment is sustained by the pleadings, it will, ordinarily, be affirmed.</p>

<p>The petition shown in the abstract and set out in the opinion, examined, and held insufficient.</p>

<p>Appeal from tlie district court for Froiitier county: Robert O. Orr, Judge.</p>

<p>1. Wills: Legacies: Interest. Whether interest is to be allowed upon a specific legacy of money depends upon the intention' of the testator. If that intention cannot he otherwise determined from the language of the will itself, it will he presumed that the testator intended that the legacy should he paid during the first year after the appointment of the executor under the will, and, if not so paid, should bear interest from that time. Smullin v. 'Wharton, 83 Neb. 328, distinguished.</p> <p>2. -: —-: -. If the will gives a specific legacy of money to each of three persons respectively, and expressly provides that two of such legacies shall not bear interest in any event, the presumption is raised that the testatrix intended that the third legacy'not so limited shall hear interest.</p> <p>3. -: -: -. Section 282, ch. 23, Comp. St. 1911, provides: “That at the expiration of the year from the time of the granting of letters testamentary or administration, such executor or administrator shall at once, and the court is hereby directed to compel such executor or administrator to at once make final settlement of such estate.” And, unless otherwise indicated by the will, the presumption is that the testator intended that the legacy should he paid within that time, and, if not so paid, should bear interest thereafter.</p> <p>4. Executors and Administrators: Legacies: Interest. If the legatee in a will is also appointed by the will as executor thereof, and duly qualifies as such executor, the fact that he unnecessarily delays settlement of the estate and keeps in his own hands money derived therefrom will not estop him to claim interest on such part of his legacy as femains unpaid after allowing thereon all money received and not disbursed by him in the management of the estate, it appearing that the value of the estate has been enhanced rather than lessened by such delay.</p> <p>5. -; Accounting by Legatee as Executor. In such case it is the duty of the probate court, and of the district court upon appeal, to state the entire account of such executor, both as executor and as legatee under the will, charging against such legacy all money that he has received, less proper disbursements and commissions.</p>

<p>1. Counties: Bridge Repairs: Ltabhjty. When there is no contract between two counties to build or repair a bridge across a stream between them, one county cannot replace an old decayed wooden bridge, which it is dangerous to use, with a new steel structure of three times the cost, by replacing several spans at a time until the whole bridge is rebuilt, and recover the expense of so doing from the other county as repairs.</p> <p>2. -: -: -. If one county resolves upon such a course and proceeds to replace three wooden spans with steel at three times the cost necessary to rebuild them as originally constructed, there being seven or eight times that many spans in the entire bridge, it cannot recover from the other county as for “needed repairs.”</p>

<p>Appeal from the district court for Franklin county: Harry S. JDungan, Judge.</p>

<p>1. Wills: Undue Influence: Trial: Instructions. The court instructed the jury: “You are instructed that the fact that the proponent, Susie M. Paisley, and the decedent, Isaiah Paisley, were married, is not of itself undue influence. The law encourages marriage between men and women, and the fact alone and of itself that these parties contracted and entered into marriage relations would not raise any presumption whatever of undue influence.” Held improper under the evidence in this case, and probably misleading.</p> <p>2. Instructions numbered 1 and 2, requested by contestants, examined, and held applicable to tbe facts proved, and that it was prejudicial error to refuse them.</p> <p>3. Wills: Undue Influence: Evidence. The evidence examined, and held insufficient to sustain the verdict and judgment.</p>

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

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

<p>County Officers: Filling Vacancy: County Assessor. Where a vacancy occurs in the office of county assessor more than 30 days prior to a general election, the board of county commissioners is required to fill the vacancy by appointment. In such case the person appointed holds the office until the next general election, at which time his successor should be elected for the remainder of the unexpired term.</p>

<p>1. Pleading: Sufficiency: Action for Damages. In an action for damages against a road overseer for grading a road and removing a culvert, which work was clearly within his discretion and the scope of his duties, the mere allegation in the petition that in so doing he acted maliciously, unlawfully, and not for the public interest, does not state an actionable wrong.</p> <p>2. Petition set forth in the opinion examined, and held vulnerable to a general demurrer.</p>

<p>1. Pleading: Demurrer. A general demurrer admits tic truth of all material'facts well pleaded, but does not admit conclusions of law.</p> <p>2. -Sufficiency. When the claim is made that an act is unconstitutional, not because of its substance, but-because not regularly passed, the defect in the proceedings must be specifically pleaded. It is insufficient to allege generally that it was not legally passed. City of York v. Chicago, B. $■ Q. It. Co., 56 Neb. 572.</p> <p>3. Judicial Sales: Void and Voidable. A sale of real estate under an order of sale, where the notice is not published at-least 30 days before the sale, is not void, blit voidable, and the defect is ordinarily cured by confirmation.</p>

<p>Bills and Notes: Indorsement. A promissory note was made payable to “Wonder Stock Powder Company.” The only indorsement is “James J. Doty, Prop.” A banker who purchased it testified that Mr. Doty was the sole owner of the company, but there was no evidence as to whether the payee was a corporation or a trade name for Doty. Held, That the indorsement did not constitute the bank a holder in due course, under the Negotiable Instruments Act.</p>

<p>1. Wills: Right op Election. The right of a widow to elect'under the provisions of sections 4907, 4908, Ann. St. 1911 (laws 1907, ch. 49, secs. 7, 8), whether she will take the provision made for her in the will of her deceased husband, or take the interest in the estate given her by law, is a personal one, and does not pass at her death to her heirs or personal representatives.</p> <p>2.--: -. A widow made, and the county court recorded, her election to take under the law instead of under the will of her deceased husband. She did so under a mistake as to her right to take under the law, but she took no valid steps in her lifetime to have her election set aside. After her death her administrator brought an action to recover some of the provisions made for her benefit in the will. Held, That he had no power to make an election for her, and that the court could not ignore the election made in her lifetime of which there was a judicial record.</p>

<p>1. Municipal Corporations: Street Improvement Districts: Levying Assessments. Before the mayor and council of a city of the metropolitan class are authorized to order the paving of a street in a district not entirely within 4,500 feet from the streets surrounding the city hall grounds, there must be a petition of the property owners of the proposed district, and a street improvement district must be created by ordinance (Comp. St. 1911, ch. 12a, secs. 106, 107). The improvement district so formed is the foundation of all further proceedings in that behalf, including the levying of taxes to pay for the. improvement (sec. 198) and the relevying of taxes for the improvement when a former levy has been set aside for irregularities (sec. 186).</p> <p>2. -: -: -. All taxes for such improvements must be levied on property specially benefited by the improvement, but no taxes for the improvement can be levied on property outside of the improvement district.</p>

<p>1. Executors and Administrators: Claims Against Estate: Appeal. Upon appeal from the allowance by the county court of a claim against the estate of a deceased person, the district court tries the case de novo, and must determine whether the claim was filed in time in the county court and whether an amendment allowed by the county court was such a departure from the original claim as amounts to filing a new and different claim after the time limited therefor had expired. ■</p> <p>2. -: -: Amendment. A claim filed in county court against the estate of a decedent alleged that the deceased, being liable upon two promissory notes, requested the claimant to pay the balance due thereon and agreed to repay him the amount so paid, and that he made the payment accordingly, and asked that the amount with interest be allowed against the estate. Claimant afterward asked leave to file an amended claim, which was in substance the same as the original claim, except that it alleged that upon the said payment by him the payee delivered the notes to the claimant, and that claimant then became and still is the holder of the notes and entitled to the money due thereon. Held, That the amendment was justly allowed.</p> <p>3. Bills and Notes: Payment: Evidence. When the balance of a promissory note is received by the payee from one who is a _ stranger to the paper, the fact that the payee marked the note “paid” is not conclusive; it is competent to prove by oral evidenc.e that the person making the payment intended to hold the note as a liability of the maker, and that the note was so received by him at the time of making the payment, and without knowledge on his part at the time that the word “paid” had been written thereon.</p> <p>4. Pleading: Defense of Covertuee. Coverture is an affirmative defense and must be pleaded and proved or it is waived.</p>

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

<p>Opinion on motions to modify opinion reported in 90 Neb. 748.</p>

<p>Appeal from the district court for Lancaster county: Willard E. Stewart, Judge.</p>

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

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

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

<p>Appeal from the district fourt for Adams county: Harry S. Dungan, Judge.</p>

<p>Appeal from the district court for Cass county: Harvey D. Travis, Judge.</p>

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

<p>1. Appeal: INSTRUCTIONS. "It is not error for the court to instruct a a jury as to the legal significance of uncontradicted evidence or admitted facts.” OelJce v. Theis, 70 Neh. 465.</p> <p>2.-: -. Error cannot he predicated on a part of a paragraph of an instruction when the paragraph as a whole correctly states the law.</p> <p>3. Adverse Possession: Title to Streets. The effect of chapter 79, laws 1899, is to prevent any one from obtaining title to a part of a public street in any city or village within this state by adverse possession only since the passage of that act.</p>

<p>1. Insurance: Mutual Companies: Insolvency: Proceedings Against Members. An action by the receiver of a mutual insurance company; organized under chapter 46, laws 1899, against the members to recover an assessment made by the court in order to pay the liabilities of the insolvent corporation may properly be brought in a court of equity in the same manner as an action by the receiver of a stock corporation against its stockholders for a like purpose, and, in such case, summons may be issued out of the county in which the action- is brought to any other county in the state in which a defendant resides or may be summoned.</p> <p>2. Limitation of Actions: Mutual Insurance Companies: Suit by Receiver. Where the directors of such a corporation, before it was declared insolvent,, levied certain assessments which were invalid because not made in accordance with law, and which were afterwards set aside by the district court in the proceedings to wind up the affairs of such corporation, the cause of action against members for assessments made by the receiver under the direction of the court was not harred, although the invalid assessments were made more than four years before the latter.</p>

<p>Appeal from tbe district court for D.odge county: Conrad Hollenbeck, Judge.</p>

<p>1. Appeal: Conflicting Evidence. On an issue of fact submitted to a jury, tbeir finding, unless clearly wrong, is conclusive in the appellate court, where the evidence is conflicting.</p> <p>2. Landlord and Tenant: Lease: Breach by Lessor: Measure of Damages. In a suit by a lessee against the lessor for breach of contract to surrender possession of the demised premises, the measure of damages is the difference between the rental value of the leased property and the rent reserved in the lease, and in addition such special damages as are shown by the petition and the proofs to have necessarily resulted from defendant’s breach of agreement.</p> <p>3. Evidence: Admissions in Pleading. In proving an admission against defendant by an averment of his answer, plaintiff is only required to offer so much of the pleading as is necessary to show the admission, where the severing of the admission does not pervert its sense or change the meaning of other language of the pleader.</p> <p>4. Contracts: Construction by Parties. The interpretation which the parties to a contract put upon it may, in that respect, determine their rights under it.</p>

<p>1. Judgment: Conolusiveness: Notice to Indemnitor. In an action to recover from a contractor the amount paid hy a city to satisfy a judgment against it for damages resulting from his negligence and breach of contract, personal notice advising him of the original action, of the nature thereof, of the court and docket number, of his right to make a defense and of his liability for the amount of any judgment which might be rendered against the city, is sufficient to show that the amount of damages fixed by the judgment is binding on him. Sedgwick, J., dissents.</p> <p>2. Appeal: Sufficiency of Evidence: Abstract. Where appellant relies for a reversal on the assignment that the only proof sufficient to establish a fact in issue is incompetent, he should insert such proof in his abstract with the objections, rulings and exceptions necessary to a review of .that question.</p> <p>3. Contracts: Construction: Contract for Construction of Sidewalks. The phrases, “from the first day of January, 1902, to the 31st day of December, 1902,” as used in a contract between a city and a contractor who agreed to furnish materials and construct sidewalks when ordered, held to refer to the ordering of sidewalks by the city, and not to the furnishing of materials and.the construction of sidewalks by the contractor.</p> <p>4. Judgment: Conclusiveness: Notice to Indemnitors. In an action by a city to recover over from contractors and their bondsmen the amount paid by the city to satisfy a judgment for personal injuries resulting from the contractors’ negligence and breach of contract, timely notice to the bondsmen of the pending action, of an opportunity to make a defense, and of their own liability, is sufficient to show that the judgment against the city is binding on them. Sedgwick, J., dissents.</p> <p>5. Evidence: Notice by Mail. In testimony that a letter containing a notice was mailed, the word “mailed” implies the payment of the necessary postage.</p> <p>6. —.—: -: Presumptions. A letter duly addressed, stamped and posted is presumed to have reached the addressee in the usual course of mails, but such a presumption may be rebutted by proof.</p> <p>7_ __-; -: Question for Jury. Testimony denying the receipt of notice inclosed in a letter properly addressed, stamped and mailed, does not overcome the presumption of law that the notice waa received, hut presents a question of fact for the jury.</p>

<p>1. Evidence: Parol Evidence: Notes. "It is not error to submit oral testimony to the jury to show the purpose for which a negotiable promissory note was executed, where such note is sued on by the payee named in the note.” Davis v. Sterns, 85 Ñeb. 121.</p> <p>2. Contracts: Written Contract: Contemporaneous Parol Agreement. “The existence of a written contract or instrument, duly executed between the parties to an action and delivered, does not prevent the party apparently bound thereby from pleading and proving that contemporaneously with the execution and delivery of such contract or instrument the parties had entered into a distinct oral agreement which, constitutes a condition on which the performance of the written contract or agreement is to depend.” Norman v. Waite, 30 Neb. 302.</p> <p>3. Evidence examined, and held sufficient to sustain the verdict.</p>

<p>1. Judgment: Res Judicata: Tax Lien. A right obtained under a tax sale certificate, like any other civil right, may be barred by the decree of a court of competent jurisdiction in a suit where the owner of such certificate is duly made a party, and his claim to priority under such certificate is assailed in the pleadings and adjudicated against him by the court.</p> <p>2. -: -. One duly served with summons thereby becomes a party to the suit or action, and, unless subsequently dismissed, remains such throughout the proceedings. As such party he is presumptively present in court during the trial and at the entry of judgment. He is charged with notice of every claim adverse to him contained in the plaintiff’s petition.</p> <p>3. -: -. And, in such a case, if the petition alleges that he has or claims a lien or some interest in the land involved in the suit, but that his lien or claim is junior and inferior to that asserted by the plaintiff, and he stands mute and permits the entry of findings and judgment against him and in favor of the plaintiff upon that contention, and an innocent third party purchases the land at sheriff’s sale under the judgment so entered, the judgment is res adjudicate, as between such party and the plaintiff, and as between him and the purchaser at such sale.</p> <p>4.-: -: Tax Lieu. And the fact that, at the time he is required to answer in such suit, he is the holder of a tax sale certificate, issued to him less than two years prior thereto, will not excuse him from failing or refusing to set up his lien under the certificate so held by him. Failing so to do, his right to subsequently assert it against the judgment entered in such suit, or against those claiming as purchasers under said judgment, is forever barred and foreclosed.</p> <p>5.-: -. Where the district court has jurisdiction of the subject matter and of the parties', its determination of all disputed questions in the suit is binding upon all the parties thereto. If the court errs, the remedy is by appeal, and not by subsequent collateral attack.</p>

<p>OriiNiON on motion fox’ rehearing of case reported in 90 Neb. 03.</p>

<p>1. Brokers: Sale op Land: Right to Commission. Where the owner of real estate contracts with an agent for its sale, and no limit of time is fixed hy the parties, the agent’s authority may be revoked at any time; but, if, at the time of the revocation, the agent had negotiations for a sale pending, with a party whom he had introduced to the owner, and the owner had himself participated in such negotiations, and afterward the negotiations are continued or within a few days renewed and consummated by the owner, in person or through another, the agent is entitled to his commission.</p> <p>2. -: -: -. And if during such negotiations the agent of the seller is also the agent of the proposed buyer for the sale of other real estate owned by him, which it is proposed shall be accepted by the seller as part payment, and both seller and buyer know of such dual agency, and with such knowledge continue to negotiate with each other through such agent, and a deal is finally consummated, the fact of such dual agency cannot be interposed by either as a defense in an action by such agent for his stipulated compensation.</p> <p>3. Evidence examined, and referred to in the opinion, held sufficient to require a submission to the jury.</p>

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

<p>Elections: Constitutional Officers : Police Magistrate: Power of Legislature. The office of police magistrate being a constitutional office, and the constitution having fixed the time when such officer shall be elected, the time when, after election, he shall enter upon his term of office, and the duration of such term, the requirements of the constitution in those particulars must be complied with; and any attempt on the part of the legislature to provide for the election 'of such officers in any other manner or at any other times than fixed by the constitution is void.</p>

<p>Original application in quo 'warranto to oust respondent from the office of chief of police of the city of Omaha.</p>

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

<p>1. Continuance: Discretion op Court. It must necessarily be left to the sound discretion of the trial court to determine under all ol the circumstances of a particular case whether a continuance or delay of the trial is required in the interests of justice. The ruling of the trial court thereon will not he held prejudicially erroneous, unless an abuse of discretion is clearly shown.</p> <p>2. -: -. The defendant, several months berore the trial employed a firm of two attorneys for his defense, the junior of whom acted for him in the preliminary examination. At the time set for the trial the senior member of the firm, who was expected by both of the said attorneys to take charge of the de- ■ fense, was engaged in the trial of a case in another court and so prevented from being present at this trial. The court appointed an experienced attorney to aid the junior counsel in the defense and refused a continuance or further delay of the trial. Held no abuse of discretion on the part of the trial court requiring a reversal of the judgment.</p> <p>3. Criminal Law: Receiving Stolen Pboferty: Evidence. In a trial for receiving stolen property, after evidence is received tending to prove that the properly described in the information was stolen, at or about the time alleged, and that the defendant had received the same, it is competent to prove, as tending to show guilty knowledge, that a short time prior to that transaction the same person had stolen property of a similar character, which had been received by the defendant and afterwards sold by the .thief, and that the defendant had also received and cashed a check which had been delivered to the thief in payment for the same.</p> <p>4.-: -: - — . In such case, if the stolen property is sold by the thief, and a check payable to defendant is taken therefor, and the money paid to the defendant thereon, the check is competent in evidence as a part of the transaction tending to show knowledge on the part of the defendant that the property described in the information was stolen property when received by him.</p> <p>5. -: -: -. It is not reversible error to receive in evidence indorsements on a check, not identified or explained, when the check itself is properly received, and the indorsements are of such a character as in no way to affect the parties to the suit or the subject matter of the controversy.</p> <p>6. -: INSTRUCTIONS. The words 'in an instruction, “the fact that he (the defendant) has been contradicted by other witnesses, if he has,” are not erroneous, as implying that he has in fact been so contradicted.</p> <p>7. -: -: Confessions: Question foe Juey. It is not error to refuse an instruction containing the statement that “the law does not favor confessions.” When confessions of guilt by the defendant are properly admitted in evidence, it is generally for the jury to determine what force and effect shall be given such confessions under the circumstances of the case.</p>

<p>1. Statutes: Amendment: Constitutional Provision. “No bill shall contain more than one subject, and the same shall be clearly expressed in its title.” Const., art. Ill, sec. 11. This provision makes inviolable the rule governing legislative bodies, that no proposed subject different from that under consideration shall be admitted under color of amendment. Miller v. Hurford, 11 Neb. 377.</p> <p>2. --: -: -. The provision of the constitution is directed against surreptitious legislation of which the members of the legislature and the public have no notice.</p> <p>3. -: -: -: Title op Act. Where the title to a bill is to amend an existing act, or a section thereof, no amendment is permissible which is not germane to the subject matter of the original act or section indicated.</p> <p>4. -: --: -: -. The title should clearly indicate the legislation embraced in the bill. While the requirements of the clause of the constitution under consideration are mandatory, they are not to he enforced in such a manner as to cripple legislation. The title to a hill may he general, and it is not essential that it specify every clause in the proposed statute.</p> <p>5. -: -: Validity or Act. Where a statute was passed in 1881, and in 1883, under an act with an appropriate title, a section in said statute was amended, and in 1893, under an act with a proper title, said section was again amended so that it contained matter clearly within the title of the original bill, and in 1897 said section as amended was again amended, under an act with a proper title and concerning matters clearly within the title of the original hill, and touching the matter contained in the section as amended in 1893, and in 1901 said section as amended was again amended, under an act with a 'proper title and touching the subject matter contained in the section, and in 1903 said section as amended in 1901 was again amended, under an act with a proper title and touching the subject matter contained in said section at that time, and in 1911 said section was again amended, under an act with a proper title and touching the subject matter in said section at that time, held that the said section as it stood when last amended was valid.</p> <p>6. Schools and School Districts: Bonds: Validity. It is further held that section 24, suhd. XIV, ch. 79, Comp. St. 1911, authorized the issue and registration of the school bonds in question, and that the same were properly issued and are entitled to registration.</p>

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

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

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

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

<p>Appeal: Affirmance. Where a judgment of the district court responds to the issues raised by the pleadings, and appears to be just as between *the parties, a court of review may disregard any error in the pleadings or proceedings which does not affect the substantial rights of the appellant.</p>

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

<p>Trade-Marks: Injunction. A jobbing corporation which, had established an extensive trade by purchasing a particular standard and preparation of coal from the South Canon Coal Company at Big Four, Colorado, where it is known as “Carbon Canon Coal,” and by selling it to retailers by the trade-name of “Cristo Canon Coal,” held entitled to an injunction to protect the use of that trade-name as against a former manager who engaged in the same business as a competitor and used “Cristo Canon” as a trade-mark for the same coal for the purpose of procuring trade which in the ordinary course of business would go to his former employer.</p>

<p>■ Appeal from the district court for Otoe county: Harvey D. Travis, Judge.</p>

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

<p>1. Deeds: Execution by Attoiíney in Pact. As respects the execution of a deed by an attorney in fact, although it is usual and better for him to sign the name of his principal and to add thereto his own signature, with proper words indicating that the act is done by him as such attorney, yet it is not in all cases necessary that he should so append his own name. When the deed on its face purports to be the indenture of the principal, made by his attorney in fact therein designated by name, it may be properly signed by such attorney by his subscribing and affixing thereto the name of his principal alone.</p> <p>2.-: Acknowledgment by Attobney in Pact. But in such a case he cannot complete the execution of such deed by an acknowledgment which recites that ihe principal personally appeared before the notary and acknowledged the execution of the deed to be his voluntary act. Such acknowledgment must state the truth, and recite that it is made by the attorney in fact, in his representative capacity.</p>

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

<p>1. Negligence: Sueeioiency oe Evidence. Evidence examined, as indicated in. the opinion, and found sufficient to support the finding that the injuries of the deceased were caused in the manner alleged in the petition.</p> <p>2. -: -: Custom. A custom of leaving trenches uncovered when located in inclosed premises would not constitute a complete defense against an allegation of negligence in so doing, if the conditions and circumstances were such as to cause a reasonably prudent and cautious man to believe that human life or safety were endangered thereby.</p> <p>3. Appeal: Sueeictency oe Evidence. When the evidence is substantially conflicting, this court cannot set aside the finding of tho jury. Evidence examined and found sufficient to support the finding that the injuries complained of were the proximate cause of death.</p> <p>4. Negligence: Action for Death: Instructions: Harmless Error. In an action to recover damages for negligence causing the death of plaintiff’s intestate, it is erroneous to instruct the jury that “by contributory negligence is meant negligence on the part of plaintiff.” But if the jury is also told that contributory negligence on the part of the deceased would prevent a recovery, and it appears from the whole charge that the word “plaintiff” was inadvertently used, and that the jury must so have considered it, the error will he regarded as without prejudice to the defendant.</p> <p>5. -: -: -: -. In such action it is erroneous to instruct the jury that if “the injury to the deceased was caused by the negligence of the defendants, and that such injury caused or contributed to the death of the deceased, then you should find for the plaintiff.” But if the jury are told that plaintiff cannot recover unless such injuries were the proximate cause of the death, and it appears from the instructions that the jury must have understood that plaintiff could not recover unless the injuries contributed in such a degree as to be in fact the proximate cause of the death of the deceased, the error will be disregarded.</p> <p>6.-: -: PRESUMPTIONS. If a person is killed through the negligence of another, and there is no evidence as to negligence or due care on the part of the deceased, the law presumes that the deceased was exercising reasonable and ordinary care at the time of his injury with a view to his safety.</p> <p>7. Evidence: COMPETENCY. A physician and surgeon, who attended professionally an injured person who afterwards died of his injuries, may testify to the condition of the deceased as disclosed by his professional examination immediately after the injury, and to statements of deceased as to pain suffered by him and necessary to the determination of the location and extent of his injuries. .</p>

<p>Appeal from the district court for Lancaster county: Willard E. Stewart, Judge.</p>

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

<p>Food: Pure Pood Act: Violation oe Regulations. The statute provides that testing of cream for commercial purposes “shall be done in accordance with the rules and regulations therefor prescribed by said commission.” Ann. St. 1911, sec. 9838. The commissioner made a rule that payment for cream purchased for commercial purposes should not be made on the same day of the purchase. Held, That the defendant could not be punished criminally for a violation of this rule.</p>

<p>1. Statutes: Amendment: Construction. An act of the legislature, the sole purpose of which is stated in tAe title to be to amend a specified section of a complete and comprehensive act, makes the section so amended a part of the original act, which must, if possible, he so construed as to give it a meaning consistent with the whole act.</p> <p>2. -: Construction. Two sections of the same act of the legislature will not he considered so inconsistent as to he nugatory if Ay any possible construction they can he made to agree.</p> <p>3. Counties and County Officers: Powers oe County Board: Bridges. TAe act of 1905 (laws 1905, ch. 126) as amended Ay chapter 111, laws 1911, gives county hoards power to let contracts for bridges, culverts and road Improvements to the lowest bidder; to reject any and all bids; and, if found to be in the interest of the public, to purchase materials and employ labor and construct bridges and culverts.</p>

<p>Adpeat., from tbe district court for Richardson county: Leander M. Pemberton, Judge.</p>

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

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

<p>Motion to recall mandate in case reported in 90 Neb. 481.</p>

<p>Opinion on motion to modify opinion reported, ante, p. 184.</p>

<p>Municipal Corporations: Grading Streets: Damages: Appeal. Section 213, ch. 12a, Comp. St. 1909, commonly called the Omaha charter, prescribes the method of taking appeals from the action of the city council in awarding damages to property owners, caused byr the grading of streets in said city, and a compliance with the provision that a petition be filed in the district court within 30 days after the final order of the council assessing damages is necessary to the taking of an appeal.</p>

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

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

<p>1. Divorce: Alimony. In an action for divorce and alimony, tlie trial ’court should consider all of the facts in evidence as to the property rights of the parties, the sources from and the manner in which their property was accumulated, and may exercise reasonable discretion in dividing the property between them.</p> <p>2. Appeal: Tbial de Novo: Alimony. When a party appeals from that part of a decree relating to the division of property only, this court will try that issue de novo upon the record, and if the decree of the district court is found to be in substantial accord with justice and equity it will be affirmed.</p>

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

<p>Appeal from the district court for Cass county: Harvey D. Travis, Judge.</p>

<p>1. False Imprisonment: Evidence. The defendant filed a complaint which failed to charge a criminal offense before a justice of the peace, upon which he requested that a warrant be issued. Tbis was done, and at bis direction plaintiff was arrested and held in custody for several hours. Defendant failed to appear upon the hearing and the plaintiff was discharged. Held, That the facts in evidence sustain a verdict on a cause of action for false imprisonment.</p> <p>2. Limitation of Actions: False Imprisonment: Amendment oe Petition. Where a petition stating a cause of action for false imprisonment is filed within one year from the time the cause of action accrued, the filing, after the expiration of one year, of an amended petition amplifying the allegations is not the beginning of the action, and the cause of action 4s not barred.</p> <p>3. Malicious Prosecution: Acting on Advic-e oe Counsel. As a general rule, “one who, before instituting a criminal prosecution, makes a full, fair and bonest statement to an attorney of all the facts within his knowledge, or which he could have ascertained by the exercise of reasonable diligence, bearing upon the guilt of the accused, and in good faith acts upon his advice, will not he liable in an action for malicious prosecution.” Jensen v. Hal-stead, 61 Neb. 249.</p> <p>4. Appeal: Motion eoii New Trial: Record. Affidavits purporting to have been used in support of a motion for a new trial, but which are not included in a bill of exceptions settled by the trial judge, cannot he considered.</p>

<p>Specific Performance: Sale of Land. Plaintiff and defendant entered into a written contract for tile sale of 160 acres of land for $15,600. Five hundred dollars was paid in cash, $2,000 was to he paid January 1, 1910, and a mortgage given for the balance. The vendor was to furnish a warranty deed and a good and sufficient abstract of title. Time was an essential element in the contract. A few days before January 1, 1910, the vendor consented to a delay until January 5 on account of inclement weather and bad roads whereby the vendee was prevented from reaching the office of the middleman where they had agreed to meet. On that day, the same conditions prevailing, the vendee was unable to attend the meeting place, though he had paid $1,000 to the agent for the defendant, and the vendor, without having prepared for delivery or having tendered a deed or abstract, declared the contract canceled. On January 11 the vendee was ready to perform, and the vendor was notified that the $2,000 had been paid and the mortgage and note executed, hut he refused to execute the contract. Held, That the vendor having retained the money paid, having waived strict performance on the day named, and having failed to tender an abstract and deed as specified by contract, the equities of the vendee are superior to his, and that the decree of the district court awarding specific performance is justified by the evidence.</p>

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

<p>Appeal from tbe district court for Douglas county: Willis GL Seaes, Judge.</p>

<p>Master and Servant: Action for Services: Sufficiency of Evidence. On a record showing that the manager oí a telephone company had received for his services $75 a month for eight months, the evidence discussed in the opinion is held insufficient to sustain a finding of the jury that the telephone company had agreed to pay him $100 a month for the same period, the action being one to recover the balance due on a contract of employment.</p>

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

<p>Appeal from the district court for Harlan county: Harry S. Dungan, Judge.</p>

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

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

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

<p>Appeal from the district court- for Boone county: James R. Hanna, Judge.</p>

<p>Appeal from the district court for Platte county: George H. Thomas, Judge.</p>

<p>1. Criminal Law: Statute: Constitutionality. The act of 1997, laws 1907, ch. 167 (criminal code, sec. 117c), defining pouitry stealing and providing a penalty therefor, does not violate that part of section 11, art. Ill of the constitution, which provides: “No bill shall contain more than one subject, and the same shall be clearly expressed in its title.”</p> <p>2. -: Instructions : Reasonable Doubt. An instruction in a criminal prosecution that the rule that requires proof of guilt beyond a reasonable doubt “is not intended to aid any one who is in fact guilty to escape,” and which intimatvs that an acquittal must be justified and a verdict of not guilty m.ust be “authorized,” is erroneous* In the condition of this record, it is found to be prejudicially erroneous.</p> <p>3. Larceny: Evidence. The evidence is discussed in the opinion, and is found insufficient to support a conviction.</p> <p>4.-: Poultry Stealing: Penalty. Under the act of 1907, defining and providing a penalty for poultry stealing, if the value of the property stolen is less than $35, the penalty as for a felony should not be inflicted, except in cases of habitual crime, or when the act is accompanied with circumstances of aggravation.</p>

<p>Pleading: Judgment on the Pleadings. In an action of replevin, the defendant pleaded title in himself. The specific allegations and admissions in the reply were inconsistent with the claim and ownership set forth in the petition. Held, That the motion of defendant for judgment on the pleadings was properly sustained.</p>

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

<p>Appeal from the district court for Buffalo county: Bruno 0. Hostetler, Judge.</p>

<p>Error to the district court for Nemaha county: John B. Baper, Judge.</p>

<p>1. Criminal Law: Principals. Where one is personally present at the time of the commission of an offense, under such circumstances as to leave no doubt that his purpose was to participate in the act should occasion require, he should be held as a principal in the crime.</p> <p>2. Kobbery: Evidence. The evidence is examined, the facts set out in the opinion, and held sufficient to warrant a verdict of guilty.</p> <p>3. Criminal Law: Indeterminate Sentence Act: Constitutionality. The indeterminate sentence law of this state is not unconstitutional.</p>

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

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

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

<p>1. Nuisance: Injunction: Villases. Under the corporate and general powers conferred by chapter 14, Comp. St. 1909, upon cities of the second class and villages, a village has the right to maintain an action in- equity to enjoin the maintenance and continuance of a public nuisance.</p> <p>2. -: Abatement: Injunction. An injunction to prevent the maintenance of the necessary facilities for the loading of live stock by a common carrier will not be granted as a matter of right, but only when it is apparent that this duty may be carried on conveniently elsewhere, and that the evils complained of are substantial and cannot be otherwise remedied.</p> <p>3. -: -: -: Decbee. In an action to restrain a common carrier from maintaining stock-yards at a certain point within a village, it is not the duty of the court to fix the place to which they should be removed, and a decree which leaves the question of their future location to the defendant, outside of certain limits, is not so indefinite as to be erroneous and void.</p>

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

<p>1. Homestead: Liens: Purchase Money. The unpaid price which a married woman agrees to pay for land is a lien on a subsequently acquired homestead interest therein, though her husband did not execute and acknowledge the contract of purchase.</p> <p>2. -: -: -. Money loaned by a vendor to vendee to improve the land purchased, pursuant to the terms of the sale, is not purchase money, within the meaning of the statute which subjects a homestead to execution for the satisfaction of a decree foreclosing a vendor’s lien. Comp. St. 1911, ch. 36, secs. 3, 4.</p> <p>3. -: Change oe Location. By moving from one lot to another a dwelling-house constituting part of a homestead, the homestead interest in the house is not lost, where the owner and” his family live in it while it is being moved, abandon the old location, .and in the new location continue to occupy the house as their homestead.</p>

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

<p>Appeal from the district court for Dixon county: Cuy T.' Craves, Judge.</p>

<p>Parent and Child: Custody oe Child. Where a mother dies immediately after the birth of a child, and the father commits it to the custody of a competent woman who' properly cares for it in a suitable home without compensation, and the father permits a mutual attachment to grow up between them for a number of years under a contract with him awarding to her its permanent custody, in a proceeding by the father to regain his child, the general rule, that the controlling consideration is the child’s own best interests, applies.</p>

<p>Appeal from the district court for Dawes county: William FT. Westover, Judge.</p>

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

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

<p>Appeal from tbe district court for Douglas county : Lee S. Estelle, William A. Redice: and Alexander C. Troup, Judges.</p>

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

<p>1. Vendor and Purchaser: False Representations: Rescission. When, in order to induce a purchase of land, representations are made of material facts, and to ascertain their truth or falsity would require investigation, the party to whom they are made may place reliance upon them, and if deceived may be allowed to rescind the contract by a court of equity.</p> <p>2. Evidence examined and held to support a decree of rescission.</p>

Original application in quo warranto to oust respondents from the office of fire and police commissioner of the city of South Omaha. Objection to jurisdiction.

<p>Appeal from the district court for Pawnee county: John B. Paper, Judge.-</p>

<p>Executors and Administrators: Claims Against Estate: Limitations. Under section 226 of the decedent act (Comp. St. 1901, ch. 23), as amended in chapter 28, laws 1901, creditors must take out letters of administration within two years after the death of the decedent, or “cause such letters to be taken out as provided for” in the act. They cannot take out such letters after the time limited; but, if letters are taken out by the widow or next of kin, it will be presumed that it was done in behalf of all parties interested in the estate, and creditors may present their claims within the time limited, pursuant to section 214 of the act.</p>

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

<p>Appeal from tbe district court for Clay county: Lesie G. Hurd, Judge.</p>

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

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

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

<p>Opinion on motion for rehearing of case reported in 90 Neb. 410.</p>

<p>Appeal from the district court for Lancaster county: Willard E. Stewart, Judge.</p>

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

<p>Appeal from the district court for Franldin county: Harry S. Dungan, Judge.</p>

<p>Appeal from’ the district court for Cherry county: William H. Westoyer, Judge.</p>

<p>Appeal from tlie district court for Seward county: George F. Corcoran, Judge.</p>

<p>Error to the district court for Cedar county: Guy'T. Graves, Judge.</p>

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

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

<p>Partition: Allowance ,oe Attorney’s Fee. In partition, an allegation in the petition that the land can properly be divided among the owners without a sale and a denial thereof in the answer raise no issue of fact, since the matter in dispute relates to procedure regulated by statute and does not make the proceedings adversary within the meaning of the rule that the trial court may allow plaintiff’s attorney a reasonable fee to be paid out of the common fund, where the proceedings are amicable.</p>

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

<p>1. Highways: Establishment by Prescription. Slight deviations from the line of public travel to avoid mud, pools, or natural obstructions will not necessarily prevent the establishment of a highway by prescription, especially so when it appears that the natural obstructions have been removed and that the roadway has been used without interruption or substantial change for more than ten years.</p> <p>2. -: Dedication. Where a landoWner notifies the public to cease traveling a road across his lands, and in lieu thereof to travel over the section-line road along the edge of his land, and he and his grantees, subsequently, for a period of ten years, permit the public without interruption to travel along said section line over a strip of land less than two rods in width, such acts will be construed to constitute a dedication of such strip of land as a public road.</p> <p>3.-: -: Acceptance. In order to constitute a highway by dedication, it is not necessary that the offer of dedication be accepted by the public authorities. It may be accepted by the public itself, and the acceptance by the public itself is shown by its entering upon the land and enjoying the privilege offered, by user.</p>

<p>Appeal from the district court for Lancaster county: Willard E. Stewart, Judge.</p>

<p>Evidence: Pakol Evidence: Admissibility to Vary Writing. “The existence of a'written contract or instrument, duly executed .he tween the parties to an action and delivered, does not prevent the party apparently hound thereby from pleading and proving that contemporaneously with' the execution and delivery of such contract or instrument the parties had entered into a distinct oral agreement which constitutes a condition on which the performance of the written contract or agreement is to depend.” Norman v. Waite, 30 Neb. 302.</p>

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

<p>Appeal from the district court for Dawes county • James'J. Harrington, Judge.</p>

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

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

<p>Opinion on motion for rehearing of case reported ante, p. 304.</p>