Volume 95 — Nebraska Reports

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

<p>1. Interest: Recovery: Pleading. Under the provisions of section 92 of the code, “where the plaintiff in an action does not pray for interest, none can be recovered.” City of South Omaha v„ Ruthjen, 71 Neb. 545.</p> <p>2. Appeal: Action on Bond: Attorneys’ Fees. In an action upon an appeal bond, unless provided for by statute, or the usual course o.f the law, attorneys’ fees will not, ordinarily, be allowed as having been incurred in resisting an unsuccessful appeal from a judgment or final order of the district court to the supreme court.</p>

<p>1. Taxation: Suit to Redeem: Refusal op Request to File Supplemental Petition. A petition to redeem from a tax sale of real estate was filed on the 2d day of November, 1910, a summons was issued on the same day and subsequently served. The law requires the tax list for the current year to be delivered to the county treasurer on or before the first of that month. The tax ■for the.year 1910 was not paid. After the tax had become delinquent, plaintiff paid it; and, before the final decree dismissing his suit was entered, he asked leave to file a supplemental petition alleging such payment. Leave was denied, to which he excepted. Held, That the leave should have been granted.</p> <p>2. -: When Delinquent. Taxes on real estate are not due so that their collection can be enforced until the 1st day of May following the time when the tax list is placed in the hands of the county treasurer for collection.</p> <p>3. Affidavits. “An affidavit subscribed and sworn to before a person not authorized by law to administer oaths is void and no affidavit.” Lanning v. Haases, 89 Neb. 19.</p>

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

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

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

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

<p>Municipal Corporations: Claims: Allowance. The charter of a city provides, “All ordinances and resolutions, or orders for the appropriation or payment of money, shall require for their passage or adoption the concurrence of a majority of all members elected to the council or board of trustees.” Comp. St. 1911, ch. 14, art. I, sec. 79. Upon the alleged completion of a contract for the construction of a water-works system, the contractor presented a claim to the city council for the balance alleged to be due. A motion was made to allow the claim and issue a warrant in payment thereof. The council consisted of four members. Three were present, of whom two voted, “Yea,” and the third voted, “No.” The mayor declared the motion carried. Afterwards a warrant was prepared by the clerk, but the mayor refused to sign the same upon the ground that its issuance was not authorized by a legal majority of the council. Held, That the issuance of the warrant was not authorized by law, and that a writ of .mandamus to compel the mayor to sign the same should have been refused.</p>

<p>1. Trial: Directing Verdict. Unless plaintiff and defendant at the close of the evidence each request a directed verdict in his favor, the district court is not authorized to determine disputed questions of fact. If such a request is made by one party alone, it is only when the testimony on behalf of the other party will not support his cause of action or his defense that the court may direct the jury to render a verdict in favor of the moving party.</p> <p>2. Insurance: Vacation oe Premises: Notice. Notice and knowledge of the existence of a vacancy in the insured premises, or of the occurrence of a fire in the same, to such an extent as to make them uninhabitable, communicated to the local agent of the defendant, authorized to issue policies and transact the usual business of a recording agency, is the knowledge of the insurance company.</p> <p>3. -: Forfeiture: Return of Premium. Where a policy provides that the policy “shall be void if the building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days,” and also provides: “If this policy shall * * * become void or cease, the premium having been actually paid, the unearned portion shall be returned on surrender of this policy or last renewal, this company retaining' the customary short rate” — the company is not bound to return any unearned premium, unless the policy is surrendered.</p> <p>4. -: -: Waiver. Where, under such a policy, the insurer has no notice or knowledge of the breach of a condition in the •policy making it void in case the premises are vacant or unoccupied for more than ten days, and did not learn until after the premises were totally destroyed that the building had been so damaged by previous fires as to be uninhabitable and had so remained for several weeks before the loss occurred, the fact that the adjuster for the company, while declaring that the policy was void and that the insurer was not liable, offered a larger sum than the unearned premium for a surrender of the policy does not of itself constitute a waiver of the forfeiture.</p>

<p>1. Banks and Banking: Deposit: Presumption: Where the nature of a bank deposit is not shown, the law will presume that it is a general one.</p> <p>2. -: General Deposit: Debtor and Creditor. A general deposit creates between the bank and the depositor the relation of debtor and creditor.</p> <p>3. -: -: Title. Under a general deposit the title to the identical money deposited passes to the bank.</p> <p>4. -: -: Obligation of Bank. A bank is not required to .return identical funds deposited subjéct to cheek, but discharges its obligation as debtor by returning the equivalent in money upon demand.</p> <p>5. -: -: -: Demand. For non-payment of a general deposit, a solvent bank is not in default, or guilty of conversion, or justly required to defend a civil action, until a demand for the deposit has been made, or waived, or shown to be un- ' necessary.</p> <p>6. -: -: Action: Set-Off: Pleading. In an answer pleading a set-off for bank deposits, a general allegation that the bank converted the deposits to its own use must yield to specific allegations showing that a demand was necessary, but not made.</p> <p>7. Set-Off. “A claim on the part of a defendant, which he will be entitled to set off against the claim of a plaintiff against him, must be one upon which he could, at the date of the.commencement of the suit, have maintained an action on his part against the plaintiff.” Simpson v. Jennings, 15 Neb. 671.</p> <p>8. Pleading: Set-Off. In pleading a set-off in an action on a note, defendant should conform to the rules by which the sufficiency of plaintiff’s petition would be tested, if assailed by demurrer.</p> <p>9. --: -: General Denial: Waiver. In an action on a promissory note, a general denial by plaintiff in reply to a set-off pleaded in the answer does not waive the objection that defendant's plea fails to state facts sufficient to constitute a cause of action.</p> <p>10. -: Sufficiency: Waiver. The objection that a set-off pleaded in an answer does not state facts sufficient to constitute a cause of action may be raised at any stage in the proceeding.</p>

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

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

<p>Fraudulent Conveyances: Creditors’ Suit. Real estate fraudulently transferred to prevent the collection of the grantor’s debts, with full knowledge of the grantee, may be subjected to the payment of a judgment subsequently rendered against the grantor upon a claim existing at the time of the fraudulent conveyance.</p>

<p>Appeal: Instructions: Exceptions. “Instructions will not be reviewed where no exceptions were taken to them by the party complaining at the time the charge was given to the jury.” State v. School District, 55 Neb. 317.</p>

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

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

<p>1. Elections: Election Commissioner: Duties. Chapter 36, laws 1913, which creates the office of election commissioner for counties having a population of 150,000 or more, places great responsibility and imposes important duties upon the election commissioner. He is required to exercise many powers theretofore confided to judges of election.</p> <p>2. -: -: -. It is the duty of the election commissioner to determine whether the applicant for registration is or is not entitled to vote. He is not a court nor judge, but he must consider evidence and determine questions of fact and law; his action is quasi-judicial, and he is given a reasonable legal discretion in his investigation of the qualifications of persons applying for registration.</p> <p>3. -: -: Purpose oe Statute. The purpose of the act (laws 1913', ch. 36) was to remedy the loose and careless practices that had prevailed in conducting elections. The election commissioner is not controlled by precedents of that nature.</p> <p>4. -: Registration Act: Validity. “A registry law, to be valid, must be reasonable and impartial, and calculated to facilitate and secure the constitutional right of suffrage, and not to subvert, or injuriously, unreasonably, or unnecessarily restrain, impair, or impede the right.” State v. Corner, 22 Neb. 265.</p> <p>5. -: Election Commissioner: Naturalized Persons: Registration. The election commissioner is not obliged to require foreign-born persons who have been naturalized to submit and leave with the commissioner his naturalization papers. If they are presented and the commissioner is satisfied of their regularity, he may return the papers to the applicant for registration. But in determining the fact of naturalization he is not concluded by the oath or sworn statement of the applicant. He may require the production of the papers or a duly certified copy thereof.</p> <p>6. -: -: Registration. Decisions which hold that an absolute denial of the right to vote to all persons whose names do not appear upon .the registration list is unconstitutional are not applicable. Our statute makes ample provision for full investigation by the election commissioner and his supervisors, which may be continued, if necessary, to the time the vote is offered.</p> <p>7. -: Naturalized Persons: Registration. Whether the applicant for registration, if the record of his naturalization is destroyed and he has lost his certificate thereof, can he required to take out new naturalization papers, or may prove the contents of the record, as in ordinary cases of lost or destroyed instruments, is not decided. . .</p>

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

<p>1. Appeal: Affirmance. Where there is no conflict in the evidence as to the principal facts in a case, but the conclusion as to how the decedent lost his life must be drawn from inference and conjecture, the circumstances shedding little, if any, light upon the cause of the loss of life, the verdict of the jury for defendant cannot be set aside.</p> <p>2. Counties: Action for Death: Instructions. Instructions given to the jury by the trial court examined, and found not prejudicially erroneous.</p>

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

<p>Appeal from the district court for Phelps county: Harry S. Dung an, Judge.</p>

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

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

<p>1. Judgment: Vacation of Satisfaction: Fraud. A settlement of ’a judgment will be set aside and the judgment reinstated when the settlement was obtained by fraud practiced upon a person of weak understanding, who is unable to guard herself against imposition or resist importunity.</p> <p>2. -: -: Application of Payments. When a judgment is reinstated under the foregoing circumstances, the plaintiff is not • required to restore the payments made to secure such a settlement, but the payments will be credited on the judgment ,thus reinstated.</p>

<p>1. Habeas Corpus: Custody of Child. The right of a mother to the custody of her child is not lost beyond recall by an act of relinquishment performed under circumstances of temporary distress or discouragement.</p> <p>2. -: -. The right of the parent is not lightly to be set aside, and it should not be done where unfitness is not affirmatively shown, or forfeiture clearly established.</p> <p>3. -: -. In an application for a writ of habeas corpus by a mother to recover the possession of her child of tender years, the best interest of the child should determine its custody.</p> <p>4. Evidence examined, and found sufficient to sustain the order of the district court.</p>

<p>Nuisance: Injunction: Evidence. In this an action to restrain the operation of a hide-dressing and leather manufactory as a nuisance on account of the exhalation of noisome and offensive odors, the evidence is held insufficient to warrant the issuance of an injunction, and the judgment of the district court is affirmed.</p>

<p>Municipal Corporations: Liability: Obstruction oe Street. Neither the city nor the officers of its board of health are liable for damages sustained by reason of acts committed in the exercise of police power for the benefit of the public health and safety; but, if in the exercise of such powers such officers place a rope barrier across a public walk or street, which becomes and remains in a defective and dangerous condition, and the city either has actual notice of the defect or it has existed for such a length of time as that notice will be presumed, the city may, if the facts in the case warrant, be held liable for its negligence in leaving the walk in an unsafe and dangerous condition.</p>

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

<p>Limitations of Actions: Principal and Surety: Payment by Principal. The payment of interest on a note by a principal without the authority, knowledge or consent of the surety will not stop the running of the statute of limitations as to the surety.</p>

<p>1. Pleading: Amendment of Petition: New Cause of Action: Limitations. In an action for the negligent killing of plaintiff’s decedent, plaintiff may amend her petition by alleging other and additional grounds of negligence. Such amendment does not amount to a departure, and does not render the petition vulnerable to a plea of the statute of limitations, and evidence in support of the new allegations is properly receivable. Norfollc Beet-Sugar Go. v. Sight, 59 Neb. 100.</p> <p>2. Judgment: Dismissal: Vacation of Order: Reinstatement of Case. The district court has the power to set aside its orders and judgments at the same term at which they are made or rendered, and error cannot be predicated on a ruling setting aside an order dismissing the case as to one of the defendants and reinstating it as to such defendant. Bradley v. Slater, 58 Neb. 554.</p> <p>3. Master and Servant: Negligence: Custom: Burden of Proof: Question for Jury. Where plaintiff alleges that it was the custom of the defendant to station a man on the footboard in front of its moving engines to warn trackmen of their approach, and that defendant was guilty of negligence in not following such custom, which negligence caused the death of plaintiff’s decedent, the burden of proof is on the plaintiff to establish the existence of such a custom, by a preponderance of the evidence, and the question whether such custom actually existed is one for the jury to determine.</p> <p>4. -: -: Question for Jury. Where the facts in evidence showed that the deceased was a track laborer working under the direction of a foreman; that he was ordered by the foreman to clear the switches and switch points of snow and ice which might interfere with their use; that at that time the weather was inclement, a strong northwest wind was blowing, some snow was drifting, and the temperature was below zero; that, when placed at work, the deceased wore a cap with a flap to it, which was pulled down over his ears, and a knitted muffler; that the work was such as to require his close attention and to necessitate a stooping posture, held, that his position by reason of the circumstances was one of increased and peculiar danger, and the question whether defendant was guilty of negligence in failing to use reasonable care to warn the deceased of the approach of moving engines or cars was properly submitted to the jury.</p>

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

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

<p>Rulings in Cortright Metal Roofing Co. v. Merten, ante, p. 164, followed.</p>

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

<p>• Appeal from the district court for Phelps county Harry g. Dungan, Judge.</p>

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

<p>1. Pleading: Aider by Answer. “A defective or ambiguous petition may be aided and its infirmities cured by the averments of the answer.” Beebe v. Latimer, 59 Neb. 305.</p> <p>2. Costs. In an action at law in the district court, where a verdict is returned in favor of the plaintiff for an amount within the jurisdiction of a justice of the peace, the jury fee and trial fee are costs made by plaintiff, and should be so taxed.</p>

<p>1. Trusts: Compensation op Trustee: Conversion: Election op Remedies. The amount due a trustee of an estate, appointed by a foreign court in which such estate is being administered, for services as trustee must be determined by that court and an - order therefor duly made before such trustee may properly withdraw any sum as compensation for such services from the trust fund; and the withdrawal of the same before such allowance is made constitutes a conversion of the sum so withdrawn, for which the beneficiaries of such fund, or succeeding trustees, have an election of remedies — a suit in equity to impound the money, when it can be traced, and have it declared a trust fund, or an action at law for a conversion.</p> <p>2. Executors and Administrators: Trust Funds: Conversion: Remedy. And in the event of the death of the trustee both remedies survive; but the method of procedure in the remedy at law for conversion becomes changed, and such remedy must be enforced in the manner required by the statute in relation to the presentation of claims against the estates of decedents, in force at the time of the death of such trustee.</p>

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

<p>1. Partnership: Evidence. Evidence set out in the opinion examined, and held sufficient to establish the copartnership of the defendants.</p> <p>2. Sales: Action for Price: Defense: Pleadins. In an action by a vendor to recover the price of intoxicating liquors sold, if the vendee relies on illegality of the sale as a defense, he must specially plead and prove it. He cannot show it under a general denial. ■ '</p>

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

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

<p>Malicious Prosecution: Evidence: Directing Verdict. In an action for damages for malicious prosecution, where the evidence offered by plaintiff in his case in chief is clearly insufficient to show either malice or want of probable cause on the part of the defendant in causing the prosecution complained of, it is the duty of the district court to direct a verdict for the defendant.</p>

<p>1. Brokers: Contract: Construction. The use of the words ame,” “sell,” or “to sell” in a contract between the owner of land and his agent is not necessarily decisive as to the authority of the agent to execute a contract of sale for and in the name of his principal. The whole writing is to be taken together, and in the light of existing circumstances and conditions the meaning is to be ascertained.</p> <p>2. -: -: Burden on Proof. Such a contract is to be proved as other contracts are proved; the burden being upon the person who asserts the existence of the contract. When fairly construed, giving force and meaning to all expressions in the contract as far as possible, and considering all conditions and circumstances, if it shows that the owner intended to authorize the agent to make and enter into a 'valid contract of sale for the owner and in his name, a contract so executed by the agent will be binding upon the principal.</p> <p>3.--: -: Construction. The owner of a farm advertised that he desired to sell it, and that parties interested might address him (the owner), who resided in another county, “or call on Dan Sheets,” who resided near the land, “for terms and prices.” He then wrote Mr. Sheets that he would sell the farm for $100 an acre, stating definitely the terms and conditions upon which he wished to sell, and added, “should you sell you get an abstract made out in Neligh if the party demands,” and “if you sell the farm for me at 100 doll per acre you get 50 doll if you can get more I give you 5 cents on the dollar for what you get above one hundred per acre.” Held, That under the existing conditions as alleged in the petition the agent was authorized to mate a written contract of sale for his principal.</p> <p>4. -: -: Action for Breach. The agent made a written contract in the name of his principal, agreeing to convey the land to the plaintiff for the price named by the owner and upon the specified terms of payment, upon which the plaintiff paid $5,335, and demanded a completion of the contract. The contract with .the plaintiff omitted some of the minor particulars specified in the contract of agency. The defendant was notified of the sale, and agreed to complete it “as soon as my wife is able to sign,” and gave, no other reason for delaying completion of the transaction. The plaintiff contracted to sell the land at a higher price, and the defendant refused to complete the transfer, without giving any further reason for his refusal. Held, That the petition alleging these facts states a cause of action requiring the defendant to plead and prove a defense, if any be had.</p>

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

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

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

<p>1. Appeal: Review. In the absence of a motion for a new trial in a law action, the only question to be considered on appeal is the sufficiency of the pleadings to sustain the judgment. Lau v. Lindsey, 3 Neb. (Unof.) 681.</p> <p>2. Brokers: Commission: Sufficiency of Petition. The pleadings, examined and set out in the opinion, held, sufficient to sustain the judgment.</p> <p>3. -: Contract: Validity. A contract sufficient to meet the requirements of the statute may be created by letters between the parties, and may be sufficient to create a contract between principal and agent for the sale of real estate though the same papers are not, signed by both parties. Holliday v. McWilliams, 76 Neb. 324; Bradley & Go. v. Bower, 5 Neb. (Unof.) 542.</p>

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

<p>1. Payment: Note as Payment. “The giving- and acceptance of a promissory note for a prior indebtedness will not be regarded as payment, unless there he an express agreement between the parties to that effect.” Chicago, B. & Q. B. Co. v. Burns, 61 Neb. 793.</p> <p>2. -: -: Husband and Wire. The fact that the person executing the promissory note was the husband of the defendant would not change the rule.</p> <p>3. Trial: Instbuctions. Where an instruction is given to a jury, which it is claimed did not fully state the rule-of law upon the subject involved therein, but did not misstate any rule to be applied, tbe attention of tbe court should be called to tbe omission, as claimed, by an instruction containing tbe alleged omission. If not, there can be no ground for reversal therefor.</p>

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

<p>1. Insurance Contract: Enforcement. An insurance contract, where there is no uncertainty as to its meaning, and the same is legal and not opposed to public policy, will be enforced as it is made.</p> <p>2.'-: Construction: Default. It was provided by the terms of a twenty-year endowment life insurance policy that at the end of the twenty-year accumulation period, which was June 13, 1919, if the premiums have been duly paid to that date, and not otherwise, the company will apportion to the insured his share of accumulated profits. The assured, having paid seven annual premiums, and having borrowed from ithe company the full amount of the reserve accredited to the policy, defaulted in the payment of his annual premium, and after the lapse of more than 30 days from the date of his default died. Held, That the beneficiary is not entitled to have indefinite and uncertain profits credited to such policy in order to keep it in force.</p> <p>3. -: Validity. The insurance laws of the state of New York and the charter of the insurance company examined, and found to contain nothing which is in conflict with the terms of the insurance contract as written.</p> <p>4. -: Notice of Forfeiture: Law Governing. The provision of the insurance laws of the state of New York requiring notice to be mailed to the policy-holder in that state as a condition of forfeiture for nonpayment of premiums has no application to insurance contracts made in this state.</p> <p>5. Insurance: Loan on Policy: Estoppel. In case the beneficiary has joined with the insured in the application for a loan upon the insurance policy, she cannot afterwards claim that the loan was made without her knowledge or authority.</p>

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

<p>1. Intoxicating Liquors: License: Petition. In a village where there are less than 60 resident freeholders, a majority of the resident freeholders of the village must sign a petition for a license to sell intoxicating liquors in order to authorize the village board to grant the same. Rev. St. 1913, sec. 3869.</p> <p>2. -: --- — : -. The fact that one or more of such freeholders is disqualified to sign a petition for the issuance of a license can have no effect to waive or modify this statutory requirement, and, when there are 58 resident freeholders in a village, such a petition signed by 29 resident freeholders is insufficient to authorize the granting of a license.</p>

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

<p>Error to tbe district court for Sarpy county: Harvey D. Travis, Judge.</p>

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

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

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

<p>1. Adoption: Contract: Construction. A contract by husband and wife to take an infant child into their family and provide for it is to be construed like other written contracts to ascertain the meaning and intention of the parties thereto, and if the parties so taking such child by the terms of their contract reserve the right to determine, when the child becomes of legal age, whether they will make such child their heir or will provide for her as specified in the contract, and one of them dies before the child becomes of age without taking any further action to make the child his heir, such child will not inherit as the heir of the deceased.</p> <p>2. -: -: -. This case, by the pleadings and trial below, and by the briefs of the parties, is made to depend upon the meaning and intention of the parties as expressed in the contract set out in the opinion by which the plaintiff and her husband took the defendant Angela Rock into their family, and that contract is construed to mean that the plaintiff and her husband have the option to determine, when the child becomes of age, either to make her their heir or to provide for her as expressed in the first article of their agreement.</p>

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

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

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

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

<p>1. Appeal: Conflicting Evidence. In an action for personal injuries, where the evidence as to the negligence of the defendant and the. contributory negligence of the plaintiff is conflicting, the verdict of the jury will not be set aside, unless it is shown to be clearly wrong.</p> <p>2. Railroads: Action for Personal Injuries: Instructions. The refusal of the district court to charge the jury that, unless they found that the bell on the defendant’s engine was not ringing when the accident occurred, they should find for the defendant, was not reversible error under the circumstances shown by the evidence.</p> <p>3. Damages: Instructions: Harmless Error. The use of the word “permanent” in an instruction relating to the measure of damages, where from the amount of the verdict it clearly appeared that the jury considered the plaintiff’s injuries were of a temporary nature, was error without prejudice.</p> <p>4. Evidence: Expert Witnesses: Cross-Examination. It was not error to exclude the evidence of the doctor as to the nature of his treatment of the plaintiff’s wound as improper cross-examination, where the doctor was called by the plaintiff to testify solely as to the nature and extent of the injury at the time it occurred.</p> <p>5. -: Demonstrative Evidence. It was proper for the court to refuse to require the plaintiff to submit the scar of a wound, which he received when a child about 40 years before the trial, to the inspection of the jury.</p>

<p>1. Foreign Judgment: Action: Defenses. “A judgment of a court of a sister state, authenticated as prescribed by act of congress, is - conclusive here upon the subject-matter of the suit. An action thereon can only be defeated on the ground that the court had no jurisdiction of the case, that there was fraud in procuring the judgment, or by defenses based on matters arising after the judgment was rendered.” Snyder <£• Dull v. Oritchfield, 44 Neb. 66.</p> <p>2. Process: Summons: Validity. The service of a summons upon the defendant by the sheriff of Fall River county, South Dakota, signed in the firm name of the plaintiff’s attorneys, is sufficient to confer jurisdiction upon the circuit court of that state and county to render a judgment against the defendant so served.</p> <p>3. Judgment: Evidence: Fraud. Testimony produced by the defendant examined, and found to show no fraud in procuring the judgment against him.</p> <p>•4. -: Action: Defenses. The record examined, and found to contain no defense relating to any matter occurring after the judgment sued on was rendered,</p>

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

<p>1. Bastardy: Review: Conflicting Evidence. A verdict of guilty, in a prosecution on a eharge of bastardy, where the evidence is conflicting, will not be set aside unless it clearly appears to be wrong.</p> <p>2. -: -: Striking Evidence. A judgment will not be reversed because of excluding evidence or striking out evidence, after it has been admitted, unless it appears that such evidence was competent and relevant to the issues, and materially supported the cause or defense of the complaining party.</p> <p>3. -: -: Misstatements of Counsel: Correction of Error. Nor will a judgment be reversed for misconduct of an attorney in making unwarranted statements of fact in his argument to the jury, if the court immediately, upon his attention being called to the matter, rebukes the attorney for his statements, and directs the jury to disregard the same.</p> <p>4. -: -: Argument of Counsel. Record examined, and held that other- statements of the attorney for the prosecution, of which complaint was made, did not amount to misconduct, and were within the limits of legitimate argument.</p>

<p>1. Fraud: Exchange of Properties: Misrepresentations: Instructions. Instruction No. 7, the purport of which is set out in the opinion, examined, and held, under the facts in the case, not to he prejudicially erroneous.</p> <p>2. Judges: Disqualification: Objections: Waiver. A litigant who voluntarily goes to trial and proceeds without objection until after an adverse verdict is rendered, with knowledge of facts which he alleges disqualify the judge from acting and render the office vacant, is estopped to raise such question thereafter merely to prevent the trial judge from ruling upon his motion for a new trial.</p>

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

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

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

<p>1. Bailment: Gratuitous Bailee: Bight to Compensation. While “an involuntary bailee of goods may conserve tbe same, and for so doing recover from tbe owner wbat sucb service is reasonably worth” (Moline, Milburn & Stoddard Go. v. Neville, 52 Neb. 574), a voluntary, gratuitous bailee is not entitled to storage charges or to compensation.</p> <p>2. -: -: -. To change a voluntary, gratuitous bailment to one for storage or for compensation, bailee must notify bailor to take the property away or storage charges will be exacted.</p> <p>3. -: Replevin: Storage Charges: Sueeicienct oe Evidence. Verdict for storage charges for a piano set aside as unsupported by the evidence. Crancer Co. v. Combs, 94 Neb. 655, overruled.</p>

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

<p>1. Waters: Irrigation: Cancelation of Water Appropriations. The irrigation law of 1911, authorizing the state board of irrigation to cancel water appropriations not put to a “beneficial or useful purpose,” applies to applications made both before and after the passage of the act. Laws 1911, ch. 1'53, secs. 17-37.</p> <p>2. -: -: -: Validity of Statute. Under the irrigation law of 1911, the authority of the state board of irrigation to cancel an application to appropriate public water for irrigation or power may be exercised after notice and an opportunity to be heard, “if it appears that such water appropriation has not been put to a beneficial or useful purpose,” and the legislation is not void because it applies to both past and future applications.</p> <p>3. -: -: Acquisition of Water Rights. A vested right to. the use of public water for irrigation or power depends upon the appropriator’s compliance with the conditions imposed by statute, and is not acquired by means of a certificate procured by fraud from the state board of irrigation.</p> <p>4. -: -: -. A feasible plan for applying public water to a beneficial use, undertaken and carried out in good faith by an appropriator, is necessary to the acquiring of a vested right to a statutory appropriation for irrigation or power.</p> <p>5. -: -: -: Limitations Under the laws in force before the irrigation act of 1911 was passed, an applicant for an appropriation of water did not, as a matter of right, have more than ten years to comply with statutory conditions for acquiring such an appropriation.</p> <p>6. -: State Board of Irrigation: Appeal. Upon appeal from an order of the state board of irrigation, the inquiry is ordinarily limited to the questions submitted to that tribunal.</p> <p>7. -: -: Powers. The state board of irrigation is a tribunal, quasi-judicial in its nature, with authority to perform statutory duties in administering public waters, and is not disqualified to hear a controversy between the state and an appropriator whose right is contested by the state.</p>

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

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

<p>1. Counties: Bridge Repairs: Liability: Law Governing. The liability of counties, which are separated by a stream, for repairs of a bridge over such stream, when there is no contract between the counties, is fixed by the statute existing at the time the repairs are made. State v. Kearney County, 12 Neb. 6.</p> <p>2. -: -: -: -. In such case the fact that the bridge was built before the statute which fixes the liability of the counties was enacted is immaterial, as it is within the power of the legislature to change the statute governing the liability of the counties for repairs thereafter made.</p>

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

<p>Appeal: Affirmance. Where the evidence is not preserved in a hill of exceptions, and there are no special findings, and the pleadings will support the judgment, it will not he reversed for supposed errors in instructing the jury.</p>

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

<p>1. Mortgages: Deed as Mortoase. A deed executed at the same time, to the same party, and upon the same consideration, with a mortgage upon the same real estate will not convey an independent title, but will be treated as additional security.</p> <p>2. -: -: Possession. In such case, if the mortgagee takes peaceable possession of the land without foreclosure, he will be considered as a mortgagee in possession.</p> <p>3. -: -: Cancelation: Decree. In such case, a decree, at the suit of the mortgagor, determining only that the deed does not convey the legal title and canceling the same, and reserving and not determining the rights of the mortgagee as such, will not be reversed upon appeal, when the pleadings and evidence will not justify a foreclosure of the mortgage, and the issue presented and tried and insisted upon in this court is limited to the question of the validity and effect of the deed as conveying the full legal title.</p>

<p>1. Receivers, Suits by: Jurisdiction. A court of competent jurisdiction in the state of Missouri appointed a receiver of hotel property in the city of St. Louis, and ordered the receiver to sell the property. These defendants made an offer in writing to purchase the property and pay $9,000 in cash therefor and $10,000 in receiver’s certificates which they held. The court approved the offer, and directed the receiver to accept the same, which he did. Thereupon the defendants took the property and gave the receiver the $10,000 in receiver’s certificates and $8,000 in cash, hut refused to pay the remaining $1,000. The court then ordered the receiver to begin proceedings against the defendants to recover the remainder of .the purchase price. Held, That the receiver could maintain such action in this state, these defendants being found here.</p> <p>2. -: Set-Off. Also held that the defendants should not be allowed to offset in such action receiver’s certificates held by them.</p>

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

<p>Appeal from tbe district court for Hamilton county: Edward E. Good, Judge.</p>

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

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

<p>1. Courts: Counts' Courts: Probate Jurisdiction. The county court has exclusive original jurisdiction over the administration and settlement of the estates of deceased persons.</p> <p>2. Executors and Administrators: Allowance to Widow: Waiver. Where a husband dies possessed of personal property, but of no wearing apparel, ornaments, nor household furniture, and it does not appear that he possessed any property specifically exempt to him from seizure under execution or attachment process, and the wife makes no demand for an allowance to her of exempt property, .nor for the delivery to her of personal property, “to be selected by her,” of the value of $200, during her life, but dies subsequent to the decease of her husband without making such request or demand,, the provisions of section 1267, Rev. St. 1913, being for her sustenance and support, the rights conferred upon her by the section are waived, and do not, upon . her death, descend to nor vest in the administrator of her estate.</p>

<p>1. Mechanics’ Liens: Charitable Institutions. . A trust for the benefit of the public attaches to property secured by a corporation organized for charitable and religious purposes, to furnish a home for the aged and infirm, and a home for indigent orphans to be given a common school education to fit them to become nurses and attendants on orphan homes, and similar institutions, and property so secured and used is not subject to mechanics’ liens without an order of the district court of the proper county authorizing the same, nor can the property of such a corporation be sold on execution where such sale would defeat the trust and destroy the public purpose for which the property was donated or secured.</p> <p>2. -: -: Contracts by Trustees. The trustees elected to . manage the affairs of such a corporation cannot enter into a valid contract by which its property may become subject to mechanics’ liens without first having obtained an order of the district' court for that purpose.</p> <p>3. Charities: Trustees: Notice. All persons dealing with the trustees of such a corporation must, at their peril, take notice of the powers granted by its articles of incorporation.</p> <p>i. Mechanics’ Liens: Charitable Institutions. The failure of the trustees to object to the use of material furnished, at the order of other persons, in remodeling the building situated upon such property will not have the effect of creating a mechanic’s lien thereon.</p>

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

<p>1. Appeal: Issues: Harmless Error. To allow the ánswer of a mere volunteer to remain on the files, and the overruling of a de- ■ murrer to such an answer, if erroneous, is error without prejudice, where only the issues raised by the answer of the rpai defendant are litigated on .the trial of 'the action.</p> <p>2. Constitutional Law: General and Special Statutes: Sanitary Districts. Chapter 36, laws 1891, entitled “An act to provide for the organization of sanitary districts, and to define their powers,” does not violate that section of the constitution which provides that “no corporation shall be created by special' law, * * * but the legislature shall provide by general laws for the organization of all corporations hereafter to be created.” Const., art. XI5, sec. 1.</p> <p>3. -: -: -. The act in question is general in its nature, is eocplete in itself, and applies to all municipal corporations similarly situated. It neither amends nor purports to amend any other legislative act.</p> <p>4. Sanitary Districts: Officers: Powers: Tax Levy: Injunction. The law does not require the officers of a sanitary district to give notice of the levying of a tax which is within their power to levy. If they exceed their power they may be enjoined. They ' have nothing to do with valuing property for assessment. Errors of assessment are to be corrected by the board of equalization.</p> <p>5. -.: Creation: Estoppel. The vote of the electors creating a sanitary district concludes the taxpayers residing therein as to the necessity for the creation of the district, and the benefits .to be derived from the construction of the improvements for which it was organized.</p>

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

<p>1. Constitutional Law: Schoolhouses: Use for Religious Purposes. Holding Sunday school or religious meetings in a country schoolhouse so infrequently as not to exceed four times a year, and which do not interfere with the school work, does not constitute the schoolhouse a place of worship, within the meaning of section 4, art. I, of the constitution.</p> <p>2. Mandamus: Schoolhouses: Use for Religious Purposes. The courts will not compel the school district board, by mandamus, to close the schoolhouse for the purpose of excluding such meetings, at ■the instance of a taxpayer who is not required to contribute anything whatever to the support of such meetings or the repair of the schoolhouse in which they are held.</p>

<p>Executors and Administrators: Allowance to Widow: Waiver. A widow made no claim against the estate of her deceased husband for an allowance of a year’s support until about a year after his death. Her claim was disallowed by the probate court, and before ' taking an appeal from the order of disallowance the widow died. Held, That she had waived her right to such an allowance, and the administrator of her estate succeeded to no right which he could enforce.</p>

<p>1. Deeds: Deposit for Record on Death of Grantor: Effect. If a grantor deposit a deed with. a third person, without power of revocation or recall by the grantor, and with directions that it be held until the grantor’s death and then put upon record by the holder, this is a sufficient delivery and will be effectual to pass the title to the grantee, even though he had no knowledge of the execution of the deed.</p> <p>2. -: -: -. Where a husband and wife each executed deeds of their respective lands in favor of the other spouse, with directions to a scrivener, in whose hands the deeds were deposited, not to deliver either deed to either grantor except upon the written order of both, and upon the death of either to place upon record the deed to the survivor, no present title passes by the execution of either deed.</p> <p>3. -: -: -. A mutual agreement that the survivor shall take the property of the other spouse was made between husband and wife, and was carried out as far as possible by the execution of deeds each to the other of the separate property of the grantor. The deeds were delivered to and held by a depositary under an agreement that they were not revocable by either, and that the deed to the survivor should be placed upon record upon the death of either, and upon the death of the wife the deed to the husband was recorded by the depositary. Held, That in an action to set aside the deed and quiet the title, brought by an heir of the wife, a court of equity may uphold and enforce ithe mutual agreement to convey and quiet and confirm the title of the grantee in the premises.</p>

<p>Descent and Distribution: Statute: Construction: “Children.” The word “children” does not include grandchildren, where it appears in the following language of the statute of descent: “If the deceased shall leave no issue, nor father nor mother, the estate shall descend in equal shares to his brothers and sisters, and to ■the children of any deceased brother or sister, by the right of representation.” Comp. St. 1911, ch. 23, sec. 2.</p>

<p>Descent and Distribution: Ejectment: Evidence. Plaintiffs who fail to show any title or riglit of possession are not entitled to a recovery in ejectment.</p>

<p>1. Taxation: County Assessor: Abolition of Office. Where the voters of a county, in the manner provided in section 19, art. I, ch. 77, Comp. St. 1911, elect to abolish the office of county assessor, the then incumbent of the office continues in his office until the expiration of the term for which he had previously been elected, unless he shall die, resign or otherwise vacate such office prior to the expiration of such term, in which eyent the county clerk of the county, eo instante, becomes ex officio the county assessor.</p> <p>2. -: -: -: County Board of Equalization. And the fact that such office is so abolished does not oust .the county board and county clerk of their powers and jurisdiction as the county board of equalization.</p> <p>3. -: Assessment: Appeal: Presumption. Where a taxpayer appeals from the action of the county board of equalization in fixing the value of his property for taxation, the presumption obtains that the board faithfully performed its official duties, and that in making the assessment it acted upon sufficient competent evidence to justify its action; and the burden is upon the appellant to plead and prove that the action of the board is erroneous.</p> <p>4. -: -: Duty oe Taxpayer. It is the duty of a taxpayer, when so requested by the assessor, or county board of equalization, to honestly and promptly furnish information as to the character and amount of personal property owned by him, and the true value of the same.</p> <p>5. --: Dismissal oe Appeal. And when, on appeal to ■the district court from the action of the county hoard of equalization in fixing the value of his property for taxation, it appears-that, before action taken by the hoard in fixing such value, the appellant refused to produce his books, papers and records, or to give any information which would aid the board in arriving at ithe true value of his property, and whether or not it had been assessed elsewhere, his appeal should be dismissed.</p>

<p>1. Carriers: Liability: Assault on Trespasser. Evidence that a brakeman on a freight train demanded money of a trespasser in one of the cars of the train, and immediately struck him, with some deadly weapon, such a blow as to crush his skull and render him unconscious for several weeks, will not justify a finding that such act was done in the employment of the company, and render the company liable in damages.</p> <p>2. -: -: -: Evidence. The evidence indicated in the opinion is held insufficient to support a judgment against the defendant.</p>

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

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

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

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

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

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

<p>1. Pleading: Petition: Sufficiency. The petition of plaintiff, the substance of which is set out in the opinion, examined, and held to state a cause of action.</p> <p>2. Statute of Frauds: Oral Contracts: Time of Performance. “A verbal contract, to be void under the first clause of section 8' of our statute of frauds, must be one that, by its terms, is not. to be performed within one year from the making thereof. The statute does not refer to such contracts as may possibly or probably not be performed within that time.” Powder River Live Stock Co. v. Lamh, 38 Neb. 339.</p> <p>3. Objections to depositions are found not to be sustained by the record.</p>

<p>1. Counties and County Officers: Sheriffs: Jailers. The law “recognizes a distinction between the duties of the office of sheriff and those of the position of jailer, and gives the sheriff the election to act as jailer in person; and, if the sheriff does not so elect, it provides that the jailer shall be a deputy appointed by the sheriff.” See DunJcel v. Hall County, 89 Neb. 585.</p> <p>2. -: -: -: Compensation. “And if the sheriff in such a county performs the duties of jailer, in ■ addition to his duties as sheriff, he is entitled, not to extra compensation for the performance of his duties as sheriff, but to the compensation provided for the performance of the other duties as jailer.” Dunlcel v. Hall County, 89 Neb. 585.</p> <p>3. -: -: -: -. The duties of a janitor of the courthouse and grounds, or of the person employed to provide food for prisoners, under a contract with the county board which does not require the person employed to act as jailer, can have no bearing on the right of the sheriff to compensation for acting as such jailer. The law makes it the duty of the sheriff to discharge the duties of jailer, unless he decides not to do so and a deputy is appointed upon whom the duty is devolved.</p>

<p>1. Action: Enforcement of Rights. The law affords a legal remedy for the protection of every right and the redress of every wrong. The enforcement of a legal right should be sought through the application to legal and peaceable procedure, and not by physical force or stealth.</p> <p>2. Injunction: Protection of Property Rights. E. sold a small tract of land to W. In the deed of conveyance it was stipulated that a certain fence, situated upon the land of the grantor, a short distance outside of the boundary of the land conveyed, should “stand at present where it now is, until otherwise provided for.” W.’s deed was duly recorded. Some years later E. sold and conveyed the remainder of his land to K., the deed referring to the book and page of the county records where W.’s deed was recorded. Held,, First, that, under the contract with E., W. had the right to maintain the fence where it then stood until the right was terminated by lawful means, and that, until such time, he was not a trespasser; second, that, until the termination of W.’s rights, K. had neither right nor authority to destroy the fence located and established by the contract between E. and W., and that W. was entitled to an injunction restraining such destruction so long as his rights were not terminated by legal and peaceful methods.</p>

<p>1. Appeal: Bill of Exceptions: Affidavits. Affidavits used in support of a motion for a new trial must be attacked to and made a part of. tke bill of exceptions in order to Rave tkem considered by tke supreme court.</p> <p>2. Bastardy: Evidence: Sufficiency. In a prosecution for bastardy, a preponderance of tke evidence is sufficient to justify a conviction.</p> <p>3. -: -: Competency: Offer of Compromise. Evidence of an offer of a sum of money made by tke defendant to a tkird person if ke would marry tke complainant, wkick was not' comiimmicated to her, is not incompetent as being an offer of settlement or compromise.</p> <p>4. -: -: Admissibility. Testimony that the complainant had sexual intercourse with other men than the defendant, outside of the period of gestation, is inadmissible in evidence.</p> <p>5. -: -: -. ‘‘Evidence of the unchastity of complainant in a bastardy proceeding, outside the period of gestation, whether in the nature of proof of her improper conduct or of her general reputation for chastity, is irrelevant to the issues presented for trial.” Davison v. Cruse, 47 Neb. 829.</p>

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

<p>1. Street Railways: Personal Injuries: Negligence: Question for Jury. In an action to recover for personal injuries alleged to have Deen caused by defendant’s negligence, where there is a conflict of evidence, that question should he submitted to the jury.</p> <p>2. Appeal: Conflicting Evidence. Where the evidence is conflicting as to the nature and extent of plaintiff’s injuries, the verdict of the jury on that question will not he set aside.</p> <p>3. Street Railways: Use of Track: Instructions. Where the accident which caused plaintiff’s injuries occurred by reason of his having driven on and along the track of a street railway at a point between street intersections or crossings, it was error to instruct the jury that “Defendant had the legal right to operate its cars over and upon its tracks at the time and place in question, and that teamsters have the legal right to cross the street at any point thereon, and ■ their rights in this respect are equal and reciprocal, that is, each has the right to the use of the streets in the ordinary and usual manner, and in doing so it is necessary for each to take into consideration the rights of the other.”</p> <p>4. Trial: Refusal of Instructions. It is error for the trial court to refuse to give a requested instruction which fairly states the defendant’s theory as to the cause of the accident,' where there is evidence which would sustain such theory.</p> <p>5. -: -. It was error for the trial court to refuse an instruction, tendered by defendant as soon as it was ascertained that the court would not give a like instruction on his own motion; the tender having been made within a reasonable time before the instructions were read to the jury.</p>

<p>Counties: Liability: Health Officers. A duly licensed physician, acting under the order of the state hoard of health in quarantining and suppressing a highly contagious disease, may recover of the county, where such disease was prevalent, the actual expenses incurred by him and the reasonable value of his services.</p>

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

<p>Attorney and Client: Compensation of Attorney for Indigent Defendant: Allowance by Court. The judge of the district court has the power to allow and certify a claim for the services of an attorney to an indigent prisoner in the supreme court, under an appointment to defend such criminal made by him, but the amount allowed must not exceed the sum named in section 9081, Rev. St. 1913.</p>

<p>Appeal: Conflicting Evidence. In an action to recover the damages sustained by a landowner for establishing and opening a county road over and across his land, if the evidence as to the amount of plaintiff’s damages is conflicting, the verdict of the jury will not be set aside unless it clearly appears to be wrong.</p>

<p>1. Costs: Review: Bill op Exceptions. On appeal from a judgment of the district court on a motion to retax costs on account of the inclusion of unnecessary matter in the hill of exceptions, record examined, and judgment of the district court sustained.</p> <p>2. -: Interest. In such a case interest should not he computed on the amount paid for the hill of exceptions before the entry of the final judgment on the mandate.</p>

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

<p>Appeal from tbe district court for Custer county; Bruno O'. Hostetler, Judge.</p>

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

<p>1. Appeal: Bill of Exceptions. The court will not review alleged error in the exclusion by the trial court of certain drawings when the tendered exhibits are not made a part of the bill of exceptions.</p> <p>2. -: Conflicting Evidence: A verdict- on conflicting evidence, approved by the trial court, will not ordinarily be disturbed in the appellate court.</p> <p>3. Trial: Refusal of Instructions. It is not error to refuse an instruction where the legal principle embodied therein has been fully stated to the jury in another instruction.</p> <p>4. Municipal Corporations: Defective Sidewalk: Constructive Notice. Where a walk, about 150 feet long, was old, and was dilapidated over such a portion of its length that its defective condition was clearly visible, and had so remained for a long time, the city was chargeable with constructive notice that the whole walk was unsafe. The fact that a portion of it at one end, upon which the plaintiff fell, seemed to a casual observer to be in good condition upon the surface did not relieve the city from using reasonable diligence to keep such portion in reasonable repair.</p>

<p>Appeal: Affirmance. Having reached the same conclusion upon the evidence as did the district court in this an equity case tried de novo, its judgment will-not be disturbed.</p>

<p>1. Sales: Implied Warranty. Ordinarily where a manufacturer or dealer contracts to supply an article which he manufactures, or in which he deals, for a particular purpose, of which he is aware, under such circumstances that the buyer necessarily trusts to the judgment or skill of the manufacturer or dealer, there is an implied warranty that the article supplied shall be reasonably fit for the purpose for which it is sold.</p> <p>2. -: Right op Rescission. If, upon the prompt inspection of such an article, it proves to be defective and unfit for the purpose for which it was purchased, the buyer may refuse to accept it and rescind the contract.</p>

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

<p>Appeal from tbe district court for Butler county.* George F. Corcoran, Judge.</p>

<p>Statutes: Construction:. Compensation of Sheriffs. The question presented here was argued and decided in McShane v. State, 93 Neb. 54. The legislature has been in session since the decision, and, having made no change in or amendment to-the statute, the construction given therein is adhered to.</p>

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

<p>1. States: Boundaries: Rivers. The boundary between Iowa and Nebraska follows gradual and imperceptible changes in the main channel of the Missouri river.</p> <p>2. -: -: -. A change by avulsion in the main channel of the Missouri river does not change the boundary line between Iowa and Nebraska.</p> <p>3. Quieting Title: Jurisdiction. In a court of Nebraska, an action to quiet title should be dismissed, when it is found that the land in controversy is in Iowa.</p>

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

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

<p>Appeal from the district court for Dawes county: William H. Westover, J udge.</p>

Original action in quo warranto by the state to determine the right of respondents to be county officers of Arthur county.

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

<p>1. Appeal: Modification of Requested Instruction: Exception. While the district court is prohibited by section 4764, Ann. St. 1911, from modifying a requested instruction “by interlineation or erasure,” a modification so made will not ordinarily constitute reversible error, unless it affirmatively appears from the record that at the time the instruction was given an exception was noted, not to the fact of such modification merely, hut to the manner of making the same.</p> <p>2. Carriers: Injury to Shipment: Contributory Negligence. The rule that, if. negligence on the part of a person injured contributed to the injury, he is not entitled to recover therefor applies as well where the injury is to plaintiff’s property as to where it is to his person, and in cases of' contract as well as those of tort.</p> <p>3. -: -: Pleading. To enable a common carrier to avail itself of the general rule applicable where a shipment of live stock is accompanied. by a caretaker, selected by the shipper, it is incumbent upon it to specially plead and prove such fact.</p> <p>4. Appeal: Theory of Case. Where the record on appeal to this court clearly shows that the case was tried . and determined in the court below upon a certain theory, it will ordinarily be considered and decided in this court upon the same theory, even though such theory may he somewhat at variance with the pleadings.</p> <p>5. Carriers: Injury to Shipment: Measure of Damages. The proper measure of damages for injury to a shipment of horses is the difference in their reasonable market value at the time and in the condition in which they were delivered at their agreed destination and their reasonable market value when and in the condition in which they should have been delivered.</p> <p>6. -: -: -. In an action against a common carrier for damages under a contract for the shipment of live stock, the damages which the plaintiff is entitled to recover are such as may fairly and reasonably be considered either arising naturally, i. e.-, according to the usual course of things, or such as may reasonably be supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.</p> <p>7. -: -: Petition. The allegations in the petition, set out in the opinion, held not sufficient to support a recovery upon plaintiffs’ second cause of action.</p> <p>8. Trial: Separate Causes op Action: Verdict. Where the petition counts upon two causes of action, the first of which is sustained by sufficient allegations in the petition, and the second not, and the verdict of the jury is a single verdict, and is for a sum in excess of the first cause of action, thus showing an allowance by the jury upon both causes of action, but not showing how much was allowed upon either separately, the entire verdict must fall.</p> <p>9. 'Appeal: Conflicting Evidence. Where the evidence submitted to a jury is sufficient to sustain a verdict either way,, the verdict of the jury thereon will ordinarily control.</p>

<p>Appeal from the district court for York county; Edward E. Good, Judge.</p>

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

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

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

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

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

<p>1. Mechanics’ Liens: Evidence. Platt traded lots to Moritz for a farm, agreeing to give Moritz a credit of $3,400 with the Platt & Frees Company. Moritz was to huild five cottages on the lots, was to buy all his material of Platt & Frees Company, the same to be paid for out of his said credit, if the same should be found sufficient. The plaintiffs brought an action to foreclose an alleged mechanic’s lien for so much of the material as went into one of the houses, the Serivner house. Serivner and his wife and Moritz were made defendants. The material furnished for the five houses amounted to $3,851.50. The Serivner house was the fourth house constructed. The evidence shows that, when the contract for this was made and the material furnished, Moritz was still entitled to a credit of more than the cost of material. Held. That no lien attached to the property of Serivner, but that the plaintiffs are entitled to a judgment against Moritz for the price of the material furnished for the five houses in excess of the credit of $3,400.</p> <p>2. Compromise and Settlement: Evidence. Evidence upon the issue between Moritz and Serivner as to the amount due Serivner examined, and held that a valid settlement was entered into between such parties, and that nothing is due Serivner thereupon.</p>

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

<p>States: Executive Officers: Eligibility. The constitutional provision that “none of the officers of the executive department shall be eligible to any other state office during the period for which they shall have been elected,” makes the lieutenant governor, during the term for which he was elected, ineligible to be elected to the office of governor for the succeeding term. Const.,-art. V, sec. 2.</p>

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

<p>1. Telephones: Contract: Construction op Line. Where a telephone company has obtained permission to build its line across the pasture of a landowner, under an agreement to maintain its telephone wire at a sufficient height to avoid the danger of injury to persons and stock, it is the duty of the company and its grantor to comply with such agreement.</p> <p>2. -: Construction of Line. As a matter of law, a telephone company is required to maintain its line where it crosses the pasture of another at a sufficient height, and in such a condition as to prevent injury to persons and domestic animals.</p> <p>3. -: Injury: Evidence. The death of a person may he shown to have been caused by negligence on the part of a telephone company to properly construct and maintain its wires, by circumstantial evidence.</p> <p>4. Instructions examined, and held not inconsistent, and to have been properly given.</p>

<p>1. Bureau of Printing: Duties. By chapter 85, laws 1911, establishing a bureau of printing, all of the bookbinding and the printing of all stationery and supplies for the use of the state officers and the heads of the several departments of the state government are to be let by the commissioner of printing on contracts secured by competitive bidding, except in case of emergency, as provided by section 10 of that act.</p> <p>2. -: -: Supreme Court Reports. Section 1146, Rev. St. 1913, is not in conflict with the provisions of the act establishing a bureau of printing. That section should he construed with the provisions of the act of 1911, and the supreme court reporter should cooperate with the commissioner of printing in letting the contract for publishing the supreme court reports.</p> <p>3. Commerce: Foreign Corporations: Statutory Provisions: Contract for State Printing. A contract with a corporation doing business in another state for publishing the supreme court reports of this state partakes of the nature of interstate commerce, and such foreign corporation may make a contract with the commissioner of printing in this state without complying with the provisions of section 725, Rev. St. 1913.</p>

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

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

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

<p>1. Criminal Law: Misconduct of Prosecutor. On the trial of accused under a criminal charge, misconduct of the county attorney in stating to the jury that “defendant had an opportunity to go upon the witness-stand himself and deny this charge, but he didn’t do it,” does not require a reversal of his conviction on a record showing that no other error was committed; that the trial court disapproved the misconduct by sustaining an objection to the improper remark; that the county attorney thereupon stated he should not have made it; and that accused was not prejudiced thereby.</p> <p>2. —=-: Refusal of Special Instruction: Confession. In a criminal prosecution, it is not error to refuse a special instruction on the law relating to a confession by defendant, where the record shows that it was properly admitted on evidence showing without contradiction that it was voluntarily made; that it was consistent with the state’s proofs; and that a general instruction relating to the credibility of witnesses and to the weight of evidence fairly stated the law and fully protected the rights of defendant.</p> <p>3. -: Recalling Juey: Discretion oe Court. “The recalling of juries for instructions is so far within the discretion of the trial court as not of itself to present a subject for review.” MoGlary v. Stull, 44 Neh. 175.</p>

<p>Opinion on motion for rehearing of case reported ante, p. 9.</p>