Volume 99 — Iowa Reports

— Hon. W. F. Conrad, Judge. Indictment for rape. V erdict of guilty as charged, and a judgment of imprisonment, from which the defendant appealed.

— Hon. B. P. Birdsall, Judge. The defendants, Adolph Bernstein and Charles Bernstein, were convicted of the crime of nuisance, committed by maintaining a place in which they kept for sale, and sold, in violation of the law, intoxicating liquors. Prom a judgment, which required each of them to pay a fine of three hundred and fifty dollars and costs, .they appeal.

— Hon. George W. Burnham, Judge. The defendant was convicted of the crime of nuisance, committed by establishing and maintaining a place in which he kept for sale, and sold, intoxicating liquors, in violation of law. From the judgment, which required him to pay a fine of five hundred dollars, an attorney’s fee, and costs, he appeals.

<p>1 Disturbing Religious Services: information. An information alleging that defendants disturbed religious services, to the annoyance of the congregation, by “loud talking and laughing, contrary to die statute in such cases made and provided,” is fatally defective under Code, section 4023, making it punishable to “wilfully” disturb any congregation met for religious worship.</p> <p>2 Same. The phrase “contrary to the statute,” etc., is not a requisite to an. indictment, and cannot supply omitted averments of facts therein, nor take the place of “willfully.”</p>

— Hon. W. H. Tedeord, Judge. The facts in this case, as shown by the pleadings, evidence, and agreed statement are substantially as follows: William H. Barrett owned certain real estate in Ringgold county, Iowa. He wanted to procure a loan thereon. He made application in the fall of 1891, to Thomas Ross & Son, loan agents at Mt. Ayr, Iowa, for a loan. They negotiated a loan for two thousand two hundred dollars for him from one Gonnable, through one Farrer.

— Hon. C. P. Holmes, Judge. This case is entitled in equity. It is a contest involving part of the avails of an insurance policy upon the life of C.. J. Van Horn, deceased, who was the wife of the defendant Biley Van Horn. The money in controversy was awarded to Maria E. Van Horn, who intervened in the action. The plaintiff claimed to be entitled to the money because he is a creditor of Riley Van Horn. Further facts appear in the opinion. Plaintiff appeals.

- — Hon. S. F. Baddiet, Judge. The defendant was indicted, tried, and convicted of the crime of producing a miscarriage of a pregnant woman, namely, Ollie Newman, and judgment of imprisonment in the penitentiary pronounced against her, from which judgment she appeals.

<p>Former Jeopardy: quashing indictment: Construction of statute. A discharge from an indictment, on a motion to quash, because the grand jury was not apportioned, selected, or drawn as provided by law, is not a bar to a prosecution under another indictment for the same offense, under Code, section 4344, providing that an order to set aside the indictment because the grand jury was not properly selected, shall be no bar to a further prosecution, although section 4342 provides, that if the motion is granted, the defendant must be “discharged,” his bail exonerated, or money deposited, refunded to him, unless the court direct the case to be remitted to the same, or another grand jury. It is not a fair construction of said statutes to say that setting aside the indictment, is a bar unless a resubmission is ordered.</p>

— Hon. W. FBrannan, Judge. On August 21, 1891, C. Rensink and the defendant Maria Wiggers (then Maria Pilgrim), entered into an ante-nuptial contract, in writing, by the terms of which the said Maria, on the death of said Rensink, was to have a life estate in lot 9, in block 79, in the city of Muscatine, and another lot in said city so long as she remained unmarried, which provision said Maria accepted in lieu of dower, and agreed to make no other claim of any kind against…

<p>1 2 Obstruct* (1 Highway: indictment — duplicity. Under Code, seetion 4089, declaring the “obstructing or incumbering,” by buil dings, of the public highways, to be nuisances, an indictment averring that defendant did “obstruct and incumber,” charges but one offense.</p> <p>5 Same.. Neither does it charge more thamone offense, by averring the obstruction by constructing and maintaining- a building on the “highways and streets.”</p> <p>3 Sufficiency of description. It is enough to aver that the streets obstructed were those of a certain town, without designating the particular street or streets.</p> <p>4 Needless averment. Nor need the indictment state whether or not the town is incorporated.</p>

— Hon. C. P. Holmes, Judge. Dependant was jointly indicted with one, J. E. Smith, for the crime of breaking and entering a building. He was tried and convicted, and, from the sentence imposed, appeals.

— Hon. N. W. Macy, Judge. Action to recover the value of certain corn, purchased by the defendants from one Briggs, upon which the plaintiff claimed a landlord’s lien for rent. There was a demurrer to the answer; which was sustained, and from a judgment for the plaintiff the defendants appeal.

-— Hon. George H. Carr, Judge. September 18, 1893, the-plaintiff filed its petition in equity for judgment op. a promissory note, and for decree foreclosing a mortgage on certain real estate, given to secure the payment of said note.

— Hon. W. F. Conrad, Judge. Action at law, to recover an amount alleged to have been wrongfully obtained from the plaintiff, by the defendant, Sherman. A demurrer to one of the three divisions of the answer was overruled, and there was a trial by the court without a jury, which resulted in a judgment in favor of the defendants, for costs. The plaintiff appeals.

— Hon. C. P. Holmes, Judge. Action at law, to recover the amount due on two instruments in writing. A demurrer to the petition was sustained, the defendant elected not to plead further, and judgment was rendered in favor of the plaintiff for the amount due. The defendant appeals.

— Hon. Scott M. Ladd, Judge. This is an action of replevin, to recover the possession of fifteen steers. There was a trial by jury, which resulted in a verdict and judgment for the defendant. Plaintiffs appeal.

— Hon. F. R. Gtaynor, Judge. Originally, this was an action at law, brought by the plaintiff’s intestate, to recover damages from defendant for fraud and misrepresentation, inducing her to part with an interest in certain lands in Wood-bury county. The defendant pleaded certain equitable defenses, which will be hereafter referred to. The cause was transferred to the equity calendar and tried to the court, resulting in a decree dismissing the plaintiff’s petition.

— Hon. C. P. Holmes, Judge. Proceeding in probate for the allowance of a claim. The defendant is the legal representative of E. L. Tidrick, deceased. April 1, 1889, E. L. Tidrick, in writing, leased to the plaintiff company, certain mineral or coal lands for a period of twenty years.

— Hon. N. W. Maoy, Judge. Action for divorce and for alimony, and the custody of the two minor children of these parties. The causes for divorce alleged are inhuman treatment, such as to endanger the life of the plaintiff, and adultery. Defendant answered, denying both of these charges, and a decree was rendered dismissing the plaintiff’s petition, from which decree she appealed.—

— Hon. Walter I. Smith, Judge. This action in equity was commenced May 2, 1892, to recover judgment on one coupon bond, and for a decree foreclosing a mortgage executed to secure tbe payment of the same. The defendant, the W. S. Edwards Manufacturing Company, answered, setting up a certain decree rendered in its favor in another action.

— -Hon. C. P. Holmes, Judge. Action at law, to recover of defendant the contract price of certain furnaces purchased by it from plaintiff, and a further sum for labor and material furnished at defendant's instance and request. The defendant, in an answer, denied the making of the contract; denied the authority of its president and secretary to execute the paper on which the suit is brought.

— Hon. S. H. Fair-all, Judge. This is an action to set aside and vacate a last will and testament, purporting to have been made by Ann M. Broshart, deceased. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendants appeal.

— Hon. H. M. Towner, Judge. Action on promissory notes, aided by attachment. Counter-claims by defendants. Judgment for defendants, and the plaintiff appealed.

— Hon. Gf. W. Burn-ham, Judge. On October 15, 1890, Timothy Brown, the owner of a farm in Tama county, Iowa, leased the same to one Coleman, in writing, for the term of five years from and after March 1, 1891, at the annual cash rent of three hundred and eighty-five dollars. Five notes were executed by Coleman to Brown, for three hundred and eighty-five dollars each, for said rent.

— Hon. S. F. Balliet, Judge. This action was commenced at law to recover damages for the alleged wrongful conversion of specific personal property. The defendant filed an answer, and also a motion to transfer the cause to the equity docket. The motion was sustained, and an answer to the counter-claim and a reply thereto were subsequently filed. A trial by jury was then had, special findings were returned, and a decree was rendered, from which the defendant appeals.—

— Hon. C. P. Holmes, Judge. Action at law to recover damages alleged to have been caused by negligence on the part of the defendant. From an order granting a new trial, the. defendant appeals.

— Hon. C. P. Holmes, Judge. The following is appellant’s statements of facts, on which is based his argument: “On the 19th day of June, A. D. 1898, Jennie B. Baylies, acting through her husband, Prank A. Baylies, leased to Ira L. A. Ward the store room on the corner of East Sixth and Walnut Streets, in Des Moines, Iowa, for the term of one year thereafter, at the rate of fifty dollars per month, to be paid monthly in advance.

— Hon. D. R. Hind-man. Judge. Plaintiff brought two actions against the defendant. The first one embraced two causes of action, viz., one for damages for assault and battery, and the other for damages for a breach of warranty as to certain Nebraska land which defendant conveyed to the plaintiff in part payment for a farm and other property in Iowa. The other case was an action in detinue to recover certain personal property or its value.

— Hon. W. F. Conrad, Judge. This action was brought by the assignee of the Leader Printing Company, an insolvent corporation, to recover upon unpaid subscriptions to the capital stock of said company. There was a motion made by the defendant Lund to change the place of trial to the county of his residence. This motion was overruled. He then filed an answer. There was a demurrer to' the answer, which was sustained, and the defendant appeals.

— Hon. A. B. Thornell, Judge. Action at law to recover for injuries to plaintiff’s property and person, caused by Ms being run into by one of defendant’s trains while traveling in a buggy at a public highway crossing. Plaintiff alleges that defendant’s employes were negligent in running said train at a high rate of speed, and in not giving the signals required by law. He also alleges that he was free from negligence. The defendant answered denying generally.

— Hon. C. D. Goldsmith, Judge. Defendant’s motion to strike certain parts of the plaintiffs’ amended and substituted petition was sustained, and also their demurrer to said petition as it stood after striking out the matter in said motion complained of. Plaintiffs electing to stand upon their petition, judgment was entered against them for costs, from which they appeal.

-*-Hon. S. F. Balliet, Judge. Suit' in equity, in which the plaintiff, as the administrator of the estate of Eliza Laing, deceased, seeks an accounting from the defendant, alleging that his intestate and Scoville were partners in the plumbing and gas-fitting business prior to and at the time of her death; that since her death the defendant has continued the business of the firm; that he has not made, and refuses to make, an accounting to plaintiff, and refuses to permit him…

— Hon. N. B. Hyatt, Judge. The petition charges that the plaintiff, while in defendant’s employ as a brakeman, and in the discharge of his duties, was run oyer by the defendant’s cars, and his leg so injured that it had to be amputated; that said injury was caused by the carelessness and negligence of defendant’s servants, and that the plaintiff was not guilty of negligence which contributed thereto; that thereafter the defendant made an oral agreement of settlement with…

— Hon. S. F. Balliett, Judge. Action at law upon a policy of insurance against loss by fire. There was a trial by jury, verdict and judgment for the plaintiff, and defendant appeals.—

— Hon. C. P. Holmes, Judge. Each of the appellants named above commenced actions at law. against the appellees to recover the amounts of certain drafts or checks issued to them by the Exchange Bank of Angus, upon the Citizens’ National Bank of Des Moines. They asked that one H. L. Thomas, assignee of the Angus Bank, be made a party defendant, which was accordingly done.

— Hon. H. M. Towner, Judge. Action in equity for the cancellation of a lease of real estate, and of a note given for rent, and to enjoin the enforcement of the lease and note. There was a hearing on the merits, and a judgment for the defendants. The plaintiff appeals.

— Hon. Lot Thomas, Judge. Action for the specific performance of a contract to convey real estate. Decree for plaintiffs, and the defendant, Terrance Doyle, appeals.

Charles D. Goldsmith, Judge. Action at law to recover an amount alleged to be due on a promissory note. There was a trial on the merits, and a verdict for the defendants by order of the court. From the judgment rendered on the verdict, the plaintiffs appeal.

— Hon. S. F. Balliet, Judge. This action was commenced against the Carbon-dale Coal Company for the foreclosure of a mortgage given to secure certain bonds executed by the company. The petition also asked the appointment bf a receiver, and R. E. Sears was appointed, and is now such receiver, and is a party and appellant in the suit.

— Hqn. C. P. Holmes, Judge. Plaintiffs McMeekin & Clark made a contract with the defendant, under which plaintiff supplied defendant with certain window sash, and said defendant was to furnish the glass for said sash, and to do the glazing thereon. When the work was about two-thirds done, plaintiffs required the defendant to deliver such sash as were then finished to the Sanitarium building at Des Moines, Iowa, in which building they were to be used.

— Hon. George W. Paine, Judge. Plaintiff petitions to be divorced from the defendant, on the ground of inhuman treatment, such as to endanger her life. She also asks the custody of their two minor children. The defendant answered, denying the charge of inhuman treatment, and, by way of cross-petition, alleges that the plaintiff was guilty of adultery; wherefore, he asks for a divorce and for the custody of said children.

— W. F. Conrad, Judge. Action at law to recover damages for a personal injury sustained by plaintiff while in defendant’s employ as a repairer of machinery. At the conclusion of the plaintiff’s evidence, the court directed a verdict for defendant. Plaintiff appeals.

— Hon. P. B. Wolfe, Judge. Action at law to recover lipón two premium notes given by the defendant to the Mutual Fire Insurance Company, of Chicago, for policies of insurance against loss by fire. A demurrer to the petition was sustained. Judgment was rendered for the defendant for costs, and the plaintiff appeals. The plaintiff may maintain the suit, although suing in the capacity of a foreign receiver.

— Hon. W. H. Tedeord, Judge. Action at law, upon three promissory • notes, made and executed by the defendants, in payment for a certain stallion, purchased by them of plaintiff. Defense: Failure of consideration, and fraud practiced upon them by the plaintiff. Trial to a jury. Yerdict and judgment for defendants. Plaintiff appeals.

— Hon. Gr. W. Paine, Judge. Action in equity, to establish a trust in favor of plaintiff, as to certain funds in defendant’s hands, and for a judgment against defendant. Decree for defendant. Plaintiff appeals.

— Hon. A. R. Dewey, Judge. Action at law to recover a balance of money alleged to be due by reason of a mistake in a settlement made between the parties. There was a demurrer to the petition, which was sustained, and the action was dismissed. Plaintiff appeals.

— Hon. A. S. Blair, Judge. This is an action brought by the plaintiff to recover damages resulting from an injury to her person, caused by a fall, as she alleges, upon a stone step leading from the sidewalk on Franklin street to the walk crossing said street in the defendant city.

<p>Appeal from Polk District Court. — Hon. C. P. Holmes, Judge.</p> <p>The defendant company is a corporation, as is also the Oak & Highland Park Improvement Company. Both corporations owned lots in a part of the city of Des Moines. The two corporations have the same secretary, one W. W. Fink, and the same treasurer, one V. F. Newell. O. H. Longwell, acting for himself and for the Oak & Highland Park Improvement Company, made a contract with the plaintiff company, through its manager, Mr. Scoville, for the construction of a tile drain from his own cellar, and also one from the cellar on an adjoining lot, belonging to the Oak & Highland Park Improvement Company, for the price of one hundred and forty-seven dollars. The plaintiff company also made a contract with Mr. Wilcoxen, who was a member of the Highland Park Land Company, to put a tile drain on its land, which was adjoining that of the Oak & Highland Park Improvement Company. The work was done on both contracts. In the record is a bill for one hundred and forty-seven dollars to O. H. Longwell from the Scoville Plumbing Company, a bill for one hundred and sixty dollars to Highland Park Land Company, and an order on Y. P. Newell, treasurer of Highland Park Land Company, drawn by its secretary, W. W. Pink, payable to Scoville Plumbing Company, for one hundred and sixty dollars, with the indorsement of the Scoville Plumbing Company on the back. It seems that the order on the treasurer of the Highland Park Land Company, indorsed by the plaintiff, was surrendered to Pink, as secretary of the Oak & Highland Park Improvement Company, and a note taken, signed by the Oak & Highland Park Improvement Company, for the amount due for the construction of both drains. The Oak & Highland Park Improvement Company then presented an order, indorsed by the plaintiff company, to the treasurer of the Highland Park Land Company. The plaintiff brought suit on the note against the latter company, but withdrew it, and instituted this to recover for the work done on both contracts. The court, at the close of the evidence, directed a verdict for defendant. The plaintiff appealed.</p>

<p>Appeal from Polk District Court. — Hon. W. F. Conrad, Judge.</p> <p>Action at law, commenced by Wishard & Cole, on a judgment rendered against the Zoological Park Company of Des Moines, Iowa, to recover of the defendant, H. C. Hansen, on account of stock of the company purchased by him, on which he is alleged to be liable as a stockholder, for unpaid stock. Robert Fullerton, doing business as the Chicago Lumber Company, and B. P. White, intervened. Each of the interveners holds an unpaid judgment against the Zoological Park Company, and seeks to recover thereon against Hansen, as a stockholder, and alleges, that the judgment upon which the action of the plaintiff was brought, has been fully paid. While this action was pending in the district court, A. S. Wilcoxen was substituted for Wishard & Cole, as plaintiff. Before the trial was concluded, the plaintiff dismissed his action, and the trial proceeded on the issues presented by the pleadings of the interveners and the defendant. The trial was by the court, without a jury, and resulted in a judgment against the defendant, in favor of each intervener. The defendant appeals.</p>

<p>Appeal from Jones District Court. — Hon. James. D. Giffen, Judge.</p> <p>This appeal is by tbe administrators of tbe estate of W. G. Peet, deceased, from a decree ordering tbe petitioner to sell the real estate described, and to apply the proceeds, or so much thereof as may be necessary, to the payment of the legacy to Ora D. Pitkin, under the .will of James M. Peet.</p>

<p>Appeal from PolJc District Court. — Hon. C. P. Holmes, Judge.</p> <p>Action at law to recover for the conversion of specific personal property. There was a trial by jury, and a verdict and judgment for the plaintiff. The defendant appeals.</p>

<p>1 3 4 Practice: consolidation: Law and equity. Where an action is properly begun in equity, it should be tried there, although triable at law are subsequently tendered, and when the defendant in the equity suit begins a law action involving substantially the same issues as said equity suit, in the same court, it is proper to consolidate both suits and try them to the court.</p> <p>5 Understanding of Contract: construction ok statute. Knowledge by a building contractor that the owner was acting in the belief that the contract included a certain kind of stone work, inspired by conversations betw een them that the job was to be as good as tínat done on a certain wall which contained that kind of work, brings the case within Code, section 3053, providing that when the terms of an agreement have been intended in a different sense by the parties to it, that sense is to prevail against either party in which he had reason to suppose the other party understood it.</p> <p>On Be-iiearing. — Monday, October 19, 1896.</p> <p>Under Code, 3653, which provides that, “when the terms of an agreement have been intended in a different sense by the parties to it, that sense is to prevail against either party in which he has reason to suppose the other party understood it,” where a contract provided that the architect should decide whether alterations asked for by the owner were within its terms, and the contractor, knowing that the owner understood them to be so, made the alterations without secur ing a decision from the architect, he can not recover therefor.</p>

<p>Appeal from Shelby District Court. — Hon. H. E. Deemer, Judge.</p> <p>December 19, 1898, plaintiff Forsbeck bought of the defendant a lot of hogs, at a price agreed upon. The hogs were to be delivered by January 20, 1894. At the time of the purchase, a check for two hundred and fifty dollars, signed by Forsbeck, and drawn on the State Bank of Manning, and payable to defendant or bearer, was delivered to the defendant. This check was presented to the bank for payment on December 28, 1893, and was not paid, nor has it ever been paid. The drawer had no funds in the bank when the check was presented, but had an arrangement with the bank by which he could overdraw his account, which arrangement existed from the time the check was drawn up to the time it was presented. The hogs were sold to another party, and plaintiffs, who now own the claim sued upon, bring this action for damages. The jury found specifically that the defendant demanded the cash of Forsbeck at the time the hogs were sold, and that the defendant did not take the check as a payment, or part payment. A general verdict was returned for the defendant, upon which a judgment was entered. Plaintiffs appeal.</p>

— Hon. C. P. Holmes, Judge. Plaintiff is the owner of one hundred acres of land in Polk county, across which defendant's line of road is constructed and has been in operation about twelve years.

<p>1 2 Statute of Limitations: open account. Plaintiff commenced work for defendant railroad company in is.2, and worked until 1888, v. ithout any fixed agreement as to salary, when the directors fixed his salary at a certain sum for the current year. On the meeting of the board in 1889, plaintiff presented an account for services from 1884 to 1888, which was allowed and ordered paid; and thereafter, in the same year, plaintiff’s salary vi as fixed at a certain sum “annually for the year commencing June 1,1889, and continuing at that rate until otherwise ordered.” Plaintiff continued in the company’s employ until 1894, having received in 1898, a payment on the sum allowed by the directors in 1889, for services rendered between 1881 and 1888, and sues for the balance. Held, that, in the absence of a showing that the sum found due on the settlement made in 1889 had been carried forward on the books of the company as a continuing account, plaintiff’s claim was not on a continuous, open, and current account, within the statute of limitations.</p> <p>4 The claim of an officer of a corporation against the corporation for services under various resolutions, each fixing his eompensation for a definite term, is not in the nature of an open account within the exception of the statute of limitations in favor of open accounts.</p> <p>3 A creditor cannot for the purpose of avoiding the statute of limitatations change the character of an account from a stated account to an open and continuous one, by connecting it with items arising subsequently to the statement of the account.</p> <p>2 Same. Such claim was an account stated, within the statute limiting the time for bringing actions on such accounts.</p> <p>5 Admission or debt. Statement in writing by a debtor that there is a specified amount due the creditor, is not such an admission or acknowledgement of the balance of the claim over such amount, as will take it out of the statute of limitations.</p> <p>6 Payment by Third Person: privity: Release. Payment or settlement of a claim by a third person, and acceptance of the same by the creditor in satistaction of the debt, operates as an extinguishment of it, and estops the creditor from afterwards maintaining an action against the original debtor, where the latter ratifies the same.</p> <p>6 Same. Plaintiff had an account with defendant railroad company for services rendered as general manager, and at a meeting of the directors of the company, was empowered to make settlement with one B, who was the principal stockholder, of all matters in which the company had an interest. The contract between plaintiff and B, recited that B had certain notes against plaintiff, and that plaintiff agreed to pay the notes, or in lieu thereof, surrender certain bonds, and cancel, “so far as it relates to Mr. B’s interests either personally, or as interested” in the defendant company, an account which plaintiff held against the company. Held, that it was error to refuse to allow defendant to show that the account referred to in the contract was the account in suit, and had been fully paid by B, on the ground that the contract disclosed no privity between plaintiff and defendant.</p>

<p>Appeal from Woodbury District Court. — Hon. A. Van Wagenen, Judge.</p> <p>On the first day of September, 1894, the plaintiff took a personal judgment by default upon certain promissory notes and a decree of foreclosure upon a certain mortgage against the defendants E. W. Skinner, John Hornick, and the Interstate Investment Company, for eighteen thousand, eight hundred and six dollars and twenty-two cents, and two hundred and twenty-eight dollars attorney’s fee, and ten dollars and eighty cents costs. On the-day of October, 1894, the defendants E. W. Skinner and the Interstate Investment Company filed a motion, supported by affidavits, to set aside said default and judgment, upon the ground that they were entered “upon a supposed state of facts which did not in fact exist, and upon an insufficient service of notice.” On October 80, 1894, said motion was overruled, and from that ruling the defendants E. W. Skinner and the Interstate Investment Company appealed.</p>

<p>Appeal from Marshall District Court. — Hon. D. R. Hind-man, Judge.</p> <p>This is a suit in equity, by which the plaintiffs seek to cancel and set aside a special assessment of a tax to pay for paving a street in the city of Marshall-town. There was a full hearing on the merits, and the petition was dismissed. The plaintiffs appeal.-—</p>

<p>On Re-hearing.</p> <p>Negligence: railroads: Oourt and jury. In an action for an injury received while driving in a buggy on a highway running near defendant’s tracks, through the negligent sounding of engine whistle whereby the horses became frightened, there was evidence that the engineer had sounded four blasts of the whistle, when about fifty rods from the team, and eighty rods' from a crossing ahead, toward which the team was making, and gave one blast for brakes when about five hundred feet from the team, and that the team was not exeited thereby; that the team, instead of making the crossing, turned into a field near the track; that when they were one hundred and twenty feet from the track, the engineer again sounded the whistle for a release of brakes, and that, immediately thereafter, the team became unmanageable. The court charged that the said signal to release brakes was not negligence, and then added, “unless the facts and circumstances were such as to render the giving thereof, negligence.” Held, this qualification should not have been added.</p>

<p>Appeal from Polk District Court. — Hon. T. F. Stevenson, Judge.</p> <p>Prior to May 28, 1894, the defendant, Minnie M. Allen, purchased of Elizabeth Allen lot No. 8, in block D, in Day’s addition to the city of Des Moines, Iowa, and gave to said Elizabeth a mortgage upon the whole of said lot. Upon the north side of said lot there stood a frame dwelling house, which had been erected some twelve years previously. The occupants of said house had always used the whole of said lot in connection with said house. May 28, 1894, Minnie M. Allen made a contract with the appellants to furnish lumber for the erection of a frame dwelling house on the south side of said lot. Nothing was said to appellants, at the time the 'material was purchased, about there being a house on the north side of said lot, and the only information given them was to the effect that appellee desired to build a house on the south side of said lot. Up to the time of the purchase of said material, the lot had never been divided, either by conveyances, or fences. Within ninety days from the time of the furnishing of the last item of materials by appellants, appellee, Minnie M. Allen, transferred the north half of said lot, upon which the old house stood, to one Miller. This action is brought to foreclose a ' mechanic's lien claimed upon the whole lot for lumber furnished by appellants, and which went into said house. A decree was entered giving a lien upon the south half of the lot only, and plaintiffs appeal.—</p>

<p>Appeal from Plymouth District Court. — Hon. Scott M. Ladd, Judge.</p> <p>Action to recover upon a policy of insurance of certain personal property, in a certain building, against lost or damage by fire. Plaintiff alleges the issuance of the policy by the defendant to him; the loss of the property by fire, without fault or negligence on his part; the value of the property destroyed; that proofs of the loss, and request for arbitration, were made as required in said policy; and that defendant refuses to pay said loss. Plaintiff asks judgment for one thousand dollars, with interest. Defendant answered admitting the execution of the policy; that the building was burned; that plaintiff made a pretended account of the loss, and a request for arbitration; and that defendant has refused to pay any sum whatever on account of said loss. Defendant denies that the fire occurred without' fault or negligence on the part of the plaintiff, denies that the property was of the value alleged, and denies that the plaintiff has sustained damages to the amount claimed. The defendant alleges, as a complete defense, that said policy provides that if at the date thereof a mortgage or other lien existed, or be thereafter executed, upon the property covered by said policy, it should become void and of no effect; that plaintiff obtained said policy through one Rudolph Koehler, defendant's agent at Le Mars, Iowa; that prior thereto, to-wit, about the fifteenth day of June, 1898, plaintiff executed and delivered to one Moretón a chattel mortgage upon the property covered in whole or in part by said policy, which mortgage continued to exist, in full force and unsatisfied, at the date of said fire, and for a long time thereafter; that the execution, delivery and existence of said mortgage were unknown to defendant and its said agent at the date of said fire, and for some time thereafter. The defendant alleges, as further complete defense, that by the terms of said policy it is stipulated that it should be void' and of no effect, if, without permission therefor in writing thereon, the assured should then have, or thereafter make or procure, any other contracts of insurance, whether valid or not, on property covered .in whole or in part by said policy; that the only stipulation with reference to other insurance in writing, upon said property was written in said policy, to-wit: “$3,000.00 additional concurrent insurance permitted.” Defendant alleges in separate paragraphs, and each as a separate •defense, that plaintiff took out four other policies of insurance, covering the property insured in this policy, and other property held in trust, or on commission, which policies continued in force at the time of said fire, and that the same were not concurrent with this policy, wherefore, defendant alleges, that this policy is rendered void and of no effect. Plaintiff, in reply, admits that this policy was obtained through Eudolph Koehler, defendant’s local agent; admits the execution of said mortgage, and that the same was unsatisfied at the date of said fire; but alleges that, before, and at the date of the execution of said policy, Koehler and the defendant knew that said notes and mortgage had been executed and were unpaid, and, while in possession of such knowledge, caused said policy of insurance to be executed to plaintiff; that neither before, nor at the date of the execution of said policy, did defendant, or its said agent, make inquiry of plaintiff with respect to said mortgage, or any other mortgage, nor did plaintiff make any false statement with respect to said mortgage, or conceal from the defendant the existence of the same; that plaintiff did not make verbal or written application to the defendant for said policy, nor make any representation to it whatever, and that said mortgage was duly filed for record on the sixteenth day of June, 1893, wherefore plaintiff contends, that defendant is estopped from alleging said mortgage as a defense. The case was tried to a jury, and a verdict and judgment rendered in favor of the plaintiff for one thousand dollars.</p> <p>Defendant appeals.</p>

<p>Appeal from Harrison District Court. — Hon. Prank R. G-aynor, Judge.</p> <p>Action for divorce and alimony, and for the custody of the four minor children of the parties. The cause for divorce alleged is inhuman treatment, such, as to endanger the life of the plaintiff. The defendant answered denying the charge of inhuman treatment, and, by way of cross-bill, charges the plaintiff with inhumanly treating him, so as to endanger his life, wherefore, he asks for a divorce. Plaintiff, in reply, denies the allegations in defendant’s cross-bill. Decree was entered in favor of the plaintiff. Defendant appeals.</p>

<p>1 Insurance: breach of policy condition: Illegal business. Evidence that the holder of a policy upon a drug store stock and fixtures is not a registered pharmacist, does not establish the breach of an agreement not to use the building for unlawful purposes. No law requires that the owner of such property) or one conducting such business, shall be such pharmacist; and he may conduct such business by employing a duly qualified pharmacist. McClain’s Code, section 2523.</p> <p>2 Landlord and tenant: Evidence. Where a policy on store fixtures permits the property to be used by a tenant of the insured, evidence that the person who occupied the premises at the time of the fire, was a tenant of the insured, during the month in which the loss occurred, but that shortly before the fire the insured gave to one W, who had traded for the building, an order on the tenant for the last month’s rent, is insufficient to show that the latter was not a tenant of the insured at the time of the fire, so far as the fixtures were concerned.</p>

— Hon. James H. Smythe, Judge. This proceeding 'was instituted in police court, by information, which charged the defendants with the violation of a city ordinance, in running hacks, carriages, and other vehicles for hire and profit, without a license. The defendants were tried in the police court, and found guilty, and appealed to the district court. A jury was waived in that court, and the defendants were acquitted.

<p>1 Deed as Mortgage: evidence. Plaintiff, being indebted, to defendants on book account to the amount of one hundred and sixty dollars, offered to convey a house and lot for four hundred dollars, less the amount of the debt. After the deed was executed, defendants decided not to make the purchase, but agreed to take and hold the deed as security for the debt. Defendants took and held possession of the premises for four years under the deed, leasing the property, and collecting the rents. At the end of that time, plaintiff took possession and made improvements without objection on the part of defendants. Eeld, that the evidence justified the finding that the transaction Avas a mortgage.</p> <p>2 Liability of mortgagee for rents. The defendants, being chargeable with the rents of the property during the time they were in possession, cannot escape their liability by showing that one of the tenants had defrauded them out of a portion of the rent. By taking possession, defendant became chargeable for what a provident owner would, by the use of reasonable diligence, have received.</p>

<p>Appeal from Linn District Court. — Hon. William Gr. Thompson, Judge.</p> <p>Action at law upon a policy of fire insurance. Trial to a jury. Verdict and judgment for plaintiffs, and defendant appeals.</p>

<p>Appeal from Black Hawk District Court. — Hon. J. L. Husted, Judge.</p> <p>Appellant’s statement is so fair that we adopt it, and it is as follows: .“This action is brought under section 1289, of the Code, to recover double damages for injury or destruction of stock by a railway corporation. The petition alleges the corporate character of the defendant company; its duty to construct, maintain, and keep in repair a good, substantial, and lawful fence along its railway track; that its railway track crosses plaintiff’s land; that three colts belonging to plaintiff, and kept by him in his pasture adjacent to defendant’s track, escaped therefrom, and were given access to defendant’s track by reason of the failure of bhe defendant to maintain and keep in repair along its brack a good, substantial, sufficient, and lawful fence, as provided by law; and that, by reason of such failure, the colts escaped from the pasture, and came upon the defendant’s track, where they were killed; the value of the colts; and service of the proper notice and affidavit ppon the company. The defendant’s answer wa» a general denial. On the trial, the plaintiff introduced witnesses by whom the following facts were proved: The defendant’s right of way and railroad track traverses plaintiff’s farm from the southwest to the northeast. Adjoining, plaintiff had a pasture fenced on all sides, fence along the track having been built by the defendant in the summer following the construction of the road. The colts in question were being kept in this pasture. One morning they were found inside the fence on defendant’s right of way, lying about seven feet from the track, covered with bruises and cuts, which indicated that they had been struck by a locomotive. There were also blood and bones and ribs stuck on and scattered along the ties. After proving the above facts, the value of the colts, and service of notice and affidavit, as provided by law, the plaintiff rested. The defendant then moved that a verdict be directed for the defendant on three grounds, the one raising the only question in the case, being that the ‘plaintiff failed to show that the colts in question got upon defendant’s track, and were killed by its train of cars or engine, by reason of a failure to erect' and maintain a fence along its right of way,’ which motion was by the court sustained, and the case now stands for review upon the correctness of such decision.” The plaintiff appealed.</p>

<p>Delivery of Deed: presumptions: Date of acknowledgment. Where a deed, duly acknowledged, is shown to have been in the possession of the grantee, the presumption is that it was delivered, and that the time of delivery was the same as that of acknowledgement.</p>

<p>3 Breach of Contracts proximate damages. In an action, by a contractor with a city, for street work, to recover damages, caused by the stoppage of work under the contract, occasioned by delay on part of the city, the additional cost of materials and labor after work was resumed, is a proper element of damages.</p> <p>1 Pai’ol Variances ordinance Parol evidence is admissible to show the extent of an admitted change of grade in a city street, for the purpose of showing the additional labor involved in the paving of the same, and it is not necessary to introduce the ordinance changing the grade.</p> <p>2 Instructions s applicability . Where the issue is, as to what work a payment made applies, and there is no issue of mistake, it should not be charged that acceptance estops plaintiff to recover, at all, unless there was a mutual mistake as to the amount due.</p>

<p>Appeal from Poweshiek District Court. — Hon. D. Eyan, Judge.</p> <p>Plaintiff, a co-partnership, entered into a contract with the defendant district to furnish all of the material for, and to build, a schoolhouse for said district. This suit is brought to recover a balance of one hundred dollars, claimed to be due on the contract; also the sum of three hundred and ninety-nine dollars and eighty-nine cents, alleged to be due the plaintiff firm for extra work done and materials furnished, which were not provided for by the contract, and for changes made in the work, all of which it is claimed was done at the request of the defendant, and by its direction. The defendant admits the execution of the contract; that the one hundred dollars has not been paid; that certain work was done and material furnished which has not been paid for, to the amount of two hundred and fifty-two dollars and nineteen cents. It charges that the house was not built according to contract, whereby defendant has been damaged in the sum of three hundred and fifty-five dollars in excess of the one hundred dollars due on the contract, and in excess of the extras admitted. Plaintiff, in a reply, in substance, denies all claims for damages,and alleges that the work was done as directed by the architects, who had full power to accept and approve the same; that the same was accepted by said architects; that defendant’s board of directors had knowledge of the acts of the architects, and knew that the work which is now objected to was being done, and made no objection thereto. To this pleading, a denial was filed by the defendant. Other pleadings were filed, which it is not necessary to more fully refer to. The cause was tried to a jury, and a verdict returned for the defendant, upon which judgment was entered, and plaintiff appeals</p>

— Hon. T. M. Fee, Judge. In January, 1890, the defendant county, through its board of supervisors, entered into a written contract with plaintiff, whereby the plaintiff, for the period of one year, was to act as superintendent and foreman, and to perform the work of a bridge hand or carpenter, in the building of bridges in Decatur county, and to receive for each day necessarily so employed, the sum of two dollars and ten cents.

— Hon. Frank B. Gíaynor, Judge. Plaintiff, a judgment creditor of the defendant, A. W. Harris, insolvent, brings this action in equity to set aside three certain bills of sale executed by the ■ defendant, Harris, one to the defendant bank, and the other two to defendant, H. E. Thayer, as assignee of said bank.

— Hon. S; F. Balliett, Judge. Action at law to recover of defendant, a stockholder in the Des Moines, Osceola & Southern Railway-Company, the amount of a judgment obtained by plaintiff against said company.

— Hon. W. A. Spur rier, Judge. Plaintiff, as assignee in trust of two judgments against the defendant coal and mining company, Isaac Brandt, and J. C. Macy, brings this action in equity to set aside certain conveyances of real estate made by the defendant Brandt to a number of persons severally, including the defendants, A. Holland, C. H. Dilworth, and George G. Wright, Sr., and to declare said judgments senior and superior liens on said real estate.

— Hon. C. M. Waterman, Judge. Action at law to recover for personal injuries alleged to have been caused by the negligence of the defendant in not repairing a defective sidewalk. There was a trial by jury, and a verdict and judgment in favor of the plaintiff for one thousand one hundred dollars. The defendant appeals.

. Appeal from Black Hawk District Court. — Hon. J. L. Husted, Judge. Action at law to recover damages for alleged breaches of contract. The defendant sought to recover on a counter-claim. At the conclusion of the evidence for the plaintiff, the court directed a verdict for the defendant, and rendered judgment in his favor. The plaintiff appeals.

— Hon. James D. Smythe, Judge. The defendant is the executrix of the estate of Mary N. Poole, deceased, and the plaintiff is her surviving husband. In August, 1894, the plaintiff filed an application asking the court to require the executrix to file an inventory of the personal effects of the estate, it being more than fifteen days since her appointment. To the application the executrix filed an answer as follows: (1) Denies the right of Edward Poole to such relief.

— Hon. A. R. Dewey, Judge. Action to enjoin the defendant city and the other defendants, its officers, from interfering with the plaintiff m building, maintaining, and operating street railway tracks upon a certain part of East High avenue, in said city. Issues were joined, and upon hearing, a decree was entered denying the writ, and dismissing plaintiff’s petition. Plaintiff appeals.

— Hon. T. M. Gtberson, Judge. Plaintiffs claim, that from January 1, 1887, to and including January 1, 1891, they shipped over the defendant’s line of railway, from Cedar Bapids, Iowa, egg cases and cases of eggs; that defendant returned the weights of the cases of eggs at sixty pounds, and the egg cases at from twelve to twenty pounds, and so charged the plaintiffs for such weights; and avers that, in fact, the cases • of eggs weighed only fifty-five pounds, and the egg…

— Hon. Joseph C. Burk, Judge. Action in equity for judgment on a paving assessment certificate issued by the city of Keokuk to the plaintiff, and for decree establishing the same as a lien’ upon certain real estate belonging to' the defendant, and- foreclosing said lien. The issues will sufficiently appear in the opinion. Decree was entered in favor of the plaintiff. Defendant appeals.

— Hon. S. H. Fair all, Judge. Action at law to recover of the county an amount of money which it is claimed the treasurers thereof unlawfully retained as compensation for collecting certain taxes’for the plaintiff during the years 1880 to 1890, inclusive.

— Hon. D. it. Hind-man, Judge. Action ■ at law to recover back money paid for intoxicating liquors sold by the defendant to plaintiff’s assignors, in violation of law. There was a trial by jury, and a verdict and judgment for the plaintiff. Defendant .appeals.

— Hon. James D. Smythe, Judge. Action at law upon a promise of defendant to pay a debt of one W. D. Gilbert (plaintiff’s testator) and one Brenizer to the German-American Savings Bank which debt the plaintiff paid before the commencement of this suit. The defense is a general denial, and want and failure of consideration for the alleged agreement.

— Hon. N. B. Hyatt, Judge. Action for the recovery of specific personal property. Judgment for the defendant, and the plaintiff appeals.

— Hon. A. B. Thornell, Judge. Action at law upon a promissory note for five hundred and forty-three dollars and twenty cents, executed February 27, 1893, by the defendants to the Cass County Bank or order, due in one year, which plaintiff alleges was assigned to it by the payee, for value, before maturity.

— Hon. S. M. Weaver, Judge. Action at law, to recover compensation, alleged to be due for services rendered in effecting a sale of real estate. After the evidence on the part of the plaintiff had been submitted, the court directed a verdict and rendered judgment in favor of the defendant. The plaintiff appeals.

— Hon. John O. Sherwin, Judge. Proceeding in equity to restrain an execution sale of real estate, to quiet in the plaintiff the title thereto, and for general equitable relief. There was a hearing on the merits, and a decree in favor of the plaintiff. The defendants, William Peering and Robert Lindon, sheriff, appeal.

— Hon. J. C. Sherwin, Judge. Action in equity to rescind a contract of purchase of certain real estate on the ground of fraud, and for judgment for the purchase price paid. The defendant answered, denying the allegations of fraud. Decree was rendered canceling the contract, and judgment was entered in favor of the plaintiffs for one thousand four hundred and twenty-six dollars and costs. Defendant appeals.

— Hon. N. W. Maoy, Judge. Action at law to recover certain sums of money alleged to have been illegally levied as taxes by the defendant, and collected from the plaintiffs. There was a trial before the court, and judgments were rendered for the defendant for costs. Plaintiffs appeal.

- — Hon. Benjamin McCoy, Judge. Action in equity, to enforce an order of the railroad commissioners, requiring the defendant to construct and maintain, for the complainant, Alexander Warnock, on his farm, an undergrade passageway hr stock, in addition to his present grade crossing.

— Hon. Frank R. Gaynor, Judge. Intervener Louise Larson, in the summer of 1894, recovered a judgment for personalinjuries against the defendant, the. Riverside Park Railway Company, for seven thousand five hundred dollars. More than two years prior thereto, said defendant company was organized under the laws of the state of Iowa, and con-' structed and owned a railway track, electrical equipments, wires, poles, electric motors, and street cars.

<p>1 Garnishing Debt: selling property mortgaged, in part, for lottery tickets: Oonstruotion of statutes. Under Code section 4029, providing that all notes or contracts, mortgages, etc., when any part of the consideration thereof is money laid, staked, or bet at or upon, any game or wager, are absolutely void; a note and chattel mortgage, part of the consideration of which is the price of tickets for a raffle of a piano, are void and no prosecution lies for selling the mortgaged property without the consent of the mortgagee.</p> <p>2 Same. The illegal character of the transaction is not affected by the fact that the raffle never took place.</p> <p>3 Malicious Prosecution: advice of Attorney. In an action for malicious prosecution, it is no defense that defendant submitted the case to the prosecuting attorney, and acted on his advice, when it appears that all the facts bearing on the question of probable cause were not submitted.</p>

— Hon. C. M. Waterman, Judge. Action at law, to recover damages from defendant city, for causing the overflow of water upon the plaintiff’s property. Trial to a jury. Yerdict and judgment for plaintiff. Defendant appeals.

— Hon. Lot Thomas, Judge. Plaintiff sues upon a written order, executed by the defendant, for a harvester. The order is in the usual form, and authorizes the plaintiff to ship to the defendant on or before July 1, 1894, the machine in question, fixes the terms of payment, and contains a warranty.

W.. A. Hoyt, Judge. Action in equity, commenced September 2, 1891, to recover judgment against tbe defendant Shaw, upon a promissory note for five hundred dollars, executed by him, payable to Laura M. Shaw, or order, “September 2, 1881, after date,” with ten per cent, interest per annum from date, payable annually. Also for decree foreclosing a mortgage on certain real estate, given to secure the payment of said note. The note set out is indorsed: “Without recourse.

— Hon. C. P. Holmes, Judge. Action at law to recover damages on the ground that certain alleged acts of negligence on the part of the defendant’s employes caused the death of plaint-. iff’s intestate, without fault on his part, while in the employment of the defendant as a switchman, and in the line of his duties.

— Hon. W. F. Conrad, Judge. From the petition it appears that September 19, 1891, the plaintiff paid to the defendant society the sum of five hundred dollars and forty cents, the same being three annual premiums on a three thousand dollar bond or policy of insurance on his life, which policy was afterwards issued to plaintiff; that on the nineteenth day of September, 1892, the defendant sent to plaintiff a receipt for one hundred and sixty-six dollars and eighty cents, being…

— Alois. J. E. F. McGee, Judge. John N. Baldwin is the owner of a building built by him in 1890 and 1891, in Council Bluffs, Iowa, and the defendant Murphy was the contractor for building it. The plaintiff company contracted to furnish the terra-cotta work for the building, and did so. The contract price for such work was two. thousand six hundred and twenty-five dollars.

<p>Assignment of Policy: construction. An assignment of a life insur- • ranee policy to an assignee, by name, and his executors, administrators and assigns, as their interests may appear, in consideration of the payment to the insured of one dollar, and the payment of the premiums thereon as they should accrue, passes to the assignee only so much of the policy as is necessary to reimburse him for the amount expended to keep it in force, with interest thereon.</p>

— Hon. S. M. Weaver, Judge. This is an action originally commenced by plaintiff against E. W. McFarland, to recover damages for alienating the affections of his wife, and for criminal conversation with her some time during the year 1894. The case was tried to a jury, resulting in a verdict and judgment for plaintiff, in the sum of one thousand five hundred dollars. The defendant appealed.

— Hon. C. D. Goldsmith, Judge. This is a suit in equity, in which the plaintiff demands an injunction restraining the defendants from tearing down and removing a fence which incloses plaintiff’s land. There was a decree for the defendants, and plaintiff appeals.

— Hon. W. B. Quarton, Judge. Action in equity to recover the amount due on certain promissory notes, and to foreclose a chattel mortgage executed to secure their payment. There was a hearing on the merits and a judgment in favor of the plaintiff. The defendants appeal.

— Hon. Walter I. Smith, Judge. Action in equity for an accounting and to recover money received. There was a hearing on the merits, and a judgment in favor of the plaintiff. The plaintiff appeals.

— Hon. S. M. Weaver, Judge. Action to recover the value of certain personal property. The action was dropped from the judge’s calendar for want of prosecution, and from a ruling refusing to reinstate the case the plaintiff appealed.—

— Hon. Z. A. Church, Judge. This cause, involving less than one hundred dollars, comes to this court upon a certificate of the trial judge. From said certificate it appears: That the action was begun before a justice of the peace. That said justice rendered and entered -upon his docket a judgment in favor of the plaintiff for forty dol1 lars.

— Hon. Robert Sloan, Judge. Action at law to recover judgment upon a promissory note dated November 7, 1890, for three thousand, five hundred and fifty-three dollars and forty-two cents, payable ninety days after date to the plaintiff, and purporting to be signed by C. W. Worman, Mrs. O. W. Worman, and J. A. Worman. O. W. Worman and Mrs. C. W. Worman failed to appear, and default was entered against them.

A.. R. Dewey, Judge. The defendant, Annie E. Wilson, is a judgment debtor of the plaintiff. Her husband died, having a beneficiary certificate in the association garnished. The association answered that one thousand five hundred dollars were due from it to the defendant.

— Hon. Lot Thomas, Judge. Action at. law for the fraudulent conversion of certain notes. The defense was the statute of limitations, a denial of the allegations of the petition, and a claim that the defendant is a good-faith holder of the notes, for value. The case was tried to a jury, resulting in a verdict and judgment for the plaintiff in the sum of one thousand four hundred dollars. Defendant appeals.

— Hon. James D. Smyth, Judge. Action in equity to enforce an alleged parol gift of a certain eighty acres of land, made by the defendant, James Wilson, and to cancel a conveyance of said land made by him to the defendant, Hausman. Defendants answered separately, denying the alleged gift, and averring that the land is the property of the defendant, Hausman. Decree was entered dismissing plaintiff's petition, from which she appealed. —

<p>Appeal from Shelby District Court. — Hon. A. B. TeIornell, Judge.</p> <p>Action for false imprisonment. The court sustained a demurrer to plaintiff’s petition, and plaintiff appeals.</p>

- — -Hon. Gr. W. Paine, Judge. The plaintiff claims that on the evening of October 20, 1891, in company with another lady, she undertook to pass over Second street', in the town of Manson, Iowa, on the sidewalk crossing the same at a, point near the northwest corner of the crossing of Main street and Second street, and that, without negligence on her part, and without knowledge of the existence of an excavation, and of its close proximity to said cross walk, she fell into an…

— Hon. A. B. ThorNEiiL, Judge. Action at law to recover for services rendered, and supplies furnished a pauper. A demurrer to one count of the petition was overruled. The defendant refused to plead further, and appeals.

— Hon. C. D. Goldsmith, Judge. Action at law on a policy of insurance, to recover for loss caused by fire. After the evidence for each party had been submitted, the court directed a verdict for the plaintiff, and rendered judgment in his favor. The defendant appeals.

- — Hon, C. H. Lewis, Judge. Action to recover for personal injuries received by being run over by moving cars operated by defendant, while in the employ of defendant as section foreman, because, of defendant’s employes negligently cutting, or permitting a train to break, in two parts, and neglecting to stop the detached cars, or to give any proper warning to plaintiff of their approach.