Volume 93 — Nebraska Reports

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

<p>1. Mortgages: Foreclosure Sale: Interest Conveyed. The sale of an interest in real estate on foreclosure of a mortgage can only convey the interest of the mortgage debtor, and where he only owns a life estate that is all that is sold, although the purchaser may have supposed he bought and acquired the whole title.</p> <p>2. Ejectment: Limitations: Remainderman. When the mortgage debtor whose life estate had been sold at the mortgage foreclosure died, the title vested in the purchaser at the mortgage foreclosure sale terminated, and the remainderman owning the fee was then entitled to bring his action in ejectment for possession.</p> <p>3. Mortgages: Foreclosure Sale: Rights of Purchaser. Where the decree in a case of mortgage foreclosure upon real estate is against the mortgage debtor and his interest in the premises is sold under the decree to satisfy the same, the purchaser at the foreclosure sale will not be deemed to have purchased any greater interest in the premises than that which was appraised and offered for sale; and, where the mortgage sale satisfied only the mortgagor’s debt, the purchaser will not be deemed to have acquired any right against an interest in the land which belonged to another who was not made a party to the suit.</p>

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

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

<p>1. Intoxicating Liquors: License: Appeal: Record. Where, on appeal to this court from a judgment of the district court affirming the action of a village board in granting a liquor license, the record is silent on the question as to whether or not the granting of the license was by authority of an existing ordinance, this court will not indulge the'presumption that there was no such ordinance.</p> <p>2. -: -: Sufficiency of Petition. The remonstrance against the issuance of a liquor license recited: “The names to the said petition are not, and were not freeholders in any sense at the time of the filing of said petition, * * * and, if freeholders, were made freeholders for the only and express purpose of permitting them to sign the said petition for the said license.” Held an admission that the signers to the petition were freeholders, and, there being no evidence that they were not freeholders in good faith, the license was "properly issued.</p>

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

<p>Appeal from the district court for Douglas county: Alexander O. Troup, Lee S. Estelle and Willis G. Sears, Judges.</p>

<p>1. Infants: Disabilities. Under the statutes of this state, the disabilities of a female, as a minor, are ended when she becomes 18 years of age, and she may thereafter bring suits in her own name, and transact business generally. Parker v. Starr, 21 Neb. 680.</p> <p>2. Judgment: Vacation: Infants: Limitations. To entitle a female to maintain an action, under the provisions of section 602 of the code, to vacate an order or decree, and for a new trial of an action in the district court, her suit must be commenced within two years after she becomes 18 years of age. If plaintiff relies on the pro visions of section 442 of the code, the action must be commenced within one year after arriving at full age.</p>

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

<p>Appeal: Relief. Where it appears that the district court has erroneously vacated a former judgment and granted a new trial of an action in that court, the former judgment should be reinstated and affirmed.</p>

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

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

<p>Sheriffs: Compensation. The question decided in this case is identical with the one determined in State v. McShane, ante, p. 46.</p>

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

<p>1. Appeal: Instructions. In an Instruction defining the issues, a statement that an undenied, immaterial allegation of the petition may he regarded as a fact is not a ground of reversal in a record which does not affirmatively show prejudice to appellant.</p> <p>2. -: Excessive Verdict: Failure to Object. In a reviewing court, excessive recovery is not a ground for reversing the judgment, where the amount of the verdict is not challenged below by an available assignment of error.</p> <p>3. —;-: Instructions: Review. On appeal, instructions correctly stating the law applicable to the issues raised by the pleadings cannot be successfully assailed by defendant on the ground that such instructions are inapplicable to evidence tending to support a defense not pleaded.</p> <p>4. Trial: Verdict: Impeachment. Matters inhering in the verdict of a jury cannot be assailed by affidavits of jurors.</p>

<p>Error to the district court for Boyd county: R. R. Dickson, Judge.</p>

<p>1. Trusts: Constructive Trusts: Enforcement in Equity. A court of equity may acquire jurisdiction to decree that a trustee filed in his own name for the beneficiary an application to divert water from a river, though he asserts he acted for himself alone, and shows that, for the purpose of canceling prior, adverse applications of the beneficiary, he instituted a contest which is pending before the state board of irrigation.</p> <p>2. Corporations: Directors. A director of a corporation is a fiduciary and is treated by courts of equity as a trustee.</p> <p>3. Trusts: Constructive Trusts. The rules of equity which determine ' the consequences of acts performed by a fiduciary extend to all cases, where, on one hand, confidence is properly reposed, and. on the other, knowledge or authority or influence arises from the fiduciary relation.</p> <p>4.-; -. A person gratuitously or officiously, assuming as agent or trustee to control or manage the property or interests of another is as firmly bound by the implied terms of his confidential relation as one who is regularly employed and paid.</p> <p>5. -: -: Abandonment oe Relation. A fiduciary by abandoning his trust and by assuming toward the beneficiary a hostile attitude cannot change the legal consequences of former relations and conduct.</p> <p>6. -: -: Obligation of Trustee. Means and knowledge acquired by a fiduciary in performing the duties of his trust cannot be used by him to gain a personal advantage at the expense of the beneficiary.</p> <p>7. -: -: -. Outside of proper compensation and expenses, any advantage gained by a trustee, either in performing his duty or in betraying his trust, inures to the benefit of the beneficiary.</p> <p>8. -:--: Restoration of Benefits. The benefit arising from an application to divert water from a stream for power is one which may be restored by a court of equity to the beneficiary, if acquired and held by a trustee in his own name in violation of his duties.</p> <p>9. -: -: -. A fiduciary, engaged as such in the work of establishing water rights, cannot acquire and hold for himself new, adverse rights, and justify his conduct by asserting that prior holdings of his principal were subject to forfeiture; and, if he attempts to do so, he will be held accountable as a trustee.</p> <p>10. Foreign Corporations: Powers: Acts of Director: Estoppel. Where a director of a nonresident corporation, which is authorized by its charter to acquire water rights for an electric power plant, asserts and exercises such rights on behalf of the corporation, he is estopped to deny it has that authority, when called to account as a fiduciary for making in his own name applications for adverse water rights.</p> <p>11. -: Filing Articles. The prosecuting of a suit is not transacting business, within the meaning of the statutes requiring a corporation to file its articles of incorporation with the secretary of state, before transacting business in Nebraska.</p> <p>12. -: Holding Real Estate: Directors: Estoppel. To procure an advantage personal to himself, a director of a nonresident corporation cannot urge its statutory disability to hold real estate, where it is authorized to do so by its articles of incorporation.</p>

<p>1. Wills: Construction. The will set out in the opinion construed, and held to vest in the widow of testator the use of the personal estate for life, with the right to consume the body of such estate, if reasonably necessary, in the protection and improvement of the real estate and for the support of herself and children.</p> <p>2. Executors and Administrators: Accounting. The use of the body of the personal estate by the widow, as shown in the opinion, approved.</p>

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

<p>Application for allowance of attorneys’ fees in case reported in 91 Neb. 654.</p>

<p>1. Taxation: Levy: Injunction. When a tax is not void as assessed without authority of law, sections 162 and 163 of the revenue law (Comp. St. 1911, ch. 77, art. I) apply, and collection thereof cannot be enjoined, unless the tax was levied “for an illegal or unauthorized purpose,” and those sections provide a remedy in other cases in which injunctions were formerly allowed.</p> <p>2. -: Illegal Assessment: Remedy. The remedy provided for the taxpayer by the first subdivision of section 162 is available only when the property was wrongfully assessed, either because exempt from taxation or because the tax levied had already been assessed thereon and paid:</p> <p>3.-: -: -. The remedy given by the first subdivision is not available to correct overvaluation, or mistake in estimating the amount of the money of the taxpayer on hand liable to assessment or the value thereof.</p> <p>4. -: -: -. Under the second subdivision of section 162, the tax must be paid “in all respects as though the same was legal and valid.” Protest is not necessary, nor allowed. The taxpayer must, within 30 days after paying the tax, “demand the same in writing from the treasurer of the state, of the county, city, village, township, district, or other subdivision, for the benefit, or under the authority, or by the request of which the same was levied.” The treasurer of such political subdivision, when such demand is made, must transmit a copy thereof “to the authorities authorized by law to audit and pay accounts against” the political subdivision which has received the illegal tax, and, if payment is refused, the taxpayer may sue such county, city, or other corporation.</p> <p>5. -: Assessment: Remedy. Questions of valuation and of amount and value of money or other personal property to be assessed are not provided for by sections 162 and 163 of the revenue law, and must be presented to the proper board of equalization.</p> <p>6. -: Rxjx.es Governing. The assessment and levy and collection of taxes are not equitable proceedings. They must necessarily be governed by rules which in many respects may be considered arbitrary. The taxing powers and the taxpayers must comply with these rules.</p> <p>7.-: Assessment: Reliee. The taxpayer is entitled to a copy of the assessment when completed by the assessor. He may waive this and ascertain the amount of his assessment from the records before the meeting of the board of equalization, and, if dissatisfied with his assessment, he may appeal to that board and have it corrected. If he fails to do so, he cannot for that reason avail himself of the special remedies provided by sections 162 and 163 of the revenue law.</p>

<p>1. Libel: Pleading. In an action for libel, if the publication complained of makes general charges against the plaintiff, an answer in general terms that the charges are true is insufficient. The facts must be stated showing that the charge made is true. If the facts are specifically stated in the charge as published, a general allegation that they are true is sufficient.</p> <p>2. -: -. In such action if the published words are obviously defamatory, that is, libelous per se, it is not necessary by innuendo to allege or explain the meaning of the words published, nor to allege special damages.</p> <p>3.-: -. If the published words are ambiguous, or are meaningless unless explained, or prima facie innocent, but capable of defamatory meaning, the plaintiff must specially allege and prove the defamatory meaning of the words used, and must allege and prove special damages. In. such case, if no special damages are alleged and proved, there can be no recovery.</p> <p>4.-: -. Special Damages. The publication in this case not being obviously defamatory, and there being no allegation and proof of the facts from which it can be found that the plaintiff has suffered special damages for which the defendant is liable, the judgment for the defendant was the only judgment possible.</p>

<p>1. Guardian and Ward: Guardian of Minor: Jurisdiction to Appoint. The probate court in each county in this state has jurisdiction to appoint a guardian to a minor who is an inhabitant or resident in the same county, or who has property in the county and resides in another state. Comp. St. 1911, ch. 34, sec. 2.</p> <p>2.-: -: -. The courts of Kansas have no jurisdiction to appoint a guardian for a minor whose domicile and property are in this state. Connell v. Moore, 70 Kan. 88.</p> <p>3. Adoption: Appeal: Findings. Upon appeal from the county court in the matter of an application to adopt a minor child, the findings of fact of the district court upon examination of witnesses in open court are presumed to be correct, and will not be reversed upon appeal to this court, unless upon consideration of the whole case it appears that they are eleai’ly wrong.</p>

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

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

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

<p>1. Vendor and Purchaser: Contract of Sale: Delivery. A contract for the sale of real estate is not binding upon the vendor until it is signed and delivered -to the vendee.</p> <p>2. -: -: Unauthorized Delivery. A real estate agent or broker cannot bind the vendor by an unauthorized delivery of a . contract for the sale of real estate.</p> <p>3.--: -: Performance. The delivery by the purchaser of a check or draft to the agent or broker of the vendor, payable to the order of the broker, where the contract provides for payment of money, is not a compliance with the terms of the contract.</p> <p>4. —--: -: -. In such a case the vendor may refuse to accept the check instead of cash, and, until cash is tendered to him as payment, may decline to proceed with the proposed sale.</p>

<p>1. Intoxicating Liquors: Application for License: Remonstrance: Burden of Proof. In order to defeat an application for a saloon-license on the ground that the applicant has violated the provisions of chapter 50, Comp. St. 1911, entitled “Liquors,” by selling intoxicating liquor to a minor, the burden of proof is on the remonstrator to establish that fact by a preponderance of the evidence.</p> <p>2. -: -: -: Evidence. The evidence contained in the bill of exceptions examined, and found sufficient to sustain the order of the licensing board, and judgment of the district court affirming such order.</p>

<p>Dismissal. “The district court may, in the just exercise of its' discretionary power, permit plaintiff to dismiss his case after it has been finally submitted to the court or jury.” Bee Building Oo. v. Dalton, 68 Neb. 38.</p>

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

<p>Error to the district court for Nemaha county: Leander M. Pemberton, Judge.</p>

<p>Appeal from the district court for York county: George E. Corcoran, Judge.</p>

<p>1. Taxation: Tax Sale: Time eob Redemption. Where the last day of the two-year statutory period to redeem land sold by a county treasurer for delinquent taxes falls on Sunday, the owner’s right of redemption exists during all of the next day.</p> <p>2. -: -: Suit to Redeem: Petition. In a petition to redeem land sold by a county treasurer at an administrative tax sale, an allegation that plaintiff is the owner of the land is, in that respect, sufficient to resist a demurrer.</p>

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

<p>1. Taxation: Foreclosure oe Lien: Process: Names. Defendant brought suit to foreclose a tax sale certificate upon lands standing of record in the true name of the owner, John E. Tourney. Service was attempted by publication. The petition named as defendant John E. “Townry,” and the affidavit and published notice designated the defendant as John E. “Towrny.” Held, That the notice was insufficient, and that the deed issued in such suit was void as against the owner, Tourney, and his grantees.</p> <p>2. Adverse Possession: Entry: Intent: Evidence. Where one, claiming title to real estate by adverse possession, entered originally without color of title or claim of right, and the acts relied upon to show entry and occupation were consistent with a mere intention to trespass from time to time until interfered with by the true owner, his testimony that he intended to take possession-and hold and occupy as owner, uncorroborated by acts necessarily indicating such intention, is not sufficient to require a finding in his favor. Knight v. Henman, 64 Neb. 814.</p>

<p>1. Former Decision Followed. Our former opinion in this case, reported in 86 Neb. 476, as to the questions of law involved, adhered to.</p> <p>2. Adverse Possession: Evidence. Evidence examined, and held clearly sufficient to sustain the judgment of the district court.</p> <p>3. -: Character op Possession. The possession of defendant set out in the opinion held not adverse.</p>

<p>Appeal from the district court for Gosper county: Ernest B. Perry, Judge.</p>

<p>1. Action, Character of: Practice. Under our code practice this court must look to the substance of the issue presented and tried in the lower court to determine the character of the action as to whether it is legal or equitable in its nature. Wholesome rules of practice which guard the essential rights of the parties must be enforced, but technicalities which tend to defeat justice will not be regarded.</p> <p>2- -: Issues. When no issue is taken on the essential facts answered by a garnishee, and a petition in intervention is filed by leave of court and without objection, in which the legal title of the fund in the hands of the garnishee is shown to be in the intervener, and the plaintiff relies upon an equitable right to the fund, the issue so presented and tried is equitable in its nature and upon appeal will be so regarded.</p> <p>3. Pleading and Proof. When one party alleges that a note in controversy has not been paid, and no objection is made to the form of the allegation and description of the note, and no plea of payment, and proof is admitted without objection showing the ownership of the note and that it is unpaid, those facts so far as relevant must be considered as established in determining the issues presented.</p> <p>4. Fraudulent Conveyances: Action: Set-Off. Held, That under the law, as stated in Lashmett v. Prall, 2 Neb. (Unof.) 284, the judgment in the case at bar cannot be sustained for the reasons there given.</p>

<p>1. Mortgages: hum Estate in Homestead. The life estate of the surviving spouse in the homestead may he mortgaged, and the purchaser upon foreclosure of the mortgage will take the life estate.</p> <p>2.-: After-Acquired Estate. If a mortgage deed purports to convey the whole property, an after-acquired interest of -the mortgagor will accrue to the title conveyed by the mortgage. This includes an interest in real estate which descends to the mother upon the death of her son. No action of court is necessary to vest -such title in the mother. The law vests the title immediately upon the death of the son.</p> <p>3.-; Consideration. An indebtedness secured by a chattel mortgage is' sufficient consideration for a mortgage of land,</p>

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

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

<p>1. Pleading: Amendment. Where a demurrer to a petition in an action founded upon a quantum meruit was sustained and the action dismissed, and an amended petition basing a right of re covery upon the same facts, but setting up an express contract, was also held vulnerable to a demurrer, it was not error for the trial court to refuse to permit the latter petition to be amended so as to set up a cause of action upon quantum meruit.</p> <p>2. -:--: Review. Permission or the refusal to permit plaintiff to amend an amended petition, after the commencement of the trial, is a matter committed to the sound discretion of the district court, and his order in that behalf will be sustained, unless it appears that there has been an abuse of such discretion.</p>

<p>1. Limitation of Actions: Acknowledgment oe Debt, A mere reference to a promissory note, although consistent with its existing validity and implying no disposition to question its binding obligation, and which contains no suggestion of any action in reference to it, is not such an acknowledgment as is contemplated by section 22 of the code.</p> <p>2.-: -. To toll the statute of limitations, there must be an unqualified and direct admission of a present, subsisting debt on which the party is liable. Nelson v. Becker, 32 Neb. 99.</p>

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

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

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

<p>1. Criminal Law: Instructions: Review. One cannot predicate error upon an instruction when he has requested the court to instruct the jury substantially to the same effect.</p> <p>2. -: Evidence: Review. Where the evidence in a criminal case is conflicting, but the testimony on behalf of the state, if believed by the jury, is amply sufficient to sustain a conviction, this court will not interfere.</p> <p>3. Homicide: Sufficiency of Evidence. Evidence examined, and held to sustain the verdict.</p>

<p>Criminal Law: Former Jeopardy. If during a trial of a misdemeanor before a magistrate it appears to him that the defendant should be put upon his trial for a felony, and the magistrate orders a new complaint to be filed, and proceeds, under section 327 of the criminal code, to sit as an examining magistrate, finds probable cause, and binds the accused over to the district court to answer to the felony, the fact that the accused had entered upon his trial before a court having jurisdiction of the misdemeanor will not constitute a good plea in bar to the information for the felony in the district court. Thompson v. State, 6 Neb. 102.</p>

<p>Mortgages: Contract oe Married Woman: Duress. A married woman who involuntarily mortgages her separate estate or homestead to secure an individual indebtedness of her husband may have the lien canceled in a suit to foreclose the mortgage, where she was induced to execute it by mortgagee’s threats to imprison her husband for feloniously disposing of mortgaged chattels.</p>

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

<p>1. Negligence: Evidence. Under the evidence in’ this case, stated in the opinion, the finding of the jury that the defendant was negligent is not so clearly wrong as to require a reversal upon that ground.</p> <p>2. -: Contributory Negligence : Presumptions : Evidence. There is a presumption that one in his right mind and in possession of his faculties will take ordinary precaution to avoid danger and injury. The evidence of contributory negligence in this case, stated in the opinion, is not so conclusive as to require this court, as a matter of law, to hold that such presumption was overcome and contributory negligence established, contrary to the verdict of the jury..</p> <p>3. Damages: Presumptions: Review. There is no conclusive presumption of law that the present earnings of an able-bodied, active and intelligent young man, under 25 years of age, will not be increased in the future. The court will not reverse as excessive a judgment for damages resulting from his death, solely upon the ground that such present earnings are so small.</p>

<p>1. Municipal Corporations: Streets: Vacation. Under the statute in force in 1892 and 1893, the mayor and council of the city of Lincoln had authority to vacate streets and alleys in said city, and the vacated portions reverted to the owners of the adjacent lots. Comp. St. 1893, ch. 13a, art. I, sec. 67, subd. IV.</p> <p>2.--:--: -. The ordinance of 1892 held to vacate that portion of P street taken and occupied by tbe defendant company as its station and switching grounds, and, the company then being the owner of the adjacent lots, the vacated portion became the property of the company.</p> <p>3. -: Railroads : Viaducts. The city of Lincoln cannot compel a railroad company to construct a viaduct over its property occupied by its station and switching tracks where there is no public way or street.</p>

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

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

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

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

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

<p>Appeal: Affirmance. Where the record brought to the supreme court on appeal contains no bill of exceptions, the judgment of the district court, if sustained by the pleadings, will be affirmed.</p>

<p>Appeal: Decree: Modification: Affirmance. On appeal from a judgment foreclosing a real estate mortgage, where the only substantial error found in the record is in the rate of interest which it is provided the decree shall bear from and after its rendition, it will be modified by correcting such error, and the decree, as thus modified, will be affirmed.</p>

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

<p>• Husband and Wife: Necessaries: Liability oe Wtee. The property of a married woman is not liable for the payment of debts contracted for necessaries furnished the family until after an execution against the husband for such indebtedness has been issued and returned unsatisfied. Comp. St. 1911, ch. 53, sec. 1. And the fact that no judgment has been rendered against the husband for such debt may be shown by the wife, in an action by her to enjoin the levy of an execution upon her lands to pay such a debt.</p>

<p>1. Married Women: Contracts: Validity. A married woman may make a valid contract to pay tuition essential to an ■ educational course for herself in osteopathy, though, she has no separate estate.</p> <p>2. Appeal. A judgment will not be reversed as excessive, where it is not challenged on that ground.</p>

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

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

<p>Sales: Rescission. One who is induced to become the vendee of a special line of merchandise for sale at retail, under an agreement with a wholesale vendor that he shall have the exclusive sale of such special line of merchandise in the city where he is engaged in business, may, upon learning that the vendor has, without his knowledge or consent, sold merchandise of the same special line to a competitor for resale in such city, rescind the contract and return the merchandise so purchased; and in such a case the vendor will not be heard to say that deception was immaterial because no real injury resulted therefrom.</p>

<p>Original action by the state to quiet title to a certain tract of land.</p>

<p>1. Municipal Corporations: Streets: Dedication. Land cannot be dedicated to the public for a street by deed, unless such deed is executed by tbe owner of the land. If there are outstanding liens which afterward ripen into full title, such attempted dedication by the owner of the equity of redemption alone, without the knowledge or consent of the lien-holder, will be of no effect.</p> <p>2.-: - — : -: Estoppel. If the deed of dedication is not recorded, and the holder of such lien has no notice of the existence of the deed, or that there is any claim of right on the part of the public or of any individual to use the land as a street, the fact of such user will not estop the lien-holder to deny that he consented to such dedication.</p>

<p>1. Trial: Directing Verdict. The trial court should not submit a cause to the jury unless there is such a substantial conflict in the evidence upon the issue presented that a finding of the jury for either party would be sustained. If the court would be required to set aside a verdict for defendant, upon the pleadings and evidence, a verdict for the plaintiff should be directed.</p> <p>2. -: -. Upon the pleadings and evidence stated in the opinion, the trial court rightly directed a verdict in favor of the plaintiff.</p>

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

<p>1. Contracts: Construction. Effect must be given to a written memorandum and deed executed pursuant thereto as one transaction, in the light of the facts as they existed at the time of the execution and delivery of the deed.</p> <p>2. Appeal: Trial De Novo: Decree. The issues presented by appeal to this court in a suit in equity must be tried de novo, and a proper decree entered or directed. Upon the issues and evidence stated in the opinion, the decree of the district court is reversed, and decree directed in favor of the plaintiff.</p>

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

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

<p>1. Divorce: Norsupport. Where a husband, having sufficient ability, without just cause, fails and absolutely refuses to contribute anything to the support of his wife, the court may grant her a decree of divorce.</p> <p>2. Marriage: Annulment: Insaxitt. Mere weakness of mind is not a sufficient ground for the annulment of a marriage, unless it amounts to idiocy or insanity. Nor will circumstances tending to show fraud, combination or circumvention on the part of the father and friends of the wife to induce one to marry his daughter give the court authority to decree the annulment of the marriage, unless the petitioner was an idiot or insane, within the meaning of those terms, at the time the marriage ceremony was performed.</p>

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

<p>Justice of tlie Peace: Change oe Venue: Statutory Provisions. Sections 958 and 958a of the code, as amended by the legislative session of 1905, have not changed the rule announced in Martin v. Mershon, 3 Neb. (Unof.) 174, that "an order of a justice of the peace, granting a change of venue, made on an ex parte hearing and before the return day of the summons, is void.”</p>

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

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

<p>Constitutional Law: Officers: Stallion Registration Board. The act of April 10, 1911, which attempts to create a stallion registration board and to vest the same with state wide executive powers and jurisdiction, is in conflict with sections 1 and 26, art. V of the constitution, which specify the particular .officers who shall constitute the executive department of the state, and provide that “no other executive state office shall be continued or created, and the duties 'now devolving upon officers not provided for by this constitution shall be performed by the officers herein created.” State v. Porter, 69 Neb. 203.</p>

<p>1. Compromise and Settlement: Conclusiveness. After an agreement to compromise and settle an actual controversy lias been made by the parties in interest, the original matter in dispute is not a proper subject of suit or defense, where fraud, mistake or duress in procuring the contract is not pleaded.</p> <p>2. Insurance: Prooe or Loss : Misstatements. In the law of fire insurance, a misstatement of fact in the proof of loss, if made after the insurer and the insured have entered into a contract to compromise and settle the damages in dispute, is not a proper subject of suit or defense, where the insurer did not rely upon the misstatement, and where it was perfunctorily made, without any fraudulent intent.</p>

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

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

<p>1. Appeal: Parties: Review. In the title of a petition, the naming of “Mattie A. Elliott” as plaintiff, instead of “Mattie A. Elliott, administratrix of the estate of Howard Elliott, deceased,” is not a ground of reversal in a record showing that defendant answered to the merits of an amended petition containing the correct title, and that, without prejudice to defendant, the case was tried as if there had been no such defect.</p> <p>2. Master and Servant: Injury to Servant: Assumption op Risks. An employee does not ordinarily assume risks arising from conditions beyond his knowledge and not obvious to a person of his experience and understanding.</p> <p>3.--; -: Negligence op Master. A master who puts an inexperienced servant to work in a hazardous position among electric power wires carrying dangerous currents of electricity, without properly instructing him in regard to his duties and without giving him specific warning of incident dangers not obvious to a person of his experience and understanding, cannot justify such conduct by showing that the servant had represented himself to be an experienced lineman in telephone work involving no danger from electricity, where the master knew in advance that the servant had never had any experience in working among dangerous wires.</p> <p>4. Negligence: Question eoe Jury. Negligence in constructing and in using electric wires carrying dangerous currents of electricity is a question for the jury, where the evidence on that issue is conflicting.</p>

<p>1. Waters: Irrigation Districts: Lands Subject to Assessment. In order to subject lands to the payment of taxes and assessments for the support of an irrigation ditch, the boundaries of the irrigation district must be sufficiently definite and certain to identify the land to be irrigated thereby, and the amount thereof. Section 28, art. II, ch. 93a, Comp. St. 1901.</p> <p>É. -: -: Boundaries: Description. In surveying the boundaries of an irrigation district, where straight lines are not followed, meander lines should be set out with sufficient definiteness to substantially indicate the route followed and to identify the lands sought to be embraced within the district. In such a case a description by metes and bounds, which would be sufficient in an ordinary deed, is sufficient.</p> <p>3. -: -: -: -. In making such a survey, a call in one of the main lines or courses, “Prom a point on the section line about 800 feet east of the southwest corner of section 10, Tp. 21, R. 54, thencq in a northeasterly direction to the east line of section 10,” is too indefinite and uncertain to determine how much of the land through which such call is intended to run is within the irrigation district.</p> <p>4.-->: -: Assessments : Injunction. In a suit in equity by a landowner to restrain an irrigation district from procuring the taxation of her lands for the support of its irrigation ditch, if it appears that the plaintiff in such suit has in fact used water from the defendant’s ditch, upon a certain number of acres of said land, an injunction is properly refused as to such lands so watered, even though it may be found in the same suit that plaintiff’s lands generally, by reason of uncertainty in the description of the boundaries of such district, are not taxable therein.</p>

<p>Appeal: Striking Amended Answer. Where an amended answer does not tender any defense not provable under the original answer, it is not reversible error to strike it.</p>

<p>1. Judgment: Jurisdiction. One not served -with process in an action, who does not in person or by an authorized attorney appear in such action, is not bound by a Judgment rendered therein.</p> <p>2. Appearance by Attorney: Authority: Question for Jury. Where, in an action pending in court, one not made a party when the action is begun, nor served with process, is subsequently made a party by the written appearance of an attorney, who signs such appearance for and in the name of said person, and the authority of the attorney to make such appearance is denied, and, upon a trial of that issue in another action, the evidence is conflicting, the question of the authority of the attorney to enter such appearance is one of fact for the jury.</p> <p>3. Contracts: Execution: Question fob Jury. In an action upon a contract partly written and partly in parol, where the making of the contract, by one of the parties who did not sign the same, is denied, and the issue thus presented rests upon conflicting evidence, the question is one of fact for the jury.</p> <p>4. Wills: Relinquishment: Liability of Surety. Where a daughter of a deceased father, who has filed a contest of the will of such decedent which gives the entire estate of $30,000 to decedent’a widow, is induced by the husbands of two of her sisters to withdraw such contest and to execute a written relinquishment of all interest in her father’s estate and all interest in the estate of her mother, the beneficiary under the will, at her death, for the stipulated sum of $4,000, under a written'agreement that they will be surety for the payment of such sum, the fact that the mother, after such withdrawal, fails and refuses to pay the sum stipulated will not, of itself, relieve such sureties from liability upon their contract.</p>

<p>Judgment: Constructive Service: Jurisdiction. Record examined, and the case at bar held ruled by Stull v. Masilonlca, 74 Neb. 322, and other cases cited in the opinion.</p>

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

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

<p>Rehearing of case reported in 92 Neb. 91.</p>

<p>1. Brokers: Contract for Sale of Land: Validity. A contract in writing made by a letter of proposal and an acceptance between the owner of real estate and a broker or agent, authorizing him to sell the owner’s land at a stipulated price and upon certain terms as to payment, which fails to state the amount of the agent’s commission, is void, if such contract is made and is to be performed in this state. Danielson v. G-oehel, 71 Neb. 300.</p> <p>2. -: -: Pleading. When such a contract is made for the sale of land situated in the state of Colorado, which is to be performed in that state, a petition for the recovery of the agent’s commission, which alleges the making of the contract and performance on the agent’s part, and so much of the statutes of Colorado as shows that the contract is valid under the laws of that staté, is not vulnerable to a general demurrer.</p>

<p>1. Municipal Corporations: Ordinances : Publication. Where a city-charter requires that ordinances and other proceedings shall be published in a newspaper published in such city, but there is no requirement that the paper in which the publication is made shall be printed therein, and there is no paper printed therein, the publication of such proceedings is sufficient if published in a paper printed .elsewhere, so far as the mechanical work is concerned, but circulated in the city from an office maintained therein to local subscribers generally to the same extent as though printed there, and such publication will not be held invalid.</p> <p>2. -: Street Improvements: Contract. Where a bid for the paving of a street exceeded the engineer’s estimate to the extent of a few dollars, the excess being limited to one item, and the bid as made was accepted by the city council, but upon entering into the contract the slight excess was discovered, and the excess eliminated, and the contract brought within the estimate, the contract was not thereby void.</p> <p>3. -: -: Injunction. Where a city of more than 1,000 and less than 5,000 population, by its proper officers, entered into an agreement with a contractor to pave a street within the city, and the contractor proceeded with the work under his contract and under the direction of the city officers until the completion thereof, a taxpayer of the city, with full knowledge of the progress of the work, will not be heard to enjoin the payment therefor after the completion of the contract.</p>

<p>1. Wills: Construction: Devise: Partition: Repairs: Destruction! of'Hedges: Distribution. A testator, the owner of real estate, devised his land to his sister for life, remainder in fee to her son, upon condition that he outlived his mother, the life tenant. In case of his death before her decease, the land should be sold after her death, and the proceeds divided between a daughter of his sister and certain collateral relatives in Germany, the niece taking one-half, the other half to be equally divided between the foreign legatees. The will also provided that neither the niece nor her husband should have any interest in testator’s property. The will was admitted to probate, and the life tenant retained possession of the land until her death, which occurred nine years after the death of the testator. Her son, the conditional devisee of the remainder, died during her lifetime. During her lifetime her daughter and her husband occupied the farm with her, paying her rent therefor. During her life, and the tenancy of the daughter, certain repairs were made upon the land by the daughter. During the same period certain hedges growing upon the land were cut down. At the time of the decease of the testator there was a valid mortgage on the whole of the land, and which became due thereafter. Held, First, that neither the daughter of the life tenant, nor the foreign legatees, had any interest in the land, and neither was entitled to partition thereof. Second, that the daughter of the life tenant was not entitled, as against the other legatees, to compensation for repairs upon the land during the lifetime of the life tenant in possession. Third, that she was not chargeable for damages to the realty caused by cutting the hedges during the life and possession of the life tenant. Fourth, that the only interest she had in the estate was her distributive share of the proceeds of the sale, after the payment of the costs and the indebtedness of the testator.</p> <p>2. Partition: Cross-Petition: Issues: Review. The owner of the mortgage, executed by the testator, was made a party to the suit of the foreign legatees, and he appeared, set up his mortgage, and asked a foreclosure thereof, to which no objection was made, and a decree was entered foreclosing his mortgage. Whether the proceeding was or was not regular, the issue was tried, and no objection can now be made to it. Carson v. Broady, 56 Neb. 648.</p> <p>3.-: -: Sale: Review. Since the will gave no direction as to who should sell the land, and conferred no specific authority upon any one to make the conveyance, it was not prejudicial error for the district court to direct the sale in the foreclosure proceeding; the surplus, if any, to be paid into court for distribution according to the provisions of the will. The court having acquired full jurisdiction over the subject matter and all the parties interested, it was proper to retain such jurisdiction and finally close the litigation.</p> <p>4. Carson v. Broady, 56 Neb. 648, distinguished.</p>

<p>1. Bills and Notes: Negotiability: Conditions in Mortgage. Where a promissory note, negotiable in form, by which the maker promises to pay a certain sum in money, at a certain specified time, is made, and the note is secured by a mortgage, the reservation in the mortgage of an option on the part of the mortgagor to pay a part of the amount due at any time he may elect before maturity does not destroy the negotiability of the note secured by the mortgage.</p> <p>2. --•: Bona Fide Holder. A holder of a negotiable promissory note “in due course is a holder who has taken the instrument under the following conditions: (1) That it is complete and regular upon its face. (2) That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact. (3) That he took it in good faith and for value. (4) That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.” Comp. St. 1911, ch. 41, sec. 52.</p> <p>3. Attachment, Property Subject to: Promissory Notes. “The indebtedness of the maker upon a promissory note, before its maturity, is not the subject of attachment. His obligation is not to the payee named in the note, but to the holder, whoever he may be.” Gregory v. Higgins, 10 Cal. 339. See, also, Olough v. Buck, 6 Neb. 343.</p>

<p>1. Marriage: Annulment: Insanity. This state has adopted the prevailing rule that while absolute inability to contract, insanity or idiocy, will avoid a marriage, mere weakness of mind will not, unless it extends so far as to produce the derangement that avoids all contracts by doing away with the power to consent. Aldrich v. Steen, 71 Neb. 33.</p> <p>2. -; -; -. The courts of this state are not authorized to decree a marriage contract void on the ground of insanity or idiocy of one of the parties, except for such want of understanding in such party as to render him or her incapable of assenting thereto.</p>

<p>Pleading: Answer: Sufficiency. In an action for the recovery of money, an answer which clearly shows that the money sought to be recovered was not due and payable at the time the action was commenced is not vulnerable to a general demurrer.</p>

<p>1. Schools and School Districts: Removal oe Schoolhotjse: Injunction. In an action by injunction brought to restrain officers of a school district from removing a schoolhouse situated in the district to another location, the right of plaintiff to maintain the' action is established, if it appears that he is a resident taxpayer of the district, and the proposed removal, if unauthorized, would involve a waste and unwarrantable expenditure of public funds; and no other or greater interest need be shown. McLain v. Maride, 60 Neb. 353.</p> <p>2. --: -: -; Pleading: Stjeeiciency. In such a case an allegation in the petition.that the schoolhouse was built and is supported by taxes levied upon the taxable property of the school district sufficiently avers the ownership of the district.</p>

<p>1. Limitation of Actions: Claim Against Estate. In the fall of 1883 Y. verbally assigned his crop of standing corn to H., who agreed to gather and market it, and out of the proceeds to pay certain of V.’s debts, the remainder thereof, if any, to be paid to V. H. gathered the corn, sold it in March, 1884, and paid the debts of V. specified in the agreement. V. made no demand for a settlement, and no claim that there was any balance due him from H. on account of the transaction, for more than 25 years. After the death of H., V. filed a claim against his estate for $7,095. Held, That the claim was barred by the statute of limitations.</p> <p>2. Executors and Administrators: Rejection op Claim: Evidence. Evidence examined, and held that, on its merits, the claim was properly rejected.</p>

<p>1. Homicide: Evidence. The substance of the evidence stated in the opinion, and held sufficient to sustain the verdict.</p> <p>2. Criminal Law: Misconduct oe Officers: New Trial. Alleged mil-conduct of the prosecuting attorney and the sheriff, in furnishing statements to newspaper reporters relating to the crime alleged to have been committed by th&defendant, is not available as a ground for a new trial, unless it is shown that the news items published and complained of were read by or brought to the notice of some of the jurors before whom the defendant was tried, or that such publications resulted in some way to prevent him from having a fair trial.</p> <p>3. -: Instructions. If the record in a prosecution for murder contains no evidence which would justify a conviction for the lesser degree of. manslaughter, the giving of an instruction by which that crime is not completely defined is not a sufficient ground for reversing a judgment of conviction for murder in the second degree.</p>

<p>1. Appeal: Submission: Subsequent Stipulation. On appeal, after a cause has been fully argued and regularly submitted on its merits, the reviewing court may for good and sufficient reasons decline to render a decree conforming to a subsequent stipulation of the parties, where the effect will be to reverse the judgment of the district court.</p> <p>2. Attorney and Client: Discharge of Attorney: Acts as Amicus Curle. After an attorney for a party to a pending action has been discharged by his client, and after the latter has stipulated with his adversary for a decree disregarding the rights of minors who are not parties to the suit, the attorney, as a friend of the court, may properly suggest facts necessary to the protection of the minors.</p> <p>3. Infants: Protection of Rights: Equity. A court of equity, if cognizant of the necessary facts, should, on its own motion, pro-' tect the rights of minors, when involved in litigation to which they are not parties.</p> <p>4. Wills: Construction. In ascertaining the intention of a testator, the entire will should be examined.</p> <p>5. -: -: Disposition of Estate. In construing a will, it will be presumed that the testator intended to dispose of his entire estate, unless the contrary is apparent.</p>

<p>1. Drainage Districts: Organization: Pleading. For the purpose of organizing a drainage district, properly verified articles, conforming to statutory requirements and containing a prayer for incorporation, and proper objections by interested landowners may take the place of formal pleadings in a summary proceeding under the drainage law of 1905. Comp. St. 1909, ch. 89, art. IV.</p> <p>2. -: -. The existence of swamp or overflowed lands and a purpose to drain them by means of a feasible drainage system are necessary to the legal organization of a drainage district under the act of 1905. Comp. St. 1909, ch. 89, art. IV.</p> <p>3.-: -: Articles or Incorporation: Correction oe Defects. In articles for the incorporation of a drainage district, defects in statements which, the statute does not require to he inserted in such articles may be corrected by averments in objections filed in the summary proceeding authorized by the drainage act of 1905. Comp. St. 1909, eh. 89, art. IV.</p>

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

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

<p>Error to the district court for Hamilton county: George F. Corcoran, Judge.</p>

<p>1. Appeal: Equity: Issues Beviewable. When a suit in equity, involving several separate and distinct issues, is appealed to this court upon part of such issues only, we are not required by the statute to try the whole case de novo. We are simply required to try and independently decide such issues in the-case, and such only, as are presented by the appeal.</p> <p>2. Mortgages: Foreclosure: Sale: Distribution: Limitations. M. and wife executed a mortgage upon the separate estate of the latter, to secure a loan by a bank to the former. Thereafter the wife died, leaving children surviving her. After her death a decree was entered in favor of the bank in a suit to foreclose its mortgage. Before sale under the decree the husband sold and conveyed his curtesy interest in the land to a codefendant in the suit. Held: First. That the purchaser of the curtesy interest was chargeable with knowledge that all he could take under his deed was such interest as his grantor should be found, upon the final order of confirmation and distribution, to have had at the time of the entry of the decree. Second. That the amount required to pay said mortgage should be deducted from such curtesy interest. Third. That, as between the husband and wife and the bank, the husband was the principal debtor and the wife a surety, and that the relation of debtor and creditor did not arise between them until the sale of the property under the decree; until which time the statute of limitations would not begin to run in favor of the husband.</p>

<p>Divorce: Custody oe Children: Evidence: Review. This appeal presents only the question of fact as to the sufficiency of the evidence to support the decree, and upon consideration of the evidence the order of the district court is affirmed.</p>

<p>Counties: Bridges: Liability oe Adjoining Counties eor Repairs. The liability of adjoining counties for repairs of a bridge over a stream between them is fixed by statute, and it is within the power of the legislature to alter or amend the statute in that regard. The conditions and extent of the liability depend upon the statute in force when such repairs are made and the liability incurred.</p>

<p>1. New Trial: Time for Filing Motion: Affidavit. The motion for new trial in district court must be filed before the adjournment of the term at which the verdict was rendered, unless unavoidably prevented. An affidavit stating generally that the defendant had reason to believe, and did believe, that the term would continue longer, without stating the conditions and circumstances leading to such belief, will not justify delay in filing the motion.</p> <p>2. Libel and Slander: Pleading: Evidence. The defendant in an action for slander cannot, in mitigation of damages, give evidence tending to prove the truth of the alleged defamatory charge under a general denial. Such facts must be alleged in the answer.</p>

<p>1. Accord and Satisfaction: Pleading and Proof. The defense of accord and satisfaction is not sustained, without allegations and proof that there was a substantial difference between the parties as to the amount due, and that the accord and satisfaction was in settlement thereof.</p> <p>2. Money Received: Misapplication of Funds by Attorney. If money is paid to an attorney at law upon a claim of a third party, and the attorney so receives and receipts for the same, he cannot withhold the money from the creditor upon whose claim it was paid, upon the ground that he is also a creditor of the person paying the money.</p> <p>3. -: -: Estoppel. If oral evidence is received, without objection, that the plaintiffs were acting as executors of the will of a deceased person, and as such had possession of a note payable to the decedent as a part of her estate, and placed the same in the hands of the defendant, such evidence shows a prima facie right in the plaintiffs to the proceeds of the note, and the defendant cannot resist their right on the ground that their letters testamentary are not properly sealed.</p>

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

<p>Appeal from tlie district court for Frontier county: Robert O. Orr, Judge. Motion to revive sustained.</p>

<p>Opinion on motion for rehearing of case reported ante, p. 394.</p>

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

<p>1. Criminal law: Appointment oe Assistant Pkosecutok. Where, in a criminal prosecution, an application is made to the district court for the appointment of an assistant prosecutor, if the court finds that such an appointment should be made, no attorney should be appointed who is known to be a partisan as against the accused, and who has theretofore been employed and paid by another suspected person, and for whom he has appeared in the preliminary examination and in a former trial of the accused in the district court, taking an active part in both trials for the purpose of protecting his suspected client. Under such an appointment, a fair and impartial trial of the accused person could not be reasonably expected.</p> <p>2.--: Impaneling Juey: Challenge for Cause. The statute (criminal code, sec. 468) provides that, where a proposed juror in a criminal prosecution has read the testimony of the witnesses, and upon which he has formed or expressed an opinion as to the guilt or innocence of the accused, he is incompetent as a juror. Where that fact is made clearly to appear, and that the opinion is still retained, it is manifest error to overrule a challenge for cause. Upon this subject there is no discretion lodged in the court. The statute is mandatory, and no court has the right to ignore it.</p> <p>3. -: — : Evidence: Admissibility. “An accused in a criminal prosecution is entitled to a trial upon competent, relevant evidence; evidence which at least tends to establish his guilt or innocence; and evidence which has no such tendency, but which, if effective at all, could only serve to excite the minds and inflame the passions of the jury, should not be admitted.” McKay v. State, 90 Neb. 63. Therefore, when material evidence, such as the bloody and soiled clothing of a decedent, is admitted in evidence in a .prosecution for murder, it should appear during the trial that the 'evidence would tend to throw light upon some material inquiry in the case. If not, it should be rejected.</p> <p>4. -: -: Expert Evidence. “Expert evidence in cases where the subject of discussion is on the border line between general and expert knowledge, as in questions of value, is not conclusive upon court or jury, but the latter may draw their own inferences from the facts, and accept or reject the statements of experts; but' upon questions involving a highly specialized art, with respect to which a layman can have no knowledge at all, the court and jury must be dependent on expert evidence.” Ewing v. Goode, 78 Fed. 442.</p> <p>5.--: Instructions: Homicide. An instruction, which informs the jury that if they “believe the defendant not guilty, and that he did not shoot and kill” the decedent, they should acquit, ought not to be given, although in the same instruction they are informed that they must find the accused guilty beyond a reasonable doubt before they could convict him. It is not necessary that the jury should believe the act was not committed by him. It devolved upon the state to prove he did commit the crime charged beyond a reasonable doubt.</p>

<p>1. Appeal: Verdict: Conflicting Evidence. In an action on a policy of accident insurance, where the question of the cause of the death of the assured is submitted to the jury on conflicting evidence, a reviewing court will not set aside the verdict unless it is shown to be clearly wrong.</p> <p>2.'-: Witnesses: Opinion of Expert. Where the physician and surgeon who treated the assured for his accidental injury has shown himself competent to testify as a medical expert, has fully and clearly described the nature of the injury and its effect, together with the condition and symptoms of his patient, it is not reversible error to permit him to state what, in his opinion, caused the death of the assured.</p> <p>3. Instructions examined, and found to be without reversible error.</p>

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

<p>Appeal from the district- court for Stanton county: (lux T. Graves, Judge.</p>

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

<p>1. Brokers: Action foe Commission: Burden of Proof. In an action on a contract between real estate brokers for a division of commissions on the sale of real estate, jointly listed by both parties, by which it was provided that, if sale is made by the second party without the aid of the first party, the second party shall have all of the commission, it being conceded that the sale on which the first party claims to be entitled to a division of the commission was in fact made by the second party, the burden is on the first party to show by a preponderance of the evidence that the sale was made by or with its aid or assistance.</p> <p>2. -:--: Evidence: Sufficiency. Evidence examined, its • substance set forth in the opinion, and field insufficient to require a division of the commission.</p>

<p>1. Licenses: Occupation Tax: Constitutionality. It is not the purpose of the fourteenth amendment to prevent the states from classifying the subjects of legislation and making different regulations as to the property of different individuals differently situated. The provision of the federal constitution is satisfied if all persons similarly situated are treated alike in privileges conferred or liabilities imposed. Field v. Barber Asphalt Paving Oo., 194 U. S. 618.</p> <p>2.-: -: -. The provision of section 1, art. IX of the constitution of this state, authorizing the taxation of persons engaged in certain occupations, in such a manner as the legislature shall direct by general law uniform as to the classes upon which it operates, forbids partiality and favoritism, and makes equality before the law a rule of legislative action. It does not, however, forbid reasonable classification of persons for the purpose of taxation. Rosenbloom v. State, 64 Neb. 342.</p> <p>3. -: -:' Classification of Occupations: Power of Municipalities. When a city charter authorizes a municipality to require by ordinance a license tax of persons engaged in any occupation, trade, or business carried on within the corporate limits of the city, the municipal authorities may by ordinance classify the different occupations for taxation, and impose different taxation in different amounts upon the different classes; and a classification made by such authorities will not be interfered with by the courts, unless it manifestly appears that it is unreasonable and arbitrary.</p> <p>4. -: -: City Ordinance: Validity. The classification of persons lending money upon chattel security in a different class from chartered hanks, negotiators of loans on realty, real estate agents, and dealers in bonds and stocks, and the imposition of a tax differing in amount upon such money-lenders from that imposed upon such other classes, is not so wanting in reason that the ordinance providing for such classification will be declared void as being entirely arbitrary.</p> <p>5. -: -: -: -. An ordinance providing -a fine and imprisonment as a means of enforcing a license tax does not trench upon the constitution of this state. Roseribloom v. State, 64 Neh. 342.</p>

<p>Appeal from the district court for Adams county: Ernest B. Perry, Judge.</p>

<p>1 Pleading: Demurrer Ore Tends. Where the objection that the petition does not state a cause of action is made by demurrer ore terms after the commencement of the trial, the allegations of the pleading will be liberally construed, and, if possible, sustained.</p> <p>2. Appeal: Objection to Evidence. A judgment will not be reversed for error in sustaining an objection to the evidence of a witness upon a point which is otherwise well established by the testimony.</p> <p>3. Municipal Corporations: Action for Personal Injuries: Admission of Evidence. Where, in an action for personal injuries, the evidence shows that the plaintiff’s leg was dislocated, and that as a result of the injury his right leg is one inch shorter than the other, and that its movement is attended with pain and difficulty, and that this condition is permanent, it is not prejudicially erroneous to admit the Carlisle table of expectancy in evidence.</p>

<p>Carriers: Freight Rates: Action for Overcharge. Section 5, ch.. 90, laws 1907, made it the duty of all common carriers to file with the state railway commission, within 30 days after the act took effect, “all freight and passenger schedules, classifications, rates, tariffs and charges used by said common carriers and in effect on January 1st, 1907.” Subdivision c, sec. 15, of the act prohibits changes being made in “any rate, schedule or classification until application has been made to the railway commission and permission had for that purpose.” In this case it appears that the rate actually charged and received for the transportation of crushed stone from Omaha to Florence for several years was $5 a car-load, which is a just and remunerative rate, while the published schedule rate was 2 cents per cwt., Which the railway commision held to be excessive and discriminatory. There is no evidence of a change in either the published or the actual rate before January 1, 1907, or by the railway commission before the freight was shipped. The plaintiff was charged at the higher rate. Held, That the actual rate used and in effect on and prior to January 1, 1907, was the rate which should have been charged, and that the shipper is entitled to recover the overcharge.</p>

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

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

<p>1. Contracts: Construction. A contract for the excavation of a ditch, at a certain price per cubic yard of dirt, provided, “when one-fourth of the work provided for in this contract is completed according to the terms hereof, and to the satisfaction of the engineer in charge,” the engineer should make an estimate and 75 per cent, of the price fixed per cubic yard should be paid. The ditch was not excavated to the bottom by the contractor, but as the work progressed estimates were made and 75 per cent, of the contract price -per yard excavated was paid. Held, Under such a provision in the contract, the completion of one-fourth of the work does not mean the actual completion to the bottom of the ditch of one-fourth of its lineal distance without regard to the quantity of dirt removed, but means one-fourth of the work of removing and placing the dirt, as directed by the plans and specifications, and, there being nothing in the contract or bond to forbid, the county had the right to pay as it did.</p> <p>2. Principal and Surety: Liability of Surety. Where a party to a contract with a county board makes a written request for an extension of time, and the board grants the extension, making the proceedings a matter of record, and indorsing the extension on a written request, sureties upon the bond of the contractor, which bond provides that any departure from the strict terms of the contract “which is made under a written agreement of both parties to said contract shall not invalidate this undertaking nor release the sureties,” have no cause for complaint, and are not released.</p>

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

<p>1. Appeal: Bejection op Evidence: Harmless Error. In this an action upon a saloon-keeper’s bond for damages for loss of support by causing the plaintiff’s husband to become an habitual drunkard, on cross-examination objection to certain questions with reference to his'habits prior to the time of sale of the liquor -was sustained. There being other testimony in the record on this point, practically undisputed, held, not prejudicial error.</p> <p>2. Witnesses: Expert: Cross-Examination: Beview. By supplemental allegations in the petition, it is charged that plaintiff’s husband died, after this action was begun, as a result of the habitual drunkenness caused by the defendants. A medical witness was permitted to testify as an expert to the effect of the excessive use of intoxicants upon the human system, more especially with reference to its tendency to impair vitality and lessen the resistant power to disease. He testified to his personal knowledge of the impaired physical condition of the deceased due to excessive drinking; he having been acquainted with the deceased for years, and having examined him. Held, Under the issues, this evidence was properly received.</p> <p>3. Estoppel: Principal and Surety: Liability op Surety: Liquor License. Where a surety company has entered into the bond which is necessary to procure a saloon license, and the principal has received the license and become liable for damages to individuals by reason of the traffic, the surety is estopped to plead that there was no valid ordinance in force at the time the license was issued.</p> <p>4. Evidence: Bonds: Certified Copies. A properly authenticated copy of a liquor dealer’s bond is sufficient prima facie proof of the existence of the bond and of its proper execution. Gran v. Houston, 45 Neb. 813.</p> <p>5 Appeal: Motion eor New Trial. An assignment that the verdict is excessive, not made in the motion for a new trial and called to the attention of the trial court, will not be considered in this court.</p> <p>6. Intoxicating Liquors: Action: Damages. Persons engaged in selling intoxicating liquors, under licenses obtained pursuant to the laws of this state, are liable in damages for all the legitimate and proximate consequences of their traffic, and, if they have induced habitual drunkenness in a previously sober and industrious yuan, they are liable for a consequent thriftless and dissipated career, followed by him, after they have ceased to furnish him with liquors. StahnJca v. Kreitle, 66 Neb. 829.</p> <p>7. -: “Slocumb Law”: Constitutionality. The question as to the constitutionality of chapter 61, laws 1881, known as the “Slocumb Law,” has been repeatedly decided by this court, and will not be re-examined.</p>

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

<p>1 Chattel Mortgages: Description of Property. A description in a chattel mortgage which will enable a third person, aided by inquiries which the instrument itself suggests, to identify the property is sufficiently definite.</p> <p>2.--: Recording: Removal of Property. Where a mortgagor removes property from another state into this state, without the consent of the mortgagee, which has been incumbered by a mortgage duly recorded and valid under the laws of the former state, such removal does not invalidate the recording of such mortgage, nor necessitate the recording of it again in the county in this state to which the mortgagor has removed- with the property.</p>

<p>1. Partnership: Transfer of Stock to Trustees: Action for Conversion. Where partners engaged in mercantile business transfer their stock to a committee of their creditors under a contract authorizing the committee to conduct the business, and requiring a return of the remainder of the property whenever all claims are paid in full, the members of the committee are trustees for both creditors and partners, and the latter alone, before the claims have been paid in full, cannot maintain an action at law against the. members of the committee for the conversion of stock sold by them in bulk in violation of their duties as trustees.</p> <p>2.-:--:--. In an action by partners for the conversion of partnership property, there can be no recovery by individual partners to the exclusion of others.</p>

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

<p>Deeds: Cancelation: Fraud. A deed to valuable land, if procured for an insignificant consideration by fraudulent misstatements of facts and by concealment of conditions on the part of the grantee, may 'be canceled in equity, where the circumstances were such that grantor was justified in relying on the acts constituting the fraud, and did so in good faith.</p>

<p>Quieting Title: Occupying Claimant. In a suit by the owners of the fee to quiet their title to land, a defendant who transferred all his interests in both the land and the improvements and surrendered possession to his grantee before the action was commenced is not entitled to relief under the occupying claimants’ act.</p>

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

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

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

<p>1. Railroads: Negligence. It is not negligence for a railway company to operate a passenger train at the rate of 50 miles an hour, during a clear day, in the open country, where there are no obscure crossings.</p> <p>2.---: -: Killing Live Stock. The mere fact that an animal is killed upon the public highway at a railroad crossing is no evidence of negligence on the part of those in charge of the train.</p> <p>3.--: -: Evidence. Nor can negligence be established by inference or conjecture in contradiction to the testimony of a competent and unimpeached eye-witness.</p> <p>4. -: -: Duty of Employees. The duty of an engineer and fireman of a locomotive, to keep a lookout for animals on the track, is not their sole duty, but is such as is consistent with their other duties.</p>

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

<p>1. Trust Deed: Construction. P., a resident of the state of Kentucky, conveyed land in that state to I. as trustee for L., the recently married daughter of P. The conveyance to I. recited that it was in trust for the sole and exclusive use and benefit of L. and her heirs forever. Held, That the placing of the title in I. for the benefit of L. was for the sole purpose of protecting her against her husband and his creditors, and did not vest any -estate in L.’s children; the words, “her heirs,” being technical words of inheritance merely, and not words of purchase.</p> <p>2. -: -: Law Governing. And the lands in controversy, situated in this state, having been purchased with the proceeds derived from the sale of the Kentucky land, in accordance with the terms of the deed from P. to I. as trustee for L., the rights of L., under her deed to the Nebraska land, must be determined by the laws of Kentucky, and the decisions of the supreme court of that state construing the same, at the time the deed from P. was executed.</p> <p>3. -: -: Termination of Trust. And L. having subsequently become discovqrt by the divorce of herself and husband, the reason for the trust no longer existed, and the trust estate terminated; and, no other trustee having been appointed for her, thenceforward she was vested with the fee simple title to the lands so conveyed, with full power to sell and convey the same.</p>

<p>Divorce: Review: Property Rights: Adjustment. Record exaDiined and held: (1) The evidence is not of such a character as to justify a review of the decree of divorce. (2) In equity and good conscience, the property of the parties, accumulated by their joint efforts during a long period of years, should be treated as joint property in equal shares. (3) The joint possession and use of the property having by the decree been terminated by reason of the' wrong-doing of the defendant, in whom the title rests, he should account to the plaintiff for the reasonable'value of her share. (4) Land in another state, recently inherited by plaintiff from her father, should not be included in the accounting.</p>

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

<p>Municipal Corporations: Treasurer: Removal Prom Office: Procedure. The power given the city council of a city of the second class, under section 8905, Ann. St. 1911, to remove a city treasurer for any of the reasons therein set out, cannot be exercised until there has been preferred against such treasurer some specific charge, of which he shall have notice and an opportunity to be heard in his defense.</p>

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

<p>1. Witnesses: Competency. Witnesses who know the fact whether hoys of a certain age were at a stated time admitted into the British army are competent to testify as to such fact, although they are not familiar with the law so as to he able to say whether such boys were legally admitted.</p> <p>2. Evidence: Objections: Depositions. Objection may be made to the competency and materiality of evidence contained in a deposition without filing objection thereto in writing under section 390 of the code.</p> <p>3. -: Exclusion. Evidence stated in the opinion field to have been improperly excluded.</p> <p>4. -: -. A document, reciting that it is an “extract entry' of birth,” and signed “Hugh Pearce, Registrar,” but without-any other authentication or explanation, was properly excluded.</p> <p>5. -: Declarations: Question for Court. The question of the competency of the deelaratiohs of a deceased ancestor as to family pedigree and history is for the court, and not for the jury, to determine.</p> <p>6. Heirs: Evidence: Trial: Instructions. Declarations as to pedigree and history must relate to family relatives of the decedent. When, in determining the next of kin of a deceased person, the question is as to the identity of the decedent with one who is shown to he a member of the family of those claiming heirship, it is erroneous to instruct the jury that such identity must be established before such declarations as to the family relative can be considered.</p> <p>7. -: -: -: -. In such case, it is misleading and erroneous to instruct the' jury that the petitioners claiming heir-ship must prove by a preponderance of the evidence “that they are the next of kin, blood relatives, of the said William D. Lyle, deceased, and that they are the only next of kin and blood relatives living” of decedent, the only question being as to the identity of the decedent with the relative whose heirs they are.</p>

<p>1. Street Railways: Action for Personal Injury: Admissibility of Evidence. The plaintiff testified that, as he attempted to cross the track of the street car, he was struck and knocked down by a passing car; he did not see the car until it struck him; while the car was passing he could see that it was running at from 25 to 35 miles an hour. Held, That, while his evidence was not competent for the purpose of determining the exact speed of the car, it was properly admitted as tending to support the allegation that the person in charge of the approaching car failed to reduce its speed and advance slowly while passing another car.</p> <p>2.--:--: -: Photographs. Photographs showing the location of the alleged accident and the condition of the street and surroundings are not necessarily to be excluded from the evidence merely because the situation is capable of verbal description.</p> <p>3.----:---: Negligence: Instructions. The plaintiff testified that after he had alighted at a street crossing on the west side of the south-bound street car, intending to go west on the street, ho changed his mind, and started to go east across the parallel trad:, and was struck by a passing car. Held, That it was erroneous to submit to the jury the question whether the conductor was negligent in not warning him of danger in crossing the parallel track, there being no evidence that the conductor knew that he intended to cross the track, or knew before he alighted from the car that another car was approaching.</p> <p>4. -: -: --■: Evidence. Under such circumstances, the testimony of the plaintiff that he did not see or hear the approaching car is not sufficient’to prove the allegation of his petition that there was no headlight on the approaching car,, nor any bell sounded as it approached.</p> <p>5. Appeal: Instructions. It is erroneous to submit to the jury issues upon which there is no evidence.</p>

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

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

<p>1. Drainage Districts: Organization: Injunction. When the petition' filed for the formation of a drainage district, under article IV, eh. 89, Comp. St. 1909, and the proceedings thereunder are sufficient to give the district court jurisdiction of the subject matter, and an order is entered therein declaring the organization a public corporation of this state, as provided in the third section of that act, the supervisors of the district, duly elected, cannot be enjoined from proceeding with the work for which the district was organized on the ground of irregularities in the organization thereof.</p> <p>2. -: Public Corporations. A drainage district organized under article IV, ch. 89, Comp. St. 1909, is a public corporation.</p> <p>3. Public Corporations: Organization: Consent of Public. When a public corporation is organized for subordinate governmental purposes, such as a village, township, city, or drainage district, it is not necessary that all of the people embraced within the corporate limits should consent to incorporation. The legislature has power to provide for such incorporation by the required number of inhabitants and property owners therein without the unanimous consent of all.</p> <p>4. Drainage Districts: Right of Eminent Domain. Condemnation proceedings are allowed under said statute (section 12) when the “board of supervisors are unable to agree with the owners” of the property. When the condemnation proceedings and the work thereunder are enjoined on the ground that the drainage district has no legal organization, and that no right exists to take the land for such purpose, and there is no evidence that the plaintiffs seeking the injunction are, or ever have been, willing to grant the right of way upon any terms, it sufficiently appears that the parties cannot agree.</p> <p>5. -: Injury to Land: Injunction, If lands not taken by the condemnation proceedings are damaged by the improvement, the law provides an adequate remedy. The owners of lands so damaged are not entitled to enjoin the prosecution of the work on the scle ground that the damaged lands are not included in the condemnation proceedings.</p> <p>6. -: Lands Subject to Drainage Act. Under the statute in question, a district may be formed for the purpose of having swamp and overflowed lands “reclaimed and protected from the effects of water, by drainage or otherwise.” Section Í. To provide a drain to prevent water from flowing onto swamp lands is to protect such lands from the effects of water as contemplated by this statute.-</p> <p>7. Eminent Domain: Petition: Drainage District. The supervisors must- file a petition for condemnation “setting forth the location and character of the right of way needed, and describing the lands to be crossed.” Section 12. If a petition is filed in county court showing the starting point of the proposed ditch and the lands it will cross, stating the government subdivisions, it is sufficiently definite in that regard to give the county court jurisdiction to appoint the appraisers, and, if the damages assessed by the appraisers and the orders of the court thereon are not appealed from, they are not subject to collateral attack on the ground that the location of the ditch is not sufficiently set forth in the petition.</p>

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

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

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

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

<p>3. Master and Servant: Relief Fund: Application: False Statements: Warranties. The statement contained in an application for membership in the voluntary relief department of the defendant company that the applicant was only 25 years of age is a' warranty; and it appearing that the applicant was in fact more than 35 years old when he made his application, that fact being unknown to the company, will render the contract of insurance void.</p> <p>2. -: -: -: Fraud. The plaintiff, while living at Plattsmouth, had many times participated in the relief fund of the defendant under the name of “Jesse F. Blunt.” He after-wards removed to McCook, Nebraska, changed . his name to “Jesse Blount,” and represented his age to be 25 years, when, as a matter of fact, he was more than 35 years old, and thus again secured membership in the relief department of the defendant, which otherwise he could not have done. Held, That his membership was secured by fraud, and was void.</p>

<p>1. Principal and Agent: Secret Profits: Liability of Agent. To enable a principal to recover for secret profits alleged to have been made by his agent in the exchange of properties, it must appear that at the time of the exchange or trade the agent was possessed of some knowledge of the value of the property taken in exchange that was unknown to his principal, and which the agent afterwards used to his own advantage.</p> <p>2. -: -: -. An agent agreed with a third party to purchase a restaurant taken by such third party in. exchange with his principal for other property in case such third party should, after examination, conclude that he did not desire to hold it. • The agent afterwards purchased the restaurant according to his agreement, at a price much less than that fixed by his principal in making the exchange, but which was the fair market value of the restan) ant. Held, That he was not liable to his principal for secret profits.</p>

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

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

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